VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and
entered into this 25th day of November, 1997, by and among B. ▇▇▇▇
▇▇▇▇▇, a Texas resident, Don ▇▇ ▇▇▇▇▇▇▇▇, a Texas resident, Energy
Capital Investment Company PLC, an English investment company
("Energy PLC"), and EnCap Equity 1994 Limited Partnership, a Texas
limited partnership ("EnCap LP").
RECITALS:
A. Messrs. Price and ▇▇▇▇▇▇▇▇ are shareholders in Future Petroleum
Corporation, a Utah corporation ("Future"), and are herein sometimes
called the "Existing Shareholders".
B. Future, Energy PLC, EnCap LP, and Gecko Booty 1994 I Limited
Partnership, a Texas limited partnership ("Gecko Booty"), are
entering into that certain Purchase and Sale Agreement of even date
herewith (the "Purchase Agreement"), whereby (i) Energy PLC and
EnCap LP will sell to Future, and Future will purchase from Energy
PLC and EnCap LP, certain limited partnership interests more
particularly described in the Purchase Agreement, in exchange for
promissory notes issued by Future and shares of common stock of
Future, $0.01 par value per share ("Common Stock"), and (ii) Gecko
Booty will sell to Future, and Future will purchase from Gecko Booty,
certain oil, gas and/or mineral leases and related assets of Gecko
Booty, in exchange for a promissory note issued by Future. Energy
PLC and EnCap LP are herein sometimes called the "New
Shareholders" and Energy PLC and EnCap LP are herein sometime
called the "EnCap Entities".
C. Under the Purchase Agreement, Future has made certain
agreements with the New Shareholders with respect to the
appointment and election to the Board of Directors of Future of certain
persons designated by the EnCap Entities. Any person or persons so
designated by the EnCap Entities under the Purchase Agreement shall
be herein called an "EnCap Designee".
D. The parties hereto deem it in their mutual best interests to enter
into this Agreement, it being specifically acknowledged that the New
Shareholders would not be willing to enter into the Purchase
Agreement and consummate the transactions thereby without the
covenants and agreements of the Existing Shareholders.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the foregoing
Recitals and the mutual agreements contained herein, the sufficiency
of which is hereby acknowledged and confirmed, the parties hereto,
intending to be legally bound hereby, agree as follows:
Section 1. Voting Agreement Regarding Designated Nominees.
(a) So long as Future is required under either Section 10.11 or Section
12.2 of the Purchase Agreement to appoint or nominate (or cause to be
nominated) an EnCap Designee to the Future Board of Directors, each
Existing Shareholder (i) shall vote or cause to be voted all Voting
Securities beneficially owned by such Existing Shareholder in favor of
the EnCap Designee's election to Future's Board of Directors and (ii)
shall use his reasonable best efforts to cause the EnCap Designee to be
elected to Future's Board of Directors. As used herein, the term
"Voting Securities" shall mean Common Stock and any other
securities of Future entitled to vote generally for the election of
directors of Future.
(b) If EnCap Designees have been appointed to Future's Board of
Directors under Section 12.2 of the Purchase Agreement (and are so
serving), such EnCap Designees agree to nominate for election
nominees designated by the Existing Shareholders.
Section 2. Representations and Warranties of Existing Shareholders.
Each Existing Shareholder hereby severally represents and warrants
to the EnCap Entities as follows:
(a) Such Existing Shareholder is the record and beneficial owner of
the number of shares of Common Stock set forth opposite his name in
the attached Exhibit 2(a).
(b) Such Existing Shareholder has full power and authority to
execute, deliver, and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Existing Shareholder and constitutes a
valid and legally binding obligation of such Existing Shareholder,
enforceable against such Existing Shareholder in accordance with its
terms.
(c) The execution, delivery, and performance by such Existing
Shareholder of this Agreement do not and will not (i) conflict with or
result in a violation of any provision of, or constitute (with or without
the giving of notice or the passage of time or both) a default under, or
give rise (with or without the giving of notice or the passage of time or
both) to any right of termination, cancellation, or acceleration under,
any bond, debenture, note, mortgage, indenture, lease, contract,
agreement, or other instrument or obligation to which such Existing
Shareholder is a party or by which such Existing Shareholder or any of
its properties may be bound or (ii) violate any applicable law, rule or
regulation binding upon such Existing Shareholder.
(d) No consent, approval, order, or authorization of, or declaration,
filing, or registration with, any court or governmental agency or of any
third party is required to be obtained or made by such Existing
Shareholder in connection with the execution, delivery, or
performance by such Existing Shareholder of this Agreement.
Section 3. Survival of Provisions. All representations, warranties and
covenants made by each party hereto in this Agreement or any other
document contemplated hereby shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and
delivery of this Agreement or such other document, regardless of any
investigation made by or on behalf of any such party.
Section 4. Entire Agreement. This Agreement and the other
documents contemplated hereunder contain the entire understanding
of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations, and
discussions among the parties with respect to such subject matter.
Section 5. Amendments. This Agreement may be amended, modified,
supplemented, restated or discharged only by an instrument in writing
signed by all of the parties hereto.
Section 6. No Waiver. The failure of any party hereto to insist upon strict
performance of a covenant hereunder or of any obligation
hereunder, irrespective of the length of time for which such failure
continues, shall not be a waiver of such party's right to demand strict
compliance in the future. No consent or waiver, express or implied, to
or of any breach or default in the performance of any obligation
hereunder shall constitute a consent or waiver to or of any other breach
or default in the performance of the same or any other obligation
hereunder.
Section 7. Choice of Law. This Agreement shall be governed by the
laws of the State of Utah.
Section 8. Successors and Assigns. This Agreement shall be binding
on and inure to the benefit of the parties hereto and their respective
successors and assigns.
Section 9. References and Construction.
(a) All references in this Agreement to articles, sections, subsections
and other subdivisions refer to corresponding articles, sections,
subsections and other subdivisions of this Agreement unless expressly
provided otherwise.
(b) Titles appearing at the beginning of any of such subdivisions are
for convenience only and shall not constitute part of such subdivisions
and shall be disregarded in construing the language contained in such
subdivisions.
(c) The words "this Agreement", "this instrument", "herein", "hereof",
"hereby", "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular subdivision unless
expressly so limited.
(d) Words in the singular form shall be construed to include the plural
and vice versa, unless the context otherwise requires.
(e) Unless the context otherwise requires or unless otherwise provided
herein, the terms defined in this Agreement which refer to a particular
agreement, instrument or document also refer to and include all
renewals, extensions, modifications, amendments or restatements of
such agreement, instrument or document, provided that nothing
contained in this subsection shall be construed to authorize such
renewal, extension, modification, amendment or restatement.
(f) Examples shall not be construed to limit, expressly or by
implication, the matter they illustrate.
(g) The word "includes" and its derivatives means "includes, but is not
limited to" and corresponding derivative expressions.
(h) No consideration shall be given to the fact or presumption that one
party had a greater or lesser hand in drafting this Agreement.
(i) All references herein to "$" or "dollars" shall refer to U.S. Dollars.
Section 10. Endorsements. The certificate or certificates representing
the Voting Securities now owned or hereafter acquired by the Existing
Shareholders shall have conspicuously stamped, printed, or typed on
the face or back thereof a legend substantially in the following form:
dated as of November 25, 1997, by and among B. ▇▇▇▇ ▇▇▇▇▇, Don
Wm. ▇▇▇▇▇▇▇▇, Energy Capital Investment Company PLC, and EnCap
Equity 1994 Limited Partnership. A copy of the Voting Agreement
and all applicable amendments thereto will be furnished by the
Company to the holder hereof without charge upon written request to
the Company at its principal place of business or registered office."
Section 11. Specific Performance. Each of the parties hereto
recognizes that any breach of the terms of this Agreement may give
rise to irreparable harm for which money damages would not be an
adequate remedy, and accordingly agree that, in addition to other
remedies, any nonbreaching party shall be entitled to enforce the terms
of this Agreement by a decree of specific performance without the
necessity of proving the inadequacy as a remedy of money damages.
Section 12. Counterparts. This Agreement may be executed in
multiple counterparts, with each such counterpart constituting an
original and all of such counterparts constituting but one and the same
agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date and year first above written.
/s/ B. ▇▇▇▇ ▇▇▇▇▇
Name: B. ▇▇▇▇ ▇▇▇▇▇
/s/ Don Wm. ▇▇▇▇▇▇▇▇
▇▇▇ Wm. ▇▇▇▇▇▇▇▇
ENCAP EQUITY 1994 LIMITED PARTNERSHIP
By: EnCap Investments L.C., General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
ENERGY CAPITAL INVESTMENT COMPANY PLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
