EXHIBIT 1
VOTING AGREEMENT
THIS VOTING AGREEMENT is made as of September 22, 2003 by the
undersigned shareholder (the "Shareholder") of United States Exploration, Inc.,
a Colorado corporation ("UXP"), for the benefit of DGL Acquisition Corp.,
Delaware corporation (the "Purchaser.")
RECITALS
Pursuant to the terms of an Agreement and Plan of Merger of
even date herewith (the "Merger Agreement") among UXP, the Purchaser and DGL
Mergerco, Inc., a Colorado corporation ("Mergerco"), the Purchaser has agreed to
acquire UXP in a merger in which the outstanding shares of Common Stock of UXP
will be converted into the right to receive $2.82 per share in cash (the
"Merger.") As a condition to its willingness to enter into the Merger Agreement,
the Purchaser has required that the Shareholder agree, and the Shareholder is
willing to agree, to the matters set forth herein.
AGREEMENT
Accordingly, in consideration of the agreements of the
Purchaser in the Merger Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Shareholder, intending to be legally bound hereby, agrees as follows for the
benefit of the Purchaser:
1. Representations and Warranties of Shareholder.
(a) Ownership. The Shareholder represents and warrants to the
Purchaser that he is the record and/or beneficial owner of and has the sole
power to vote or direct the voting of the number of shares of UXP Common Stock
set forth opposite his signature below (together with any other shares of UXP
Common Stock or other voting capital stock acquired by the Shareholder prior to
the termination of this Agreement, the "Shares.") As of the date hereof, listed
opposite the name of the Shareholder on the signature page hereof are all the
Shares, which constitute all of the shares of UXP Common Stock held of record,
owned by or for which voting power or disposition power is held or shared by the
Shareholder or any of its affiliates, and in each case identifies the record
owner of such Shares on the stock transfer records of UXP if the Shareholder is
not the record owner. The Shareholder has and will have at all times through the
Effective Time (as defined in the Merger Agreement) sole voting power, sole
power of disposition, sole power to issue instructions with respect to the
matters set forth in this Agreement hereof and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Shares, with no limitations, qualifications or restrictions on such rights,
subject to applicable federal securities laws and the terms of this Agreement.
(b) No Inconsistent Agreements. The Shareholder hereby
covenants and agrees that, except for this Agreement, the Shareholder (i) has
not entered into any voting agreement or voting trust with respect to the Shares
owned beneficially or of record by the Shareholder
and (b) has not granted a proxy, a consent or power of attorney with respect to
the Shares owned beneficially or of record by the Shareholder.
(c) Authorization; Validity of Agreement; Necessary Action.
The Shareholder has full power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Shareholder and constitutes a valid and binding obligation of
the Shareholder, enforceable against it in accordance with its terms.
(d) No Violation. The execution and delivery of this Agreement
by the Shareholder does not, and the performance by the Shareholder of its
obligations under this Agreement will not, (i) conflict with or violate any law,
ordinance or regulation of any governmental authority applicable to the
Shareholder or by which any of its assets or properties are bound or (ii)
conflict with, result in any breach of or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
require payment under, or require redemption or repurchase of or otherwise
require the purchase or sale of any securities, or result in the creation of any
lien on the properties or assets of the Shareholder pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Shareholder is a party or by which
the Shareholder or any of its assets or properties is bound.
2. Transfer and Other Restrictions. The Shareholder agrees that, prior
to the Merger, he shall not, and shall not enter into any agreement to:
(a) sell, exchange, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, exchange, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies or enter into any voting agreement or
similar arrangement with respect to any of the Shares, except proxies
instructing that the Shares be voted in accordance with Section 3; or
(c) deposit any of the Shares into a voting trust or other
similar arrangement.
3. Voting. The Shareholder agrees to attend, in person or by proxy, all
meetings of the shareholders of UXP and, at any meeting of the shareholders of
UXP, agrees to vote all of the Shares:
(a) in favor of the transactions contemplated by the Merger
Agreement;
(b) against any action or agreement that could result in a
breach of any covenant, representation or warranty of UXP in the Merger
Agreement;
(c) except as otherwise agreed by the Purchaser, against any
action or agreement that would impede, interfere with or discourage the
transactions contemplated by the Merger Agreement (or attempt to do any of the
foregoing), including, but not limited to: (i) any extraordinary corporate
transaction, such as a merger, rights offering, reorganization,
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recapitalization or liquidation involving UXP, other than the Merger; (ii) a
sale or transfer of a material portion of the assets of UXP or the issuance of
any securities of UXP, other than upon exercise of outstanding options; (iii)
any change in the executive officers or Board of Directors of UXP; (iv) any
change in the present authorized, issued or outstanding capital stock of UXP
(other than as a result of the exercise of options outstanding on the date of
this Agreement), or the issuance by UXP of any options, warrants, debentures or
other securities convertible into or exercisable or exchangeable for capital
stock of UXP or any other change in the present capitalization or dividend
policy of UXP; (v) any change in the articles of incorporation or bylaws of UXP;
or (vi) any other change in UXP's corporate structure or business; and
(d) in the manner specified by the Purchaser from time to time
with respect to any other matter which, in the Purchaser's reasonable judgment,
may contradict any provision of this Agreement or the Merger Agreement or may
make it more difficult or less desirable for the Purchaser to consummate the
Merger or may delay or hinder the consummation of the Merger.
4. Proxy. The Shareholder agrees to grant to the Purchaser a proxy to
vote the Shares above if the Shareholder fails for any reason to vote such
Shares in accordance with this Agreement. The Shareholder agrees that such a
proxy would be coupled with an interest and irrevocable for so long as this
Agreement is in effect, and the Shareholder will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
such proxy.
5. Other Agreements.
(a) In case of a stock dividend or distribution, or any change
in UXP Common Stock by reason of any stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
(b) The Shareholder hereby agrees, while this Agreement is in
effect, to notify the Purchaser promptly in writing of the number of any
additional shares of UXP Common Stock or other securities of UXP acquired by the
Shareholder, if any, after the date hereof.
6. Specific Enforcement. The Shareholder acknowledges that damages
would be an inadequate remedy for a breach of this Agreement and that the
obligations of the Shareholder shall be specifically enforceable, in addition to
any other remedy which may be available to the Purchaser at law or in equity.
7. Termination. This Agreement shall terminate without any action by
any of the parties hereto upon the earlier to occur of (i) the termination of
the Merger Agreement pursuant to its terms or (ii) the Effective Time of the
Merger.
8. Stop Transfer Order. In furtherance of this Agreement, the
Shareholder shall and hereby does authorize and instruct UXP to instruct its
transfer agent to enter a stop transfer order with respect to all of the Shares
owned beneficially and of record by the Shareholder and all Shares acquired by
the Shareholder after the date hereof.
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9. Further Assurances. From time to time, at the other party's request
and without further consideration, each party shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate the transactions contemplated by this
Agreement.
10. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, sent via facsimile
(with confirmation) or delivered by an overnight courier (with confirmation) to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to UXP, to:
United States Exploration, Inc.
Attn: Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
with copies to:
Xxxxxxx & Xxxxxx L.L.C.
Attn: Xxxxxx X. Xxxxx, Esq.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
(b) if to the Purchaser, to:
DGL Acquisition Corp.
Attn: Xxxxxx X. Xxxxxxx
Double D Energy, LLC
000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
with copies to:
Xxxxx Xxxxxx & Xxxxxx LLP
Attn: Xxxxxx X. Xxxxxx XX, Esq.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
(c) if to Shareholder, to the address listed next to the
Shareholder's name on the signature page hereto.
11. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
12. Entire Agreement. This Agreement (together with the Merger
Agreement, to the extent referred to herein) constitutes the entire agreement
and supersedes all prior agreements
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and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
13. Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
14. Severability. Any term or provision of this Agreement which is
determined by a court of competent jurisdiction to be 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, and if any provision of this Agreement is
determined to be so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable, in all cases so long as
neither the economic nor legal substance of the transactions contemplated hereby
is affected in any manner materially adverse to any party or its stockholders or
limited partners. Upon any such determination, the parties shall negotiate in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
15. Assignment; Third Party Beneficiaries. Neither this Agreement nor
any of the rights, interests or obligations of any party 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 party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and permitted
assigns. This Agreement is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
16. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Colorado applicable to contracts made
and performed entirely within such State. The parties hereby irrevocably submit
to the jurisdiction of the courts of the State of Colorado and the federal
courts of the United States of America located in the State of Colorado solely
in respect of the interpretation and enforcement of the provisions of this
Agreement and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a Colorado State or federal court. The
parties hereby consent to and grant any such court jurisdiction over the person
of such parties and over the subject matter of such dispute (solely for purposes
of this Section 16 with respect to matters involving this Agreement and the
transactions provided for herein) and agree that mailing of process or other
papers in connection with any such action or proceeding in the manner provided
in Section 8 or in such other manner as may be permitted by law shall be valid
and sufficient service thereof.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Voting Agreement has been duly executed and
delivered by the Shareholder as of the date first written above.
Shareholder:
No. of Shares*:
3,236,500 /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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*Identify Shares held of record by a person or entity other than the Shareholder
and name such person or entity.
No. of Shares: Record Owner:
16,500 Xxxxx Xxxxxx/Citigroup
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