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EXHIBIT 1
VOTING AGREEMENT (INDIVIDUAL)
This Voting Agreement ("AGREEMENT") is dated as of January 24, 2001
between Bellwether Exploration Company, a Delaware corporation ("PARENT"), and
SGC Partners II, LLC (the "SHAREHOLDER").
W I T N E S S E T H:
WHEREAS, as of the date hereof, Shareholder owns an aggregate of
4,831,581 shares (together with any shares acquired after the date hereof, the
"SHARES") of Common Stock, par value $0.01 per share and Preferred Stock, Series
B, par value $.01 per share (and together with the Common Stock, "STOCK"), of
Xxxxx Energy Company, a Texas corporation ("TARGET");
WHEREAS, Parent is prepared to enter into an Agreement and Plan of
Merger with Target (as amended from time to time, the "MERGER AGREEMENT")
providing for the merger of Target with and into Parent (the "MERGER"), with
Parent being the surviving entity;
WHEREAS, to encourage Parent to enter into the Merger Agreement,
Shareholder is willing to enter into certain arrangements with respect to the
Shares;
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the same meaning ascribed to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises set forth above, the
mutual promises set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Shareholder's Support of the Merger. From the date hereof until the
earliest to occur of (i) the termination of the Merger Agreement, and (ii) the
consummation of the Merger:
(a) Shareholder owns the Shares and will not, directly or indirectly,
(i) sell, transfer, pledge or otherwise dispose of any Shares to any Person
other than Parent, Target or its designee unless such Person shall have agreed
in writing to be bound by the terms of this Agreement, or (ii) grant a proxy
with respect to any Shares to any Person other than Parent or its designee, or
grant an option with respect to any of the foregoing, or enter into any other
agreement or arrangement with respect to any of the foregoing.
(b) Shareholder will not, and will cause its respective officers or
directors (to the extent Shareholder is not a natural person), employees or
other agents not to, directly or indirectly, (i) take any action to solicit,
initiate or encourage any Target Acquisition Proposal or (ii) engage in
negotiations with, or disclose any nonpublic information relating to Target or
its Subsidiaries, respectively, or afford access to their respective properties,
books or records to any Person that may be considering making, or has made, a
Target Acquisition Proposal. Shareholder shall promptly notify Parent of all
relevant terms of any inquiries or proposals received by Shareholder, its
respective officers or
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directors (to the extent Shareholder is not a natural person), employees or
other agents relating to any such matters and if such inquiry or proposal is in
writing, Shareholder shall deliver or cause to be delivered to Parent a copy of
such inquiry or proposal.
(c) Shareholder agrees that it will vote, or execute a written consent
with respect to, all Shares (i) in favor of approval of the Merger Agreement and
the Merger and (ii) subject to the provisions of paragraph (d) below, against
any Target Acquisition Proposal. In addition, if requested by Parent,
Shareholder shall execute a written consent with respect to the matters
described above on the day before the information statement/proxy/prospectus
contemplated by the Merger Agreement is mailed to Parent's stockholders and
Target's shareholders.
(d) Shareholder agrees that, if requested by Parent, Shareholder will
not attend and Shareholder will not vote the Shares at any annual or special
meeting of Shareholders at which a Target Acquisition Proposal is being
considered, or execute any written consent of Shareholders relating directly or
indirectly to a Target Acquisition Proposal, during such period.
(e) Shareholder acknowledges that the terms of this Agreement will be
required to be described, and this Agreement will be required to be filed, in
certain securities law filings relating to the Merger.
(f) To the extent inconsistent with the provisions of this Section 1,
Shareholder hereby revokes any and all proxies with respect to the Shares or any
other voting securities of Target held by Shareholder.
Notwithstanding anything to the contrary set forth herein, this Agreement shall
not restrict Shareholder from acting in accordance with his fiduciary duties as
an officer or director of Target.
2. Miscellaneous.
(a) Shareholder, on the one hand, and Parent, on the other, acknowledge
and agree that irreparable damage would occur if any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions to prevent breach of any provision of
this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state thereof having jurisdiction, in
addition to any other remedy to which they may be entitled at law or equity.
(b) Descriptive headings are for convenience only and shall not control
or affect the meaning or construction of any provision of this Agreement.
(c) All notices, consents, requests, instructions, approvals and other
communications provided for herein shall be validly given, made or served, if in
writing and delivered personally, by telecopy or sent by registered mail,
postage prepaid:
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If to Parent:
Bellwether Exploration Company
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Manner
Facsimile No.: (000) 000-0000
With copies to (which shall not constitute notice):
Xxxxxx and Xxxxx, L.L.P.
0000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, III
Facsimile No.: (000) 000-0000
If to Shareholder: At the address specified on the signature page hereof.
With copies to (which shall not constitute notice):
Xxxxx Energy Company
000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxx
Facsimile No.: (000) 000-0000
and
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxxxx Xx., Xxxxx 0000 Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
Facsimile No.: (000) 000-0000
or to such other address or telecopy number as any party may, from time to time,
designate in a written notice given in a like manner. Notice given by telecopy
shall be deemed delivered on the day the sender receives telecopy confirmation
that such notice was received at the telecopy number of the addressee. Notice
given by mail as set out above shall be deemed delivered three days after the
date the same is postmarked.
(d) From and after the termination of this Agreement, the covenants of
the parties hereto set forth herein shall be of no further force or effect and
such parties shall be under no further obligation with respect thereto.
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(e) Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(i) "AFFILIATE" is defined in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on the
date hereof.
(ii) "MERGER" means the transaction referred to in the second
whereas clause of this Agreement, or any amendment to or modification that does
not adversely affect the economic value of the Merger to Shareholder pursuant to
the transaction set forth in the Merger Agreement.
(iii) "PERSON" means any individual, firm, corporation,
partnership, trust, limited liability company or other entity.
(f) Due Authorization; No Conflicts. Shareholder hereby represents and
warrants to Parent as follows:
(i) Shareholder has full power and authority to enter into
this Agreement.
(ii) Neither the execution or delivery of this Agreement nor
the consummation of the transactions contemplated herein will (a) conflict with
or result in a breach, default or violation of any agreement, proxy, document,
instrument, judgment, decree, order, governmental permit, certificate, license,
law, statute, rule or regulation to which Shareholder is a party or to which it
is subject, (b) result in the creation of any lien, charge or other encumbrance
on any Shares or (c) require Shareholder to obtain the consent of any private
nongovernmental third party.
(iii) No consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other Person is required to
authorize, or is otherwise required in connection with, the execution and
delivery of this Agreement or Shareholder's performance of the terms of this
Agreement or the validity or enforceability of this Agreement.
(g) Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs, personal
representatives, successors and assigns, but, except as contemplated pursuant to
Section 1(a), shall not be assignable by any party hereto without the prior
written consent of the other parties hereto.
(h) Waiver. No party hereto may waive any of the terms or conditions of
this Agreement except by a duly signed writing referring to the specific
provision to be waived.
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(i) Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Texas.
(j) Entire Agreement. This Agreement constitutes the entire agreement,
and supersedes all other and prior agreements and understandings, both written
and oral, among the parties hereto and their Affiliates.
(k) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
(l) Termination. This Agreement shall terminate on the earliest of
either (i) the termination of the Merger Agreement, and (ii) the consummation of
the Merger:
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IN WITNESS WHEREOF, Shareholder and Parent have each caused this
Agreement to be duly executed as of the day and year first above written.
SHAREHOLDER
By:/S/ V. Xxxxx Xxxxxx
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Name: SGC Partners II, LLC
Address: 0000 Xxxxxx xx Xxxxxxx,
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: V. Xxxxx Xxxxxx
BELLWETHER EXPLORATION COMPANY
By:/S/ Xxxxxxx X. Manner
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Name: Xxxxxxx X. Manner
Title: President and Chief Executive
Officer
