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EXHIBIT 4.7
FORM OF FIRST AMENDMENT TO STOCKHOLDER AGREEMENT
THIS FIRST AMENDMENT TO STOCKHOLDER AGREEMENT (this
"AGREEMENT") is entered into on September 29, 2000 by and among ENERGY PARTNERS,
LTD., a Delaware corporation (the "COMPANY"), EVERCORE CAPITAL PARTNERS L.P.,
EVERCORE CAPITAL PARTNERS (NQ) L.P. and EVERCORE CAPITAL OFFSHORE PARTNERS L.P.,
each a limited partnership organized under the laws of the State of Delaware
(collectively, the "EVERCORE ENTITIES"), ENERGY INCOME FUND, L.P., a limited
partnership organized under the laws of the State of Delaware ("EIF"), and the
individual stockholders of the Company signatories hereto. Terms used but not
defined herein have the meanings assigned to such terms in the Stockholder
Agreement (the "STOCKHOLDER AGREEMENT") dated November 17, 1999 by and among the
Company, the Evercore Entities, EIF and the individual stockholders of the
Company party thereto (the "INDIVIDUAL STOCKHOLDERS").
WHEREAS, the Company, the Evercore Entities, EIF and the
Individual Stockholders are party to the Stockholder Agreement.
WHEREAS, the parties hereto wish to amend the Stockholder
Agreement as set forth in this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Section 2.1(b) is amended by replacing the first sentence
with the following:
"The Evercore Entities, Evercore Permitted
Transferees, EIF, EIF Permitted Transferees, and, subject to Section
2.1(c) with respect to Management Shareholders, the Individual
Shareholders and Shareholder Transferees may Dispose of any Securities,
in whole or in part, at any time or from time to time to Evercore
Permitted Transferees, EIF Permitted Transferees or Shareholder
Permitted Transferees without any restriction, except for limitations
and restrictions under the Securities Act."
2. Section 2.1(c) is deleted in its entirety and replaced with
the following:
"(c) Without prior approval of the
Compensation Committee, Management Shareholders and
Shareholder Transferees may not Dispose of any shares of
Common Stock other than to Shareholder Transferees for
three years after the date of consummation of a
Qualifying Public Offering; provided, however, that,
without being subject to the provisions of this Agreement
other than Section 2.4,
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(i) subject to clause (y) of the proviso to
Section 2.1(c)(iii), a Management Shareholder and his or
her Shareholder Transferees may Dispose of the
percentage of shares of Common Stock owned on the date
of the First Amendment by such Management Shareholder
and his or her Shareholder Transferees on or after the
dates set forth below:
Percentage Date
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0% On or after date of Qualifying Public Offering and prior
to first annual anniversary of a Qualifying Public
Offering
25% On or after first annual anniversary of Qualifying Public
Offering and before second annual anniversary of
Qualifying Public Offering
50% On or after second annual anniversary of Qualifying
Public Offering and before third annual anniversary of
Qualifying Public Offering
100% On or after third annual anniversary of Qualifying
Public Offering
provided that (x) the percentages applicable to Xxxxxxx
X. Xxxxxxxx shall be 0%, 15%, 30% and 100%, respectively,
(y) shares of Common Stock (or options to acquire such
shares) which vest following the date of the First
Amendment shall be deemed to be owned by such Management
Shareholder on the date of the First Amendment effective
as of the date of vesting, and (z) shares of Common Stock
(or options to acquire such shares) acquired by a
Management Shareholder following the date of the First
Amendment shall be subject to such restrictions on
transfer as may be imposed by the Compensation Committee,
and shall not be deemed subject to this Section 2.1(c);
(ii) a Management Shareholder that has ceased
to be an employee of the Company as a result of a
termination without Cause shall be permitted to Dispose
of shares of Common Stock; and
(iii) a Management Shareholder may pledge,
encumber or grant a security interest in up to 50% of
the Common Stock beneficially owned by him or her;
provided that (y) in no event shall shares of Common
Stock encumbered pursuant to this clause, plus shares of
Common Stock sold
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pursuant to Section 2.1(c)(i), exceed 50% of the shares
of Common Stock owned by such Management Shareholder and
his or her Shareholder Transferees on the date of the
First Amendment prior to the third anniversary of a
Qualifying Public Offering and (z) the pledgee of such
shares shall agree that the shares so pledged will
remain subject to the provisions of this Agreement as
shares of a Management Shareholder."
3. Section 4.1 is deleted in its entirety and replaced with
the following:
"SECTION 4.1. COVENANTS. Until the Transition Date, without
the Required Approval, except as provided in Section 8.1, the Company
will not take any of the following actions:
(a) consolidate or merge with or into any Person or enter into
any similar business combination, transaction or series of
transactions, except any such transaction or series of transactions, as
the case may be, involving only Wholly Owned Subsidiaries of the
Company;
(b) amend or repeal any provision of, or add any provision to,
the Company's Certificate of Incorporation, Bylaws or any Certificate
of Designation or otherwise alter or change the preferences, rights,
privileges or powers of the Securities;
(c) create, designate, reclassify, authorize the issuance of,
or issue or sell any new series or class of securities or increase the
authorized number of, authorize the issuance of, or issue, any
additional shares of securities, except in connection with redemptions
or repurchases of preferred stock under the Certificates of
Designation;
(d) except as specifically provided otherwise in this
Agreement, change or modify the size of the Company's Board of
Directors or any provision of the Company's Restated Certificate of
Incorporation, Certificate of Designation, Bylaws or other governance
document establishing requirements for quorum or action of the
Company's Board of Directors;
(e) voluntarily liquidate, dissolve, wind up or discontinue
the business of the Company;
(f) pay, declare or set aside any sums for the payment of, any
dividends, or make any distributions on, any Securities except as
required by the terms of the Preferred Stock;
(g) redeem, purchase or otherwise acquire any of its
Securities or redeem, purchase or make any payments with respect to any
stock appreciation rights, phantom
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stock plans or similar rights or plans relating to the Company or its
subsidiaries, except for redemptions or repurchases of Preferred Stock
permitted under the Certificates of Designation;
(h) purchase, acquire or obtain any capital stock or other
proprietary interest, directly or indirectly, in any other entity or
all or substantially all of the business or assets of another Person
for consideration (including assumed liabilities) in excess of
$2,500,000;
(i) enter into or commit to enter any joint ventures or any
partnerships or establish any non-Wholly Owned Subsidiaries, in each
case, where the contributions or investments by the Company are in
excess of $2,500,000 in cash or assets, except as set forth or provided
for in a capital expenditure budget of the Company set forth in Exhibit
D or approved after the Effective Date under subpart (o) below;
(j) sell, lease, transfer or otherwise dispose of any asset or
group of assets, in an aggregate amount (as to the Company and all of
its subsidiaries), for consideration in excess of $2,500,000 in a
single transaction or in a series of related transactions;
(k) create, incur, assume or suffer to exist any indebtedness
for borrowed money of the Company or any of its subsidiaries in an
aggregate amount (as to the Company and all of its subsidiaries) in
excess of $2,500,000, except for any indebtedness to be repaid upon
consummation of a Qualifying Public Offering;
(l) mortgage, encumber, create, incur or suffer to exist,
liens on its assets, in an aggregate amount (as to the Company and all
of its subsidiaries) in excess of $2,500,000, except for liens on
assets that exist as of the date hereof and liens incurred after the
Effective Date in the ordinary course of business that do not secure
indebtedness for borrowed money or capitalized lease obligations;
(m) increase any compensation or benefits or enter into or
amend any employment agreement with any of its current or future
officers or directors or adopt any new employee benefit plan or amend
any existing employee benefit plan in any material respect that
provides benefits more favorable to participants in such plans, except
for such changes to or new plans set forth on Schedule 4.1;
(n) make any award of any restricted stock or stock options or
other stock-based compensation to any Person or reallocate any such
awards, including the shares referenced in Section 7.1 to be executed
and delivered at the Effective Date;
(o) adopt, approve or amend (in excess of $3,000,000 in the
aggregate) any capital budget or operating budget of the Company or
make expenditures (in excess of
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$3,000,000 in the aggregate) not contemplated by a capital or operating
budget of the Company, except for individual operating expenditures of
$100,000 or less in the ordinary course that require immediate action
by the Company and that would otherwise cause the total expenditures
not contemplated by a capital or operating budget of the Company to
exceed $3,000,000;
(p) engage in hedging transactions with respect to oil and/or
gas prices; and
(q) agree in writing or otherwise to take any of the foregoing
actions.
Nothing in this Section 4.1 shall affect, impair or limit the
requirements of class voting with respect to the Preferred Stock set
forth in the Certificates of Designation. For purposes of this Section
4.1, the "REQUIRED APPROVAL" means, (i) for so long as Xxxxxxx X.
Xxxxxxxx serves on the Board and is Chief Executive Officer of the
Company, the approval of Xx. Xxxxxxxx and an Evercore Approval
Director, (ii) if Xx. Xxxxxxxx either no longer serves on the Board or
is not Chief Executive Officer of the Company, the approval of an
Evercore Approval Director and (iii) with respect to any cash dividends
on Common Stock, the approval of an Evercore Approval Director and
either Xx. Xxxxxxxx or a majority of the members of the Independent
Committee."
4. The definitions of "CAUSE" and "MANAGEMENT SHAREHOLDERS"
are deleted in their entirety and replaced with the following:
" 'CAUSE', with respect to any Management Shareholder, has the
meaning set forth in the Employment and Stock Ownership Agreement
of such Management Shareholder (collectively, the "EMPLOYMENT
AGREEMENTS")."
" 'MANAGEMENT SHAREHOLDERS' means, for purposes of Section 7.1(d),
those individuals set forth on Exhibit E, and for any other
purpose, Messrs. Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx
Xxxxxxxxx, Xxxx XxXxxxxxxx, Xxx Xxxxx, Xxxxx Xxxx, Xxxxx Xxxxxxxx,
Xx. and Xxx Xxxxx, and Mses. Xxxxxxx Xxxx and Xxxx Xxxxxxxx, and
any other individuals who sign an Additional Party Counterpart as
a Management Shareholder after the date hereof."
5. The following definition is hereby added:
" 'FIRST AMENDMENT' means the First Amendment to Stockholder
Agreement dated September 29, 2000."
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6. Section 9.15 is deleted in its entirety and replaced with
the following:
"SECTION 9.15. EMPLOYMENT AGREEMENTS. Upon any Management
Shareholder's resignation or termination for Cause, the provisions of
Section 2.1 shall not apply to a transaction to acquire Securities
pursuant to the Employment Agreement of such Management Shareholder."
7. By their execution hereof, Xxxxxxx X. Xxxxxxxx and the
Evercore Entities acknowledge that the Required Approval has been obtained for
the execution, delivery and performance of this Agreement and the form of Second
Amendment to Employment Agreement attached to this Agreement as Annex 1.
8. Except as expressly set forth herein, the terms of the
Stockholder Agreement are unchanged, and the Stockholder Agreement, as amended
by this Agreement, is hereby confirmed and ratified.
9. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall, taken
together, be considered one and the same agreement, it being understood that the
parties need not sign the same counterpart.
10. This Agreement shall become effective upon the later to
occur of the date of (i) the execution of this Agreement by the Company, the
Evercore Entities, EIF and the holders of a majority of the Securities owned by
Individual Shareholders, and (ii) the consummation of a Qualifying Public
Offering. For the avoidance of doubt, following the effectiveness of this
Agreement, Section 2.4 is the only restriction on Individual Shareholders who
are not also Management Shareholders.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
ENERGY PARTNERS, LTD.
By:
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman, President and Chief
Executive Officer
EVERCORE CAPITAL PARTNERS L.P.
By:
----------------------------------------
Name:
Title:
EVERCORE CAPITAL PARTNERS (NQ) L.P.
By:
----------------------------------------
Name:
Title:
EVERCORE CAPITAL OFFSHORE PARTNERS L.P.
By:
----------------------------------------
Name:
Title:
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EVERCORE CO-INVESTMENT PARTNERSHIP L.P.
By:
----------------------------------------
Name:
Title:
ENERGY INCOME FUND, LP
By:
----------------------------------------
Name:
Title:
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Xxxxxxx Xxxxxxxx
---------------------------------------------
Xxxxxxx Xxxx
---------------------------------------------
Xxxxx Xxxxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxx
---------------------------------------------
Xxxx XxXxxxxxxx
---------------------------------------------
Xxx Xxxxx
---------------------------------------------
Xxxxx Xxxx
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Xxxxx Xxxxxxxx, Xx.
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Xxxx Xxxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxx
---------------------------------------------
Xxx Xxxxx
---------------------------------------------
Xxxxxx XxXxxxx
---------------------------------------------
Xxx Xxxxxx
---------------------------------------------
Xxxx Xxxxxxxx
---------------------------------------------
Xxxxx Xxxxx
---------------------------------------------
Xxxxxx Xxxxxx
---------------------------------------------
Xxxxxxxx X. Xxxxx
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OIL AND GAS RENTAL SERVICES, INC.
By:
----------------------------------------
Name:
Title:
VATICAN VENTURES, L.L.C.
By:
----------------------------------------
Name:
Title:
---------------------------------------------
Xxxxxxx X. Xxxx
XXXX XXXXXX FAMILY LIMITED PARTNERSHIP
By:
----------------------------------------
Name:
Title:
XXXXXX XXXXXX AND COMPANY, INC., CUSTODIAN
FBO XXXXXX X. XXXXX XXX
By:
----------------------------------------
Name:
Title:
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TUNDRA RESOURCES, L.L.C.
By:
----------------------------------------
Name:
Title:
---------------------------------------------
Xxxx Xxxxxxx
---------------------------------------------
Xxxxxx Xxxxxxxx
---------------------------------------------
Xxxx X. Xxxxx
---------------------------------------------
X. Xxxxxxxx Xxxxx
---------------------------------------------
Xxxxxx X. Xxxxx
L Z P, L.L.C.
By:
----------------------------------------
Name:
Title:
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XXXXXX LAND AND RESOURCES, A MISSISSIPPI
PARTNERSHIP
By:
----------------------------------------
Name:
Title:
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Xxxxxxx X. Xxxxx
TRI-C PROPERTIES, L.L.C.
By:
----------------------------------------
Name:
Title:
CORPORATE CAPITAL, L.L.C.
By:
----------------------------------------
Name:
Title:
13
ANNEX 1
SECOND AMENDMENT TO
EMPLOYMENT AND
STOCK OWNERSHIP AGREEMENT
UNITED STATES OF AMERICA
BY AND BETWEEN
STATE OF LOUISIANA
ENERGY PARTNERS, LTD.
PARISH OF ORLEANS
AND
[NAME OF EMPLOYEE]
THIS SECOND AMENDMENT TO EMPLOYMENT AND STOCK OWNERSHIP
AGREEMENT (this "Second Amendment") is entered into in New Orleans, Louisiana on
this 29th day of September, 2000, by and between [Name of Employee], an
individual of the full age of majority domiciled in the Parish of Orleans, State
of Louisiana (hereinafter called "Employee"), and Energy Partners, Ltd., a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), represented herein by its duly authorized
President, Xxxxxxx X. Xxxxxxxx.
WHEREAS, Employee and the Company entered into that certain
Employment and Stock Ownership Agreement dated June 5, 1998;
WHEREAS, Employee and the Company entered into that certain
First Amendment to Employment and Stock Ownership Agreement dated November 17,
1999;
WHEREAS, Employee entered into a Stockholder Agreement dated
November 17, 1999, by and among the Company, Employee and the other shareholders
of the Company named therein;
WHEREAS, concurrent with the execution hereof, Employee is
entering into a First Amendment to Stockholder Agreement dated September 29,
2000 ("First Amendment"), by and among the Company, Employee and the other
shareholders of the Company named therein;
NOW, THEREFORE, the parties agree as follows:
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1. The definition of "Stockholder Agreement" contained in
Section 2.2 shall mean such Stockholder Agreement as amended by the First
Amendment.
2. Section 2.7 is amended by adding the following at the end
thereof:
"; provided further, however, if the Employee's employment
terminates as contemplated in this Section 2.7 other than in the
circumstances set forth in the immediately preceding proviso, the
number of Shares that may be acquired as set forth in Section 2.12
shall, depending on the date the Employee's employment terminates,
be equal to the number of Shares owned by Employee on the date of
this Second Amendment multiplied by the following fraction:
Fraction
of Shares Date of Termination
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3/4 On or after date of consummation of Qualifying Public
Offering and before first anniversary of Qualifying
Public Offering
1/2 On or after first anniversary of Qualifying Public Offering
and before second anniversary of Qualifying Public Offering
1/4 On or after second anniversary of Qualifying Public Offering
and before third anniversary of Qualifying Public Offering
0 On or after third anniversary of Qualifying Public
Offering
3. This Second Amendment shall become effective upon
consummation of a Qualifying Public Offering.
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IN WITNESS WHEREOF, the parties hereto have set forth their
hand on the day, month and year first above written in multiple originals, each
of which shall have the same force and effect as if it were the same original.
WITNESSES: ENERGY PARTNERS, LTD.
By:
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Name: Name:
Title:
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Name:
WITNESSES:
By:
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Name: Name:
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Name:
WITNESSES: ACKNOWLEDGED AND AGREED
TO THE TERMS HEREOF:
By:
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Name: Spouse
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Name:
