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EXHIBIT 3
STOCKHOLDERS AGREEMENT dated as of June 17, 1997, among
Monterey Resources, Inc., a Delaware corporation ("Parent"), Monterey
Acquisition Corporation, a Delaware corporation and wholly owned subsidiary of
Parent ("Purchaser"), and the other parties identified on Schedule A hereto
(each, a "Stockholder").
WHEREAS, each Stockholder desires that XxXxxxxxx Energy, Inc.,
a Delaware corporation (the "Company"), Parent and Purchaser enter into an
Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement") with respect to the merger of
Purchaser with and into the Company (the "Merger"); and
WHEREAS, each Stockholder is executing this Agreement as an
inducement to Parent and Purchaser to enter into and execute the Merger
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery
by Parent and Purchaser of the Merger Agreement and the mutual covenants,
conditions and agreements contained herein and therein, the parties agree as
follows:
Section 1. Representations and Warranties. Each
Stockholder severally, and not jointly, represents and warrants to Parent and
Purchaser as follows:
(a) Such Stockholder is the record or beneficial owner of
the number of shares of Common Stock, par value $1.00 per share, of
the Company (the "Company Common Stock"), and holds options for shares
of Company Common Stock, each as set forth opposite such Stockholder's
name in Schedule A hereto (as may be adjusted from time to time
pursuant to Section 4, such Stockholder's "Shares"). Except for such
Stockholder's Shares, such Stockholder is not the record or beneficial
owner of any shares of Company Common Stock. Any of such Shares which
are described on Schedule A as option shares shall be deemed "Option
Shares" for the purposes of this Agreement. All other shares shall be
deemed "Owned Shares." Any Option Shares which are exercised prior to
the termination of this Agreement shall be deemed to be "Owned
Shares."
(b) This Agreement has been duly authorized, executed and
delivered by such Stockholder and constitutes the legal, valid and
binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms. Neither the execution and
delivery of this Agreement nor the consummation by such Stockholder of
the transactions contemplated hereby will result in a violation of, or
a default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to
which such Stockholder is a party or bound or to which such
Stockholder's Shares are subject. To the best of such Stockholder's
knowledge, consummation by such Stockholder of the transactions
contemplated hereby will not violate, or require any consent,
approval, or notice under, any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to such
Stockholder or such Stockholder's Shares, except for any necessary
filing under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), or state takeover laws.
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(c) Such Stockholder's Owned Shares and the certificates
representing such Owned Shares are now and at all times during the
term hereof will be held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances arising hereunder.
(d) Such Stockholder understands and acknowledges that
Parent is entering into, and causing Purchaser to enter into, the
Merger Agreement in reliance upon such Stockholder's execution and
delivery of this Agreement.
Section 2. Purchase and Sale of Shares. So long as the
Per Share Amount in the Offer is not less than $18.55 in cash (net to the
seller), each Stockholder hereby severally agrees that it shall tender its
Shares into the Offer prior to the expiration of the Offer and that it shall
not withdraw any Shares so tendered (it being understood that the obligation
contained in this sentence is unconditional). In addition, each Stockholder
hereby severally agrees to sell to Purchaser, and Purchaser hereby agrees to
purchase, all such Stockholder's Owned Shares at a price per Share equal to
$18.55, or such higher price per Share as may be offered by Purchaser in the
Offer, provided that such obligations to purchase and sell are both subject to
(i) Purchaser having accepted Shares for payment under the Offer and the
Minimum Condition (as defined in the Merger Agreement) (minus any Shares which
are the subject of this Agreement but are not purchased in the Offer) having
been satisfied, and (ii) the expiration or termination of any applicable
waiting period under the HSR Act.
Section 3. Covenants. Each Stockholder severally, and
not jointly, agrees with, and covenants to, Parent and Purchaser as follows:
such Stockholder shall not, except as contemplated by the terms of this
Agreement, during the term of this Agreement, (i) transfer (which term shall
include, without limitation, for the purposes of this Agreement, any sale,
gift, pledge or other disposition), or consent to any transfer of, any or all
of such Stockholder's Shares or any interest therein, (ii) enter into any
contract, option or other agreement or understanding with respect to any
transfer of any or all of such Shares or any interest therein, (iii) grant any
proxy, power-of-attorney or other authorization or consent in or with respect
to such Shares, (iv) deposit such Shares into a voting trust or enter into a
voting agreement or arrangement with respect to such Shares or (v) take any
other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby; provided that each Stockholder shall be entitled to transfer all or any
portion of such Shareholder's Shares to any person or entity which agrees in
writing to be bound by the provisions of this Agreement.
Section 4. Certain Events. Each Stockholder agrees that
this Agreement and the obligations hereunder shall attach to such Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law or
otherwise, including without limitation such Stockholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Company Common Stock, or the acquisition
of additional shares of Company Common Stock or other securities or rights of
the
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Company by any Stockholder, the number of Owned Shares and Option Shares listed
on Schedule A beside the name of such Stockholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Company Common Stock or other securities or rights of
the Company issued to or acquired by such Stockholder.
Section 5. Transfer. Each Stockholder agrees with and
covenants to Parent that such Stockholder shall not request that the Company
register the transfer (booked as entry or otherwise) of any certificated or
uncertificated interest representing any of the securities of the Company,
unless such transfer is made in compliance with this Agreement.
Section 6. Voidability. If prior to the execution
hereof, the Board of Directors of the Company shall not have duly and validly
authorized and approved by all necessary corporate action the acquisition of
Company Common Stock by Parent and Purchaser and other transactions
contemplated by this Agreement and the Merger Agreement, so that by the
execution and delivery hereof Parent or Purchaser would become, or could
reasonably be expected to become, an "interested stockholder" with whom the
Company would be prevented for any period pursuant to Section 203 of the DGCL
from engaging in any "business combination" (as such terms are defined in
Section 203 of the DGCL), then this Agreement shall be void and unenforceable
until such time as such authorization and approval shall have been duly and
validly obtained.
Section 7. Stockholder Capacity. No person executing
this Agreement who is or becomes during the term hereof a director or officer
of the Company makes any agreement or understanding herein in his or her
capacity as such director or officer. Each Stockholder signs solely in his or
her capacity as the record holder and beneficial owner of such Stockholder's
Shares and nothing herein shall limit or affect any actions taken by a
Stockholder in its capacity as an officer or director for the Company to the
extent specifically permitted by the Merger Agreement.
Section 8. Further Assurances. Each Stockholder shall,
upon request of Parent or Purchaser, execute and deliver any additional
documents and take such further actions as may reasonably be deemed by Parent
or Purchaser to be necessary or desirable to carry out the provisions hereof.
Section 9. Termination. This Agreement, and all rights
and obligations of the parties hereunder, shall terminate upon the earlier of
(a) the date upon which the Merger Agreement is terminated by the Company,
Parent or Purchaser for any reason in accordance with its terms or (b) the date
that Parent or Purchaser shall have purchased and paid for the Shares of each
Stockholder pursuant to Section 2.
Section 10. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in
this Agreement shall have the respective meanings assigned to such
terms in the Merger Agreement.
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(b) All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be
deemed given if delivered personally or sent by overnight courier
(providing proof of delivery) to the parties at the following
addresses (or such other address for a party as shall be specified by
like notice): (i) if to Parent or Purchaser, to the address set forth
in Section 9.03 of the Merger Agreement; and (ii) if to a Stockholder,
to the address set forth on Schedule A hereto, or such other address
as may be specified in writing by such Stockholder.
(c) 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.
(d) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement, and shall become effective (even without the signature of
any other Stockholder) as to any Stockholder when one or more
counterparts have been signed by each of Parent, Purchaser and such
Stockholder and delivered to Parent, Purchaser and such Stockholder.
(e) This Agreement (including the documents and
instruments referred to herein) 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.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflicts or laws thereof.
(g) Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in
whole or in party, by operation of law or otherwise, by any of the
parties without the prior written consent of the other parties, except
by laws of descent. Any assignment in violation of the foregoing
shall be void.
(h) If any term, provision, covenant or restriction
herein, or the application thereof to any circumstance, shall, to any
extent, be held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions herein and the application thereof to any
other circumstances, shall remain in full force and effect, shall not
in any way be affected, impaired or invalidated, and shall be enforced
to the fullest extent permitted by law.
(i) Each Stockholder agrees that irreparable damage would
occur and that Parent and Purchaser would not have any adequate remedy
at law in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that Parent and
Purchaser shall be entitled to an injunction or injunctions to prevent
breaches by any Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement.
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(j) No amendment, modification or waiver in respect of
this Agreement shall be effective against any party unless it shall be
in writing and signed by such party.
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IN WITNESS WHEREOF, Parent, Purchaser and the Stockholders
have caused this Agreement to be duly executed and delivered as of the date
first written above.
MONTEREY RESOURCES, INC.
By: /s/ X. Xxxxxx Whaling
-------------------------------------
X. Xxxxxx Whaling
Chairman of the Board and
Chief Executive Officer
MONTEREY ACQUISITION CORPORATION
By: /s/ X. Xxxxxx Whaling
-------------------------------------
X. Xxxxxx Whaling
Chairman of the Board and
Chief Executive Officer
XxXXXXXXX FAMILY TRUST
By: /s/ X. X. XxXxxxxxx
-------------------------------------
X.X. XxXxxxxxx, Trustee
By: /s/ Xxxx X. XxXxxxxxx
-------------------------------------
Xxxx X. XxXxxxxxx, Trustee
/s/ X. X. XxXxxxxxx
-------------------------------------
X.X. XxXXXXXXX
/s/ Xxxxxxx X. XxXxxxxxx
-------------------------------------
XXXXXXX X. XxXXXXXXX
/s/ Xxxxxxx X. Xxxx
-------------------------------------
XXXXXXX X. XXXX
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Schedule A
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Number of Shares of Common Stock
Number of Shares of Issuable upon Exercise of
Stockholder (including address) Common Stock Owned Options
------------------------------- ------------------ ---------------------------------
XxXxxxxxx Family Trust 527,696 0
00000 Xx. Xxxxxxx Xxxxxx
Xxxxx Xx Xxxxxxx, XX 00000
X.X. XxXxxxxxx and 75,295 140,500
Xxxxxxx X. XxXxxxxxx
00000 Xx. Xxxxxxx Xxxxxx
Xxxxx Xx Xxxxxxx, XX 00000
Xxxxxxx X. Xxxx 116,362 5,000
XX XXX0
Xxx 000
Xxxxxxxx, XX 00000
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