VOTING AGREEMENT
Exhibit 99.2
This VOTING AGREEMENT (this “Agreement”), dated as of February 13, 2014, is by and among ARP Mountaineer Production, LLC (“Buyer”), Atlas Resource Partners, L.P., a Delaware limited partnership (“Parent”), and each of the Persons listed on Annex I hereto (each, a “Stockholder”). Capitalized terms used but not defined herein have the respective meanings assigned to them in the Asset Purchase Agreement, dated as of the date of this Agreement (the “APA”), by and among Buyer, Parent, GeoMet, Inc., a Delaware corporation (“GeoMet”), GeoMet Operating Company, Inc., an Alabama corporation (“Operator”), and GeoMet Gathering Company, LLC, an Alabama limited liability company (“Gathering” and, together with GeoMet and Operator, the “Sellers” and each a “Seller”).
RECITALS
WHEREAS, as of the date hereof, each Stockholder is, except as set forth on Annex I, the beneficial owner (as defined in Rule 13d-3 under the Exchange Act, it being understood that “beneficially owned” and “beneficial ownership” shall have correlative meanings) of the number of shares of GeoMet Common Stock and/or GeoMet Preferred Stock set forth opposite such Stockholder’s name under the headings “GeoMet Common Stock Shares Beneficially Owned” and/or “GeoMet Preferred Stock Shares Beneficially Owned” on Annex I (all such beneficially owned shares of GeoMet Common Stock or GeoMet Preferred Stock that are outstanding as of the date hereof and any outstanding shares of GeoMet Common Stock or GeoMet Preferred Stock that may hereafter be acquired by such Stockholder pursuant to acquisition by purchase, stock dividend, distribution, stock split, split-up, combination, merger, consolidation, reorganization, recapitalization or similar transaction, being referred to herein as the “Subject Shares;” provided that “Subject Shares” shall not include shares of GeoMet Common Stock or GeoMet Preferred Stock beneficially owned in the form of GeoMet equity awards (other than GeoMet restricted stock) so long as such GeoMet equity awards remain unexercised);
WHEREAS, concurrently with the execution and delivery of this Agreement, Buyer, Parent and the Sellers are entering into the APA, a copy of which has been made available to each Stockholder, which provides for, among other things, the sale of all of GeoMet’s Appalachian Basin coalbed methane assets that constitutes substantially all of GeoMet’s assets for the purposes of §271 of the DGCL (the “Transaction”), upon the terms and subject to the conditions set forth therein; and
WHEREAS, as a condition to Buyer’s and Parent’s willingness to enter into the APA, Buyer and Parent have requested that each Stockholder enter into this Agreement, and in order to induce Buyer and Parent to enter into the APA, each Stockholder has agreed to do so.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE I
AGREEMENTS OF EACH STOCKHOLDER
1.1 Voting of Subject Shares. Each Stockholder irrevocably and unconditionally agrees that during the term of this Agreement such Stockholder shall, at any meeting (whether annual or special and
whether or not an adjourned or postponed meeting) of the holders of shares of GeoMet Common Stock or GeoMet Preferred Stock, however called (each, a “GeoMet Stockholders Meeting”):
(a) be present, in person or represented by proxy, or otherwise cause such Stockholder’s Subject Shares to be counted for purposes of determining the presence of a quorum at such meeting (to the fullest extent that such Subject Shares may be counted for quorum purposes under applicable Legal Requirements); and
(b) vote (or cause to be voted) with respect to all such Stockholder’s Subject Shares to the fullest extent that such Subject Shares are entitled to be voted at the time of such vote:
(i) in favor of (1) the adoption of a resolution authorizing the APA and the transactions contemplated thereby, (2) the approval of any proposal to adjourn or postpone the GeoMet Stockholders Meeting to a later date if there are not sufficient votes for adoption of the APA on the date on which the GeoMet Stockholders Meeting is held and (3) any other matter submitted to the holders of shares of GeoMet Common Stock or GeoMet Preferred Stock for approval that is necessary for consummation of the transactions contemplated by the APA that is considered at any such GeoMet Stockholders Meeting; and
(ii) against (1) any action (including any amendment to GeoMet’s certificate of incorporation or bylaws, as in effect on the date hereof), agreement or transaction submitted to the holders of shares of GeoMet Common Stock or GeoMet Preferred Stock for approval that would reasonably be expected to frustrate the purposes of, impede, hinder, interfere with, nullify, prevent, delay or adversely affect, in each case in any material respect, the consummation of the transactions contemplated by the APA, (2) any Acquisition Proposal and any action in furtherance of any Acquisition Proposal submitted to the holders of shares of GeoMet Common Stock or GeoMet Preferred Stock for approval, (3) except as required pursuant to Section 1.1(b)(i)(3), any merger, acquisition, sale, consolidation, reorganization, recapitalization, extraordinary dividend, dissolution, liquidation or winding up of or by GeoMet, or any other extraordinary transaction involving GeoMet (other than the Transaction and the other transactions contemplated by the APA), in each case that is submitted to the holders of shares of GeoMet Common Stock or GeoMet Preferred Stock for approval, (4) any action, proposal, transaction or agreement submitted to the holders of shares of GeoMet Common Stock or GeoMet Preferred Stock for approval that would reasonably be expected to result in a breach, in any material respect, of any covenant, representation or warranty or any other obligation or agreement of such Stockholder under this Agreement and (5) any other action, proposal, transaction or agreement submitted to the holders of shares of GeoMet Common Stock or GeoMet Preferred Stock for approval that would reasonably be expected to result in the failure of any condition to the Transaction set forth in Article VI of the APA to be satisfied on or before the Closing Date. It is understood that each Stockholder shall retain at all times the right to vote such Stockholder’s Subject Shares in such Stockholder’s sole and absolute discretion on any matter other than those set forth in this Section 1.1 that is at any time or from time to time presented for consideration to the holders of shares of GeoMet Common Stock or GeoMet Preferred Stock.
1.2 No Proxies for or Liens on Subject Shares.
(a) Except as provided hereunder, during the term of this Agreement, each Stockholder shall not (nor permit any Person under such Stockholder’s control to), directly or indirectly, (i) grant any proxies or powers of attorney with respect to the right to vote, rights of first offer or refusal, or enter into any voting trust or voting agreement or arrangement, with respect to any of such Stockholder’s Subject Shares, (ii) sell (including short sell), assign, transfer, tender, pledge, encumber,
grant a participation interest in, hypothecate or otherwise dispose of (including by gift) (each, other than pursuant to the APA, a “Transfer”) any of such Stockholder’s Subject Shares or (iii) enter into any agreement providing for the direct or indirect Transfer of any of such Stockholder’s Subject Shares. Except as provided hereunder, no Stockholder shall, and shall not permit any Person under such Stockholder’s control or any of such Stockholder’s or such Person’s respective representatives to, seek or solicit any such Transfer or any such agreement. Without limiting the foregoing, each Stockholder shall not take any other action that would in any way restrict, limit or interfere in any material respect with the performance of such Stockholder’s obligations hereunder or the transactions contemplated by the APA.
(b) Notwithstanding the foregoing, each Stockholder shall have the right to Transfer all or any portion of his, her or its Subject Shares to a Permitted Transferee of such Stockholder if and only if such Permitted Transferee shall have agreed in writing, in a manner reasonably acceptable to Buyer and Parent, (i) to accept such Subject Shares subject to the terms and conditions of this Agreement and (ii) to be bound by this Agreement and to agree and acknowledge that such Person shall constitute a Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (x) with respect to any Stockholder that is not a natural person, (1) any other Stockholder, (2) any Affiliate of such Stockholder, or (3) the partners of other equity holders of such Stockholder in connection with an in-kind distribution of such Stockholder’s Subject Shares and (y) with respect to any Stockholder that is a natural person or a trust, (A) any other Stockholder, (B) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild or the spouse of any child, adopted child, grandchild or adopted grandchild of such Stockholder, (C) any trust, the trustees of which include only the Persons named in clauses (A) or (B) and the beneficiaries of which include only the Persons named in clauses (A) or (B), or (D) if such Stockholder is a trust, the beneficiary or beneficiaries authorized or entitled to receive distributions from such trust. For purposes of this Section 1.2(b), “Affiliate” means, with respect to any Stockholder, any other person directly or indirectly controlling, controlled by or under common control with such Stockholder.
(c) Each Stockholder hereby authorizes Buyer and Parent to direct GeoMet to impose stop orders to prevent the Transfer of any Subject Shares on the books of GeoMet in violation of this Agreement; provided, that any such stop order (i) shall terminate upon the termination of this Agreement, and (ii) shall not prohibit a Transfer of Subject Shares in accordance with the other provisions of this Section 1.2.
(d) Notwithstanding anything in this Agreement to the contrary, (i) no Stockholder shall be prohibited from exercising any GeoMet stock options (including via cashless or “net” exercise), provided, that any shares of GeoMet Common Stock or GeoMet Preferred Stock acquired thereby shall be thereafter considered Subject Shares and bound by the terms of this Agreement, (ii) no Stockholder shall be prohibited from Transferring any shares of GeoMet Common Stock or GeoMet Preferred Stock acquired pursuant to clause (i) of this Section 1.2(d), provided, that any Transfer of such shares shall be in accordance with the provisions of Section 1.2(b) unless the Transfer is made substantially concurrently with the exercise of a GeoMet stock option for the purpose of (and in amounts no greater than the amounts necessary) obtaining funds to pay required taxes, (iii) no Stockholder shall be prohibited from Transferring any shares of GeoMet Common Stock or GeoMet Preferred Stock to GeoMet for purposes of satisfying any required tax withholding in connection with the exercise or vesting of any GeoMet equity awards, (iv) no Stockholder shall be required to exercise any options to acquire shares of GeoMet Common Stock or GeoMet Preferred Stock or (except as set forth in the APA) to otherwise change the form in which such Stockholder beneficially owns any shares of GeoMet Common Stock or GeoMet Preferred Stock and (v) no Stockholder shall be prohibited from paying the exercise price of any GeoMet stock Options with shares of GeoMet Common Stock or Geo Met Preferred Stock. Buyer and Parent agree and acknowledge that nothing in this Agreement or in the APA shall prohibit GeoMet from accepting or purchasing shares of GeoMet Common Stock or GeoMet Preferred Stock from
a Stockholder hereunder for the purpose of satisfying the exercise price of any GeoMet stock option or of satisfying any required tax withholding.
1.3 Documentation and Information. During the term of this Agreement, each Stockholder (a) consents to and authorizes the publication and disclosure by Buyer or Parent of such Stockholder’s identity and holdings of Subject Shares, the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement and any other information, in each case, that Buyer or Parent reasonably determines is required to be disclosed by applicable Legal Requirements in any press release or any other disclosure document in connection with the Transaction and the transactions contemplated by the APA and (b) agrees to promptly give to Buyer or Parent any information Buyer or Parent may reasonably require for the preparation of any such disclosure documents. Buyer and Parent (i) consent to and authorize the publication and disclosure by any Stockholder of Buyer’s or Parent’s identity, the nature of Buyer’s or Parent’s and such Stockholder’s commitments, arrangements and understandings under this Agreement and any other information, in each case, that such Stockholder reasonably determines is required to be disclosed by such Stockholder under applicable Legal Requirements in any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 of the Exchange Act and any other filings with or notices to governmental entities and (ii) agrees promptly to give to such Stockholder any information such Stockholder may reasonably request for the preparation of any such documents. Each party hereto agrees to promptly notify the other parties of any required corrections with respect to any information supplied by such party specifically for use in any such document, if and to the extent that any such information shall have become false or misleading in any material respect.
1.4 Irrevocable Proxy. Each Stockholder hereby revokes (or agrees to cause to be revoked) any voting proxies that such Stockholder has heretofore granted with respect to such Stockholder’s Subject Shares. Each Stockholder hereby irrevocably appoints Parent as attorney-in-fact and proxy for and on behalf of such Stockholder, for and in the name, place and stead of such Stockholder, to: (a) attend any and all GeoMet Stockholders Meetings, (b) vote or issue instructions to the record holder to vote, such Stockholder’s Subject Shares in accordance with the provisions of Section 1.1 at any and all GeoMet Stockholders Meetings and (c) grant or withhold, or issue instructions to the record holder to grant or withhold, in accordance with the provisions of Section 1.1, all written consents with respect to the Subject Shares in connection with any action sought to be taken by written consent without a meeting. Parent agrees not to exercise the proxy granted herein for any purpose other than the purposes described in this Agreement. The foregoing proxy shall be deemed to be a proxy coupled with an interest, is irrevocable (and as such shall survive and not be affected by the death, incapacity, mental illness or insanity of such Stockholder, as applicable) until the termination of this Agreement and shall not be terminated by operation of Legal Requirements or upon the occurrence of any other event other than the termination of this Agreement pursuant to Section 4.2 (and shall be terminated and revoked upon such termination). Each Stockholder authorizes such attorney and proxy to substitute any other Person to act hereunder, to revoke any substitution and to file this proxy and any substitution or revocation with the secretary of GeoMet. Each Stockholder hereby affirms that the proxy set forth in this Section 1.4 is given in connection with and granted in consideration of and as an inducement to Buyer and Parent to enter into the APA and that such proxy is given to secure the obligations of the Stockholder under Section 1.1.
1.5 Notices of Certain Events. Each Stockholder shall notify Buyer and Parent of any development occurring after the date hereof that causes, or that such Stockholder believes would reasonably be expected to cause, any breach of any of the representations and warranties of such Stockholder set forth in Article II.
1.6 No Solicitations; Other Offers. During the term of this Agreement, each Stockholder agrees not to, directly or indirectly (i) initiate, solicit or knowingly encourage (including by way of furnishing information or assistance), or knowingly induce, or take any other action designed to, or that
would reasonably be expected to, result in, the making, submission or announcement of, any proposal or offer that constitutes an Acquisition Proposal, (ii) enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to any Acquisition Proposal, (iii) other than informing persons of the provisions contained in this Section 1.6, enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information or data or access to its properties with respect to, or otherwise cooperate with or take any other action to facilitate (A) any Acquisition Proposal or (B) any proposal that by its terms requires GeoMet to abandon, terminate or fail to consummate the Transactions or any other transactions contemplated by the APA or (iv) agree or publicly announce an intention to take any of the foregoing actions.
1.7 Further Assurances. Subject to the terms and conditions of this Agreement, each Stockholder agrees to execute and deliver, or cause to be executed and delivered, all further documents and instruments, and use their respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things, in each case that are necessary, proper or advisable under applicable Legal Requirements and regulations to perform his, her or its obligations under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally (but only in proportion to the percentage of shares beneficially owned by such Stockholder as set forth on Annex 1) and not jointly, represents and warrants to Buyer and Parent only as to himself, herself or itself (as the case may be) as follows:
2.1 Organization. Such Stockholder, if not an individual, is duly organized and validly existing and in good standing under the laws of the jurisdiction of its organization. Such Stockholder, if an individual, is a resident of the state set forth below such Stockholder’s signature on the signature page hereto.
2.2 Authorization. If such Stockholder is not an individual, it has full organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. If such Stockholder is an individual, he or she has full legal capacity, right and authority to execute and deliver this Agreement and to perform his or her obligations hereunder. If such Stockholder is not an individual, the execution, delivery and performance by such Stockholder of this Agreement and the consummation by such Stockholder of the transactions contemplated hereby have been duly authorized by all necessary action on the part of such Stockholder.
2.3 Due Execution and Delivery; Binding Agreement. This Agreement has been duly executed and delivered by such Stockholder and constitutes a valid and legally binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Legal Requirements relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). If such Stockholder is married and any of the Subject Shares constitute community property or spousal approval is otherwise necessary for this Agreement to be legal, binding and enforceable, this Agreement has been duly authorized, executed and delivered by, and constitutes the legal, valid and binding obligation of, such Stockholder’s spouse, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Legal Requirements relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).
2.4 No Violation
(a) The execution and delivery of this Agreement by such Stockholder does not, and the performance by such Stockholder of such Stockholder’s obligations hereunder will not, (i) if such Stockholder is not an individual, contravene, conflict with, or result in any violation or breach of any provision of its organizational documents, (ii) assuming compliance with Section 2.4(b), contravene, conflict with or result in a violation or breach of any provision of applicable Legal Requirement or order of any governmental entity with competent jurisdiction or (iii) constitute a default, or an event that, with or without notice or lapse of time or both, will become a default, under, or cause or permit the termination, cancellation or acceleration of any right or obligation under any provision of any agreement binding upon such Stockholder, except, in the case of clauses (ii) and (iii), as would not reasonably be expected to impair in any material respect the ability of such Stockholder to perform his, her or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
(b) No consent, approval, order, authorization or permit of, or registration, declaration or filing with or notification to, any governmental entity or any other Person is required by or with respect to such Stockholder in connection with the execution and delivery of this Agreement by such Stockholder or the performance by such Stockholder of his, her or its obligations hereunder, except for the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 of the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, except as would not reasonably be expected to impair in any material respect the ability of such Stockholder to perform his, her or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
2.5 Ownership of Subject Shares. As of the date hereof, such Stockholder is, and (except with respect to any Subject Shares Transferred in accordance with Section 1.2 hereof) at all times during the term of this Agreement will be, a beneficial owner of, and such Stockholder or another Stockholder has, and will have, good and valid title to, such Stockholder’s Subject Shares with no restrictions on such Stockholder’s rights of disposition pertaining thereto other than any restrictions under applicable securities laws or in connection with the arrangements described on Annex I. Other than as provided in this Agreement, such Stockholder has, and (except with respect to any Subject Shares Transferred in accordance with Section 1.2 hereof) at all times during the term of this Agreement will have, with respect to such Stockholder’s Subject Shares, either (i) the sole power, directly or indirectly, to vote and dispose of such Subject Shares or (ii) the shared power together with one or more other Stockholders, directly or indirectly, to vote and dispose of such Subject Shares, and to issue instructions pertaining to such Subject Shares with respect to the matters set forth in this Agreement, in each case with no limitations, qualifications or restrictions on such rights other than any limitations, qualifications restrictions in connection with the arrangements described on Annex I, and, as such, has, and (except with respect to any Subject Shares Transferred in accordance with Section 1.2 hereof) at all times during the term of this Agreement will have, the complete and exclusive power, individually or together with one or more other Stockholders, to, directly or indirectly (a) issue (or cause the issuance of) instructions with respect to the matters set forth in Section 1.4 hereof and (b) agree to all matters set forth in this Agreement. None of such Stockholder’s Subject Shares are held in an account that would allow a third party to lend out such Subject Shares on any securities lending market or otherwise. Other than any shares of GeoMet Common Stock or GeoMet Preferred Stock underlying GeoMet equity awards (other than GeoMet restricted stock), the number of shares of GeoMet Common Stock or GeoMet Preferred Stock set forth on Annex I opposite the name of such Stockholder are the only shares of GeoMet Common Stock or GeoMet Preferred Stock beneficially owned by such Stockholder as of the date of this Agreement. Other than the Subject Shares and any shares of GeoMet Common Stock or GeoMet Preferred Stock underlying GeoMet equity awards (other than GeoMet restricted stock) (the number of which is set forth opposite the name of such Stockholder on Annex I under the heading “Shares Subject to GeoMet Equity Awards (other than
GeoMet Restricted Stock)”) or as set forth on Annex I, as of the date hereof such Stockholder does not own any shares of GeoMet Common Stock or GeoMet Preferred Stock or any options to purchase or rights to subscribe for or otherwise acquire any securities of GeoMet and has no interest in or voting rights with respect to any securities of GeoMet. Except for any vesting restrictions with respect to GeoMet restricted stock or any agreements or arrangements in connection with the arrangements set forth on Annex I, there are no agreements or arrangements of any kind, contingent or otherwise, to which such Stockholder is a party obligating such Stockholder to Transfer or cause to be Transferred to any Person other than a Stockholder any of such Stockholder’s Subject Shares. Except as set forth on Annex I, no Person other than a Stockholder has any contractual or other right or obligation to purchase or otherwise acquire any of such Stockholder’s Subject Shares.
2.6 No Other Proxies. None of such Stockholder’s Subject Shares are subject to any voting trust or other agreement or arrangement with respect to the voting of such Subject Shares, except as provided hereunder and except for any agreement or arrangement in connection with the arrangements set forth on Annex I.
2.7 Absence of Litigation. With respect to such Stockholder, as of the date hereof, there is no action, suit, investigation or proceeding pending against, or, to the knowledge of such Stockholder, threatened against such Stockholder or any of his, her or its properties or assets (including such Stockholder’s Subject Shares) that would reasonably be expected to impair in any material respect the ability of such Stockholder to perform his, her or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
2.8 Opportunity to Review; Reliance. Such Stockholder has had the opportunity to review the APA and this Agreement with counsel of his, her or its own choosing. Such Stockholder understands and acknowledges that Buyer and Parent are entering into the APA in reliance upon such Stockholder’s execution, delivery and performance of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER AND PARENT
Each of Buyer and Parent hereby, jointly and severally, represent and warrant to the Stockholders that:
3.1 Organization. Buyer and Parent are each duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
3.2 Authorization. Each of Buyer and Parent has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution, delivery and performance by Buyer and Parent of this Agreement and the consummation by Buyer and Parent of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Buyer and Parent.
3.3 Due Execution and Delivery; Binding Agreement. This Agreement has been duly executed and delivered by each of Buyer and Parent and constitutes a valid and legally binding obligation of Buyer and Parent, enforceable against Buyer and Parent in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Legal Requirements relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).
ARTICLE IV
MISCELLANEOUS
4.1 Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given, (i) if to Buyer and Parent, in accordance with the provisions of the APA and (ii) if to a Stockholder, to such Stockholder’s address, facsimile number or electronic mail address set forth on a signature page hereto, or to such other address, facsimile number or electronic mail address as such party may hereafter specify for the purpose by notice to each other party hereto.
4.2 Termination. This Agreement shall terminate automatically, without any notice or other action by any Person, upon the earliest to occur of (i) termination of the APA, (ii) a Change of Recommendation (as defined in the APA), and (iii) the Closing Date. Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that (x) nothing set forth in this Section 4.2 shall relieve any party for liability arising from fraud or a willful breach of this Agreement and (y) the provisions of this Article IV shall survive any such termination of this Agreement.
4.3 Amendments and Waivers. Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as otherwise provided herein, the rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.
4.4 Expenses. Whether or not the transactions contemplated by the APA are consummated, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring or required to incur such cost or expenses.
4.5 Binding Effect; Assignment. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto, except each of Buyer and Parent may transfer or assign its rights and obligations under this Agreement, in whole or from time to time in part, to one or more wholly owned subsidiaries of Parent at any time; provided, that such transfer or assignment shall not relieve Buyer and Parent of any of its obligations hereunder.
4.6 GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules (whether of the State of Delaware or of any other jurisdiction) that would cause the application of laws of any jurisdiction other than the State of Delaware. The parties hereto agree that any action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates) shall only be brought in the Delaware Chancery Court or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such Action and irrevocably waives, to the fullest extent permitted by Legal Requirements, any objection that it may now or hereafter have to the laying of the venue of any such Action in any such court or that any such Action brought in any such court has been brought in an inconvenient forum. Process in any such Action may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 4.1 shall be deemed effective service of process on such party.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
4.7 Counterparts; Effectiveness. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. This Agreement shall become effective when each party hereto shall have received counterparts thereof signed and delivered (by telecopy or otherwise) by the other parties hereto.
4.8 Entire Agreement; Third Party Beneficiaries. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted assigns any right, benefit or remedy hereunder.
4.9 Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect. Notwithstanding the foregoing, upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
4.10 Specific Performance. The parties hereto agree that each of Buyer and Parent would be irreparably damaged in the event that any Stockholder fails to perform any of his, her or its obligations under this Agreement. Accordingly, each of Buyer and Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement by any Stockholder and to specific performance of the terms and provisions hereof in any court of competent jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.
4.11 Capacity as Stockholder; No Agreement as a Director or Officer. Notwithstanding anything in this Agreement to the contrary (including Section 1.6), each Stockholder signs this Agreement and makes the representations, warranties, covenants and agreements and undertakes the obligations and agreements set forth herein solely in such Stockholder’s capacity as a Stockholder of GeoMet and not in such Stockholder’s capacity (directly or through its officers, employees, agents or representatives)as a director, officer or employee of GeoMet or any of its subsidiaries or in such Stockholder’s capacity as a trustee or fiduciary of any employee benefit plan or trust. Notwithstanding anything in this Agreement to the contrary, nothing herein shall in any way restrict a director or officer of GeoMet or of any of its subsidiaries in the exercise of his or her fiduciary duties as a director or officer of GeoMet or of any of its subsidiaries or in his or her capacity as a trustee or fiduciary of any employee benefit plan or trust or prevent any director or officer of GeoMet or of any of its subsidiaries or any
trustee or fiduciary of any employee benefit plan or trust from taking or omitting to take, or be construed to create any obligation on the part of such Person to take or omit to take, any action in his or her capacity as such director, officer, trustee or fiduciary for an employee benefit plan or trust, and no such action or omission shall constitute a breach of this Agreement or otherwise result in any liability on the part of such Stockholder.
4.12 No Ownership Interest. All rights, ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to such Stockholder, and Parent shall have no authority to exercise any power or authority to direct such Stockholder in the voting of any of the Subject Shares, except as otherwise specifically provided herein.
4.13 Interpretation. When a reference is made in this Agreement to a Section or Annex, such reference shall be to a Section of or Annex to this Agreement unless otherwise indicated. The headings contained in this Agreement or in an Annex are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any Annex annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” unless otherwise specified. The words “hereby,” “hereof,” herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “date hereof” shall refer to the date of this Agreement. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” The term “or” shall not be deemed to be exclusive. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The words describing the singular number shall include the plural and vice versa and words denoting any gender shall include all genders. References to a Person are also to its successors and permitted assigns. Reference to any agreement (including this Agreement), document or instrument shall mean such agreement, document or instrument as amended, modified or supplemented (including by waiver or consent) and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
[Signature Pages to Follow]
IN WITNESS WHEREOF, Buyer, Parent and the Stockholders have caused this Agreement to be duly executed and delivered as of the date first written above.
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ARP MOUNTAINEER PRODUCTION, LLC | ||
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Atlas Energy Holdings Operating Company, LLC | |
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By: |
/s/ Xxxxxxxx X. Xxxxx | |
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Xxxxxxxx X. Xxxxx | |
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CEO | |
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ATLAS RESOURCE PARTNERS, L.P. | ||
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Atlas Resource Partners GP, LLC, | |
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its general partner | |
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By: |
/s/ Xxxxxxxx X. Xxxxx | |
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Xxxxxxxx X. Xxxxx | |
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Vice Chairman | |
[Voting Agreement Signature Page]
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STOCKHOLDERS | ||
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SHERWOOD ENERGY, LLC | ||
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By: |
/s/ Xxxxxxx X. XxXxxxxx | |
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Name: |
Xxxxxxx X. XxXxxxxx | |
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Title: |
CEO | |
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Notice Address: | ||
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0000 Xxxxx Xxxxxx, 00xx Xxxxx | ||
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Xxxxxxx, XX 00000 | ||
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YORKTOWN ENERGY PARTNERS IV, L.P. | ||
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By: |
/s/ W. Xxxxxx Xxxxxx, Xx. | |
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Name: |
W. Xxxxxx Xxxxxx, Xx. | |
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Title: |
Managing Member | |
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Notice Address: | ||
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c/o GeoMet, Inc. | ||
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000 Xxxxxx Xxxxxx, Xxxxx 0000 | ||
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Xxxxxxx, XX 00000 | ||
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W. XXXXXX XXXXXX, XX. | ||
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/s/ W. Xxxxxx Xxxxxx, Xx., | ||
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Resident of: |
New York City, NY | |
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Notice Address: | ||
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000 Xxxxxx Xxxxxx, Xxxxx 0000 | ||
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Xxxxxxx, XX 00000 | ||
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XXXXX X. XXXX | |
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/s/ Xxxxx X. Xxxx | |
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Resident of: |
Alabama |
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Notice Address: | |
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Xxxxxxx, XX 00000 | |
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XXXXXXX X. XXXXXX | |
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Resident of: |
Houston, TX |
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Notice Address: | |
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Xxxxxxx, XX 00000 | |
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Resident of: |
Birmingham, AL |
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Notice Address: | |
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Xxxxxxx, XX 00000 | |
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XXXXX X. XXXXX | |
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/s/ Xxxxx X. Xxxxx | |
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Resident of: |
Dallas, TX |
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Notice Address: | |
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Xxxxxxx, XX 00000 | |
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Houston, TX |
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Xxxxxxx, XX 00000 | |
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Resident of: |
Texas |
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Notice Address: | |
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000 Xxxxxx Xxxxxx, Xxxxx 0000 | |
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Xxxxxxx, XX 00000 | |
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XXXXXXX X. XXXXXXXX | |
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/s/ Xxxxxxx X. XxXxxxxx | |
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Resident of: |
Texas |
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Annex I
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Stockholder |
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GeoMet Common |
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GeoMet Preferred |
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Shares Subject to GeoMet Restricted |
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Sherwood Energy, LLC |
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— |
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3,513,659 |
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Yorktown Energy Partners IV, L.P. |
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12,437,072 |
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— |
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W. Xxxxxx Xxxxxx, Xx. |
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99,800 |
(2) |
14,082 |
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Xxxxx X. Xxxx |
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979,772 |
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18,749 |
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111,851 |
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Xxxxxxx X. Xxxxxx |
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725,133 |
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280,997 |
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Xxxxxxx X. Xxxxxx |
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187,519 |
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8,696 |
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2,000 |
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Xxxxx X. Xxxxx |
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186,519 |
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7,038 |
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2,000 |
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Xxxx X. Xxxxx |
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106,125 |
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14,996 |
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Xxxx Xxxxxx |
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123,317 |
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63,474 |
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Xxxxxxx X. XxXxxxxx |
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106,125 |
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* For purposes of this Agreement only, and without admitting that any Stockholder beneficially owns any securities for any other purpose, each Stockholder may be deemed to beneficially own all of the shares of GeoMet Common Stock and/or GeoMet Preferred Stock set forth in the table above. Each Stockholder otherwise disclaims beneficial ownership of any shares of GeoMet Common Stock and/or GeoMet Preferred Stock other than those set forth opposite such Stockholder’s name under the heading “GeoMet Common Stock Shares Beneficially Owned,” “GeoMet Preferred Stock Shares Beneficially Owned” and “Shares Subject to GeoMet Equity Awards (Other than GeoMet Restricted Stock).”
(1) W. Xxxxxx Xxxxxx, Xx., as managing partner of Yorktown Energy Partners IV, L.P., may be deemed to be a beneficial owner of the 12,437,072 shares of common stock beneficially owned by Yorktown Energy Partners IV, L.P. Xx. Xxxxxx disclaims beneficial ownership of all shares held by Yorktown Energy Partners IV, L.P., except to the extent of his pecuniary interest therein.
(2) W. Xxxxxx Xxxxxx, Xx., as managing partner of Yorktown Energy Partners IV, L.P., may be deemed to be a beneficial owner of the 12,437,072 shares of common stock beneficially owned by Yorktown Energy Partners IV, L.P. Xx. Xxxxxx disclaims beneficial ownership of all shares held by Yorktown Energy Partners IV, L.P., except to the extent of his pecuniary interest therein.
