EXHIBIT 10.1
STOCK VOTING AGREEMENT
STOCK VOTING AGREEMENT, dated as of _______________________, 2006 (this
"Agreement"), is by and among the undersigned stockholder (the "Stockholder"),
Range Resources Corporation, a Delaware corporation ("Parent"), and Xxxxxx
Energy, Inc., a Delaware corporation (the "Company").
WHEREAS, concurrently herewith, Parent, Range Acquisition Texas, Inc.,
a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"),
and the Company are entering into an Agreement and Plan of Merger of even date
herewith (the "Merger Agreement"), pursuant to which Merger Sub will merge with
and into Company (the "Merger"). Each capitalized term used herein and not
otherwise defined shall have the meaning set forth in the Merger Agreement;
WHEREAS, the Stockholder, as of the date hereof, has Beneficial
Ownership, as defined in Section 7 hereof, of the number of shares of common
stock, $0.001 par value per share, of the Company ("Company Common Stock") set
forth on Exhibit A hereto (the "Existing Shares", and together with any shares
of Company Common Stock acquired by the Stockholder after the date hereof and
prior to the termination of this Agreement whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or exchangeable
shares, or by means of purchase, dividend, distribution or otherwise,
hereinafter collectively referred to as the "Shares"). References in this
Agreement to shares of Company Common Stock shall also be deemed to refer to the
associated right to purchase Series A Junior Participating Preferred Stock, par
value $1.00 per share, of the Company in accordance with the Company Rights
Agreement, as appropriate. Exhibit A hereto lists separately all options,
warrants or other rights to purchase Company Common Stock held by the
Stockholder; and
WHEREAS, Parent and Merger Sub are entering into the Merger Agreement
in reliance on and in consideration of the Stockholder's representations,
warranties, covenants and agreements hereunder.
NOW, THEREFORE, in consideration of Parent and Merger Sub's execution
of the Merger Agreement and the mutual covenants and agreements herein contained
and other good and valuable consideration, and intending to be legally bound
hereby, it is agreed as follows:
1. VOTE.
1.1 AGREEMENT TO VOTE. The Stockholder hereby revokes any and all
previous proxies with respect to the Stockholder's Shares and
irrevocably agrees to vote and otherwise act (including pursuant
to written consent) with respect to all of such Shares: (i) in
favor of the approval of the Merger Agreement (or any amended
version or versions thereof) and the Merger, and all actions
required in furtherance thereof, at any meeting or meetings of
the stockholders of the Company, and at any adjournment,
postponement or continuation thereof, at which the Merger
Agreement (or any amended version or versions thereof) and the
Merger are submitted for the consideration and vote of the
stockholders of the Company; (ii) against any action or agreement
that would result in a breach in any
respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement
or this Agreement; and (iii) except as otherwise agreed to in
writing in advance by Parent, against the following actions
(other than the Merger and the transactions contemplated by the
Merger Agreement): (A) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination
involving the Company or its Subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its
Subsidiaries; (C)(1) any change in a majority of the persons who
constitute the board of directors of the Company, (2) any change
in the present capitalization of the Company or any amendment of
the Company's Certificate of Incorporation or Bylaws, (3) any
other material change in the Company's corporate structure or
business, or (4) any other action that is intended or could
reasonably be expected to impede, interfere with, delay, postpone
or adversely affect in any material respect the Merger and the
other transactions contemplated by the Merger Agreement. The
Stockholder shall not enter into any agreement or understanding
with any person or entity the effect of which would be
inconsistent or violative of the provisions and agreements
contained in this Section 1. The obligations of the Stockholder
under this Section 1 shall remain in effect with respect to the
Shares until, and shall terminate upon, the earlier to occur of
the Effective Time or the termination of the Merger Agreement in
accordance with its terms. The Stockholder hereby agrees to
execute such additional documents as Parent may reasonably
request to effectuate the foregoing.
1.2 IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, the Stockholder agrees to deliver to Parent a proxy in
the form attached hereto as Exhibit B (the "Proxy"), which shall
be irrevocable to the fullest extent permissible by applicable
law, with respect to the Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder represents and warrants to Parent as follows:
2.1 OWNERSHIP OF SHARES. On the date hereof, the Shares are all of
the Shares currently Beneficially Owned by the Stockholder. The
Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 1
hereof, sole power of disposition, sole power of conversion and
sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares set
forth on Exhibit A hereto, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement. The Stockholder currently
has, and at all times during the term hereof will have, good,
valid and marketable title to the Shares, free and clear of all
liens, encumbrances and security interests (other than the
encumbrances created by this Agreement and other than
restrictions on transfer under applicable federal and state
securities laws) and free of other restrictions, options, rights
to purchase or other claims that would adversely affect the
ability of the Stockholder to perform its obligations hereunder
or pursuant to which the Stockholder could be required to sell,
assign or otherwise transfer the Shares.
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2.2 AUTHORITY; BINDING AGREEMENT. The Stockholder has the full legal
right, power and authority to enter into and perform all of its
obligations under this Agreement. This Agreement has been duly
executed and delivered by the Stockholder and constitutes a
legal, valid and binding agreement of the Stockholder,
enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law). Neither the execution and
delivery of this Agreement nor the consummation by the
Stockholder of the transactions contemplated hereby will (i)
violate, or require any consent, approval or notice under, any
provision of any judgment, order, decree, statute, law, rule or
regulation applicable to the Stockholder or the Shares or (ii)
constitute a violation of, conflict with or constitute a default
under, any contract, commitment, agreement, understanding,
arrangement or other restriction of any kind to which the
Stockholder is a party or by which the Stockholder is bound, in
each case the effect of which would adversely affect the ability
of the Stockholder to perform his obligations hereunder.
2.3 RELIANCE ON AGREEMENT. The Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this
Agreement.
3. CERTAIN COVENANTS OF THE STOCKHOLDER. Except in accordance with
the provisions of this Agreement, the Stockholder agrees with and covenants to
Parent as follows:
3.1 TRANSFER. Prior to the termination of this Agreement, except as
otherwise provided herein, the Stockholder shall not, other than
as a result of the death of the Stockholder: (i) transfer (which
term shall include, without limitation, for the purposes of this
Agreement, any sale, gift, pledge, assignment, encumbrance or
other disposition), whether directly or indirectly (including by
operation of law), or consent to any transfer of, any or all of
the Shares or any interest therein, except pursuant to the
Merger; (ii) grant any proxies, powers-of-attorney or other
authorizations or consents with respect to the Shares, deposit
the Shares into a voting trust or enter into a voting agreement
or similar arrangement with respect to the Shares; or (iii) enter
into any contract, option or other agreement or understanding
with respect to any transfer of any or all such Shares or any
interest therein.
3.2 STOP TRANSFER. The Stockholder hereby agrees with and covenants
to each other party hereto that the Stockholder shall not request
that the Company register the transfer (book entry or otherwise)
of any certificate or uncertified interest representing any of
its Shares, unless such transfer is made in compliance with this
Agreement.
3.3 NOTIFICATIONS. The Stockholder shall, while this Agreement is in
effect, notify Parent promptly, but in no event later than two
business days, of the number of
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any shares of Company Common Stock acquired by the Stockholder
after the date hereof.
3.4 WAIVER OF CLAIMS. The Stockholder agrees that it will not bring,
commence, institute, maintain, prosecute, participate in or
voluntarily aid any action, claim, suit or cause of action, in
law or in equity, in any court or before any governmental entity,
which challenges the validity of or seeks to enjoin the operation
of any provision of this Agreement; provided, that the
Stockholder may defend against, contest or settle any such
action, claim, suit ot cause of action brought against the
Stockholder that relates to the Stockholder's capacity as a
director or officer of the Company.
3.5 OTHER TRANSACTIONS. The Stockholder shall not, directly or
indirectly, (i) solicit, initiate, seek, encourage, facilitate or
induce any inquiry with respect to, or the making, submission or
announcement of, any Acquisition Proposal or any inquiry, offer
or proposal that may reasonably be expected to lead to an
Acquisition Proposal, (ii) participate in any discussions or
negotiations regarding, or furnish to any person or entity or
grant access to any person or entity to any nonpublic information
with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to, any Acquisition Proposal or
(iii) engage in discussions with any person or entity with
respect to any Acquisition Proposal, except as to the existence
of these provisions; provided, that the Stockholder may act in
his capacity as a director or officer of the Company in
connection with actions taken by the Company that are permitted
by Section 4.2 of the Merger Agreement. As promptly as
practicable (but in no event later than 24 hours) after receipt
of any Acquisition Proposal, or any request for nonpublic
information or inquiry which the Stockholder reasonably believes
could lead to an Acquisition Proposal, the Stockholder shall
provide Parent with oral and written notice of the material terms
and conditions of such Acquisition Proposal, request or inquiry,
and the identity of the person, entity or Group making any such
Acquisition Proposal, request or inquiry and a copy of all
written materials provided in connection with such Acquisition
Proposal, request or inquiry.
3.6 APPRAISAL RIGHTS. To the extent permitted by applicable law, the
Stockholder shall not exercise any rights (including, without
limitation, under Section 262 of the DGCL) to demand appraisal of
any Shares that may arise with respect to the Merger.
3.7 ADDITIONAL VOTING AGREEMENTS. If requested by Parent, the
Stockholder agrees to use its commercially reasonable efforts to
cause the other beneficial owners of any shares of Company Common
Stock over which the Stockholder has shared voting or dispositive
power (such shares, the "Shared Securities") to execute stock
voting agreements and Irrevocable Proxies, in substantially
similar form to this Agreement and the Irrevocable Proxy attached
hereto, prior to the Effective Time. If not so requested by
Parent, the Stockholder nonetheless agrees to use its
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commercially reasonable efforts to cause the Shared Securities to
be voted in a manner consistent with this Agreement.
4. EFFECT OF PURPORTED TRANSFER. The Company agrees with, and
covenants to, each other party hereto that the Company shall not register the
transfer (book entry or otherwise) of any certificate or uncertified interest
representing any of the Shares, unless such transfer is made in compliance with
this Agreement. The parties hereto agree that any transfer of the Shares made
other than in compliance with this Agreement shall be null and void. Any such
transfer shall convey no interest in any of the Shares purported to be
transferred, and the transferee shall not be deemed to be a stockholder of the
Company nor entitled to receive a new share certificate or any rights, dividends
or other distributions on or with respect to such Shares.
5. TERMINATION. This Agreement shall terminate, and neither Parent
nor the Stockholder shall have any rights or obligations hereunder, and this
Agreement shall become null and void and have no effect on the earlier of (i)
the Effective Time or (ii) upon the termination of the Merger Agreement in
accordance with its terms.
6. ACTION IN THE STOCKHOLDER'S CAPACITY ONLY. Notwithstanding any
provision of this Agreement to the contrary, the Stockholder does not make any
agreement or understanding herein as director or officer of the Company. The
Stockholder signs solely in his capacity as Beneficial Owner of the Shares, and
nothing herein shall limit or affect any actions taken in his capacity as an
officer or director of the Company. Further, Parent covenants that it will not
bring, commence, institute, maintain, prosecute, participate in or voluntarily
aid any action, claim, suit or cause of action, in law or in equity, in any
court or before any governmental entity, which (i) alleges that any action taken
(or not taken) by Stockholder solely in Stockholder's capacity as a director or
officer of the Company breaches or violates or would breach or violate any
provision of this Agreement or the Proxy or (ii) challenges the right of
Stockholder to vote or challenges the validity or seeks to enjoin any vote by
Stockholder on any matter other than those matters set forth in Section 1
hereof.
7. DEFINITIONS. For the purposes of this Agreement:
7.1 "Beneficial Ownership" or "Beneficial Owner" with respect to
any securities shall mean having "beneficial ownership" of
such securities (as determined pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934 (the "Exchange Act"),
including pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided, however,
that notwithstanding Rule 13d-3 under the Exchange Act,
"Beneficial Ownership" or "Beneficial Owner" for purposes of
this Agreement shall include only those securities over which
the Stockholder has sole voting and dispositive power.
Without duplicative counting of the same security by the same
holder, securities Beneficially Owned by a Person shall
include securities Beneficially Owned by all other Persons
with whom such Person would constitute a "group" as within
the meaning of Section 13(d)(3) of the Exchange Act.
7.2 "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated
organization or other entity.
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8. MISCELLANEOUS.
8.1 NOTICES. Any notice or communication required or permitted
hereunder shall be in writing and either delivered
personally, telegraphed or telecopied or sent by certified or
registered mail, postage prepaid, and shall be deemed to be
given, dated and received (i) when so delivered personally,
(ii) upon receipt of an appropriate electronic answerback or
confirmation when so delivered by telegraph or telecopy (to
such number specified below or another number or numbers as
such person may subsequently designate by notice given
hereunder), or (iii) five business days after the date of
mailing to the following address or to such other address or
addresses as such person may subsequently designate by notice
given hereunder, if so delivered by mail:
IF TO PARENT: Range Resources Corporation
000 Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
WITH A COPY TO: Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax No.: (000) 000-0000
IF TO THE STOCKHOLDER: at the address set forth on Exhibit A
IF TO THE COMPANY: Xxxxxx Energy, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
WITH A COPY TO: Xxxxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxxxxx
Fax No.: (000) 000-0000
8.2 FURTHER ACTIONS. Each of the parties hereto agrees that it
will use its commercially reasonable efforts to do all things
necessary to effectuate this Agreement. The Stockholder and
the Company hereby covenant and agree to
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execute and deliver any additional documents reasonably
necessary or desirable to carry out the purpose and intent
of this Agreement.
8.3 ENTIRE AGREEMENT. This Agreement, together with the documents
expressly 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.
8.4 AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties
hereto. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or
to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof shall not
constitute a waiver by such party of its right to exercise
any such or other right, power or remedy or to demand such
compliance.
8.5 EXPENSES. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost
or expense.
8.6 SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges
and agrees that in the event of any breach of this Agreement,
each non-breaching party would be irreparably and immediately
harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties hereto (i) will waive, in
any action for specific performance, the defense of adequacy
of a remedy at law and (ii) shall be entitled, in addition to
any other remedy to which they may be entitled at law or in
equity, including monetary damages, to compel specific
performance of this Agreement without the necessity of
posting bond or proving actual damages.
8.7 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
successors, assigns and personal representatives, but neither
this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties.
8.8 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
8.9 COUNTERPARTS. This Agreement may be executed manually or by
facsimile in two or more counterparts, all of which shall be
considered one and the same agreement and shall become
effective when a counterpart hereof shall have been signed by
each of the parties and delivered to the other parties, it
being understood that all parties need not sign the same
counterpart.
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8.10 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any
of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad
as to be unenforceable, such provision shall be interpreted
to be only so broad as is enforceable.
8.11 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or
interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date and year first above written.
XXXXXX ENERGY, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
RANGE RESOURCES CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
STOCKHOLDER
By:
--------------------------------
Print Name:
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[SIGNATURE PAGE TO STOCK VOTING AGREEMENT]
Instruction: If you are an individual and are married, please have your spouse
complete this form:
SPOUSAL CONSENT
I am the spouse of ____________________. On behalf of myself, my heirs
and legatees, I hereby join in and consent to the terms of the foregoing party's
Stock Voting Agreement, and agree to the voting of the Shares of the common
stock of the Company, beneficially owned by my spouse, that my spouse proposes
to vote pursuant to the Stock Voting Agreement.
Dated: , 2006
------------------
-----------------------------------
(Signature of Spouse)
Printed Name:
----------------------
EXHIBIT A
STOCK OWNERSHIP AND ADDRESS NOTICE LIST
Beneficial Ownership: __________ shares of Company Common Stock.
This number includes __________ shares which
may be acquired upon exercise of stock
options that are currently exercisable, but
does not include __________ shares which may
be acquired pursuant to stock options that
are not currently exercisable.
Address for Notices: ____________________
____________________
____________________
____________________
Fax No.:____________
EXHIBIT A-1
EXHIBIT B
IRREVOCABLE PROXY
The undersigned stockholder of Xxxxxx Energy, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints the directors on the board of directors of Range Resources
Corporation, a Delaware corporation (the "Parent"), and each of them, as the
sole and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Proxy. The Shares beneficially owned by the undersigned stockholder of
the Company as of the date of this Proxy are listed on the final page of this
Proxy. Upon the execution of this Proxy by the undersigned, any and all prior
proxies given by the undersigned with respect to any Shares shall be revoked and
the undersigned hereby agrees not to grant any subsequent proxies with respect
to the Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to the Stock Voting Agreement
of even date herewith by and between the Parent, the Company and the undersigned
stockholder (the "Stock Voting Agreement"), and is granted in consideration of
the Parent and a wholly-owned subsidiary of Parent ("Merger Sub") entering into
the Agreement and Plan of Merger (the "Merger Agreement"), by and among the
Parent, Merger Sub and the Company, which provides for the merger of Merger Sub
with and into the Company, with the Company being the surviving corporation (the
"Merger"). This Proxy shall terminate and be of no further force and effect
automatically upon the Expiration Date. As used herein, the term "Expiration
Date" shall mean the date that the Stock Voting Agreement terminates in
accordance with its terms.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) (i) in favor of the approval of the Merger Agreement (or any
amended version or versions thereof) and the Merger, and all actions required in
furtherance thereof, at any meeting or meetings of the stockholders of the
Company, and at any adjournment, postponement or continuation thereof, at which
the Merger Agreement (or any amended version or versions thereof) and the Merger
are submitted for the consideration and vote of the stockholders of the Company;
(ii) against any action or agreement that would result in a breach in any
respect of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or the Stock Voting
Agreement; and (iii) except as otherwise agreed to in writing in advance by
Parent, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries; (B) a sale, lease or
transfer of a material
Exhibit B-1
amount of assets of the Company or its Subsidiaries; (C)(1) any change in a
majority of the persons who constitute the board of directors of the Company,
(2) any change in the present capitalization of the Company or any amendment of
the Company's Certificate of Incorporation or Bylaws, (3) any other material
change in the Company's corporate structure or business or (4) any other action
which is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone or adversely affect in any material respect the Merger and the
transactions contemplated by the Merger Agreement.
The attorneys and proxies named above may not exercise this Proxy to
vote, consent or act on any other matter except as provided above. The
undersigned stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
[Remainder of Page Intentionally Left Blank]
Exhibit B-2
Dated: , 2006
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Signature of Stockholder:
--------------------
Print Name of Stockholder:
--------------------
Shares beneficially owned:
shares of Company Common Stock
-------
shares of Company Common Stock issuable
------- upon the exercise of outstanding
options, warrants or other rights
