XXXXXXXX VOTING AND LOCK-UP AGREEMENT
This Voting and Lock-Up Agreement (this "Agreement") is made
and entered into as of April 5, 2001 by and between Globex Energy, Inc., a
Delaware corporation ("G-Co"), and Xxxxxxxx Global Energy (Cayman) Limited,
a Cayman Islands corporation ("W-Co").
WHEREAS, concurrently with the execution of this Agreement,
Apco Argentina, Inc., a Cayman Islands corporation (the "Company"), Apco
Delaware, Inc., a Delaware corporation and wholly-owned subsidiary of the
Company ("Merger Subsidiary"), and G-Co, have entered into an Agreement and
Plan of Merger dated as of April 5, 2001 (the "Merger Agreement"),
providing for the merger of Merger Subsidiary with and into G-Co (the
"Merger"), pursuant to which G-Co will become a wholly-owned subsidiary of
the Company;
WHEREAS, W-Co is the sole record and beneficial owner of the
number of shares of capital stock, other equity interests and securities
convertible into capital stock or other equity interests in the Company as
is indicated on the applicable signature page of this Agreement (the
"Shares"); and
WHEREAS, in consideration of and to induce the execution of the
Merger Agreement by G-Co, W-Co agrees to certain transfer restrictions and
voting requirements to facilitate consummation of the Merger as more fully
described below.
NOW, THEREFORE, in consideration of the mutual promises and the
mutual covenants and agreements contained herein, the parties agree as
follows:
1. Agreement to Retain Shares. Except as expressly contemplated
by the Merger Agreement, W-Co agrees not to transfer, assign, sell,
exchange, pledge, hypothecate, grant a security interest in or otherwise
dispose of, or offer to transfer, assign, sell, exchange, encumber or
otherwise dispose of, or grant any proxy or power of attorney, deposit any
Shares into a voting trust or enter into a voting agreement, understanding
or arrangement with respect to any of the Shares at any time prior to
consummation of the Merger or the Expiration Date, as defined herein. The
"Expiration Date" shall mean the date on which the Merger Agreement shall
have been terminated pursuant to Article VII of the Merger Agreement.
2. Agreement to Vote Shares. At any meeting of the stockholders
of the Company called with respect to the Merger, the Merger Agreement and
any other transactions contemplated thereby, and at any adjournment or
adjournments thereof, and with respect to any consent or proxies solicited
with respect to the Merger, the Merger Agreement and any other transactions
contemplated thereby, W-Co shall vote the Shares (a) in favor of the
issuance of shares in the Merger and the approval of the amendments to the
Company's Articles of Association and Memorandum of Association as
contemplated by the Merger Agreement, including any amendments thereto, and
any matter which could reasonably be expected to facilitate the Merger and
(b) against any alternative transaction or any other matter which could
reasonably be expected to facilitate the consummation of an alternative
transaction. W-Co, as the holder of Shares, shall be present, in person or
by proxy, at all meetings of stockholders of the Company or at any
adjournment or adjournments thereof so that all Shares are counted for the
purpose of determining the presence of a quorum at such meetings.
3. Additional Purchases. For purposes of this Agreement, the
term "Shares" shall include any shares of capital stock or other equity
interests of the Company which W-Co purchases or otherwise acquires after
the execution of this Agreement and prior to the Expiration Date,
including, without limitation, by exercise of options or warrants.
4. Representations, Warranties and Covenants of W-Co. W-Co
hereby represents, warrants and covenants to G-Co that, except as
specifically described on Annex A to this Agreement, W-Co (i) is the sole
record and beneficial owner of the Shares, which at the date hereof and at
all times until the Expiration Date will be free and clear of any liens,
claims, options, charges or other encumbrances, (ii) does not own
beneficially or of record any shares of stock or other equity interest of
the Company other than the Shares and (iii) has full power and authority to
make, enter into, deliver and carry out the terms of this Agreement. W- Co
hereby further represents, warrants and covenants that (i) this Agreement
constitutes the legal, valid and binding obligation of W-Co, and (ii)
neither the execution of this Agreement by W-Co nor the consummation of the
transactions contemplated hereby will result in a breach or violation of
the terms of any agreement by which W-Co is bound or of any decree,
judgment, order, law or regulation now in effect of any court or other
governmental body applicable to W- Co.
5. Representations, Warranties and Covenants of G-Co. G-Co
represents, warrants and covenants to W-Co that this Agreement (i) has been
authorized by all necessary corporate action on the part of G-Co and has
been duly executed by a duly authorized officer of G-Co and (ii)
constitutes the legal, valid and binding obligation of G-Co. Neither the
execution of this Agreement by G-Co nor the consummation of the
transactions contemplated hereby will result in a breach or violation of
the terms of any agreement by which G-Co is bound or of any decree,
judgment, order, law or regulation now in effect of any court or other
governmental body applicable to G-Co.
6. Additional Documents. W-Co and G-Co hereby covenant and
agree to execute and deliver any additional documents necessary or
desirable, in the reasonable opinion of G-Co or W-Co, as the case may be,
to carry out the intent of this Agreement.
7. Consent and Waiver. W-Co hereby gives any consent or waivers
that are reasonably required for the consummation of the Merger under the
terms of any agreement to which W-Co is a party or pursuant to any rights
W-Co may have.
8. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated.
(b) Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement
nor any of the rights, interests or obligations of the parties hereto may
be assigned by any of the parties without the prior written consent of the
other.
(c) Amendments and Modifications. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that G-Co will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or
agreements of W-Co set forth herein. Therefore, it is agreed that, in
addition to any other remedies which may be available to G-Co upon such
violation, G-Co shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to it at law or in equity.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by commercial overnight courier service, by confirmed telecopy, or
sent by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties as follows:
(i) if to G-Co, to:
Attention: Xxxx Xxxxxxxx
000 Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
with a copy to:
Attention: Xxxxxx X. Xxxxxx, Esq.
Fulbright & Xxxxxxxx, LLP
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
(ii) if to W-Co, to
Attention: Xxxx X. Xxxxxxxxx, Xx.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
with a copy to:
Attention: Xxxxx Xxxxxxx, Esq.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that
notices of change of address shall only be effective upon
receipt.
(f) Termination. This Agreement shall terminate upon the
termination of the Merger Agreement in accordance with its terms.
(g) Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the Cayman Islands
without giving effect to principles of conflicts of law.
(h) Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties
with respect to such subject matter.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
GLOBEX ENERGY, INC.
By: /s/ L. Xxxx Xxxxxxxx
------------------------------
Name: L. Xxxx Xxxxxxxx
Title: President
XXXXXXXX GLOBAL ENERGY (CAYMAN)
LIMITED
By: /s/ Xxxx X. Xxxxxxxxx, Xx.
------------------------------
Name: Xxxx X. Xxxxxxxxx, Xx.
Shares owned beneficially and of record by W-Co:
______ shares of Ordinary Shares
______ shares of Ordinary Shares issuable pursuant to options ______ shares
of Ordinary Shares issuable pursuant to warrants ______ any other direct or
indirect equity interests in the Company
(please specify)
ANNEX A
ENCUMBRANCES UPON THE SHARES HELD BY THE UNDERSIGNED
