EXHIBIT 10.2
VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY (this "AGREEMENT"), dated
as of May 29, 2002, is by and among Newfield Exploration Company, a Delaware
corporation ("PARENT"), Warburg, ▇▇▇▇▇▇ Equity Partners, L.P., a Delaware
limited partnership, Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners I, C.V., a
Dutch limited partnership, Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners II, C.V.,
a Dutch limited partnership, and Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners
III, C.V., a Dutch limited partnership (collectively, the "WARBURG
SHAREHOLDERS"), ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(collectively, the "INDIVIDUAL SHAREHOLDERS" and, together with the Warburg
Shareholders, the "SHAREHOLDERS") and ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
WHEREAS, Parent, Newfield Operating Company, a Texas corporation and a
wholly owned subsidiary of Parent ("MERGER SUB"), and EEX Corporation, a Texas
corporation ("COMPANY"), are entering into an Agreement and Plan of Merger dated
as of the date hereof (as amended from time to time pursuant thereto, the
"MERGER AGREEMENT");
WHEREAS, each of the Shareholders is the beneficial owner of that
number of shares of capital stock of Company set forth opposite such
Shareholder's name on Annex A hereto (such shares, together with any additional
shares of capital stock of Company acquired after the date hereof, being
collectively referred to herein as the "SHAREHOLDER SHARES"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, and as an inducement to it to do so, each of the Shareholders
has agreed for the benefit of Parent as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained in this
Agreement, the parties hereby agree as follows:
ARTICLE I
COVENANTS OF THE SHAREHOLDERS
Section 1.1. AGREEMENT TO VOTE. At any meeting of the shareholders of
Company held prior to the termination of a Shareholder's obligations under
Article I of this Agreement pursuant to Section 4.13 hereof (the "APPLICABLE
TERMINATION TIME"), however called, and at every adjournment or postponement
thereof prior to such Shareholder's Applicable Voting Termination Time, such
Shareholder shall vote or cause to be voted the Shareholder Shares held by such
Shareholder (a) in favor of (i) approval of the Merger and each of the other
transactions contemplated by the Merger Agreement, (ii) approval and adoption of
the Merger Agreement and (iii) any actions required in furtherance thereof and
(b) against (i) any Acquisition Proposal (other than any Acquisition Proposal by
Parent), (ii) any proposal for action or agreement that is reasonably likely to
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or which is
reasonably likely to result in any of the conditions to the obligations of
PARENT and Merger Sub under the Merger Agreement not being fulfilled, (iii) any
change in the directors of the Company, or (iv) any other action which could
reasonably be expected to impede, interfere with, delay,
postpone or materially affect the transactions contemplated by the Merger
Agreement or the likelihood of such transactions being consummated.
Section 1.2 IRREVOCABLE PROXY. In order to better effect the provisions
of Section 1.1 hereof, each of the Shareholders hereby appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and each of them, as the proxy of such Shareholder, each
with full power of substitution, to vote the Shareholder Shares held by such
Shareholder at any meeting of the shareholders of Company held prior to such
Shareholder's Applicable Termination Time, however called, and at every
adjournment or postponement thereof prior to such Shareholder's Applicable
Termination Time in accordance with the terms of Section 1.1 hereof. Each of the
Shareholders acknowledges that Parent is relying on this Agreement in incurring
expenses in connection with the investigation of Company's business, the filing
of applications for regulatory approvals and other actions necessary for the
consummation of the Merger. EACH OF THE SHAREHOLDERS ACKNOWLEDGES THAT THE PROXY
GRANTED HEREBY IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE TO THE FULL EXTENT
PERMITTED BY APPLICABLE LAW, INCLUDING ARTICLE 2.29C OF THE TBCA, AND SHALL NOT
BE TERMINATED BY ANY ACT OF SUCH SHAREHOLDER, BY LACK OF APPROPRIATE POWER OR
AUTHORITY OR BY THE OCCURRENCE OF ANY OTHER EVENT OR EVENTS, EXCEPT AS PROVIDED
IN THIS AGREEMENT. Each of the Shareholders acknowledges that the performance of
this Agreement is intended to benefit Parent.
Section 1.3 PROXIES AND VOTING AGREEMENTS. Each of the Shareholders
hereby revokes any and all previous proxies (other than (i) the proxy granted
pursuant to Section 1.2 hereof and (ii) any proxy granted by such Shareholder
for use at Company's annual meeting of shareholders to be held on May 30, 2002
(the "2002 ANNUAL MEETING")) granted with respect to the Shareholder Shares held
by such Shareholder. Prior to such Shareholder's Applicable Termination Time,
such Shareholder agrees not to, directly or indirectly, with respect to the
Shareholder Shares held by such Shareholder (a) grant any proxies or powers of
attorney (except pursuant to Section 1.2 hereof and with respect to matters to
be voted upon at the 2002 Annual Meeting), (b) deposit any of such shares into
any voting trust or (c) enter into any other voting agreement or understanding.
Section 1.4 NO SOLICITATION. Each of the Shareholders hereby agrees:
(a) from and after the date hereof until such Shareholder's
Applicable Termination Time, (i) not to, (ii) not to authorize or permit any of
such Shareholder's affiliates or any of such Shareholder's or such Shareholder's
affiliates' officers, directors, employees and partners to, (iii) not to
authorize such Shareholder's or any of such Shareholder's affiliates' agents or
representatives to and (iv) to use all reasonable efforts to ensure that such
Shareholder's and such Shareholder's affiliates' agents and representatives do
not, directly or indirectly, (x) initiate, solicit or knowingly encourage or
otherwise facilitate (including providing any nonpublic information relating to
Company and its Subsidiaries) the making of an Acquisition Proposal or (y)
engage in any discussions or negotiations with, or provide any nonpublic
information relating to Company and its Subsidiaries to, any Person relating to,
or that would reasonably be expected to lead to the making of, an Acquisition
Proposal;
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(b) to immediately cease and cause to be terminated all
existing activities, discussions or negotiations by such Shareholder, any of
such Shareholder's affiliates or any of such Shareholder's or such Shareholder's
affiliates' officers, directors, employees, partners, agents and representatives
with any Person other than Parent with respect to any Acquisition Proposal or
the solicitation or making of any Acquisition Proposal;
(c) from and after the date hereof until such Shareholder's
Applicable Termination Time, promptly notify Parent if any Person makes, or
indicates an interest in making, an Acquisition Proposal to such Shareholder or
any of such Shareholder's affiliates or to such Shareholder's or any of such
Shareholder's affiliates' officers, directors, employees, partners, agents and
representatives, and to include in such notice the identity of the Person or
group making or indicating an interest in making an Acquisition Proposal and the
material terms and conditions of any such Acquisition Proposal; and
(d) from and after the date hereof until such Shareholder's
Applicable Termination Time, not to enter into any agreement or understanding
with any person that provides for, or in any way facilitates, an Acquisition
Proposal.
(e) This Section 1.4 shall not prevent any Shareholder or any
of its affiliates, officers, directors, employees, partners, agents or
representatives who is a member of the Board of Directors of Company from taking
any actions otherwise prohibited by this Section 1.4 to the extent that such
actions are expressly permitted by the Merger Agreement. For purposes of this
Section 1.4, Company shall be deemed not to be an affiliate of any Shareholder.
Section 1.5 TRANSFER OF SHAREHOLDER SHARES BY THE SHAREHOLDERS. Prior
to such Shareholder's Applicable Termination Time, each of the Shareholders
agrees not to sell, transfer, assign, convey or otherwise dispose of, directly
or indirectly, any of the Shareholder Shares held by such Shareholder.
Section 1.6 PUBLIC ANNOUNCEMENT. Each of the Shareholders hereby
consents to Parent's announcement in any press release, public filing,
advertisement or other document that such Shareholder has entered into this
Agreement.
Section 1.7 SEVERAL OBLIGATIONS. The obligations of each Shareholder
hereunder shall be several and not joint.
ARTICLE II
ADDITIONAL AGREEMENTS
Section 2.1. PURCHASE OF WARRANTS; TERMINATION OF CERTAIN REGISTRATION
RIGHTS.
(a) Notwithstanding anything to the contrary set forth in the
Warrant Agreements, each of the Warburg Shareholders hereby agrees that it will
sell to Parent, and Parent hereby agrees that it will purchase from such Warburg
Shareholder, all of the warrants held by such Warburg Shareholder under the
Warrant Agreements, effective as of the Effective Time without any further
action by any Person, for an aggregate purchase price of $10.00, the receipt and
sufficiency of which are hereby acknowledged.
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(b) Notwithstanding anything to the contrary set forth in that
certain Registration Rights Agreement, dated as of January 8, 1999, by and among
Company and the Warburg Shareholders (the "COMPANY REGISTRATION RIGHTS
AGREEMENT"), and in consideration for the execution by Parent of the Parent
Registration Rights Agreement (as defined below), each of the Warburg
Shareholders hereby agrees that the rights of such Warburg Shareholder under the
Company Registration Rights Agreement shall terminate and be of no further force
and effect at and after the Effective Time.
Section 2.2. CERTAIN ADDITIONAL AGREEMENTS WITH THE WARBURG
SHAREHOLDERS. In consideration of the Warburg Shareholders entering into this
Agreement, Parent further agrees as follows:
(a) Parent represents and warrants that its Board of Directors
has approved the acquisition of shares of Parent Common Stock in the Merger by
▇▇▇▇▇▇ ▇▇▇▇▇▇ and by the Warburg Shareholders (to the extent that they are
deemed to be "directors" of Parent by virtue of ▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ position as a
director of Parent) pursuant to Rule 16b-3(d) promulgated under the Securities
Exchange Act of 1934, as amended, such that such acquisition is exempt from the
provisions of Section 16(b) of the Exchange Act. Parent covenants and agrees
that such approval shall not be withdrawn.
(b) Concurrently with the execution of this Agreement, and as
a condition to the Warburg Shareholders entering into this Agreement, Parent has
executed and delivered to the Warburg Shareholders a Registration Rights
Agreement providing for certain registration rights with respect to the shares
of Parent Common Stock to be issued to the Warburg Shareholders (the "PARENT
REGISTRATION RIGHTS AGREEMENT"). The Parent Registration Rights Agreement has
been duly authorized, executed and delivered by Parent, and constitutes a legal,
valid and binding obligation enforceable against Parent in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally and by
equitable principles to which the remedies of specific performance and
injunctive and similar forms of relief are subject.
(c) Parent represents and warrants that this Agreement has
been duly executed and delivered by it and is a valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally and by equitable principles
to which the remedies of specific performance and injunctive and similar forms
of relief are subject.
(d) Parent acknowledges that the Warburg Shareholders may be
required to make a filing under the HSR Act and shall provide such assistance to
the Warburg Shareholders as is reasonably required for the Warburg Shareholders
to obtain approval from the Federal Trade Commission or the Department of
Justice in connection therewith, including the taking of any or all of the
following actions to the extent necessary to obtain such approval: entering into
negotiations, providing information, substantially complying with any second
request for information pursuant to the HSR Act, making proposals, and entering
into and performing agreements or submitting to judicial or administrative
orders; provided, however, that in no event shall Parent take, or be required to
take, any action that would reasonably be expected to result in
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a Parent Material Adverse Effect. Parent will consult and cooperate with the
Warburg Shareholders in connection with any analyses, appearances,
presentations, memoranda, briefs, arguments, opinions and proposals made or
submitted by or on behalf of the Warburg Shareholders in connection with
proceedings under or relating to the HSR Act or any other federal, state or
foreign antitrust or fair trade law. All filing fees relating to the filing by
the Warburg Shareholders under the HSR Act shall be paid by the Warburg
Shareholders; provided, however, that, if the Merger is consummated, as soon as
practicable after the Effective Time, Parent shall reimburse the Warburg
Shareholders for 50% of such fees.
(e) The obligation of each Warburg Shareholder under this
Agreement shall be limited to the assets of such Warburg Shareholder, and no
party shall have any recourse to any partner or affiliate of any Warburg
Shareholder for any breach of this Agreement by any Warburg Shareholder.
ARTICLE II I
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF SHAREHOLDERS
Each of the Shareholders severally represents, warrants and covenants
to Parent with respect to such Shareholder that:
Section 3.1. OWNERSHIP. Such Shareholder is as of the date hereof the
beneficial owner of the Shareholder Shares described herein as owned by such
Shareholder, such Shareholder Shares are held of record by such Shareholder or
by a nominee or custodian for the benefit of such Shareholder, such Shareholder
has the sole right to vote such Shareholder Shares, and there are no
restrictions on rights of disposition or other lien, pledge, security interest,
charge or other encumbrance or restriction pertaining to such Shareholder
Shares. None of such Shareholder Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of such
Shareholder Shares, and no proxy, power of attorney or other authorization has
been granted with respect to such Shareholder Shares, other than as contemplated
by Article I hereof.
Section 3.2. AUTHORITY AND NON-CONTRAVENTION. If such Shareholder is a
Warburg Shareholder, such Shareholder is a limited or general partnership duly
formed and validly existing under the laws of the jurisdiction of its
organization. Such Shareholder has the right, power and authority, and such
Shareholder has been duly authorized by all necessary action (including
consultation, approval or other action by or with any other Person), to execute,
deliver and perform this Agreement and consummate the transactions contemplated
hereby. Such actions by such Shareholder (a) require no action by or in respect
of, or filing with, any Governmental Authority with respect to such Shareholder,
other than any required filings under Section 13 and 16 of the Exchange Act or
under the HSR Act, and (b) do not and will not contravene or constitute a
default under any provision of applicable law or regulation or any agreement,
judgment, injunction, order, decree or other instrument binding on such
Shareholder or result in the imposition of any lien, pledge, security interest,
charge or other encumbrance or restriction on any of the Shareholder Shares held
by such Shareholder (other than as provided in this Agreement with respect to
such Shareholder Shares).
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Section 3.3. BINDING EFFECT. This Agreement has been duly executed and
delivered by such Shareholder and is a valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
Section 3.4. TOTAL SHARES. The Shareholder Shares indicated as held by
such Shareholder on Annex A hereto are the only shares of capital stock of
Company owned beneficially or of record as of the date hereof by such
Shareholder (other than, with respect to the Warburg Shareholders, the warrants
referenced in Section 2.1 of this Agreement and, with respect to the Individual
Shareholders who are officers or directors of Company, shares of capital stock
that may be acquired upon the exercise of options granted pursuant to any
Company's stock option plans), and such Shareholder does not have any option to
purchase or right to subscribe for or otherwise acquire any securities of
Company (other than, with respect to the Warburg Shareholders, the warrants
referenced in Section 2.1 of this Agreement and, with respect to the Individual
Shareholders who are officers or directors of Company, shares of capital stock
that may be acquired upon the exercise of options granted pursuant to any of
Company's stock option plans) and has no other interest in or voting rights with
respect to any other securities of Company.
Section 3.5. FINDER'S FEES. No investment banker, broker or finder is
entitled to a commission or fee from Company, Parent or Merger Sub in respect of
this Agreement based upon any arrangement or agreement made by or on behalf of
such Shareholder, except as otherwise provided in the Merger Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1. EXPENSES. Except as expressly set forth herein, each party
hereto shall pay its own expenses (including, without limitation, the fees,
costs and disbursements of counsel and other advisors) incident to preparing
for, entering into and carrying out this Agreement and the consummation of the
transactions contemplated hereby.
Section 4.2. FURTHER ASSURANCES. From time to time, at the reasonable
request of Parent, each of the other parties hereto shall execute and deliver or
cause to be executed and delivered such additional documents and instruments and
take all such further action as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
Section 4.3. SPECIFIC PERFORMANCE. Each of the Shareholders agrees that
Parent would be irreparably damaged if for any reason such Shareholder fails to
perform any of its obligations under this Agreement, and that Parent would not
have an adequate remedy at law for money damages in such event. Accordingly,
Parent shall be entitled to seek specific performance and injunctive and other
equitable relief to enforce the performance of this Agreement by such
Shareholder. This provision is without prejudice to any other rights that Parent
may have against such Shareholder for any failure to perform its obligations
under this Agreement.
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Section 4.4. NOTICES. All notices or communications hereunder shall be
in writing (including facsimile or similar writing) addressed as follows:
To Parent:
Newfield Exploration Company
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
2300 First City Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To any of the Warburg Shareholders:
c/o Warburg, ▇▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To any of the Individual Shareholders:
c/o EEX Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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To ▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
c/o Newfield Exploration Company
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any such notice or communication shall be deemed given (i) when made, if made by
hand delivery, and upon confirmation of receipt, if made by facsimile, (ii) one
Business Day after being deposited with a nationally recognized next-day courier
or (iii) three Business Days after being sent certified or registered mail,
return receipt requested, postage prepaid, in each case addressed as above (or
to such other address as such party may designate in writing from time to time).
Section 4.5. INTERPRETATION. Capitalized terms that are used but not
defined herein shall have the meanings ascribed to them in the Merger Agreement.
When a reference is made in this Agreement to Sections or Articles, such
reference shall be to a Section or Article of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. 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 the context otherwise requires, "or" is disjunctive but not
necessarily exclusive, and words in the singular include the plural and in the
plural include the singular.
Section 4.6. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement.
Section 4.7. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.
(a) This Agreement 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.
(b) Except as set forth in Section 2.1(b) hereof, no Person
other than the parties hereto is an intended beneficiary of this Agreement or
any portion hereof. For greater certainty, Section 2.1(b) hereof shall inure to
the benefit of, and shall be enforceable against the parties hereto by, Company.
Section 4.8. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the internal laws of the State of Texas, without
giving effect to the principles of conflicts of law thereof that would require
the application of another state's law. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of Texas for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation in such courts and
agrees not to plead or claim that litigation brought in such courts has been
brought in an inconvenient forum.
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Section 4.9. BINDING EFFECT. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs, personal
representatives, successors and assigns.
Section 4.10. AMENDMENT; WAIVER.
(a) Except as provided in Section 4.10(b) below, this
Agreement may not be modified, amended, altered or supplemented, except upon the
execution and delivery of a written agreement executed by each of the parties
hereto.
(b) Without the consent of each of the parties hereto, (i)
Article II and Sections 4.13(b) and 4.13(c) hereof may be modified, amended,
altered or supplemented upon the execution and delivery of a written agreement
executed by Parent and the Warburg Shareholders and (ii) the Warburg
Shareholders may waive their termination right under Section 4.13(c) upon the
execution and delivery of a written waiver executed by the Warburg Shareholders.
Any amendment or waiver of any provision of this Agreement pursuant to this
Section 4.10(b) shall have no effect on the rights or obligations under this
Agreement of the parties hereto that are not party to such amendment or waiver.
Section 4.11. SEVERABILITY. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid but if any provision or portion of any provision of
this Agreement is held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability will not affect any other
provision or portion of any provision, and this Agreement will be reformed,
construed and enforced as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein. The parties shall
endeavor in good faith negotiations to replace any invalid, illegal or
unenforceable provision with a valid provision the effects of which come as
close as possible to those of such invalid, illegal or unenforceable provision.
Section 4.12. ATTORNEYS' FEES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements, in addition to any other relief to which such party may be
entitled.
Section 4.13. TERMINATION.
(a) This Agreement shall terminate and be of no further force and
effect upon the first to occur of (i) the Effective Time; (ii) the termination
of the Merger Agreement by any party thereto in accordance with its terms; or
(iii) any amendment of the Merger Agreement without the written consent of the
Shareholders that (x) provides for a reduction in the Merger Consideration or
(y) changes the form of the payment of the Merger Consideration; provided,
however, that Articles II and IV shall survive the termination of this Agreement
pursuant to clause (i) of this Section 4.13(a).
(b) Upon any amendment of the Merger Agreement without the written
consent of the Warburg Shareholders that has the effect of increasing the Merger
Consideration payable to the holders of the Company Common Stock or decreasing
the Merger Consideration payable to the holders of the Company Preferred Stock,
the Warburg Shareholders may elect to terminate this
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Agreement as it relates to the Warburg Shareholders; provided, however, that the
Warburg Shareholders shall be required, with respect to any such amendment, to
exercise their right to terminate this Agreement pursuant to this Section
4.13(b) no later than three Business Days after receiving notice of such
amendment in accordance with the Merger Agreement.
(c) If, prior to the Effective Time, Parent shall purchase or agree to
purchase any shares of Company Common Stock at a per share purchase price
greater than the Negotiated Price, the Warburg Shareholders may elect to
terminate this Agreement (other than Article II hereof) as it relates to the
Warburg Shareholders; provided, however, that the Warburg Shareholders shall be
required, with respect to any particular purchase by Parent, to exercise their
right to terminate this Agreement (other than Article II hereof) pursuant to
this Section 4.13(c) no later than three Business Days after receiving notice
from Parent of such purchase. Parent hereby agrees to provide prompt notice to
the Warburg Shareholders of any such purchase by Parent. If the Warburg
Shareholders elect to terminate this Agreement (other than Article II hereof)
pursuant to this Section 4.13(c), Article II of this Agreement shall remain in
full force and effect as it relates to the Warburg Shareholders. For the
purposes of this Section 4.13(c), "NEGOTIATED PRICE" shall mean the product of
(i) 0.05703 multiplied by (ii) (A) in the case of any purchase by Parent of
shares of Company Common Stock in any regular way, block or other trades on the
New York Stock Exchange ("NYSE"), the then prevailing market price per share of
Parent Common Stock as reported by the NYSE or (B) in the case of any purchase
by Parent of shares of Company Common Stock by any other means, the average of
the high and low sales prices, as reported by the NYSE, of Parent Common Stock
for the most recently completed trading day.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
NEWFIELD EXPLORATION COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Pres. and CEO
WARBURG, ▇▇▇▇▇▇ EQUITY PARTNERS, L.P.
By: Warburg, ▇▇▇▇▇▇ & Co., its General
Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY
PARTNERS I, C.V.
By: Warburg, ▇▇▇▇▇▇ & Co., its General
Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY
PARTNERS II, C.V.
By: Warburg, ▇▇▇▇▇▇ & Co., its General
Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
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WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY
PARTNERS III, C.V.
By: Warburg, ▇▇▇▇▇▇ & Co., its General
Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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ANNEX A
SHAREHOLDER SHARES
SHARES OF COMPANY SHARES OF COMPANY
SHAREHOLDER COMMON STOCK PREFERRED STOCK
----------- ----------------- -----------------
Warburg, ▇▇▇▇▇▇ Equity Partners, L.P. -- 1,830,888
Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners I, C.V -- 58,123
Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners II, C.V -- 38,749
Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners III, C.V -- 9,687
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ 384,133 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 67,700 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 58,934 --
Total Shareholder Shares 510,767 1,937,447
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