EXHIBIT C
Xxxxx Voting Agreement
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.
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(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;
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(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, 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.
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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.
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:
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United States Exploration, Inc.
Attn: Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000 |
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Xxxxxxx & Xxxxxx L.L.C.
Attn: Xxxxxx X. Xxxxx, Esq.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000 |
(b) if to the Purchaser, to:
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DGL Acquisition Corp.
Attn: Xxxxxx X. Xxxxxxx
Double D Energy, LLC
000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 |
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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.
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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 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
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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.
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Shareholder: |
| No. of Shares*: |
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| 370,309 |
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/s/ XX Xxxxx |
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Xxxxxx X. Xxxxx |
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Identify Shares held of record by a person or entity other than the
Shareholder and name such person or entity. |
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| No. of Shares: |
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Record Owner: |
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| 106,288 |
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ASPEN LEAF INC |
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