Exhibit 10.13
XXXXXXX EXPLORATION COMPANY
STOCKHOLDERS VOTING AGREEMENT
This STOCKHOLDERS VOTING AGREEMENT, dated October 31, 2000 (this
"Agreement"), is made and entered into by and among Xxxxxxx Exploration Company,
a Delaware corporation (the "Company"), DLJ ESC II, L.P., a Delaware limited
partnership ("ES"), and DLJ MB Funding III, Inc., a Delaware corporation ("MB"),
and the following shareholders of the Company (the "Shareholders"): Xxx X. and
Xxxx X. Xxxxxxx, individual residents of Xxxxxx County, Texas, Xxxxxx X. Xxxxxx,
a resident of Dallas County, Texas, General Atlantic Partners III, L.P., a
Delaware limited partnership, GAP-Xxxxxxx Partners, L.P., a Delaware limited
partnership, GAP Coinvestment Partners II, L.P., a Delaware limited partnership,
and Aspect Resources, LLC, a Colorado limited liability company.
W I T N E S S E T H:
WHEREAS, the Company, DLJ and Xxxxxxx, propose to enter into a
Securities Purchase Agreement concurrently with the execution hereof (the
"Purchase Agreement"), pursuant to which the Company will issue and sell to DLJ
and Xxxxxxx an aggregate of up to one million shares of its Series A Preferred
Stock and warrants (the "Warrants") to acquire 6,666,667 shares (the "Warrant
Shares") of its common stock (the "Common Stock") at an exercise price of $3.00
per share (the "Exercise Price");
WHEREAS, the Warrant Shares represent greater than 20% of the
outstanding Common Stock before issuance;
WHEREAS, the Exercise Price was the closing sales price on the date a
binding term sheet was signed between the Company and DLJ, and, therefore, was
"market" price;
WHEREAS, the rules of the Nasdaq Stock Market require shareholder
approval of issuances of warrants to purchase shares representing greater than
20% of a company's outstanding voting securities at a price below market.
WHEREAS, the Warrants contain anti-dilution provisions that reduce the
Exercise Price, if the Company issues Common Stock or other securities
exchangeable for or convertible into Common Stock at a price below $3.00 or
below market price at the time of such issuance.
WHEREAS, the Nasdaq Stock Market has required that the Company's
shareholders approve these anti-dilution provisions and any future adjustments
to the Exercise Price pursuant to such provisions; and
WHEREAS, as a condition to the agreement of the parties to this
Agreement to enter into the Purchase Agreement, the Company and the Shareholders
have agreed to enter into this Agreement to provide for certain agreements
relating to approval of the Warrants and any future adjustments to the Exercise
Price pursuant to the terms thereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties to this Agreement hereby agree as
follows:
1. AGREEMENT TO VOTE SHARES. Each Shareholder agrees that, at any
special or annual meeting of shareholders of the Company, such Shareholder shall
vote all shares of Common Stock registered in its, his or her name or
beneficially owned by it, him or her as of the date hereof and any and all other
capital stock of the Company legally or beneficially acquired by such
Shareholder after the date hereof to approve the Warrants and any future
adjustments to the exercise price of the Warrants pursuant to the terms thereof.
In the event that the Purchase Agreement is terminated for any reason, then this
Agreement shall automatically terminate and none of the parties hereto shall
have any liability hereunder. Each Shareholder represents to ES and MB that as
of the date hereof such Shareholder owns the number of outstanding shares of
Common Stock set forth opposite such Shareholder's name on attached SCHEDULE I.
2. SUCCESSORS, ASSIGNS AND TRANSFEREES. The terms and provisions of
this Agreement shall not bind, inure to the benefit of or be enforceable by or
against the successors, assigns or transferees of each of the parties hereto. No
party hereto may assign its rights under this Agreement.
3. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, and such additional
instruments as may be concurrently executed and delivered pursuant to this
Agreement, constitutes the entire understanding of the parties with respect to
its subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings other than those
expressly set forth herein or in the documents delivered concurrently herewith.
This Agreement may be amended only by a written instrument duly executed by all
the parties hereto.
4. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not effect in any way the meaning or
interpretation of this Agreement.
5. NOTICES, All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by hand delivery, facsimile or by
mail (registered or certified, postage prepaid, return receipt requested) to the
respective parties as follows:
If to Xxxxxxx:
Xxxxxxx Exploration Company
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxx X. "Xxx" Xxxxxxx
Fax No: (000) 000-0000
If to DLJ ESC II, L.P.:
Xxxxxxxxx Lufkin & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
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Fax No: 000-000-0000
and
Mr. Xxxxx Xxxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax No: (000) 000-0000
with a copy to:
Gardere Xxxxx Xxxxxx, LLP
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: X.X. Xxxxxxx III
Telefax: 000-000-0000
If to DLJ MB Funding III, Inc.:
Xxxxxxxxx Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Fax No: 000-000-0000
and
Mr. Xxxxx Xxxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax No: (000) 000-0000
with a copy to:
Gardere Xxxxx Xxxxxx, LLP
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: X.X. Xxxxxxx III
Telefax: 000-000-0000
If to Xxx X. Xxxxxxx:
Xxx X. Xxxxxxx
Xxxxxxx Exploration Company
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No: (000) 000-0000
If to Xxxx X. Xxxxxxx:
Xxxx X. Xxxxxxx
Xxxxxxx Exploration Company
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
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Fax No: (000) 000-0000
If to Xxxxxx X. Xxxxxx:
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
If to General Atlantic Partners III, L.P.:
General Atlantic Partners III, L.P.
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Fax No: (000) 000-0000
If to GAP-Xxxxxxx Partners, L.P.:
GAP-Xxxxxxx Partners, L.P.
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Fax No: (000) 000-0000
If to GAP Coinvestment Partners II, L.P.:
GAP Coinvestment Partners II, L.P.
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Fax No: (000) 000-0000
If to Aspect Resources, LLC:
Aspect Resources, LLC
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxx
Fax No: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without reference
to the conflict of laws principles thereof.
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7. WAIVER. Any waiver by any party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
8. CHALLENGES TO AGREEMENT. In the event that any part of this
Agreement or any transaction contemplated hereby is temporarily, preliminarily
or permanently enjoined or restrained by court of competent jurisdiction, the
parties hereto shall use their reasonable best efforts to cause any such
injunction or restraining order to be vacated or dissolved or otherwise declared
or determined to be of no further force or effect.
9. SPECIFIC PERFORMANCE. Each of the Shareholders acknowledges and
agrees that irreparable harm would occur if any provision of this Agreement were
not performed in accordance with the terms thereof, or were otherwise breached,
and that such harm could not be remedied by an award of damages. Accordingly,
each of the Shareholders agrees that any non-breaching party shall be entitled
to an injunction to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof.
10. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but each of which together shall constitute one
and the same Agreement.
* * * * *
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IN WITNESS WHEREOF, and intending to be legally bound hereby, each of
the undersigned parties has executed or caused this Agreement to be executed on
the date first above written.
XXXXXXX EXPLORATION COMPANY
By: /s/ XXXXX X. XXXXXXX
---------------------------------------
Name: XXXXX X. XXXXXXX
-------------------------------
Title: VICE PRESIDENT
-------------------------------
DLJ ESC II, L.P.
By DLJ LBO Plans Management Corporation
Its General Partner
By: /s/ XXX X. XXXXX
--------------------------------------
Name: XXX X. XXXXX
--------------------------------
Title: PRINCIPAL
-------------------------------
DLJ MB FUNDING III, INC.
By: /s/ XXX X. XXXXX
--------------------------------------
Name: XXX X. XXXXX
--------------------------------
Title: PRINCIPAL
-------------------------------
/s/ XXX X. XXXXXXX
------------------------------------------
Xxx X. Xxxxxxx
/s/ XXXX X. XXXXXXX
------------------------------------------
Xxxx X. Xxxxxxx
/s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx
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GENERAL ATLANTIC PARTNERS III, L.P.
By GAP III Investors, Inc.
Its General Partner
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: XXXXXXX X. XXXXXXXX
------------------------------
Title: PRESIDENT
------------------------------
GAP-XXXXXXX PARTNERS, L.P.
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: XXXXXXX X. XXXXXXXX
------------------------------
Title: GENERAL PARTNER
------------------------------
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ XXXXXXX XXXXXX
--------------------------------------
Name: XXXXXXX XXXXXX
-------------------------------
Title: GENERAL PARTNER
-------------------------------
ASPECT RESOURCES, LLC
By Aspect Management Corporation
Its Manager
By: /s/ XXXX XXXXXXXX
--------------------------------------
Name: XXXX XXXXXXXX
------------------------------
Title:
------------------------------
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Schedule I
Number of Outstanding
Shareholder Shares of Common Stock Owned
----------- ----------------------------
Xxx X. and Xxxx X. Xxxxxxx, 3,719,792
collectively
Xxxxxx X. Xxxxxx 314,893
General Atlantic Partners III, L.P. 2,679,418
GAP-Xxxxxxx Partners, L.P. 127,725
GAP Coinvestment Partners II, L.P. 975,610
Aspect Resources, LLC 487,805
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