VOTING AGREEMENT (Parent)
Exhibit
1
VOTING
AGREEMENT (Parent)
VOTING
AGREEMENT (this “Agreement”)
dated
as of June 22, 2006, by and among Energy Partners, Ltd., a Delaware corporation
(“Parent”),
Stone
Energy Corporation, a Delaware corporation (“Target”),
Xxxxx
X. Xxxxx, Xxxxx X. Xxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxx X.
Christmas, X.X. Xxxxxxxxx, Xxxxxxx X. Xxxx, Xxxx X. Xxxxxxx, Xxxxxxx X
Xxxxxxxxxx, Xxx X. Xxxxxxxx, and Xxxxx X. Xxxxxxx (each of Messrs. Stone, Welch,
Barker, Bernhard, Christmas, Xxxxxxxxx, Xxxx, Xxxxxxx, Xxxxxxxxxx and Xxxxxxx,
and Xx. Xxxxxxxx, a “Stockholder”
and
collectively, the “Stockholders”).
WHEREAS,
each Stockholder desires that Target, Parent and EPL Acquisition Corp. LLC,
a
Delaware limited liability company and wholly-owned subsidiary of Parent
(“Merger
Sub”),
enter
into an Agreement and Plan of Merger dated the date hereof (the “Merger
Agreement”;
undefined capitalized terms herein are defined in the Merger Agreement)
providing for the merger of Merger Sub with and into Target upon the terms
and
subject to the conditions set forth in the Merger Agreement (the “Merger”);
WHEREAS,
each Stockholder is executing this Agreement as an inducement to Parent to
enter
into and execute the Merger Agreement; and
WHEREAS,
concurrently with the execution and delivery of this Agreement, Target is
entering into a voting agreement with certain Parent stockholders under which
such parties have, among other things, agreed to support the Merger upon the
terms and conditions set forth therein.
NOW,
THEREFORE, in consideration of the execution and delivery by Target 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 Parent as follows:
(i) Such
Stockholder is the record and beneficial owner of that number of shares of
capital stock of Target set forth opposite such Stockholder’s name on
Schedule
A
(together
with any other shares of other capital stock of Target 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”)
and the
other securities exercisable or exchangeable for such capital stock listed
on
Schedule
A
(the
“Other
Securities”
and,
together with the Subject Shares, the “Covered
Securities”).
The
Subject Shares constitute the only shares, with respect to which such
Stockholder is the record or beneficial owner, of capital stock of Target or
options, warrants or other rights (whether or not contingent) to acquire such
shares of capital stock of Target that are or may be entitled to vote on the
Merger or the Merger Agreement at any meeting of Target’s Stockholders called to
vote upon the Merger or the Merger Agreement. Such Stockholder has the sole
right to vote and Transfer (as defined herein) the Covered Securities set forth
opposite its name on Schedule
A,
and none
of such Covered Securities 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 (A) 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) and (B) those arising
under
applicable securities laws. Such Stockholder has all requisite power and
authority, and, if such Stockholder is a natural person, the legal capacity,
to
enter into this Agreement and to perform its obligations hereunder. To the
extent that such Stockholder is an entity and not an individual, 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 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) if such Stockholder 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 Stockholder is
a
party or bound or to which the Covered Securities are subject, except, in the
case of clause (B), 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 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 Covered Securities, except (x) 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
(y)
as would not reasonably be expected to prevent, delay or otherwise materially
impair such Stockholder’s ability to perform its obligations
hereunder.
(iii) If
the
Stockholder is married and the Covered Securities of the Stockholder 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 Stockholder’s spouse, enforceable against such spouse
in accordance with its terms, subject to the Enforceability
Exceptions.
(iv) The
Covered Securities and the certificates representing such Covered Securities
are
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 (A) any such encumbrances arising hereunder,
or (B) any such encumbrances arising pursuant to the pledge of any Covered
Securities by such Stockholder to a financial institution or a brokerage firm
(the “Pledged
Shares”);
provided, however, that such Stockholder represents that any such arrangement
regarding
2
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 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.
(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 Stockholder in connection with
its entering into this Agreement.
(vi) Such
Stockholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon such Stockholder’s execution and delivery of this
Agreement.
(b) Parent
represents and warrants to each Stockholder and Target that the execution and
delivery of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of Parent.
(c) Target
represents and warrants to each Stockholder and Parent that the execution and
delivery of this Agreement by Target and the consummation by Target of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of Target.
2. Voting
Agreements.
During
the Term (as defined below) of this Agreement, at any meeting of stockholders
of
Target or at any adjournment thereof or in any other circumstances upon which
a
vote, consent or other approval (including by written consent) is sought, each
Stockholder shall, including by executing a written consent solicitation if
requested by Parent, vote (or cause to be voted) the Subject Shares: (a) in
favor of the Merger, the adoption by Target of the Merger Agreement and the
approval of the terms thereof and each of the other Transactions and (b) against
any transaction, agreement, matter or Target Acquisition Proposal that would
impede, interfere with, delay, postpone or attempt to discourage the Merger
and
the Merger Agreement.
3. Irrevocable
Proxy.
Each
Stockholder hereby appoints Parent as its proxy to vote all of such
Stockholder’s Subject Shares at any meeting of stockholders of Target (including
any adjournments and postponements thereof) on the matters described in
Section
2,
and to
execute and deliver any written consents to fulfill such Stockholder’s
obligations under this Agreement. This proxy is coupled with an interest and
is
irrevocable until the end of the Term.
4. Revocation
of Other Proxies.
To the
extent inconsistent with the other provisions of this Agreement or the Merger
Agreement, each Stockholder hereby revokes any and all previous proxies with
respect to such Stockholder’s Subject Shares.
5. Other
Covenants.
Each
Stockholder severally agrees with, and covenants to, Parent during the Term
of
this Agreement as follows:
3
(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 Covered Securities 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 Covered Securities
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
Stockholder may Transfer any of the Covered Securities to an affiliate of such
Stockholder (provided such affiliates evidences in a writing reasonably
satisfactory to the other parties hereto such affiliate’s agreement to the terms
hereof) or any other Stockholder who is on the date hereof or hereafter becomes
a party to this Agreement; provided, further, that the restrictions in this
Section 5 shall not be deemed violated by any Transfer of Covered Securities
pursuant to a cashless exercise of stock options or warrants; and provided,
further, that a pledge of Pledged Shares made in accordance with Section
1(a)(iv) shall not be deemed to be a violation of the restrictions in this
Section 5.
(b) Such
Stockholder shall not take any action prohibited by Section 7.2 of the Merger
Agreement.
6. Certain
Events.
This
Agreement and the obligations hereunder shall attach to each Stockholder’s
Covered Securities and shall be binding upon any Person to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law
or
otherwise, including 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
Target affecting the Covered Securities or the acquisition of additional shares
of Covered Securities or other voting securities of Target by any Stockholder,
the number of Covered Securities 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 Covered Securities
or other voting securities of Target issued to or acquired by such
Stockholder.
7. Stop
Transfer.
Target
shall not register the transfer of any certificate representing any Covered
Securities, unless such transfer is made to Parent or otherwise in compliance
with this Agreement.
8. Stockholder
Capacity.
No
person executing this Agreement (or an affiliate thereof) who is or becomes
during the Term a director of Target 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, or the trustee of a trust
whose beneficiaries are the beneficial owners of, such Stockholder’s Covered
Securities.
9. Further
Assurances.
Each
Stockholder shall, upon request of Parent, execute and deliver any additional
documents and take such further actions as may reasonably be deemed by Parent
to
be necessary or desirable to carry out the provisions hereof.
10. 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 (a) the Effective Time of the Merger, or (b) the date upon
which the Merger Agreement
4
is
terminated in accordance with its terms (such period from the date hereof until
such termination is referred to herein as the “Term”);
provided, however, that (x) Section 11 shall survive any termination of this
Agreement and (y) termination of this Agreement pursuant to clause (b) above
shall not relieve any party hereto from liability for any willful and knowing
breach hereof prior to such termination.
11. 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 Parent or Target, 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.
(b) Each
Party
submits to the jurisdiction of any state or federal court sitting in the State
of Delaware in any dispute or action arising out of or relating to this
Agreement and agrees that all claims in respect of such dispute or action may
be
heard and determined in any such court. Each Party also agrees not to bring
any
dispute or action arising out of or relating to this Agreement in any other
court. Each Party agrees that a final judgment in any dispute or action so
brought will be conclusive and may be enforced by action on the judgment or
in
any other manner provided at law (common, statutory or other) or in equity.
Each
Party waives any defense of inconvenient forum to the maintenance of any dispute
or action so brought and waives any bond, surety, or other security that might
be required of any other Party with respect thereto.
(c) Each
Party
appoints RLF
Service Corp., Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 as
their
agent to receive on their behalf service of copies of the summons and complaint
and any other process that might be served in an dispute or action (the
“Process
Agent”).
Any
Party may make service on any other Party by sending or delivering a copy of
the
process (i) to the Party to be served at the address and in the manner provided
for the giving of notices in Section 11(a) or (ii) to the Party to be served
in
care of the Process Agent at the address and in the manner provided for the
giving of notices in Section 12(a).
(d) 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.
(e) 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 Parent,
Target and such Stockholder and delivered to Parent, Target and such
Stockholder.
(f) 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 Parent) any rights or remedies hereunder.
5
(g) 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.
(h) 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 5(a).
Any
assignment in violation of the foregoing shall be void.
(i) As
between
any Stockholder and Parent, 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.
(j) 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.
(k) 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.
[SIGNATURE
PAGE FOLLOWS]
6
IN
WITNESS
WHEREOF, Target, Parent, and the Stockholders party hereto have caused this
Agreement to be duly executed and delivered as of the date first written above.
ENERGY
PARTNERS, LTD.
By:/s/
Xxxxxxx X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Chairman and Chief Executive Officer
|
|
STONE
ENERGY CORPORATION
By:/s/
Xxxxx X. Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
President and Chief Executive Officer
|
|
STOCKHOLDERS:
|
|
/s/
Xxxxx X. Xxxxx
Xxxxx
X. Xxxxx
|
|
/s/
Xxxxx X. Xxxxx
Xxxxx
X. Xxxxx
|
|
/s/
Xxxx X. Xxxxxxx
Xxxx
X. Xxxxxxx
|
|
/s/
Xxxxx X. Xxxxxx
Xxxxx
X. Xxxxxx
|
|
/s/
Xxxxxx X. Christmas
Xxxxxx
X. Christmas
|
|
/s/
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxx
|
|
/s/
Xxxxx X. Xxxxxxx
Xxxxx
X. Xxxxxxx
|
/s/
Xxxxxxx X. Xxxx
Xxxxxxx
X. Xxxx
|
|
/s/
Xxxxxx X. Xxxxxxxx
Xxxxxx
X. Xxxxxxxx
|
|
X.
X. Xxxxxxxxx
X.X.
Xxxxxxxxx
|
|
/s/
Xxx X. Xxxxxxxx
Xxx
X. Xxxxxxxx
|
SCHEDULE
A
Stockholder
Name and Address
|
Common
Stock
|
Other
Securities
|
Xxxxx
X. Xxxxx
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
|
1,313,397*
|
78,200
(stock options)
|
Xxxxx
X. Xxxxx
000
X. Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx,
XX 00000
|
70,072
|
46,000
(stock options)
|
Xxxx
X. Xxxxxxx
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
|
24,537
|
13,333
(options)
|
Xxxxx
X. Xxxxxx
2121
Avenue of the Stars
The
Xxx Xxxxx Xxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
|
4,200
|
13,333
(options)
|
Xxxxxx
X. Christmas
0
Xxxx Xxxxxxx Xxxx.
Xxxxxxxx,
XX 00000
|
4,033
|
8,700
(options)
|
Xxxxxxx
X Xxxxxxxxxx
000
Xxxxxxxxxx Xxxxx
Xxxxx
Xxxxxxx, XX 00000
|
3,200
|
13,333
(options)
|
Xxxxx
X. Xxxxxxx
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
|
186,632**
|
13,333
(options)
|
Xxxxxxx
X. Xxxx
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
45,809
|
13,333
(options)
|
Xxxxxx
X. Xxxxxxxx
000
Xxxxx Xxx., 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
136,092***
|
8,333
(options)
|
X.
X. Xxxxxxxxx
000
X. Xxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000
|
13,612
|
13,333
(options)
|
Xxx
X. Xxxxxxxx
c/o
Entergy Corporation
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxx, XX 00000
|
3,200
|
|
TOTAL
|
*
Includes
shares owned by two partnerships known as Xxxxx X. Xxxxx Interests I and Xxxxx
X. Xxxxx Interests II, of which Xx. Xxxxx disclaims any beneficial interest
with
respect to 59,226 and 16,234 shares, respectively; also includes shares owned
by
a limited liability company in which Xx. Xxxxx has a 4% interest.
A-1
**
Includes 72,440 shares owned by two trusts for the benefit of Xx. Xxxxx’x
children, of which Xx. Xxxxxxx is a trustee but owns no beneficial interest,
and
85,970 shares owned by Xxxxxxxx/Xxxxxxx Investments, L.L.C., in which Xx.
Xxxxxxx owns a 20% beneficial interest.
***
Includes 30,000 shares held by the Bernhard Trust “B” of which Xx. Xxxxxxxx is
the trustee and a potential beneficiary.
The
“Other
Securities” do not include stock options that will not have vested prior to the
effective date of the Merger.
A-2