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EXHIBIT 2.2
WESTPORT VOTING AGREEMENT
WESTPORT 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"), ERI Investments Inc., a
Delaware corporation ("ERI") and Westport Energy LLC, a Delaware limited
liability company ("WELLC," together with ERI, each a "Stockholder" and
collectively, the "Stockholders").
WHEREAS, each Stockholder 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 Stockholder and Westport are executing this Agreement as an
inducement to Belco 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 certain Belco
shareholders (the "Belco Shareholders") under which such Belco Shareholders
have, among other things, agreed to support the Merger upon the terms and
conditions set forth therein; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
each of Belco, Westport, the Belco 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.
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 Stockholder severally represents and warrants to Belco as follows:
(i) Such Stockholder is the record and beneficial owner of, the number
of shares of common stock, par value $0.01 per share, of Westport (the
"Common Stock") set forth opposite such Stockholder's name on Schedule A
hereto (such shares of Common Stock, together with any other shares of
Common Stock or other capital stock of Westport 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 only shares, with respect to
which such Stockholder is the record or beneficial owner, of Common Stock
or other capital stock of Westport or options, warrants or other rights
(whether or not contingent) to
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acquire such shares of capital stock of Westport that are or may be
entitled to vote on the Merger or the Merger Agreement at any meeting of
stockholders of Westport called to vote upon the Merger or the Merger
Agreement. Except for the Shareholders Agreement dated as of March 9, 2000,
by and among Westport Oil and Gas Company, Inc., Equitable Production
(Gulf) Company, Westport Energy Corporation, such Stockholder 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 Stockholder has all requisite
power and authority to enter into this Agreement and to perform its
obligations hereunder. Such Stockholder 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 Stockholder and the
performance by such Stockholder of its obligations hereunder have been duly
authorized by all necessary action on the part of such Stockholder. This
Agreement has been duly executed and delivered by, and constitutes a valid
and binding agreement of, such Stockholder, enforceable against such
Stockholder 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 Stockholder of its obligations hereunder will result in
a violation of, or a default under, or conflict with, (A) 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 (iii) below) to which such Stockholder
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 Stockholder's ability to perform its obligations
hereunder. Execution, delivery and performance of this Agreement by such
Stockholder 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 Stockholder 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 Stockholder's ability to perform its obligations
hereunder.
(iii) The Subject Shares and the certificates representing such
Subject Shares are held by 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 or pursuant to the
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pledge of any Subject Shares by such Stockholder prior to the date hereof
to a financial institution or a brokerage firm (the "Pledged Shares");
provided, however, that such Stockholder represents that any such
arrangement regarding such Pledged Shares shall not prevent, delay or
otherwise materially impair such Stockholder's ability to execute and
deliver this Agreement or perform its obligations hereunder and such
Stockholder shall use its 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.
(iv) 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
Stockholder in connection with its entering into this Agreement.
(v) Such Stockholder understands and acknowledges that Belco is
entering into the Merger Agreement in reliance upon such Stockholder's
execution and delivery of this Agreement.
(b) Belco represents and warrants to each Stockholder that the execution
and delivery of this Agreement by Belco and the consummation by Belco of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of Belco.
2. Voting Agreements. Each Stockholder severally agrees with, and covenants
to, Belco that, during the Term (as defined below) of this Agreement, at any
meeting of stockholders of Westport 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 Stockholder shall, including by executing a
written consent solicitation if requested by Belco, vote (or cause to be voted)
the Subject Shares in favor of the Merger, the adoption by Westport of the
Merger Agreement and the approval of the terms thereof and each of the other
transactions expressly contemplated by the Merger Agreement.
3. Other Covenants. Each Stockholder severally agrees with, and covenants
to, Belco during the Term of this Agreement as follows:
(a) Such Stockholder 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, except for this
Agreement 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 Stockholder may Transfer any of the Subject Shares to
any other Stockholder 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
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Section 3 shall not be deemed violated by any Transfer of Subject Shares
pursuant to a cashless exercise of stock options.
(b) Such Stockholder hereby waives any rights of appraisal, or rights to
dissent from the Merger, that such Stockholder may have.
4. Certain Events. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder'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 Stockholder's administrators or successors. In
the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Westport affecting
the Common Stock, or the acquisition of additional shares of Common Stock or
other voting securities of Westport by any Stockholder, the number of 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 Common Stock or other voting securities of Westport
issued to or acquired by such Stockholder.
5. Stop Transfer. Westport agrees with, and covenants to, Belco that
Westport shall not register the transfer of any certificate representing any
Subject Shares, unless such transfer is made in compliance with this Agreement.
6. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director of Westport makes any agreement or
understanding herein in his or her capacity as such director. Each Stockholder
signs solely in his or her capacity as the record and beneficial owner of such
Stockholder's Subject Shares.
7. Further Assurances. Each Stockholder shall, upon request of Belco,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Belco 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, (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 Stockholders
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
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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 Stockholder, 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 Stockholder when one or more counterparts have been signed by each of
Westport, Belco and such Stockholder and delivered to Westport, Belco and such
Stockholder.
(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 Belco) any rights or remedies hereunder.
(e) 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 of laws thereof.
(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 as expressly provided by Section 3(a). Any assignment in
violation of the foregoing shall be void.
(g) As between any Stockholder and Belco, 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, Belco and the Stockholders 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
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Name: Xxxxxx X. Xxxx
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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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STOCKHOLDERS:
ERI INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President
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WESTPORT ENERGY LLC
By: WESTPORT INVESTMENTS LIMITED, its
Managing Member
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title:
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SCHEDULE A
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STOCKHOLDER SHARES OF WESTPORT COMMON STOCK BENEFICIALLY OWNED
----------------------------------------------------- --------------------------------------------------
ERI Investments, Inc.
One Xxxxxx Xxxxxx, Xxxxx 0000 14,238,001
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. X'Xxxxxxxx
Vice President, General Counsel and Secretary
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
COPY OF ANY NOTICE GIVEN PURSUANT TO SECTION 9(a) TO:
Xxxxxxxx Ingersoll Professional Corporation
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esquire
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Westport Energy LLC
00 Xxxx Xxxx Xxx. 13,911,152
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Fax Number: (000) 000-0000
Phone Number: (000) 000-0000
COPY OF ANY NOTICE GIVEN PURSUANT TO SECTION 9(a) TO:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
Fax Number: (000) 000-0000
Phone Number: (000) 000-0000
Xx. Xxxxxxx X. Xxxx Partners
Xxxxx Court
00 Xxxx Xxxxxx, Xx. Xxxxx'x
Xxxxxx, XX0X 0XX
Attention: Xxxxxxx Xxxxxxx
Fax Number: 000.0.000.0000
Phone Number: 000.0.000.0000
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