EXHIBIT d(2)
STOCKHOLDERS AGREEMENT
Xxxxxx Americas and Europe Corporation ("Parent"), a Delaware
corporation, and the holders of outstanding common stock of Esenjay Exploration,
Inc. (the "Company"), a Delaware corporation, to which this Agreement refers to
as "Stockholders" on the signature pages hereof (the "Stockholders") hereby
enter into this Agreement dated as of March 17, 2002.
PRELIMINARY STATEMENT
Parent and its subsidiary, ECM Acquisition Company ("Sub"), a
Delaware corporation, propose to enter into an agreement dated as of March 17,
2002 with the Company (the "Acquisition Agreement"). On the terms and subject to
the conditions the Acquisition Agreement contains, Parent proposes to acquire
the Company in a two-step transaction. The first step would be a tender offer by
Sub for all the outstanding shares of the Company's common stock, and the second
step would be a follow-on merger between Sub and the Company in which the
Company would become the surviving corporation.
The board of directors of the Company has:
o determined that Parent's proposed tender offer and merger are
fair to and in the best interests of the Company's
stockholders;
o declared the agreement of merger the Acquisition Agreement
contains advisable and resolved to recommend that the holders
of the Company's common stock accept that offer and adopt that
agreement of merger; and
o authorized the Company to enter into the Acquisition
Agreement.
The Stockholders collectively own approximately 53% of the
shares of the Company's common stock issued and outstanding as of March 1, 2002.
In order to induce Parent and Sub to enter into and thereafter perform their
respective obligations under the Acquisition Agreement, the Stockholders are
entering into this Agreement.
AGREEMENT
In consideration of the premises and the covenants and other
undertakings this Agreement contains, the parties, intending to be legally bound
hereby, agree as follows:
Section 1. Definitions. (a) In this Agreement:
(1) the "Original Shares" of a Stockholder means the number of
shares of Common Stock which appears opposite that Stockholder's name
on the signature pages hereof; and
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(2) the "Subject Shares" of a Stockholder means that
Stockholder's Original Shares together with:
(A) all shares of Common Stock or other Capital
Stock, all Derivative Securities, including any preferred
stock purchase rights, and all other properties or rights,
including any phantom securities, to which that Stockholder
hereafter becomes entitled by reason of any dividend or other
distribution the Company pays or makes in respect of the
Common Stock or any other class or series of its Capital
Stock;
(B) all properties, securities and rights to which
that Stockholder becomes entitled by reason of any split,
combination or reclassification of the Common Stock or any
other Capital Stock of the Company or any issuance by the
Company in respect or lieu of or in substitution for shares of
its Capital Stock; and
(C) all properties, securities and rights of any type
to which clause (2)(A) or (B) of this definition refers which
that Stockholder purchases or otherwise acquires after the
date hereof from the Company or any other Person.
(b) Capitalized terms this Agreement uses, but does not
define, have the meanings the Acquisition Agreement specifies. References herein
to "this Agreement" are to this Agreement as it may be amended, modified or
supplemented from time to time hereafter in writing by each party against which
another party seeks to enforce that amendment, modification or supplement.
Section 2. Tender of Subject Shares. (a) Each Stockholder will
(1) effect a valid tender under and in accordance with the terms of the Offer,
as soon as practicable after the Offer Commencement Date and in no event later
than prior to the initially scheduled Expiration Date, of all that Stockholder's
Subject Shares and (2) not withdraw or attempt to withdraw those tendered
Subject Shares from the Offer until after the first to occur of (A) the
termination of the Acquisition Agreement by the Company under Section 9.01(a)(4)
thereof or (B) a termination of the Offer in accordance with its terms prior to
the purchase by Sub of any Shares thereunder. Any tender of Subject Shares by a
Stockholder in accordance with this Section 2 must include the physical delivery
of certificates representing those Subject Shares and the execution and delivery
of a properly completed letter of transmittal with respect thereto.
(b) If the Subject Securities of a Stockholder include
property, securities or rights that Sub has not amended the Offer to include,
this Section 2 will not require that Stockholder to tender, and Sub will not be
required to amend the Offer to include, any property, securities or rights not
so included.
Section 3. Voting of Subject Shares. (a) If the agreement of
merger the Acquisition Agreement contains is duly submitted to the stockholders
of the Company for their approval or disapproval, each Stockholder will duly and
properly vote all that Stockholder's Subject Shares entitled to vote on that
matter in favor of the adoption of that agreement.
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(b) If any action or agreement is duly submitted to the
stockholders of the Company which, if taken or effected, reasonably could be
expected to
(1) result in a breach of any representation, warranty,
covenant or other agreement of the Company in or under the Acquisition
Agreement, or
(2) prevent, impede, interfere with, delay or postpone the
consummation of the Offer or the Merger, including any Acquisition
Proposal,
each Stockholder will duly and properly vote all that Stockholder's Subject
Shares entitled to vote on that matter against the taking of that action or the
effecting of that agreement.
(c) If any action by the stockholders or the Company to which
Section 3(a) or (b) refers is sought to be taken by written consent in lieu of a
meeting of those stockholders, each Stockholder will give or withhold that
Stockholder's consent thereto to the same effect as if that action were
presented for approval or disapproval at such a meeting.
(d) Each Stockholder:
(1) hereby irrevocably grants to, and appoints, Xxxxx Xxxxxxxx
and Xxxxx Xxxxxxxx, or either of them, in their respective capacities
as officers of Parent or Sub, and any individual who hereafter succeeds
to any such office, and each of them individually, that Stockholder's
proxy and attorney-in-fact, with full power of substitution, for and in
the name, place and stead of that Stockholder, to vote that
Stockholder's Subject Shares in accordance with this Section 3;
(2) represents that any proxies that Stockholder has
heretofore given in respect of any of that Stockholder's Subject Shares
are not irrevocable and hereby revokes all such proxies and agrees to
give all notices required to evidence that revocation;
(3) acknowledges that Stockholder's understanding that Parent
is entering into the Acquisition Agreement in reliance on that
Stockholder's execution and delivery of this Agreement and affirms that
Stockholder is granting the irrevocable proxy this Section 3 contains
in connection with Parent's execution and delivery of the Acquisition
Agreement and to secure the performance by that Stockholder of that
Stockholder's obligations hereunder;
(4) affirms that that irrevocable proxy is coupled with an
interest and may not be revoked under any circumstances; and
(5) ratifies all that the proxies and attorneys-in-fact
designated by that proxy lawfully may do or cause to be done in their
several capacities as such and confirms that that proxy is intended to
be irrevocable under the applicable Delaware law.
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Section 4. No Inconsistent Arrangements. Each Stockholder
agrees that, except as the Acquisition Agreement and this Agreement otherwise
provide or contemplate, that Stockholder will not:
(1) sell, transfer, pledge, assign or otherwise dispose of
(collectively, "Transfer"), for value, by gift or otherwise, or consent
to or permit any Transfer of, any of that Stockholder's Subject Shares
or any interest therein;
(2) enter into any contract, option or other agreement or
understanding respecting any such Transfer;
(3) grant any proxy, power-of-attorney or other authorization
respecting those Subject Shares;
(4) deposit into a voting trust, or enter into a voting
agreement respecting, any of those Subject Shares; or
(5) take any other action that reasonably could be expected in
any way to restrict, limit or interfere with the performance by that
Stockholder of that Stockholder's obligations hereunder or with the
consummation of the Offer or the Merger.
Section 5. Waiver of Appraisal Rights. Each Stockholder hereby
waives all rights of appraisal or dissent that Stockholder has under the DGCL
with respect to the Merger.
Section 6. Treatment of Confidential Information. (a) Each of
Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxx and Xxxxx X. Xxxxxxxxxxxxxx (the "Receiving
Stockholders"), severally and not jointly with any other Person, acknowledges
that he has or may have had in the past, currently has and in the future may
have access to Confidential Information of the Company Entities and Parent and
its Affiliates. Each Receiving Stockholder, severally and not jointly with any
other Person, agrees that he will keep confidential and not use, directly or
indirectly, for his own benefit or the benefit of any business of any Person
other than the Company Entities and Parent and its Affiliates, all that
Confidential Information that Receiving Stockholder has or hereafter obtains
and, except with the specific prior written consent of Parent, will not disclose
that Confidential Information to any Person except (1) Representatives of Parent
and (2) his own Representatives, provided that these Representatives, other than
counsel, agree to the confidentiality provisions of this Section 6; provided,
however, that, for purpose of this Section 6(a), Confidential Information a
Receiving Stockholder has does not include such information as:
(1) becomes known to the public generally through no fault of
that Receiving Stockholder;
(2) is required to be disclosed by law or the order of any
Governmental Authority under color of law, provided, that prior to the
disclosure by that Receiving Stockholder of any information under this
clause (2), that Receiving Stockholder will give prior written notice
thereof to Parent and provide Parent with the opportunity to contest
that disclosure; or
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(3) that Receiving Stockholder reasonably believes is required
to be disclosed in connection with the defense of a lawsuit against
that Receiving Stockholder.
In the event of a breach or threatened breach by any Receiving Stockholder of
the provisions of this Section 6 with respect to any Confidential Information,
Parent or the Company will be entitled to an injunction restraining that
Receiving Stockholder from disclosing, in whole or in part, that Confidential
Information. Nothing herein shall be construed as prohibiting Parent or the
Company from pursuing any other available remedy for such breach or threatened
breach, including the recovery of damages.
(b) Because of (1) the difficulty of measuring economic losses
as a result of the breach of the foregoing covenants in Section 6(a) and (2) the
immediate and irreparable damage that would be caused to Parent or the Company
for which it would have no other adequate remedy, each of the Receiving
Stockholders agrees that Parent or the Company may enforce the provisions of
Section 6(a) by injunctions and restraining orders against each of them who
breaches any of those provisions.
Section 7. Representations and Warranties. Each Stockholder
represents and warrants to Parent that, as applied solely to that Stockholder,
all the following representations and warranties in this Section 7 are as of the
date of this Agreement, and will be immediately prior to Sub's payment for that
Stockholder's Subject Shares, true and correct:
(1) the Stockholder:
(A) is the record and beneficial owner of, and has
good and marketable title to, the Stockholder's Original
Shares and, as of the date Sub consummates the Offer, all
other Subject Shares the Stockholder hereafter acquires, in
each case free and clear of any "adverse claim," as the
applicable Uniform Commercial Code defines that term, or other
lien or encumbrance; and
(B) has and will have, with respect to the Original
Shares, and will have, with respect to all other Subject
Shares the Stockholder hereafter acquires, the sole right to
Transfer and direct the voting of those securities;
(2) except as this Agreement or the Option Agreement otherwise
provides, none of the Original Shares is, and none of the other Subject
Shares the Stockholder hereafter acquires will be, subject to any
voting trust, voting agreement or other agreement, arrangement or
restriction respecting the Transfer or voting of any of those
securities;
(3) the Stockholder has the full power, legal capacity and
authority to execute, deliver and perform the Stockholder's obligations
under this Agreement. This Agreement constitutes the legal, valid and
binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except as that enforceability
may be:
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(A) limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally; and
(B) subject to general principles of equity,
regardless of whether that enforceability is considered in a
proceeding in equity or at law;
(4) if the Stockholder is an Entity, the Stockholder has
obtained, in accordance with all applicable Governmental Requirements
and its Charter Documents, all approvals and the taking of all actions
necessary for the authorization, execution, delivery and performance by
the Stockholder of this Agreement;
(5) if the Stockholder is acting otherwise than in his
individual capacity, whether as an executor or a guardian or in any
other fiduciary or representative capacity, all actions on the part of
the Stockholder and all other Persons, including any court, necessary
for the authorization, execution, delivery and performance by the
Stockholder of this Agreement have been duly taken;
(6) the Stockholder's execution, delivery and performance in
accordance with its terms of this Agreement and the effectuation of the
transactions this Agreement contemplates do not and will not:
(A) violate or conflict with any Governmental
Requirement;
(B) breach or constitute a default under any
agreement or instrument to which the Stockholder is a party or
by which the Stockholder or any Subject Shares the Stockholder
owns is bound;
(C) result in the creation or imposition of, or
afford any Person the right to obtain, any lien upon any
Subject Shares the Stockholder owns, or upon any revenues,
income or profits of the Stockholder therefrom; or
(D) if the Stockholder is an Entity, violate the
Stockholder's Charter Documents; and
(7) no litigation is pending or, to the knowledge of the
Stockholder, threatened to which the Stockholder is or may become a
party which:
(A) questions or involves the validity or
enforceability of any of the Stockholder's obligations under
this Agreement; or
(B) seeks, or reasonably could be expected to seek,
(1) to prevent or delay the consummation by the Stockholder of
the transactions this Agreement contemplates the Stockholder
will consummate or (2) damages in connection with any such
consummation.
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Section 8. Several Nature of Obligations. The obligations of
each Stockholder under this Agreement are several and not joint, or joint and
several, with the obligations of any other Stockholder under this Agreement.
Section 9. Termination of Various Obligations. The obligations
of each Stockholder under Sections 2, 3, 4 and 5, and the irrevocable proxy each
Stockholder has granted in Section 3, will terminate on the first to occur of
the termination of the Acquisition Agreement by the Company under Section
9.01(a)(4) thereof or the termination by Sub of the Offer without purchasing any
Shares thereunder. The obligations of each Receiving Stockholder under Section 6
will terminate on the termination by Sub of the Offer without purchasing any
Shares thereunder, but, except for termination on that occurrence, will continue
in accordance with its terms notwithstanding any termination of the Acquisition
Agreement.
Section 10. Notices. All notices and other communications
hereunder must be in writing and will be deemed given if delivered personally,
telecopied or otherwise sent by means of electronic communications equipment
(which is confirmed) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as it has specified by like notice):
(1) if to Parent, to it at
00000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
Email: xxxxx.xxxxxxxx@xxxxxx.xxx
With a copy, which will not constitute notice for
purposes hereof, to:
Xxxxx Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx XxXxxx
Telecopy: (000) 000-0000
Email: xxxxx.xxxxxx@xxxxxxxxxx.xxx
and
(2) if to a Stockholder, to the address set forth opposite
that Stockholder's name on the signature pages hereto.
Section 11. Construction and Interpretation. (a) This
Agreement uses the words "herein," "hereof" and "hereunder" and words of similar
import to refer to this Agreement
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as a whole and not to any provision of this Agreement, and the word "Section"
refers to a Section of this Agreement, unless it otherwise specifies. This
Agreement uses the word "party" to refer to any original signatory hereto and
its permitted successors and assigns under Section 15.
(b) Whenever the context so requires, the singular number
includes the plural and vice versa, and a reference to one gender includes the
other gender and the neuter.
(c) The word "including," and, with correlative meaning, the
word "include," means including, without limiting the generality of any
description preceding that word, and the words "shall" and "will" are used
interchangeably and have the same meaning.
(d) The language this Agreement uses will be deemed to be the
language the parties have chosen to express their mutual intent, and no rule of
strict construction will be applied against any party.
(e) This Agreement includes captions for convenience of
reference only, and these captions do not constitute a part of this Agreement
for any other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
Section 12. Counterparts. This Agreement may be executed in
two or more counterparts, all of which will be considered one and the same
agreement and will become effective as to any Stockholder when two or more
counterparts have been signed by that Stockholder and Parent and delivered to
each other, it being understood that to be binding on any Stockholder, no other
Stockholder need sign this Agreement and Parent need not sign the same
counterpart.
Section 13. Entire Agreement; No Third Party Beneficiaries.
This Agreement:
(1) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof; and
(2) except as Section 6 otherwise provides, is not intended to
confer on any Person other than the parties any rights or remedies
hereunder.
Section 14. Publicity. (a) Each Stockholder hereby agrees that
Parent and any of its Affiliates may publish and disclose in the Offer Documents
and the information statement Section 7.01(c) of the Acquisition Agreement
contemplates, and any other documents Parent or Sub files with the SEC in
connection with the Offer or the Merger, the identity and ownership of Subject
Shares by that Stockholder and the nature of that Stockholder's commitments,
agreements and understandings under this Agreement.
(b) Except as any applicable Governmental Requirement or the
rules of the National Association of Securities Dealers, Inc. otherwise require,
for so long as this Agreement is in effect, no Stockholder will, or will permit
any of its Affiliates to, issue or cause the publication of any press release or
other public announcement with respect to the transactions
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this Agreement contemplates without the consent of Parent, which consent Parent
will not unreasonably withhold.
Section 15. Assignment. This Agreement and the rights,
interests or obligations of the parties hereunder may not be assigned by any
Stockholder, whether by operation of law or otherwise, without the prior written
consent of Parent. Subject to the preceding sentence, this Agreement will be
binding on, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
Section 16. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
THE CONFLICTS OF LAW PROVISIONS THEREOF THAT WOULD CAUSE THE LAWS OF ANY OTHER
JURISDICTION TO APPLY.
Section 17. Exercise of Rights and Remedies. Except as this
Agreement otherwise provides, no delay or omission in the exercise of any right,
power or remedy accruing to any party as a result of any breach or default
hereunder by any other party will impair any such right, power or remedy, nor
will it be construed, deemed or interpreted as a waiver of or acquiescence in
any such breach or default, or of any similar breach or default occurring later;
nor will any waiver of any single breach or default be construed, deemed or
interpreted as a waiver of any other breach or default hereunder occurring
before or after that waiver.
Section 18. Reformation and Severability. If any provision of
this Agreement is invalid, illegal or unenforceable, that provision will, to the
extent possible, be modified in such manner as to be valid, legal and
enforceable but so as to most nearly retain the intent of the parties as
expressed herein, and if such a modification is not possible, that provision
will be severed from this Agreement, and in either case the validity, legality
and enforceability of the remaining provisions of this Agreement will not in any
way be affected or impaired thereby.
Section 19. Remedies Cumulative. No right, remedy or election
any provision of this Agreement gives will be deemed exclusive, but each will be
cumulative with all other rights, remedies and elections available at law or in
equity.
Section 20. Enforcement. Each Stockholder agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, Parent will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the provisions of this Agreement in the Appropriate Delaware Court, this being
in addition to any other remedy to which Section 6, law or equity entitles
Parent or any of its Affiliates. Each Stockholder will:
(1) submit itself to the personal jurisdiction of the
Appropriate Delaware Court with respect to any dispute that arises out
of this Agreement or any transaction this Agreement contemplates;
(2) not attempt to deny or defeat that personal jurisdiction
by motion or other request for leave from any such court; and
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(3) not bring any action relating to this Agreement or any
transaction this Agreement contemplates in any court other than the
Appropriate Delaware Court.
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The parties have signed this Agreement as of the date first written above.
XXXXXX AMERICAS AND
EUROPE CORPORATION
By: /s/ XXXXXXXX X. XXXXXXXX
-------------------------------
Xxxxxxxx X. Xxxxxxxx
President
STOCKHOLDERS
No. of Original Shares: 48,000
Aspect Resources, LLC
000 00xx Xxxxxx, Xxxxx 000 By: /s/ XXXX X. XXXXXXXX
Xxxxxx, Xxxxxxxx 00000 -------------------------------
Xxxx X. Xxxxxxxx
ASPECT ENERGY, LLC
BY: ASPECT MANAGEMENT CORPORATION,
MANAGER
No. of Original Shares: 4,729,456
c/o Xxxx X. Xxxxxxxx BY: /s/ XXXX X. XXXXXXXX
Aspect Resources, LLC -------------------------------
000 00xx Xxxxxx, Xxxxx 000 XXXX X. XXXXXXXX
Xxxxxx, Xxxxxxxx 00000 PRESIDENT
No. of Original Shares: 132,754
Esenjay Exploration, Inc.
000 Xxxxx Xxxxx, Xxxxx 0000 By: /s/ XXXXXXX X. XXXXXXX
Xxxxxx Xxxxxxx, Xxxxx 00000 -------------------------------
Xxxxxxx X. Xxxxxxx
ESENJAY PETROLEUM CORPORATION
No. of Original Shares: 4,896,415
c/o Xxxxxxx X. Xxxxxxx
Esenjay Exploration, Inc. By: /s/ XXXXXXX X. XXXXXXX
000 Xxxxx Xxxxx, Xxxxx 0000 -------------------------------
Xxxxxx Xxxxxxx, Xxxxx 00000 Xxxxxxx X. Xxxxxxx
President
STOCKHOLDERS (continued)
No. of Original Shares: 202,297
Esenjay Exploration, Inc.
500 Dallas, Suite 2920 By: /s/ XXXXX X. XXXXX
Xxxxxxx, Xxxxx 00000 ---------------------------------
Xxxxx X. Xxxxx
No. of Original Shares: 0
Aspect Resources, LLC
000 00xx Xxxxxx, Xxxxx 000 By: /s/ XXXX X. XXXXXXXX
Xxxxxx, Xxxxxxxx 00000 ---------------------------------
Xxxx X. Xxxxxxxx
No. of Original Shares: 14,000
Pollicoff, Xxxxx & Remel
Xxx Xxxxxxxx Xxxxx, Xxxxx 000 By: /s/ XXXXXXX X. XXXXXXXXX
Xxxxxxx, Xxxxx 00000 ---------------------------------
Xxxxxxx X. Xxxxxxxxx
No. of Original Shares: 12,000
Xxxxxxx & Xxxxx Incorporated
00000 Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 000X By: /s/ XXXX X. XXXXXXX
---------------------------------
Xxxxxxx, Xxxxx 00000 Xxxx X. Xxxxxxx
No. of Original Shares: 12,000
Xxxxx International Inc.
00000 X. Xxxxx Xxxxxx By: /s/ HOBART X. XXXXX
Xxxxxxx, Xxxxx 00000 ---------------------------------
Hobart X. Xxxxx
No. of Original Shares: 12,470
Esenjay Exploration, Inc.
500 Dallas, Suite 2920 By: /s/ XXXXX X. XXXXXXXXXXXXXX
Xxxxxxx, Xxxxx 00000 ---------------------------------
Xxxxx X. Xxxxxxxxxxxxxx
No. of Original Shares: 12,000
000 Xxxxx Xxx By: /s/ XXXXXXX X. XXXXX
Xxxxxx Xxxxxxx, Xxxxx 00000 ---------------------------------
Xxxxxxx X. Xxxxx
