EXHIBIT 2.2
EXECUTION COPY
STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "Agreement") dated as of May 28, 2003
is between Edge Petroleum Corporation, a Delaware corporation ("Parent"), and
those persons set forth on Exhibit A (each, a "Stockholder" and collectively,
the "Stockholders").
RECITALS
WHEREAS, Parent, Edge Delaware Sub Inc., a Delaware corporation and a
direct, wholly owned subsidiary of Parent ("Merger Sub"), and Xxxxxx Exploration
Company, a Delaware corporation (the "Company"), are entering into an Agreement
and Plan of Merger dated as of the date hereof (as amended from time to time
pursuant thereto, the "Merger Agreement");
WHEREAS, each Stockholder is the record and beneficial owner of the
number of shares of common stock, par value $.01 per share, of the Company (the
"Company Common Stock") set forth opposite such Stockholder's name on Exhibit A
(such shares of Company Common Stock, together with any shares of capital stock
of the Company acquired by such Stockholder after the date hereof and during the
term of this Agreement, being collectively referred to herein as such
Stockholder's "Shares");
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, and as an inducement to it to do so, the Stockholder has
agreed for the benefit of Parent as set forth in this Agreement; and
WHEREAS, the Board of Directors of the Company has approved the
Stockholder's entering into this Agreement, the form of this Agreement and the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereby agree as follows (terms defined in the Merger Agreement and used
but not defined herein having the meanings assigned to such terms in the Merger
Agreement):
ARTICLE 1
COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby covenants as follows:
Section 1.1 Agreement to Vote; Waiver of Dissenter's Rights. (a) At
any meeting of the stockholders of the Company held prior to the earlier of (i)
the Effective Time of the Merger and (ii) the termination of the Merger
Agreement (but in no event beyond March 31, 2004)
(such earlier time being herein referred to as the "Voting Termination Date"),
however called, and at every adjournment or postponement thereof prior to the
Voting Termination Date, or in connection with any written consent of the
stockholders of the Company given prior to the Voting Termination Date, such
Stockholder shall vote or cause to be voted such Stockholder's Shares (together
with (a) any additional shares of capital stock of the Company or any securities
or other property that the Stockholder is or becomes entitled to receive from
the Company by reason of being a record holder of such number of Shares, (b) any
capital stock, securities or other property into which any such number of Shares
shall have been or shall be converted or changed, whether by amendment to the
Certificate of Incorporation of the Company, merger, consolidation,
reorganization, capital change or otherwise, (c) any additional Company Common
Stock acquired by the Stockholder as the result of the Stockholder's exercising
an option, warrant or other right to acquire shares of capital stock from the
Company issued with respect to such number of Shares (all of the foregoing
hereinafter collectively referred to as such Stockholder's "Additional Shares"))
in favor of the adoption of the Merger Agreement and any actions required in
furtherance hereof and thereof. Such Stockholder shall not enter into any
agreement or understanding with any person prior to the Voting Termination Date,
directly or indirectly, to vote, grant any proxy or give instructions with
respect to the voting of such Stockholder's Shares (and any Additional Shares)
in any manner inconsistent with the preceding sentence and in any case (except
as set forth in the next sentence) will not vote in favor of any Xxxxxx
Acquisition Proposal prior to the Voting Termination Date. Notwithstanding the
foregoing, the obligations of Guardian Energy Management Corp. ("Guardian") set
forth in Section 1.1(a) shall terminate in the event that the Board of Directors
of the Company withdraws, modifies or changes its recommendation under Section
7.4(b)(i) of the Merger Agreement.
(b) The Stockholders hereby waive and agree not to exercise
any applicable "appraisal rights" as contemplated by the Delaware General
Corporation Law or otherwise with respect to the Shares and any Additional
Shares in connection with the Merger and the Merger Agreement.
Section 1.2 Proxies and Voting Agreements. Such Stockholder hereby
revokes, and otherwise agrees to take all actions necessary to revoke, any and
all previous proxies granted with respect to matters set forth in Section 1.1.
Prior to the Voting Termination Date, such Stockholder shall not, directly or
indirectly, except as contemplated hereby, grant any proxies or powers of
attorney with respect to matters set forth in Section 1.1, deposit any of such
Stockholder's Shares (or any Additional Shares) or enter into a voting agreement
with respect to any of such shares.
Section 1.3 No Solicitation.
(a) From and after the date hereof until the Voting Termination
Date, such Stockholder will not, and will not authorize or permit any of its
officers, directors, employees, agents or representatives (collectively,
"Stockholder Representatives") to, or upon becoming aware of it will use best
efforts to stop such person from continuing to, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing material non-public
information), or
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take any action designed to facilitate, directly or indirectly, any inquiry,
proposal or offer (including, without limitation, any proposal or offer to the
Company's stockholders) with respect to a Xxxxxx Acquisition Proposal or
cooperate with or assist, participate or engage in any discussions or
negotiations concerning a Xxxxxx Acquisition Proposal.
(b) Such Stockholder shall immediately cease and cause to be
terminated any existing negotiations with any parties conducted heretofore by
such Stockholder or Stockholder Representatives with respect to any Xxxxxx
Acquisition Proposal.
(c) Prior to the Voting Termination Date, such Stockholder will
promptly notify Parent orally and in writing of any requests for information
made to such Stockholder or any Stockholder Representative or the receipt of any
Xxxxxx Acquisition Proposal made to such Stockholder or any Stockholder
Representative or any inquiry with respect to (including, without limitation,
any inquiry as to the Company's willingness or ability to entertain offers,
proposals or engage in discussions or negotiations), or that could lead to, a
Xxxxxx Acquisition Proposal, including the identity of the person or group
engaging in such discussions or negotiations, requesting such information or
making such Xxxxxx Acquisition Proposal, and the material terms and conditions
of any Xxxxxx Acquisition Proposal.
(d) Prior to the Voting Termination Date, such Stockholder shall not
enter into any agreement with any person or group that provides for, or in any
way facilitates, a Xxxxxx Acquisition Proposal.
(e) The provisions of this Section 1.3 do not prohibit any
Stockholder or Stockholder Representative who also serves in the capacity of
officer, director, employee, agent or other representative of the Company from
taking actions in such other capacity to the extent permitted by Section 7.4(b)
of the Merger Agreement.
Section 1.4 Transfers. Nothing in this Agreement shall prevent such
Stockholder from assigning or transferring such Stockholders' Shares to any
spouse or former spouse, parent, child, trust, trust beneficiary, estate, family
partnership, partner, foundation (whether family, private or public) or
charitable organization (each, a "Permitted Transferee"), provided that such
Permitted Transferee agrees in writing to hold the transferred or assigned
Shares subject to all of the provisions of this Agreement applicable to such
Stockholder.
Section 1.5 Other Actions. Prior to the Voting Termination Date,
such Stockholder shall not take any action that would in any way restrict,
limit, impede or interfere with the performance of its obligations hereunder or
the transactions contemplated hereby or by the Merger Agreement.
Section 1.6 Guardian Warrant. By execution hereof, Guardian agrees
that the second sentence of Section 3.1 of that certain Warrant to purchase
9,000,000 shares of Company Common Stock, dated as of July 11, 2000, shall have
no force and effect as of the Effective Time.
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ARTICLE 2
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF THE STOCKHOLDERS
Each Stockholder represents, warrants and covenants to Parent that:
Section 2.1 Ownership. Such Stockholder is as of the date hereof the
beneficial and record owner of such Stockholder's Shares, such Stockholder has
the sole right to vote such Stockholder's Shares and there are no restrictions
on rights of disposition or other lien, pledge, security interest, charge or
other encumbrance or restriction pertaining to such Stockholder's Shares. None
of such Stockholder's Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of the such Stockholder's
Shares, and no proxy, power of attorney or other authorization has been granted
with respect to any of such Stockholder's Shares.
Section 2.2 Authority and Non-Contravention. Such Stockholder has
the right, power and authority, and such Stockholder has been duly authorized by
all necessary action (including consultation, approval or other action by or
with any other person), to execute, deliver and perform this Agreement and
consummate the transactions contemplated hereby. Such actions by such
Stockholder (a) require no action by or in respect of, or filing with, any
governmental or regulatory authority with respect to such Stockholder, and (b)
do not and will not contravene or constitute default under any provision of
applicable law or regulation or any agreement, judgment, injunction, order,
decree or other instrument binding on such Stockholder or result in the
imposition of any lien, pledge, security interest, charge or other encumbrance
or restriction on any of such Stockholder's Shares (other than as provided in
this Agreement with respect to such Stockholder's Shares).
Section 2.3 Binding Effect. This Agreement has been duly executed
and delivered by such Stockholder and is the valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
Section 2.4 Total Shares. Such Stockholder's Shares are the only
shares of capital stock of the Company owned beneficially or of record as of the
date hereof by such Stockholder, and such Stockholder does not have any option
to purchase or right to subscribe for or otherwise acquire any securities of the
Company (except as set forth in the footnotes to Exhibit A) and has no other
interest in or voting rights with respect to any other securities of the
Company.
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Section 2.5 Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from the Company, Parent or Merger Sub in
respect of this Agreement based upon any arrangement or agreement made by or on
behalf of such Stockholder, except as otherwise provided in the Merger
Agreement.
Section 2.6 Reasonable Efforts. Prior to the Voting Termination
Date, such Stockholder shall use reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the Company and Parent in doing, all things necessary, proper or advisable
to consummate and make effective the Merger and the other transactions
contemplated by the Merger Agreement and this Agreement.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARENT
Parent represents, warrants and covenants to each Stockholder that:
Section 3.1 Corporate Power and Authority. Parent has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Parent of this
Agreement and the consummation by Parent of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent and do not and will not contravene, or constitute a default under, any
provision of applicable law or regulation or any agreement, judgment,
injunction, order, decree or other instrument binding upon Parent.
Section 3.2 Binding Effect. This Agreement has been duly executed
and delivered by Parent and is a valid and binding agreement of Parent,
enforceable against Parent in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights generally and by equitable principles to which the
remedies of specific performance and injunctive and similar forms of relief are
subject.
ARTICLE 4
GENERAL PROVISIONS
Section 4.1 Expenses; Attorneys' Fees. Each party hereto shall pay
its own expenses incident to preparing for, entering into and carrying out this
Agreement and the
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consummation of the transactions contemplated hereby. If any action at law or in
equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements, in addition to any other relief to which such party may
be entitled.
Section 4.2 Further Assurances. From time to time, at the request of
any other party, each party shall execute and deliver or cause to be executed
and delivered such additional documents and instruments and take all such
further action as may be necessary or desirable to consummate the transactions
contemplated by this Agreement.
Section 4.3 Notices. Any notice required to be given hereunder shall
be sufficient if in writing, and sent by facsimile transmission or by courier
service (with confirmation of receipt or proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid), addressed as follows:
(a) if to Parent:
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxx L.L.P.
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
(b) if to any Stockholder, at such address or facsimile number
indicated opposite the name of such Stockholder on Exhibit A.
with a copy to the Company and its counsel:
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
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Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx Early
Facsimile: (000) 000-0000
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated or personally delivered or three business days after so mailed.
Section 4.4 Assignment; Binding Effect; Benefit. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective heirs, successors, executors, administrators and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement. Each Stockholder agrees that this Agreement and the obligations
hereunder shall attach to the Shares beneficially owned by such Stockholder and
shall be binding upon any person to which legal or beneficial ownership of such
shares shall pass, whether by operation of law or otherwise.
Section 4.5 Entire Agreement. This Agreement and any documents
delivered by the parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto.
Section 4.6 Amendments. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto.
Section 4.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws.
Section 4.8 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF THIS AGREEMENT.
Section 4.9 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an
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original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
Section 4.10 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretative effect whatsoever.
Section 4.11 Interpretation. Unless the context otherwise requires,
words describing the singular number shall include the plural and vice versa,
and words denoting any gender shall include all genders and words denoting
natural persons shall include corporations and partnerships and vice versa.
Section 4.12 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 4.13 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 4.14 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
[Signature Page Follows]
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IN WITNESS WHEREOF, Parent and the Stockholders have caused this
Agreement to be duly executed as of the day and year first above written.
EDGE PETROLEUM CORPORATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
STOCKHOLDERS
GUARDIAN ENERGY MANAGEMENT CORP.
By: /s/ Xxxx X Xxxxxxx
---------------------------------
Name: Xxxx X Xxxxxxx
Title: Vice President - Operations
/s/ X.X. Xxxxxx
-------------------------------------
X.X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
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/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
Xxxxxx X. Xxxxxx Trust
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, Trustee of the
Xxxxx X. Xxxxxx Trust
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, Trustee of the
Xxxxxx Oil Corporation Savings Plan
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EXHIBIT A
ADDRESS AND
STOCKHOLDER NUMBER OF SHARES OWNED FACSIMILE NUMBER
----------------------------------- ---------------------- -----------------------------
Guardian Energy Management Corp. 370,371 0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
(000) 000-0000
X. X. Xxxxxx 13,288 0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000
Xxxxx X. Xxxxxx 163,936 0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000
Xxxxxx X. Xxxxx 38,820 0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000
Xxxx X. Xxxxxxx 32,155 0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
(000) 000-0000
Xxxxxxx X. Xxxxxxx 17,365 0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000
Xxxxx X. Xxxxxx 97,774 0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Xxxxxx X. Xxxxxx, 127,551 0000 Xxxx Xxxxxx Xxxxx
Trustee of the Xxxxxx X. Xxxxxx Xxxxxxxx, Xxxxxxxx 00000
Trust (000) 000-0000
Xxxxx X. Xxxxxx, Trustee of the 127,550 00000 Xxxxx Xxxx
Xxxxx X. Xxxxxx Trust Xxxxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000
Xxxxx X. Xxxxxx, Trustee of the 55,537 0000 Xxxxx Xxxxxx Xxxx
Xxxxxx Oil Corporation Savings Plan Xxxxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000
