Exhibit 4.4
STANDSTILL AGREEMENT
AGREEMENT effective as of August 5, 1999 between McMoRan Exploration Co., a
Delaware corporation (the "Company"), and Alpine Capital, L.P., Xxxxxx X.
Xxxxx III, Algenpar, Inc., X. Xxxxxx Xxxxxxxx, Xxxxx X. Xxxxx, Keystone,
Inc., X.X. Xxxxxx, Xxxxxx X. Xxxx, The Xxxx X. and Xxxxxx X. Xxxx
Foundation, Xxxx X. Xxxx and The Xxxxxx Xxxxx Management Company, Inc.
Defined Benefit Pension Trust (collectively, the "Stockholder").
ARTICLE 1
Definitions
Section 1.01. Definitions. Unless otherwise specifically defined herein,
each term used herein which is defined in the Rights Agreement (the "Rights
Agreement") dated as of November 13, 1998, as amended, between the Company
and Mellon Securities Trust Company, as Rights Agent, has the meaning
assigned to such term in the Rights Agreement. In addition, the terms
listed below have the following meanings:
"Acquisition Proposal" means any offer or proposal for, or any indication
of interest in, a merger or other business combination involving the
Company or any Subsidiary of the Company or the acquisition of any equity
interest in, or a substantial portion of the assets of, the Company or any
Subsidiary of the Company (other than an offer or proposal which if
consummated would not result in a Person and its Affiliates and Associates
owning in excess of the Threshold Percentage).
"SEC" means the Securities and Exchange Commission.
"Stockholder Group" means the Stockholder and its Affiliates and
Associates.
ARTICLE 2
Covenants of the Stockholder Group
Section 2.01. Certain Actions. Each member of the Stockholder Group will
not, and will not permit any of its Affiliates or Associates to:
(a) make, or take any action to solicit, initiate or encourage, an
Acquisition Proposal;
(b) "solicit", or become a "participant" in any "solicitation" of,
any "proxy" (as such terms are defined in Regulation 14A under the Exchange
Act) or written consent from any holder of Common Stock in connection with
any vote on any matter, or agree or announce its intention to vote with any
Person undertaking a "solicitation" or communicate with or seek to advise
or influence any Person with respect to the voting of any Common Stock (in
each case other than as recommended by the Board of Directors of the
Company);
(c) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) with respect to any Common
Stock (other than with other members of the Stockholder Group);
(d) call or seek to have called any meeting of the stockholders of
the Company; or
(e) instigate or encourage any third party to do any of the
foregoing.
Section 2.02. Voting Arrangements. To the extent that the Common Stock as
to which the members of the Stockholder Group, taken together, have the
right to vote or direct the vote represents in the aggregate 25% or more of
the Common Stock then outstanding, the members of the Stockholder Group
shall take all necessary action to vote or cause to be voted all of such
shares in excess of 25% of the Common Stock then outstanding in accordance
with the recommendation of the Board of Directors of the Company on all
matters submitted to the stockholders of the Company for their approval.
Each member of the Stockholder Group shall cause all Common Stock owned by
such member of the Stockholder Group or as to which it has the right to
vote or to direct the vote to be represented, in person or by proxy, at all
meetings of holders of Common Stock of which such member of the Stockholder
Group has actual notice, so that such Common Stock may be counted for the
purpose of determining the presence of a quorum at such meetings.
ARTICLE 3
Effectiveness
Section 3.01. Effectiveness. The parties agree that this Agreement shall
be effective at any time that the members of the Stockholder Group
beneficially own 25% or more of the Common Stock then outstanding.
ARTICLE 4
Miscellaneous
Section 4.01. Specific Performance. Each member of the Stockholder Group
agrees that any breach of any provision of this Agreement would irreparably
injure the Company and that money damages would be an inadequate remedy
therefor. Accordingly, such member of the Stockholder Group agrees that
the Company shall be entitled to one or more injunctions enjoining any such
breach and requiring specific performance of this Agreement and consents to
the entry thereof, in addition to any other remedy to which the Company is
entitled at law or in equity.
Section 4.02. Notices. All notices, requests and other communications to
either party hereunder shall be in writing (including telecopy or similar
writing) and shall be given,
if to the Company, to:
McMoRan Exploration Co.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Secretary
Fax No.: (000) 000-0000
if to any member of the Stockholder Group, to:
The Xxxxxx Xxxxx Management Co., Inc.
X.X. Xxx 000
00 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx III
Fax No.: (000) 000-0000
or such other address or telecopier number as such party may
hereafter specify for the purpose by notice to the other party hereto.
Each such notice, request or other communication shall be effective when
delivered at the address specified in this Section 4.02.
Section 4.03. Amendments; No Waivers. (a) Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by each member of the
Stockholder Group and the Company, or in the case of a waiver, by the party
or parties against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 4.04. Expenses. Except as otherwise provided herein, all costs
and expenses incurred in connection with this Agreement shall be paid by
the party incurring such cost or expense; provided that if the Company
commences litigation in a court of competent jurisdiction against any
member of the Stockholder Group in connection with an alleged breach of
this Agreement by such member of the Stockholder Group and successfully
establishes such a breach in such court, then the members of the
Stockholder Group shall be jointly and severally liable for all out-of-
pocket expenses, including, without limitation, the fees and expenses of
counsel, incurred by the Company in connection with such litigation.
Section 4.05. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
Section 4.06. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings and negotiations, both
written and oral, between the parties with respect thereto. No
representation, inducement, promise, understanding, condition or warranty
not set forth herein or therein has been made or relied upon by any of the
parties hereto.
Section 4.07. Governing Law. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and
year first above written.
McMoRan EXPLORATION CO.
By:/s/ Xxxx X. Xxxxx
--------------------
Xxxx X. Xxxxx
General Counsel
ALPINE CAPITAL, L.P.
By:/s/ Xxxxxx X. Xxxxx III
-----------------------
Xxxxxx X. Xxxxx III
Manager
/s/ Xxxxxx X. Xxxxx III
-----------------------
XXXXXX X. XXXXX III
ALGENPAR, INC.
By:/s/ X. Xxxxxx Xxxxxxxx
-----------------------
X. Xxxxxx Xxxxxxxx
President
/s/ X. Xxxxxx Xxxxxxxx
---------------------
X. XXXXXX XXXXXXXX
/s/ Xxxxx X. Xxxxx
-------------------
XXXXX X. XXXXX
KEYSTONE, INC.
By:/s/ X.X. Xxxxxx
-------------------
X.X. Xxxxxx
Vice President
/s/ X.X.Xxxxxx
--------------------
X.X. XXXXXX
Attorney-in-Fact for:
XXXXXX X. XXXX
THE XXXX X. AND XXXXXX X. XXXX
FOUNDATION
XXXX X. XXXX
THE XXXXXX XXXXX MANAGEMENT
COMPANY, INC. DEFINED BENEFIT
PENSION TRUST
By:/s/ Xxxxxx X. Xxxxx III
-----------------------
Xxxxxx X. Xxxxx III
Trustee
