STOCKHOLDERS AGREEMENT (this "Agreement") dated as of July 10,
2000, among Forest Oil Corporation, a New York corporation ("Forest"),
Forcenergy Inc, a Delaware corporation ("Forcenergy"), and the other
parties signatory hereto (each a "Stockholder").
WHEREAS, each Stockholder desires that Forcenergy, Forest and Forest
Acquisition I Corporation, a Delaware corporation and wholly owned subsidiary of
Forest ("Forest Sub"), enter into an Agreement and Plan of Merger dated the date
hereof (as the same may be amended or supplemented, 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 Forest Sub with and into
Forcenergy (the "Merger") upon the terms and subject to the conditions set forth
in the Merger Agreement; and
WHEREAS, each Stockholder and Forcenergy are executing this Agreement
as an inducement to Forest to enter into and execute, and to cause Forest Sub to
enter into and execute, the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by
Forest and Forest Sub 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 Forest as follows:
(i) Such Stockholder is the record and beneficial owner of, or
is the sole trustee of a trust that is the record holder of, and whose
beneficiaries are the beneficial owners of, the number of shares of
common stock, par value $0.01 per share, of Forcenergy (the "Common
Stock") and the number of shares of 14% Series A Cumulative Preferred
Stock, par value $0.01 per share, of Forcenergy (the "Preferred
Stock"), set forth opposite such Stockholder's name on SCHEDULE A
hereto (such shares of Common Stock and Preferred Stock, together with
any other shares of Common Stock and Preferred Stock 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"). Except for the Subject Shares, such
Stockholder is not the record or beneficial owner of any shares of
Common Stock, Preferred Stock or other capital stock of Forcenergy.
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. Such
Stockholder has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. 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
consummation by such Stockholder of the transactions contemplated
hereby have been
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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.
(ii) Neither the execution and delivery of this Agreement nor
the consummation by such Stockholder of the transactions contemplated
hereby will result in a violation of, or a default under, or conflict
with, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which such Stockholder is a
party or bound or to which the Subject Shares are subject. No trust of
which such Stockholder is a trustee requires the consent of any
beneficiary to the execution and delivery of this Agreement or to the
consummation of the transactions contemplated hereby. Consummation by
such Stockholder of the transactions contemplated hereby 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 Subject Shares, except
for any necessary filing under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976.
(iii) The Subject Shares and the certificates representing
such Shares are now, and at all times during the term hereof will be,
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 any such
encumbrances or proxies arising hereunder or under the existing terms
of a trust of which such Stockholder is the trustee.
(iv) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
such Stockholder.
(v) Such Stockholder is not acquiring any Forest Common Stock
with a view to, or for offer or sale in connection with, any
distribution thereof (within the meaning of the Securities Act) that
would be in violation of the securities laws of the United States of
America or any state thereof. Such Stockholder acknowledges that such
Stockholder (A) has such knowledge and experience in business and
financial matters and with respect to investments in securities to
enable such Stockholder to understand and evaluate the risks of an
investment in the Forest Common Stock to be acquired by such
Stockholder and form an investment decision with respect thereto and is
able to bear the risk of such investment for an indefinite period and
to afford a complete loss thereof and (B) is an "accredited investor"
as defined in Rule 501 of Regulation D under the Securities Act.
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(vi) Such Stockholder understands and acknowledges that Forest
is entering into, and causing Forest Sub to enter into, the Merger
Agreement in reliance upon such Stockholder's execution and delivery of
this Agreement.
(b) Forest represents and warrants to each Stockholder that the
execution and delivery of this Agreement by Forest and the consummation by
Forest of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of Forest.
2. VOTING AGREEMENTS. Each Stockholder severally agrees with, and
covenants to, Forest that at any meeting of stockholders of Forcenergy called to
vote upon the Merger and the Merger Agreement or at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought, such Stockholder shall, including by executing a written
consent solicitation if requested by Forest, vote (or cause to be voted) the
Subject Shares in favor of the Merger, the adoption by Forcenergy of the Merger
Agreement and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement.
3. COVENANTS. Each Stockholder severally agrees with, and
covenants to, Forest as follows:
(a) Such Stockholder shall not (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 or understanding (including any
profit sharing or other derivative arrangement) 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 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, or to any family member of
a Stockholder or charitable institution which prior to the Stockholders
Meeting and prior to such transfer becomes, a party to this Agreement
bound by all the obligations of a "Stockholder" hereunder; PROVIDED,
HOWEVER, that such Stockholder shall not transfer any Subject Shares
pursuant to the preceding proviso if any such transfer, either alone or
in the aggregate with other transfers by Stockholders and other persons
who may be affiliates of Forcenergy, would preclude Forest's ability to
account for the business combination to be effected by the Merger as a
pooling of interests.
(b) Such Stockholder hereby waives any rights of appraisal, or
rights to dissent from the Merger, that such Stockholder may have.
(c) Such Stockholder shall not, nor shall it permit any
investment banker, attorney or other adviser or representative of such
Stockholder to, directly or indirectly, (i) solicit, initiate or
encourage the submission of, any Takeover Proposal or (ii) participate
in any discussions or negotiations regarding, or furnish to any person
any information with respect to, or take any other action to facilitate
any inquiries or the
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making of any proposal that constitutes, or may reasonably be expected
to lead to, any Takeover Proposal. Without limiting the foregoing, it
is understood that any violation of the restrictions set forth in the
preceding sentence by an investment banker, attorney or other adviser
or representative of such Stockholder, whether or not such person is
purporting to act on behalf of such Stockholder or otherwise, shall be
deemed to be in violation of this Section 3(c) by such Stockholder.
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 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
Forcenergy affecting the Common Stock, Preferred Stock or the acquisition of
additional shares of Common Stock, Preferred Stock or other voting securities of
Forcenergy 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, Preferred Stock or other voting securities of Forcenergy issued to or
acquired by such Stockholder.
5. STOP TRANSFER. Forcenergy agrees with, and covenants to,
Forest that Forcenergy shall not register the transfer of any certificate
representing any Subject Shares, unless such transfer is made to Forest or
Forest Sub or otherwise in compliance with this Agreement.
6. STOCKHOLDER CAPACITY. No person executing this Agreement who
is or becomes during the term hereof a director of Forcenergy 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 Subject Shares.
7. FURTHER ASSURANCES. Each Stockholder shall, upon request of
Forest, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by Forest 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 the first to occur of (i) the
Effective Time of the Merger or (ii) the date upon which the Merger Agreement is
terminated in accordance with its terms.
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 Forest or
Forcenergy, to the appropriate address set forth in Section 9.5 of the Merger
Agreement; and (ii) if to a Stockholder, to the appropriate address set forth on
SCHEDULE A hereto.
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(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 Forest, Forcenergy and such Stockholder and delivered to Forest,
Forcenergy 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 Forest Sub) 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 by laws of descent or as expressly provided
by Section 3(a). Any assignment in violation of the foregoing shall be void.
(g) Each Stockholder agrees that irreparable damage to Forest
would occur and that Forest 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 Forest shall be entitled to an injunction or injunctions
to prevent breaches by any Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any Federal court
located in the State of Delaware or in any Delaware state court, this being in
addition to any other remedy to which it may be entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court located in the State
of Delaware or a Delaware state court.
(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.
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(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, Forest Oil Corporation, Forcenergy Inc and the
Stockholders party hereto have caused this Agreement to be duly executed and
delivered as of the date first written above.
FOREST OIL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
FORCENERGY INC
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Chief Executive Officer
XXXXXX BROTHERS INC.
By: /s/ J. Xxxxxx Xxxxxxxx
----------------------------------------------
Name: J. Xxxxxx Xxxxxxxx
Title: Managing Director
OCM PRINCIPAL OPPORTUNITIES FUND, L.P.
By: Oaktree Capital Management, LLC, as general
partner or investment manager
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
By: /s/ B. Xxxxx Xxxx
----------------------------------------------
Name: B. Xxxxx Xxxx
Title: Vice President
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OCM OPPORTUNITIES FUND II, L.P.
By: Oaktree Capital Management, LLC, as general
partner or investment manager
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
COLUMBIA/HCA MASTER RETIREMENT TRUST
By: Oaktree Capital Management, LLC, as general
partner or investment manager
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
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THE ANSCHUTZ CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Operating Officer
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SCHEDULE A
STOCKHOLDER NAME/ADDRESS NUMBER OF SHARES OF NUMBER OF SHARES OF
------------------------ COMMON STOCK PREFERRED STOCK
------------ ---------------
XXXXXX BROTHERS INC. 4,368,298 shares of 11,576
000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: J. Xxxxxx Xxxxxxxx Warrants to purchase
Phone: (000) 000-0000 503,325 shares of
Fax: (000) 000-0000 Common Stock
OCM PRINCIPAL OPPORTUNITIES FUND, L.P.
c/o Oaktree Capital Management, LLC 3,509,748 8,781
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
OCM OPPORTUNITIES FUND II, L.P.
c/o Oaktree Capital Management, LLC 1,148,420 2,874
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
COLUMBIA/HCA MASTER RETIREMENT TRUST
c/o Oaktree Capital Management, LLC 17,400 42
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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THE ANSCHUTZ CORPORATION
2400 Qwest Tower 6,018,708 shares of 15,067
000 Xxxxxxxxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx Warrants to purchase
Phone: (000) 000-0000 652,786 shares of
Fax: (000) 000-0000 Common Stock
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