EXHIBIT d(3)
OPTION AGREEMENT
Xxxxxx America 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 52% 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
(2) the "Subject Shares" of a Stockholder means that
Stockholder's Original Shares together with:
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(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. Option To Purchase Subject Shares. (a) Each
Stockholder hereby grants to Parent an irrevocable option (each such option, a
"Purchase Option") to purchase from that Stockholder at any time during the
Option Exercise Period all that Stockholder's Subject Shares at a total cash
option exercise price equal to the product of (1) the total number of that
Stockholder's Original Shares multiplied by (2) $2.84 (each such price, a
"Purchase Price").
(b) In this Section 2, "Option Exercise Period" means, if
Parent becomes entitled to, and does, terminate the Acquisition Agreement under
Section 9.01(a)(3) thereof or the Company becomes or purports to become entitled
to, and does or purportedly does, terminate this Agreement under Section
9.01(a)(4) thereof, the period of 30 days beginning the date of that termination
or purported termination; provided, however, that if the Offer Commencement Date
shall have previously occurred, that 30-day period will begin on the next day
following the date Sub terminates the Offer without having purchased any Shares
thereunder.
(c) Parent must exercise each Purchase Option in whole only
and must exercise all Purchase Options at the same time. To exercise the
Purchase Options, Parent must deliver to each Stockholder a written notice of
Parent's intention to effect that exercise, and the closing of the purchase of
the Subject Shares subject to the Purchase Options will take place:
(1) in accordance with the escrow arrangement Section 2(d)
describes below or, if for any reason that escrow arrangement and the
deposit thereunder of the Subject Shares has not occurred when Parent
exercises the Purchase Options,
(2) in the office of Xxxxx Xxxxx LLP in Houston, Texas.
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In the latter case, Parent will designate in that notice the date and time of
the closing, which date may be the next day after Parent has delivered that
notice. At that closing, Parent will pay in respect of each Purchase Option the
Purchase Price payable under that Purchase Option against delivery of the
certificates representing the Subject Shares subject to that Purchase Price,
duly endorsed for transfer to Parent.
(d) Each Stockholder agrees to deposit as promptly as possible
(1) certificates representing all of that Stockholder's Subject Shares, duly
endorsed in blank with signatures guaranteed, and (2) an irrevocable power of
attorney with Bank of America, Bank of New York or such other party as may be
mutually agreed upon by the Parent and the Stockholders, as escrow agent (the
"Escrow Agent") under an escrow agreement substantially in the form of Annex A
with such changes therein, if any, as the Escrow Agent may require or as Parent
and the Stockholders may agree (the "Escrow Agreement"). The irrevocable power
of attorney shall authorize the Escrow Agent to effect a valid tender of such
Subject Shares under and in accordance with the terms of the Offer, pursuant to
the terms of the Stockholders Agreement. This shall include, without limitation,
physical delivery of such certificates and the execution and delivery of a
properly completed letter of transmittal and any other required documentation or
instruments with respect thereto. If any Stockholder withdraws its tendered
Subject Shares from the Offer in accordance with the terms of the Stockholders
Agreement, the Escrow Agent shall hold such Subject Shares in escrow until
Parent exercises its Purchase Option with respect thereto or the Option Exercise
Period has otherwise ended. When that escrow is established (the "Escrow"), the
Purchase Options may be exercised in accordance with this Section 2, by delivery
to the Escrow Agent of a notice in the form of Exhibit 1 to the Escrow Agreement
and the Purchase Prices thereunder.
Section 3. Limitation on Competition. (a) Each Stockholder
agrees, severally and not jointly with any other Person, that that Stockholder
will not, during the period beginning on the date hereof and ending on the first
anniversary of the date hereof (the "Non-Compete Period"), directly or
indirectly, for any reason, for that Stockholder's own account or on behalf of
or together with any other Person:
(1) acquire or enter into an agreement to acquire, directly or
through direct or indirect ownership or contract rights with respect to
a Person, including without limitation whether as principal, agent,
stockholder, partner, joint venturer, employer, employee or in any
other capacity, any interest (an "Interest") of any kind or character
in the lands or in the minerals on or under said lands whatsoever
located within the Non-Compete Area (as Annex B defines that term),
whether by means of lease, purchase, assignment, trade, sublease,
easement, farmout, or any other form of acquisition, including any
merger with or acquisition of stock or ownership interests in any other
Person; or
(2) call on or otherwise solicit, directly or indirectly
through any Person, any natural person who is at that time employed by
the Company in any managerial capacity with the purpose or intent of
attracting that person from the employ of the Company.
Notwithstanding the foregoing, any Stockholder may own and hold as a passive
investment up to 10% of the outstanding Capital Stock of a competing Entity. In
the event that a Stockholder
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acquires an Interest in the Non-Compete Area during the Non-Compete Period, that
Stockholder (the "Acquiring Stockholder") must promptly notify Parent in writing
of that acquisition, including a full description of the acquired Interest and
the rights, obligations and duties with respect thereto, accompanied by a copy
of any acquisition agreement and any other relevant documents. Within 30 days
following that acquisition, the Acquiring Stockholder will convey, transfer and
assign all its rights, titles, and interests in the Interest so acquired to the
Company without consideration.
(b) Because of (1) the difficulty of measuring economic losses
to Parent or the Company as a result of any breach by a Stockholder of that
Stockholder's covenants in Section 3(a) and (2) the immediate and irreparable
damage that could be caused to Parent or the Company for which it would have no
other adequate remedy, each Stockholder agrees that Parent or the Company may
enforce the provisions of Section 3(a) by injunctions and restraining orders
against that Stockholder if that Stockholder breaches any of those provisions.
The breaching Stockholder will be responsible for, and Parent and the Company
will be entitled to receive reimbursement of, all costs of enforcing their
rights under this Section 3, including reasonable attorney's fees.
(c) The parties each agree that Sections 3(a) and (b) impose a
reasonable restraint on the Stockholders in light of the activities and business
of Parent and the Company on the date hereof and the current business plans of
the Company and Parent and its Affiliates.
(d) The covenants in this Section 3 are severable and
separate, and the unenforceability of any specific covenant in this Section 3 is
not intended by any party to, and will not, affect the provisions of any other
covenant in this Section 3. If any court of competent jurisdiction determines
that the scope, time or territorial restrictions Section 3(a) sets forth are
unreasonable as applied to any Stockholder, the parties, including that
Stockholder, acknowledge their mutual intention and agreement that those
restrictions be enforced to the fullest extent the court deems reasonable, and
thereby will be reformed to that extent as applied to that Stockholder and any
other Stockholders similarly situated.
(e) All the covenants in this Section 3 are intended by each
party to be, and will be construed as, an agreement independent of any other
provision in this Agreement. It is specifically agreed that the time periods
Section 3(a) specifies will be computed in the case of each Stockholder by
excluding from that computation any time during which that Stockholder is in
violation of any provision of Section 3(a). The covenants this Section 3
contains will not be affected by any breach of any other provision hereof by any
party.
(f) Each Stockholder, severally and not jointly with any other
Person, hereby agrees that this Section 3 is a material and substantial part of
the transactions the Acquisition Agreement contemplates.
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Section 4. 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 4 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 the Stockholders 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:
(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;
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(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.
Section 5. 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 6. Termination of Certain Obligations. The obligations
of each Stockholder under Sections 2 and 3 will terminate on the expiration of
an Option Exercise Period during which Parent has not exercised its Purchase
Options, but, except for termination on that occurrence, will continue in
accordance with its terms notwithstanding any termination of the Acquisition
Agreement. The obligations of each Stockholder under Section 3 will, if they
have not terminated earlier in accordance with the preceding sentence, terminate
at 5:00 p.m., Denver, Colorado time, on March 17, 2003.
Section 7. 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):
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(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 8. Construction and Interpretation. (a) This Agreement
uses the words "herein," "hereof" and "hereunder" and words of similar import to
refer to this Agreement as a whole and not to any provision of this Agreement,
and the words "Section" and "Annex" refer to a Section of or Annex to 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 12.
(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.
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Section 9. 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 10. Entire Agreement; 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 Sections 3 and 4 otherwise provide, is not
intended to confer on any Person other than the parties any rights or
remedies hereunder.
Section 11. 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 this Agreement
contemplates without the consent of Parent, which consent Parent will not
unreasonably withhold.
Section 12. Assignment; Assumption. (a) 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. Parent may assign its rights and interest hereunder
against any Stockholder to any of its Affiliates, and any such assignee
Affiliate may reassign those rights and interests to any other Affiliate of
Parent, without the consent of that Stockholder, but any other such assignment
to any other Person will require the prior written consent of that Stockholder,
which consent that Stockholder will not unreasonably withhold. 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.
(b) Each Stockholder that is an Entity will require the
successor to that Entity's business and assets substantially as an entirety,
whether by merger, consolidation, sale of assets or other transaction, to assume
in writing that Stockholder's obligations hereunder.
Section 13. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES WILL 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
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THEREOF THAT WOULD CAUSE THE LAWS OF ANY OTHER JURISDICTION TO APPLY; PROVIDED,
HOWEVER, THAT SECTION 3 AND THE RIGHTS AND OBLIGATIONS THEREUNDER OF THE PARTIES
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
Section 14. 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 15. 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 16. 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 17. 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 Court, this being in
addition to any other remedy to which Section 3, law or equity entitles Parent
or any of its Affiliates. Each Stockholder will:
(1) submit itself to the personal jurisdiction of the
Appropriate 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
(3) not bring any action relating to this Agreement or any
transaction this Agreement contemplates in any court other than the
Appropriate Court.
In this Section 17, "Appropriate Court" means:
(1) in the case of any dispute that arises under this
Agreement or any transaction this Agreement contemplates, other than
under Section 3 and the conduct that Section contemplates, the
Appropriate Delaware Court; and
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(2) in the case of any dispute that arises under Section 3 or
any conduct to which that Section relates, the civil district courts
located in Xxxxxx County, Texas.
Section 18. Further Assurances. At the request of Parent, each
Stockholder will duly execute and deliver to Parent a signature page hereto
together with the notarization of that Stockholder's signature by an appropriate
notary public and such other documents as, in the good-faith judgment of Parent,
are reasonably necessary or advisable to carry out more effectively other
provisions and purposes of Section 3.
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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
Aspect Resources, LLC BY: /s/ XXXX X. XXXXXXXX
000 00xx Xxxxxx, Xxxxx 000 ----------------------------------
Xxxxxx, Xxxxxxxx 00000 XXXX X. XXXXXXXX
PRESIDENT
No. of Original Shares: 132,754
Esenjay Exploration, Inc.
000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx Xxxxxxx, Xxxxx 00000 By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Xxxxxxx X. Xxxxxxx
STOCKHOLDERS (continued)
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
No. of Original Shares: 202,297
Esenjay Exploration, Inc.
500 Dallas, Suite 2920 By: /s/ XXXXX X. XXXXX
Xxxxxxx, Xxxxx 00000 ----------------------------------
Xxxxx X. Xxxxx
STATE OF TEXAS )
)
COUNTY/PARISH OF XXXXXX )
(Alabama) I, Xxx X. Xxxxx, a notary public, in and for the above
mentioned county and state, hereby certify that Xxxxxxx
X. Xxxxxxx, whose name as president, of Esenjay Petroleum
Corporation, a corporation, is signed to the foregoing
agreement and who is known to me, acknowledged before me on
this day that, being informed of the contents of the
agreement, he, as such officer and with full authority,
executed the same voluntarily for and as the act of such
corporation.
(Louisiana) On this the 20th day of March, 2002, before me, Xxx X. Xxxxx,
the undersigned officer, personally appeared Xxxxxxx X.
Xxxxxxx who acknowledged himself to be the president of
Esenjay Petroleum Corporation, a corporation, and that he, as
such president, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by
signing the name of the corporation by himself as president.
(Mississippi) Personally appeared before me, the undersigned authority in
and for the said county and state, on this 20th day of March,
2002, within my jurisdiction, the within named Xxxxxxx X.
Xxxxxxx, who acknowledged that he is president of Esenjay
Petroleum Corporation, a Delaware corporation, and that for
and on behalf of the corporation, and as its act and deed he
executed the above and foregoing instrument, after first
having been duly authorized by the corporation so to do.
(Oklahoma) This instrument was acknowledged before me on March 20, 2002,
by Xxxxxxx X. Xxxxxxx, as president of Esenjay Petroleum
Corporation.
(Texas) This instrument was acknowledged before me on March 20, 2002,
by Xxxxxxx X. Xxxxxxx, president of Esenjay Petroleum
Corporation, a Delaware corporation, on behalf of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
20th day of March, A. D. 2002.
/s/ Xxx X. Xxxxx
----------------------------------
Signature
Printed Name: Xxx X. Xxxxx
Title of officer: Notary Public
My commission or term of office expires on 9/5/05.
[SEAL]
STATE OF COLORADO )
)
COUNTY/PARISH OF DENVER )
(Alabama) I, Xxxxx X. XxXxxxx, a notary public, hereby certify that
Xxxx X. Xxxxxxxx, whose name is signed to the foregoing
agreement, and who is known to me, acknowledged before me on
this day that, being informed of the contents of the
agreement, he executed the same voluntarily on the day the
same bears date.
(Louisiana) On this the 19th day of March, 2002, before me, Xxxxx X.
XxXxxxx, the undersigned officer, personally appeared Xxxx X.
Xxxxxxxx, known to me or satisfactorily proven to be the
person whose name is subscribed to the within instrument and
acknowledged he executed the same for the purposes therein
contained.
(Mississippi) Personally appeared before me, the undersigned authority in
and for the said county and state, on this 19th day of March,
2002, within my jurisdiction, the within named Xxxx X.
Xxxxxxxx, who acknowledged that he executed the above and
foregoing instrument.
(Oklahoma and
Texas) This instrument was acknowledged before me on March 19, 2002,
by Xxxx X. Xxxxxxxx.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
19th day of March, A. D. 2002.
/s/ Xxxxx X. XxXxxxx
----------------------------------------
Signature
Printed Name: Xxxxx X. XxXxxxx
Title of officer:
My commission or term of office expires on 6/15/03.
[SEAL]
STATE OF TEXAS )
)
COUNTY/PARISH OF XXXXXX )
(Alabama) I, Xxx X. Xxxxx, a notary public, hereby certify that
Xxxxxxx X. Xxxxxxx, whose name is signed to the foregoing
agreement, and who is known to me, acknowledged before me on
this day that, being informed of the contents of the
agreement, he executed the same voluntarily on the day the
same bears date.
(Louisiana) On this the 20th day of March, 2002, before me, Xxx X. Xxxxx,
the undersigned officer, personally appeared Xxxxxxx X.
Xxxxxxx, known to me or satisfactorily proven to be the person
whose name is subscribed to the within instrument and
acknowledged he executed the same for the purposes therein
contained.
(Mississippi) Personally appeared before me, the undersigned authority in
and for the said county and state, on this 20th day of March,
2002, within my jurisdiction, the within named Xxxxxxx X.
Xxxxxxx, who acknowledged that he executed the above and
foregoing instrument.
(Oklahoma and
Texas) This instrument was acknowledged before me on March 20, 2002,
by Xxxxxxx X. Xxxxxxx.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
20th day of March, A. D. 2002.
/s/ Xxx X. Xxxxx
------------------------------------
Signature
Printed Name: Xxx X. Xxxxx
Title of officer: Notary Public
My commission or term of office expires on 9/5/05.
[SEAL]
STATE OF TEXAS )
)
COUNTY/PARISH OF XXXXXX )
(Alabama) I, Xxx X. Xxxxx, a notary public, hereby certify that
Xxxxx X. Xxxxx, whose name is signed to the foregoing
agreement, and who is known to me, acknowledged before me on
this day that, being informed of the contents of the
agreement, he executed the same voluntarily on the day the
same bears date.
(Louisiana) On this the 20th day of March, 2002, before me, Xxx X. Xxxxx,
the undersigned officer, personally appeared Xxxxx X. Xxxxx,
known to me or satisfactorily proven to be the person whose
name is subscribed to the within instrument and acknowledged
he executed the same for the purposes therein contained.
(Mississippi) Personally appeared before me, the undersigned authority in
and for the said county and state, on this 20th day of March,
2002, within my jurisdiction, the within named Xxxxx X. Xxxxx,
who acknowledged that he executed the above and foregoing
instrument.
(Oklahoma and
Texas) This instrument was acknowledged before me on March 20, 2002,
by Xxxxx X. Xxxxx.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
20th day of March, A. D. 2002.
/s/ Xxx X. Xxxxx
--------------------------------------
Signature
Printed Name: Xxx X. Xxxxx
Title of officer: Notary Public
My commission or term of office expires on 9/5/05.
[SEAL]
STATE OF COLORADO )
)
COUNTY/PARISH OF DENVER )
(Alabama) I, Xxxxx X. XxXxxxx, hereby certify that Xxxx X. Xxxxxxxx
whose name is signed to the foregoing conveyance, and who is
known to me, acknowledged before me on this day that, being
informed of the contents of the conveyance, he executed the
same voluntarily on the day the same bears date.
(Louisiana) On this 19th day of March, 2002, before me, Xxxxx X. XxXxxxx,
the undersigned officer, personally appeared Xxxx X. Xxxxxxxx,
known to me or satisfactorily proven to be the person whose
name is subscribed as president for Aspect Management
Corporation which is manager for Aspect Energy, LLC, and
acknowledged that he executed the same act of his limited
liability company for the purposes therein contained.
(Mississippi) Personally appeared before me, the undersigned authority in
and for the said county and state, on this 19th day of March,
2002, within my jurisdiction, the within named Xxxx X.
Xxxxxxxx, who acknowledged that he is president of Aspect
Management Corporation which is manager for Aspect Energy, LLC
and that in said representative capacity he executed the above
and foregoing instrument, after first having been duly
authorized so to do.
(Oklahoma) This instrument was acknowledged before me on March 19, 2002,
by Xxxx X. Xxxxxxxx, as president of Aspect Management
Corporation which is manager for Aspect Energy, LLC.
(Texas) This instrument was acknowledged before me on March 19, 2002,
by Xxxx X. Xxxxxxxx, president of Aspect Management
Corporation, as manager on behalf of Aspect Energy, LLC, a
limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
19th day of March, A. D. 2002.
/s/ Xxxxx X. XxXxxxx
----------------------------------------
Signature
Printed Name: Xxxxx X. XxXxxxx
Title of officer:
My commission or term of office expires on 6-15-03.
[SEAL]
ANNEX A
ESCROW AGREEMENT
Xxxxxx Americas and Europe Corporation ("Parent"), a Delaware
corporation, the holders of outstanding common stock of Esenjay Exploration,
Inc. (the "Company"), a Delaware corporation, to which this Escrow Agreement
refers as "Stockholders" on the signature pages hereof (the "Stockholders") and
___________________________, as Escrow Agent ("Escrow Agent") hereby enter into
this Escrow Agreement dated as of March ___, 2002
PRELIMINARY STATEMENT
Parent and its subsidiary, ECM Acquisition Company ("Sub"), a
Delaware corporation, have entered 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 will acquire the Company
in a two-step transaction. The first step will be a tender offer by Sub for all
the outstanding shares of the Company's common stock.
The Stockholders collectively own approximately 52% 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 have
entered into a Stockholders Agreement dated as of March 17, 2002 (the
"Stockholders Agreement") and an Option Agreement dated as of March 17, 2002
(the "Option 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:
1. Capitalized terms this Escrow Agreement uses, but does not
define, have the meanings the Option Agreement or the Stockholders Agreement
specifies.
2. Each Stockholder will deliver to Escrow Agent, against
receipt therefor of the Escrow Agent, certificates registered in the name of
that Stockholder, but endorsed in blank with signatures guaranteed, representing
all that Stockholder's Subject Shares. Escrow Agent will hold and dispose of the
certificates each Stockholder deposits with it hereunder in accordance with the
terms hereof.
3. Each Stockholder hereby irrevocably appoints and designates
Escrow Agent as the agent, representative and attorney-in-fact for and on behalf
of that Stockholder to take any and all actions on behalf of that Stockholder to
effect, in accordance with the Stockholders Agreement, a valid tender of that
Stockholder's Subject Shares under and in accordance with the terms of the
Offer. This power of attorney includes, without limitation, physical delivery of
those certificates and the execution and delivery of a properly completed letter
of transmittal and any other required documentation or instruments with respect
thereto. If, prior to the acceptance for payment by Sub of Shares under the
Offer,
A-1
(1) (A) Parent terminates the Acquisition Agreement
under Section 9.01(a)(3) thereof or (B) the Company terminates
the Acquisition Agreement under Section 9.01(a)(4) thereof,
and
(2) Sub terminates the Offer,
Parent will give written notice of that termination and the date of termination
of the Offer to Escrow Agent and cause the certificates representing the Subject
Shares of each Stockholder that have been tendered under the Offer to be
redelivered to Escrow Agent for redeposit into escrow hereunder. Following that
redeposit, Escrow Agent will hold those certificates in its custody hereunder
until it disposes of those certificates in accordance with Section 4 below.
4. (a) If at any time during the Option Exercise Period Parent
shall deliver to Escrow Agent written notice in the form of Exhibit 1 hereto of
its exercise of the Purchase Options, together with immediately available funds
in the aggregate amount of the Purchase Prices payable thereunder, Escrow Agent
promptly will deliver the certificates representing all Subject Shares Parent
has purchased on its exercise of the Purchase Options to Parent. Escrow Agent
will, promptly following its receipt of those funds, deliver to each
Stockholder, in accordance with that Stockholder's written wire transfer
instructions, immediately available funds in the amount of the Purchase Price to
which that Stockholder is entitled.
(b) If during the Option Exercise Period Parent does not
exercise the Purchase Options and purchase the Subject Shares subject thereto
under Section 4(a), Escrow Agent promptly will deliver to each Stockholder
following the expiration of the Option Exercise Period the certificates
representing that Stockholder's Subject Shares.
5. Prior to the termination of this Escrow Agreement, Escrow
Agent will vote all Subject Shares that it holds or has tendered under the Offer
in accordance with the written instructions of Parent.
6. Escrow Agent may resign by mailing its written notice of
that resignation to the Stockholders and Parent; provided, however, that this
resignation will not be effective until Parent shall have appointed a successor
Escrow Agent and that successor shall have executed an Escrow Agreement
substantially in the form hereof. Any successor escrow agent must be a national
or state bank authorized to exercise corporate trust powers, and having a
combined capital and surplus of at least $100,000,000. Escrow Agent will receive
reasonable compensation for its services hereunder which Parent will pay or
cause to be paid.
7. Each of the Stockholders and Parent severally represents
and warrants to the Escrow Agent that it has full right, power and authority to
execute and deliver this Escrow Agreement.
8. All notices, requests, claims, demands and other
communications hereunder must be in writing and will be given (and will be
deemed to have been duly received if so given) by personal delivery or
facsimile, by mail (registered or certified mail, postage prepaid, return
receipt requested), or by means of electronic communications equipment (which is
confirmed) to the respective parties as follows:
A-2
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 No.: (000) 000-0000
Email: xxxxx.xxxxxx@xxxxxxxxxx.xxx
and
If to a Stockholder, to that Stockholder's address set forth
opposite that Stockholder's name on the signature pages hereto.
If to Escrow Agent, to it at:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Attention: Corporate Trust Department
9. This Agreement may be executed in two or more counterparts,
all of which will be considered one and the same agreement, 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.
10. Each Stockholder that is an Entity will require the
successor to that Entity's business and assets substantially as an entirety,
whether by merger, consolidation, sale of assets or other transaction, to assume
in writing that Stockholder's obligations hereunder.
11. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW
PROVISIONS THEREOF THAT WOULD CAUSE THE LAWS OF ANY OTHER JURISDICTION TO APPLY.
A-3
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be duly executed on the date below written.
Dated: March __, 2002
XXXXXX AMERICAS AND
EUROPE CORPORATION
By:
----------------------------------------
Xxxxxxxx X. Xxxxxxxx
President
ESCROW AGENT
--------------------------------------------
By:
----------------------------------------
Name:
Title:
STOCKHOLDERS
Aspect Resources, LLC
000 00xx Xxxxxx, Xxxxx 000 By:
Xxxxxx, Xxxxxxxx 00000 ----------------------------------------
Xxxx X. Xxxxxxxx
ASPECT ENERGY, LLC
BY: ASPECT MANAGEMENT CORPORATION,
MANAGER
c/o Xxxx X. Xxxxxxxx BY:
Aspect Resources, LLC ----------------------------------------
000 00xx Xxxxxx, Xxxxx 000 XXXX X. XXXXXXXX
Xxxxxx, Xxxxxxxx 00000 PRESIDENT
Esenjay Exploration, Inc.
000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx Xxxxxxx, Xxxxx 00000 By:
----------------------------------------
Xxxxxxx X. Xxxxxxx
A-4
STOCKHOLDERS (continued)
ESENJAY PETROLEUM CORPORATION
c/o Xxxxxxx X. Xxxxxxx
Esenjay Exploration, Inc.
000 Xxxxx Xxxxx, Xxxxx 0000 By:
Xxxxxx Xxxxxxx, Xxxxx 00000 ----------------------------------------
Xxxxxxx X. Xxxxxxx
President
Esenjay Exploration, Inc.
500 Dallas, Suite 2920 By:
Xxxxxxx, Xxxxx 00000 ----------------------------------------
Xxxxx X. Xxxxx
A-5
EXHIBIT 1
[Letterhead of Xxxxxx Americas and Europe Corporation]
_______________, 200__
[ESCROW AGENT] (or any successor)
Ladies and Gentlemen:
We refer to the Escrow Agreement, dated March __, 2002 among
the undersigned, the Stockholders signatory thereto and you, as Escrow Agent. We
hereby exercise the option to purchase such Subject Shares referred to in that
Escrow Agreement and deliver herewith the Purchase Prices therefor.
Very truly yours,
XXXXXX AMERICAS AND
EUROPE CORPORATION
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
The undersigned, [Escrow Agent] (or successor), as Escrow
Agent, acknowledges receipt of this and the Purchase Prices therefor.
-------------------------------------
Escrow Agent
