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EXHIBIT 2.3
BELCO VOTING AGREEMENT
BELCO VOTING AGREEMENT (this "Agreement") dated as of June 8, 2001, by and
among Westport Resources Corporation, a Delaware corporation ("Westport"), Belco
Oil & Gas Corp., a Nevada corporation ("Belco"), and the other parties signatory
hereto (each a "Shareholder" and collectively, the "Shareholders").
WHEREAS, each Shareholder desires that Westport and Belco enter into an
Agreement and Plan of Merger dated the date hereof (the "Merger Agreement";
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement) providing for the merger of Westport with and into
Belco (the "Merger") upon the terms and subject to the conditions set forth in
the Merger Agreement;
WHEREAS, each Shareholder and Belco are executing this Agreement as an
inducement to Westport to enter into and execute the Merger Agreement;
WHEREAS, concurrently with the execution and delivery of this Agreement,
Belco and Westport are entering into a voting agreement with each of ERI
Investments, Inc., a Delaware corporation ("ERI"), and Westport Energy LLC, a
Delaware limited liability company ("WELLC"), under which such parties have,
among other things, agreed to support the Merger upon the terms and conditions
set forth therein;
WHEREAS, concurrently with the execution and delivery of this Agreement,
each of Belco, Westport, the Shareholders, ERI, WELLC and the other parties
named therein have entered into an Amended and Restated Shareholders Agreement
(the "Shareholders Agreement") which shall become effective as of the Effective
Time; and
NOW, THEREFORE, in consideration of the execution and delivery by Westport
of the Merger Agreement and the mutual covenants, conditions and agreements
contained herein and therein, the parties agree as follows:
1. Representations and Warranties.
(a) Each Shareholder severally represents and warrants to Westport as
follows:
(i) Such Shareholder is the record and beneficial owner of, or in the
case of a Shareholder that is a trust (a "Trust Shareholder"), such Trust
Shareholder is the record holder of, and its beneficiaries are the
beneficial owners of, the number of shares of common stock, par value $0.01
per share, of Belco (the "Common Stock") and 6 1/2% convertible preferred
stock, par value $0.01 per share, of Belco (the "Preferred Stock") set
forth opposite such Shareholder's name on Schedule A hereto (such shares of
Common Stock and Preferred Stock, together with any other shares of Common
Stock, Preferred Stock or other capital stock of Belco acquired after the
date hereof (including through the exercise of any stock options, warrants
or similar instruments) being collectively referred to herein as the
"Subject Shares"). The Subject Shares constitute the
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only shares, with respect to which such Shareholder is the record or
beneficial owner, of Common Stock, Preferred Stock or other capital stock
of Belco or options, warrants or other rights (whether or not contingent)
to acquire such shares of capital stock of Belco that are or may be
entitled to vote on the Merger or the Merger Agreement at any meeting of
shareholders of Belco called to vote upon the Merger or the Merger
Agreement. Such Shareholder has the sole right to vote and Transfer (as
defined below in Section 3(a)) the Subject Shares set forth opposite its
name on Schedule A hereto, and none of such Subject Shares is subject to
any voting trust or other agreement, arrangement or restriction with
respect to the voting or the Transfer of the Subject Shares, except as
provided by this Agreement (it being understood that any pledge of the
Pledged Shares (as defined below) shall not be a breach of this
representation). Such Shareholder has all requisite power and authority,
and, if such Shareholder is a natural person, the legal capacity, to enter
into this Agreement and to perform its obligations hereunder. To the extent
that such Shareholder is an entity and not an individual, such Shareholder
is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization. The execution and delivery of this
Agreement by such Shareholder and the performance by such Shareholder of
its obligations hereunder have been duly authorized by all necessary action
on the part of such Shareholder. This Agreement has been duly executed and
delivered by, and constitutes a valid and binding agreement 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 and except that the availability of
equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding for such remedy may be
brought (collectively, the "Enforceability Exceptions").
(ii) Neither the execution and delivery of this Agreement nor the
performance by such Shareholder of its obligations hereunder will result in
a violation of, or a default under, or conflict with, (A) if such
Shareholder is an entity, any provision of its certificate of
incorporation, bylaws, partnership agreement, limited liability company
agreement or similar organizational documents, (B) any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any
kind (other than as may relate to the Pledged Shares but subject to the
proviso set forth in (iv) below) to which such Shareholder is a party or
bound or to which the Subject Shares are subject, except, in the case of
clause (B) above, as would not prevent, delay or otherwise materially
impair such Shareholder's ability to perform its obligations hereunder.
Execution, delivery and performance of this Agreement by such Shareholder
will not reasonably be expected to violate, or require any consent,
approval or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to such Shareholder or the
Subject Shares, except (x) for any necessary filing under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, (y) for any reports
under Sections 13(d) and 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby or
(z) as would not reasonably be expected to prevent, delay or otherwise
materially impair such Shareholder's ability to perform its obligations
hereunder.
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(iii) If the Shareholder is married and the Subject Shares of the
Shareholder constitute community property or spousal approval is otherwise
required for this Agreement to be legal, valid and binding, then, to the
extent so required, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, the
Shareholder's spouse, enforceable against such spouse in accordance with
its terms, subject to the Enforceability Exceptions. No Trust Shareholder
requires the consent of any beneficiary to the execution and delivery of
this Agreement or to the performance by such Trust Shareholder of its
obligations hereunder, except for any consents duly obtained as of the date
hereof and which will remain in full force and effect at such time or times
as may be necessary to duly consent to such Trust Shareholder's performance
of its obligations hereunder.
(iv) The Subject Shares and the certificates representing such Subject
Shares are held by such Shareholder, or by a nominee or custodian for the
benefit of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for (A) any such
encumbrances arising hereunder or, with respect to a Trust Shareholder,
under the existing terms of the trust governing such Trust Shareholder or
(B) any such encumbrances arising pursuant to the pledge of any Subject
Shares by such Shareholder prior to the date hereof to a financial
institution or a brokerage firm (the "Pledged Shares"); provided, however,
that such Shareholder represents that any such arrangement regarding such
Pledged Shares shall not prevent, delay or otherwise materially impair such
Shareholder's ability to execute and deliver this Agreement or perform its
obligations hereunder and such Shareholder shall use his reasonable efforts
to obtain an acknowledgment by the pledgee of the terms of this Agreement
and such pledgee's agreement to vote the Pledged Shares (if and to the
extent the voting power of the Pledged Shares is being or to be exercised
by pledgee) in accordance with Section 2 hereof.
(v) No broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar
fee or commission based upon arrangements made by or on behalf of such
Shareholder in connection with its entering into this Agreement.
(vi) Such Shareholder understands and acknowledges that Westport is
entering into the Merger Agreement in reliance upon such Shareholder's
execution and delivery of this Agreement.
(b) Westport represents and warrants to each Shareholder that the execution
and delivery of this Agreement by Westport and the consummation by Westport of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of Westport.
2. Voting Agreements. Each Shareholder severally agrees with, and covenants
to, Westport that, during the Term (as defined below) of this Agreement, at any
meeting of shareholders of Belco or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval (including by written
consent) is sought, such Shareholder shall,
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including by executing a written consent solicitation if requested by Westport,
vote (or cause to be voted) the Subject Shares with respect to the following
matters (a) in favor of the Merger, the adoption by Belco of the Merger
Agreement and the approval of the terms thereof and each of the other
transactions expressly contemplated by the Merger Agreement and (b) against any
transaction, agreement, matter or Acquisition Proposal that would impede,
interfere with, delay, postpone or attempt to discourage the Merger and the
Merger Agreement.
3. Other Covenants. Each Shareholder severally agrees with, and covenants
to, Westport during the Term of this Agreement as follows:
(a) Such Shareholder shall not after the date hereof (i) sell, transfer,
pledge, assign or otherwise dispose of (including by gift) (collectively,
"Transfer"), or consent to any Transfer of, any Subject Shares or any interest
therein, except pursuant to the Merger, (ii) enter into any contract, option or
other agreement with respect to any Transfer of any or all of the Subject Shares
or any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to the Subject Shares or (iv) deposit the
Subject Shares into a voting trust or enter into a voting agreement or voting
arrangement with respect to the Subject Shares; provided, that any such
Shareholder may Transfer any of the Subject Shares to any other Shareholder who
is on the date hereof a party to this Agreement, or to any other person or
entity that, prior to or coincident with such Transfer, executes an agreement to
vote such Subject Shares in accordance with Section 2; provided, further, that
the restrictions in this Section 3 shall not be deemed violated by any Transfer
of Subject Shares pursuant to a cashless exercise of stock options.
(b) Such Shareholder hereby waives any rights of appraisal, or rights to
dissent from the Merger, that such Shareholder may have.
(c) Such Shareholder shall not take any action prohibited by Section 7.2 of
the Merger Agreement.
4. Certain Events. Each Shareholder agrees that this Agreement and the
obligations hereunder shall attach to such Shareholder's Subject 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 Shareholder'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
Belco affecting the Common Stock, Preferred Stock or the acquisition of
additional shares of Common Stock, Preferred Stock or other voting securities of
Belco by any Shareholder, the number of Shares listed on Schedule A beside the
name of such Shareholder shall be adjusted appropriately and this Agreement and
the obligations hereunder shall attach to any additional shares of Common Stock,
Preferred Stock or other voting securities of Belco issued to or acquired by
such Shareholder.
5. Stop Transfer. Belco agrees with, and covenants to, Westport that Belco
shall not register the transfer of any certificate representing any Subject
Shares, unless such transfer is made to Westport or otherwise in compliance with
this Agreement.
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6. Shareholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director of Belco makes any agreement or
understanding herein in his or her capacity as such director. Each Shareholder
signs solely in his or her capacity as the record and beneficial owner of, or
the trustee of a trust whose beneficiaries are the beneficial owners of, such
Shareholder's Subject Shares.
7. Further Assurances. Each Shareholder shall, upon request of Westport,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Westport to be necessary or desirable to carry out
the provisions hereof.
8. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon (and shall only be effective from the
date hereof until) the first to occur of (the "Term") (i) the Effective Time of
the Merger or (ii) the date upon which the Merger Agreement is terminated in
accordance with its terms, (iii) December 31, 2001 or (iv) the amendment of the
Merger Agreement unless such amendment has been consented to by the Shareholders
in writing prior to or simultaneously with such amendment; provided, however,
that (x) Section 9 shall survive any termination of this Agreement and (y)
termination of this Agreement pursuant to Clause (ii) above shall not relieve
any party hereto from liability for any willful and knowing breach hereof prior
to such termination.
9. Miscellaneous.
(a) 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 at such other address for a party as
shall be specified by like notice): (i) if to Westport or Belco, to the
appropriate address set forth in Section 11.1 of the Merger Agreement; and (ii)
if to a Shareholder, to the appropriate address set forth on Schedule A hereto.
(b) 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.
(c) 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
as to any Shareholder when one or more counterparts have been signed by each of
Westport, Belco and such Shareholder and delivered to Westport, Belco and such
Shareholder.
(d) 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, and this Agreement is not intended to confer upon any
other person (other than Westport) any rights or remedies hereunder.
(e) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Nevada, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
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(f) Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned, in whole or in part, 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 or as expressly provided by Section
3(a). Any assignment in violation of the foregoing shall be void.
(g) As between any Shareholder and Westport, each of such parties agrees
that irreparable damage to the other, non-breaching party would occur and that
such non-breaching party 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 the non-breaching party shall be entitled to an injunction or injunctions
to prevent breaches by the other party of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which it may be entitled at law or in equity.
(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) 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, Westport Resources Corporation, Belco Oil & Gas Corp.
and the Shareholders party hereto have caused this Agreement to be duly executed
and delivered as of the date first written above.
WESTPORT RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxx
--------------------------
Name: Xxxxxx X. Xxxx
------------------------
Title: Chief Executive Officer
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BELCO OIL & GAS CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman and CEO
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SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
----------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
XXXXXXXX X. XXXXXX
XXXXX INVESTMENT GROUP, LLC:
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Manager and Member
THE XXXXXX X. AND XXXXX X. XXXXXX
FAMILY FOUNDATION:
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee and Donor
BELFER CORP.:
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
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XXXXX HOLDINGS PARTNERSHIP, L.P.:
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
TRUST FOR THE BENEFIT OF XXXXXXXXX
XXXXX BELFER (T-6):
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trustee
XXXXXX X. XXXXXX 1990 FAMILY TRUST:
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Trustee
VANTZ LIMITED PARTNERSHIP:
By: VANTZ LLC
Its General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title:
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SCHEDULE A
SHAREHOLDER NAME AND ADDRESS COMMON STOCK PREFERRED STOCK
---------------------------- ------------ ---------------
Xxxxxx X. Xxxxxx(1) 5,835,379 6,000
Xxxxx X. Xxxxxx(1) 2,805,601 18,000
Xxxxxxxx X. Xxxxxx(1) 2,104,449
Xxxxx Investment Group, LLC(2) 1,883,223 --
Xxxxxx X. and Xxxxx X. Xxxxxx Family Foundation(3) 713,500 --
Belfer Corp.(3) 845,271 208,000
Xxxxx Holdings Partnership L.P.(3) 1,193,415 160,000
Trust for the benefit of Xxxxxxxxx X. Xxxxxx (T-6)(3) 503,446 --
Xxxxxx X. Xxxxxx Family Trust(4) 557,674 --
Vantz Limited Partnership(4) 634,210 --
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17,076,168
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(1) 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(2) c/o Xxxx Xxxx, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(3) c/o Xxxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000
(4) c/o Xxxxxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000
