EXHIBIT
XXXXXXX EXPLORATION COMPANY
STOCKHOLDERS VOTING AGREEMENT
-----------------------------
This STOCKHOLDERS VOTING AGREEMENT, dated December 20, 2002 (this
"Agreement"), is made and entered into by and among Xxxxxxx Exploration Company,
a Delaware corporation (the "Company"), the Credit Suisse First Boston entities
listed on Schedule A hereto (the "CSFB Investors"), and the following
stockholders of the Company (the "Stockholders"): 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, Aspect
Resources, LLC, a Colorado limited liability company, and the individual
officers of the Company listed on Schedule I hereto.
W I T N E S S E T H:
WHEREAS, the Company and the CSFB Investors 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 the
CSFB Investors an aggregate of up to 500,000 shares of its Series B Preferred
Stock and warrants (the "Warrants") to acquire 2,298,850 shares (the "Warrant
Shares") of its common stock (the "Common Stock");
WHEREAS, the Warrants contain certain anti-dilution provisions which,
under the Nasdaq Market Rules, may not be enforceable until approved by the
company's stockholders;
WHEREAS, the Company has agreed to seek such approval at its annual
stockholders' meeting to be held on or before May 31, 2003; and
WHEREAS, as a condition to the agreement of the CSFB Investors to enter
into the Purchase Agreement, the Company and the Stockholders have agreed to
enter into this Agreement to provide for certain agreements relating to approval
of the terms of the Warrants 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 Stockholder agrees that, at any
special or annual meeting of stockholders of the Company, such Stockholder 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 record date of the meeting at
which the matter is considered (including without limitation any and all other
capital stock of the Company legally or beneficially acquired by such
Stockholder after the date hereof) to approve and ratify the Warrants and any
future adjustments to the exercise price
1
pursuant to the terms of the Warrants. Each Stockholder represents to the CSFB
Investors that as of the date hereof such Stockholder owns the number of
outstanding shares of Common Stock set forth opposite such Stockholder's name on
the 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 any of the CSFB Investors:
Global Energy Partners
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Fax: 000-000-0000
Attn: Xxxxxx X. Xxxxxxx
and
CSFB Private Equity
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attn: Xxx Xxxxx
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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
Fax No: (000) 000-0000
If to Xxxxxx X. Xxxxxx:
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxx, Xxxxx 0000
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
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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 X. Xxxxxx
Fax No: (000) 000-0000
If to any of the officers of Xxxxxxx:
Xxxxxxx Exploration Company
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: [name of officer]
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.
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 Stockholders 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 Stockholders 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.
* * * * *
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/ Xxx X. Xxxxxxx
-----------------------
Name: Xxx X. Xxxxxxx
Title: CEO and President
/s/ Xxx X. Xxxxxxx
------------------------------
Xxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
5
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
/s/ A. Xxxxx Xxxxxxxx
------------------------------
A. Xxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxx
------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx 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/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
ASPECT RESOURCES, LLC
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Manager
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THE CSFB INVESTORS:
DLJ MERCHANT BANKING PARTNERS III, L.P.
By: DLJ MERCHANT BANKING III, INC.,
its Managing General Partner
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
Attorney-in-Fact
DLJ MERCHANT BANKING III, INC., AS ADVISORY
GENERAL PARTNER ON BEHALF OF
DLJ OFFSHORE PARTNERS III, C.V.
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
Attorney-in-Fact
DLJ MERCHANT BANKING III, INC., AS ADVISORY
GENERAL PARTNER ON BEHALF OF DLJ OFFSHORE
PARTNERS III-1, C.V. AND AS ATTORNEY-IN-FACT FOR
DLJ MERCHANT BANKING III, L.P., AS ASSOCIATE
GENERAL PARTNER OF DLJ OFFSHORE PARTNERS III-1, C.V.
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
Attorney-in-Fact
DLJ MERCHANT BANKING III, INC., AS ADVISORY
GENERAL PARTNER ON BEHALF OF
DLJ OFFSHORE PARTNERS III-2, C.V. AND
AS ATTORNEY-IN-FACT FOR DLJ MERCHANT BANKING III, L.P.,
AS ASSOCIATE GENERAL PARTNER OF
DLJ OFFSHORE PARTNERS III-2, C.V.
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
Attorney-in-Fact
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DLJ MB PARTNERSIII GmbH & CO. KG
By: DLJ MERCHANT BANKING III, L.P.,
its Managing Limited Partner
By: DLJ MERCHANT BANKING III, INC.,
its General Partner
By: /s/ Xxxxxx Xxxxx
----------------------------------
Xxxxxx Xxxxx
Attorney-in-Fact
MILLENNIUM PARTNERS II, L.P.
By: DLJ MERCHANT BANKING III, INC.,
its Managing General Partner
By: /s/ Xxxxxx Xxxxx
----------------------------------
Xxxxxx Xxxxx
Attorney-in-Fact
MBP III PLAN INVESTORS, L.P.
By: DLJ LBO PLANS MANAGEMENT CORPORATION,
its Managing General Partner
By: /s/ Xxxxxx Xxxxx
----------------------------------
Xxxxxx Xxxxx
Attorney-in-Fact
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SCHEDULE I
NUMBER OF OUTSTANDING
STOCKHOLDER SHARES OF COMMON STOCK
----------- ----------------------
Xxx X. and Xxxx X. Xxxxxxx, collectively 3,671,774
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
Xxxxxxx Officers: 193,252 (in the aggregate)
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx Xxxxxx
