EX-10.76 9 0009.txt BEC STOCKHOLDERS VOTING AGREEMENT Exhibit 10.76 BRIGHAM EXPLORATION COMPANY Stockholders Voting Agreement This STOCKHOLDERS VOTING AGREEMENT, dated March 1, 2001 (this "Agreement"), is made and entered into by and among Brigham 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"): Ben M. and Anne L. Brigham, individual residents of Travis County, Texas, Harold D. Carter, a resident of Dallas County, Texas, General Atlantic Partners III, L.P., a Delaware limited partnership, GAP-Brigham 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 Brigham: Brigham Exploration Company 6300 Bridge Point Parkway Building Two, Suite 500 Austin, Texas 78730 Attention: Ben M. "Bud" Brigham Fax No: (512) 427-3400 If to ESC, MB or MBP: Donaldson Lufkin & Jenrette 277 Park Avenue New York, New York 10172 Attention: Nicole Arnaboldi, Ivy Dodes Fax No: 212-892-2689 and Mr. Steve Webster 1000 Louisiana, Suite 4900 Houston, Texas 77002 Fax No: (713) 652-6050 with a copy to: Gardere Wynne Sewell, LLP 1000 Louisiana, Suite 3400 Houston, Texas 77002 Attention: N.L. Stevens III Telefax: 713-276-5807 If to DOP: DLJ Offshore Management N.V. John B. Gorsiraweg 14 Willemstad, Curacao Netherlands, Antilles Fax No: 011-599-961-4129 and Mr. Steve Webster 1000 Louisiana, Suite 4900 Houston, Texas 77002 Fax No: (713) 652-6050 with a copy to: Gardere Wynne Sewell, LLP 1000 Louisiana, Suite 3400 Houston, Texas 77002 Attention: N.L. Stevens III Telefax: 713-276-5807 3 If to Ben M. Brigham: Ben M. Brigham Brigham Exploration Company 6300 Bridge Point Parkway Building Two, Suite 500 Austin, Texas 78730 Fax No: (512) 427-3400 If to Anne L. Brigham: Anne L. Brigham Brigham Exploration Company 6300 Bridge Point Parkway Building Two, Suite 500 Austin, Texas 78730 Fax No: (512) 427-3400 If to Harold D. Carter: Harold D. Carter 5949 Sherry Lane, Suite 620 Dallas, Texas 75225 Fax No.: (214) 692-7820 If to General Atlantic Partners III, L.P.: General Atlantic Partners III, L.P. c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, CT 06830 Attention: Mr. Thomas J. Murphy Fax No: (203) 622-8818 If to GAP-Brigham Partners, L.P.: GAP-Brigham Partners, L.P. c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, CT 06830 Attention: Mr. Thomas J. Murphy Fax No: (203) 622-8818 If to GAP Coinvestment Partners II, L.P.: GAP Coinvestment Partners II, L.P. c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, CT 06830 Attention: Mr. Thomas J. Murphy Fax No: (203) 622-8818 4 If to Aspect Resources, LLC: Aspect Resources, LLC 511 16th Street, Suite 300 Denver, CO 80202 Attention: Mr. Alex Cranberg Fax No: (303) 573-7340 If to any of the officers of Brigham: Brigham Exploration Company 6300 Bridge Point Parkway Building Two, Suite 500 Austin, Texas 78730 Attention: [name of officer] Fax No: (512) 427-3400 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. BRIGHAM EXPLORATION COMPANY By: /s/ Karen E. Lynch ------------------------------------- Name: Karen E. Lynch -------------------------------- Title: Vice President ------------------------------- /s/ Ben M. Brigham ------------------------------------- Ben M. Brigham /s/ Anne L. Brigham ------------------------------------- Anne L. Brigham /s/ Harold D. Carter ------------------------------------- Harold D. Carter 7 DLJ ESC II, L.P. a Delaware Limited Partnership ("ESC") By: DLJ LBO Plans Management Corporation General Partner By: /s/ Steven A. Webster ------------------------------------- Name: Steven A. Webster ----------------------------------- Title: Attorney-in-Fact ---------------------------------- DLJMB FUNDING III, INC. a Delaware Corporation ("MB") By: /s/ Steven A. Webster ------------------------------------- Name: Steven A. Webster ----------------------------------- Title: Attorney-in-Fact ---------------------------------- DLJ Merchant Banking Partners III, L.P. a Delaware Limited Partnership ("MBP") By: DLJ Merchant Banking III, Inc. Managing General Partner By: /s/ Steven A. Webster ------------------------------------- Name: Steven A. Webster ----------------------------------- Title: Attorney-in-Fact ---------------------------------- DLJ Offshore Partners III, C.V. a Netherlands Antilles Limited Partnership ("DOP") By: DLJ Merchant Banking III, Inc. Managing General Partner By: /s/ Steven A. Webster ------------------------------------- Name: Steven A. Webster ----------------------------------- Title: Attorney-in-Fact ---------------------------------- 7(a) GENERAL ATLANTIC PARTNERS III, L.P. By GAP III Investors, Inc. Its General Partner By: /s/ Stephen P. Reynolds ------------------------------------- Name: Stephen P. Reynolds ----------------------------------- Title: President ---------------------------------- GAP-BRIGHAM PARTNERS, L.P. By: /s/ Stephen P. Reynolds ------------------------------------- Name: Stephen P. Reynolds ----------------------------------- Title: General Partner ---------------------------------- GAP COINVESTMENT PARTNERS II, L.P. By: /s/ Thomas J. Murphy ------------------------------------- Name: Thomas J. Murphy ----------------------------------- Title: Attorney-in-Fact ---------------------------------- ASPECT RESOURCES, LLC By Aspect Management Corporation Its Manager By: /s/ Alex M. Cranberg ------------------------------------- Name: Alex M. Cranberg ----------------------------------- Title: President ---------------------------------- /s/ Curtis F. Harrell ---------------------------------------- Curtis F. Harrell 8 /s/ David T. Brigham ---------------------------------------- David T. Brigham /s/ A. Lance Langford ---------------------------------------- A. Lance Langford /s/ Jeffery E. Larson ---------------------------------------- Jeffery E. Larson /s/ Karen E. Lynch ---------------------------------------- Karen E. Lynch /s/ Christopher A. Phelps ---------------------------------------- Christopher A. Phelps 9 Schedule I Number of Outstanding Shareholder Shares of Common Stock ----------- ---------------------- Ben M. and Anne L. Brigham, collectively 3,719,792 Harold D. Carter 314,893 General Atlantic Partners III, L.P. 2,679,418 GAP-Brigham Partners, L.P. 127,725 GAP Coinvestment Partners II, L.P. 975,610 Aspect Resources, LLC 487,805 Brigham Officers*: 233,186 (in the aggregate) Curtis F. Harrell David T. Brigham Lance Langford Jeffery E. Larson Karen E. Lynch Christopher A. Phelps * other than Ben M. Brigham