▇▇▇▇▇▇▇ EXPLORATION COMPANY
STOCKHOLDERS VOTING AGREEMENT
This STOCKHOLDERS VOTING AGREEMENT, dated March 1, 2001 (this
"Agreement"), is made and entered into by and among ▇▇▇▇▇▇▇ Exploration Company,
a Delaware corporation (the "Company"), "ES", "MB", "MBP" and "DOP", as ES, MB,
MBP and DOP (collectively, the "Investors") are each defined on Page 7(a)
hereof, and the following shareholders of the Company (the "Shareholders"): ▇▇▇
▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individual residents of ▇▇▇▇▇▇ County, Texas, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, a resident of Dallas County, Texas, General Atlantic Partners III, L.P.,
a Delaware limited partnership, GAP-▇▇▇▇▇▇▇ 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 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
Investors an aggregate of up to 500,000 shares of its Series A Preferred Stock
and warrants (the "Warrants") to acquire 2,105,263 shares (the "Warrant Shares")
of its common stock (the "Common Stock");
WHEREAS, the Company, ES and MB previously entered into a Securities
Purchase Agreement dated November 1, 2000 (the "Previous Purchase Agreement"),
pursuant to which the Company issued and sold to ES and MB an aggregate of
1,000,000 shares of its Series A Preferred Stock and warrants (the "Previous
Warrants") to acquire 6,666,667 shares (the "Previous Warrant Shares") of Common
Stock;
WHEREAS, the issuance of the Previous Warrants has been approved by the
stockholders of the Company;
WHEREAS, the Warrant Shares and the Previous Warrant Shares represent
greater than 30% of the outstanding Common Stock before issuance;
WHEREAS, representatives of the Nasdaq Stock Market have informed the
Company that they believe that the issuance of the Warrants, if the
exercisability of the Warrants were not conditioned on stockholder approval of
the issuance of the Warrants and the terms thereof, would constitute a change of
control under the rules of the Nasdaq Stock Market, which would violate the
rules of the Nasdaq Stock Market if made without stockholder approval;
WHEREAS, the Company and the Investors have agreed pursuant to the
terms of the Warrants and the Purchase Agreement that the Warrants shall not be
exercisable until the stockholders of the Company approve the issuance of the
Warrants and the terms thereof, and the Company has agreed to seek such approval
at its annual stockholders' meeting to be held on or before May 31, 2001; and
WHEREAS, as a condition to the agreement of the Investors to enter into
the Purchase Agreement, the Company and the Shareholders have agreed to enter
into this Agreement to provide for certain agreements relating to approval of
the issuance of the Warrants and the terms 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 Shareholder agrees that, at any
special or annual meeting of shareholders of the Company, such Shareholder 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 date hereof and any and all other
capital stock of the Company legally or beneficially acquired by such
Shareholder after the date hereof to approve the Warrants and the issuance of
the Warrants to the Investors. In the event that the Purchase Agreement is
terminated for any reason, then this Agreement shall automatically terminate and
none of the parties hereto shall have any liability hereunder. Each Shareholder
represents to the Investors that as of the date hereof such Shareholder owns the
number of outstanding shares of Common Stock set forth opposite such
Shareholder's name on 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:
2
If to ▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇ Exploration Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. "▇▇▇" ▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
If to ESC, MB or MBP:
▇▇▇▇▇▇▇▇▇ Lufkin & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
and
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Gardere ▇▇▇▇▇ ▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇ III
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
If to DOP:
DLJ Offshore Management N.V.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, Antilles
Fax No: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
and
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Gardere ▇▇▇▇▇ ▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇ III
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
3
If to ▇▇▇ ▇. ▇▇▇▇▇▇▇:
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Exploration Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Exploration Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to General Atlantic Partners III, L.P.:
General Atlantic Partners III, L.P.
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
If to GAP-▇▇▇▇▇▇▇ Partners, L.P.:
GAP-▇▇▇▇▇▇▇ Partners, L.P.
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
If to GAP Coinvestment Partners II, L.P.:
GAP Coinvestment Partners II, L.P.
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
4
If to Aspect Resources, LLC:
Aspect Resources, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
If to any of the officers of ▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇ Exploration Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: [name of officer]
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
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 Shareholders 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 Shareholders 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;
5
provided that signature pages from separate counterparts may be combined to form
one or more fully executed original counterpart(s).
* * * * *
6
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.
▇▇▇▇▇▇▇ EXPLORATION COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
7
DLJ ESC II, L.P.
a Delaware Limited Partnership ("ESC")
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
DLJMB FUNDING III, INC.
a Delaware Corporation ("MB")
By: /s/
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
DLJ Merchant Banking Partners III, L.P.
a Delaware Limited Partnership ("MBP")
By: DLJ Merchant Banking III, Inc.
Managing General Partner
By: /s/
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
DLJ Offshore Partners III, C.V.
a Netherlands Antilles Limited
Partnership ("DOP")
By: DLJ Merchant Banking III, Inc.
Managing General Partner
By: /s/
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
7(a)
GENERAL ATLANTIC PARTNERS III, L.P.
By GAP III Investors, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
GAP-▇▇▇▇▇▇▇ PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: General Partner
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-In-Fact
ASPECT RESOURCES, LLC
By Aspect Management Corporation
Its Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
8
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
9
Schedule I
Number of Outstanding
SHAREHOLDER SHARES OF COMMON STOCK
----------- ----------------------
▇▇▇ ▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, collectively 3,719,792
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 314,893
General Atlantic Partners III, L.P. 2,679,418
GAP-▇▇▇▇▇▇▇ Partners, L.P. 127,725
GAP Coinvestment Partners II, L.P. 975,610
Aspect Resources, LLC 487,805
▇▇▇▇▇▇▇ Officers*: 233,186 (in the aggregate)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
* other than ▇▇▇ ▇. ▇▇▇▇▇▇▇