EXHIBIT 2.4
PRINCIPAL SHAREHOLDER VOTING AGREEMENT
This PRINCIPAL SHAREHOLDER VOTING AGREEMENT (this
"Agreement"), dated as of January 15, 2002, is entered into by and among
XXXX-XXXXXXX OIL COMPANY, a Texas corporation (the "Company"), EVERCORE CAPITAL
PARTNERS L.P., EVERCORE CAPITAL PARTNERS (NQ) L.P. and EVERCORE CO-INVESTMENT
PARTNERSHIP L.P., each a limited partnership organized under the laws of the
State of Delaware, and EVERCORE CAPITAL OFFSHORE PARTNERS L.P., a limited
partnership organized under the laws of the Cayman Islands (collectively, the
"Evercore Entities"), ENERGY INCOME FUND, L.P., a limited partnership organized
under the laws of the State of Delaware ("EIF"), and XXXXXXX X. XXXXXXXX (the
Evercore Entities, EIF and Xx. Xxxxxxxx, the "Principal Shareholders").
RECITALS
A. Energy Partners, Ltd, a Delaware corporation (the "Buyer")
and the Company have entered into an Agreement and Plan of Merger dated as of
December 16, 2001 (as such agreement may hereafter be amended from time to time,
the "Merger Agreement"), pursuant to which (i) a wholly-owned subsidiary of
Buyer will be merged with and into the Company, which will be the surviving
corporation in the Merger, and will, as a result of the Merger, become a
wholly-owned subsidiary of Buyer and (ii) in the Merger, holders of equity
securities of the Company will receive the consideration set forth in the Merger
Agreement, and, in connection therewith and as contemplated by the Merger
Agreement, holders of debt securities of the Company and certain interests in
real property and related personal property in which the Company also has an
interest shall exchange such securities and property for consideration set forth
in related documents.
B. As a condition to consummating the Merger (as defined in
the Merger Agreement), the Company has required that the Principal Shareholders
enter into this Agreement.
AGREEMENT
In consideration of the Recitals and the mutual promises
contained herein, and other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Certain Definitions. Capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Merger Agreement. For
purposes of this Agreement:
"Proxy Statement" shall mean Buyer's Proxy Statement dated
March 27, 2001.
"Shares" shall mean the Buyer Common Stock owned by the
Principal Shareholders on the date hereof and any additional Buyer Common Stock
acquired by any Principal Shareholder in any capacity.
"Subject Transactions" has the meaning set forth in Section
2.2(a).
2. Voting of Shares; No Inconsistent Agreements
(a) Each Principal Shareholder hereby severally and not
jointly and solely with respect to the Shares held of record by such Principal
Shareholder, agrees that at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of the holders of Buyer Common Stock,
however called, or in connection with any written consent of the holders of
Buyer Common Stock, such Principal Shareholder shall vote (or cause to be voted)
all of the Shares held of record by such Principal Shareholder in favor of the
Merger, the execution, delivery and performance of the Merger Agreement and the
other Transaction Documents (as defined in the Merger Agreement) and the
approval and adoption of the terms thereof and each of the other actions
contemplated by the Transaction Documents and this Agreement and any actions
required in furtherance thereof and hereof (the "Subject Transactions"). Each
Principal Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
(b) With respect to Xx. Xxxxxxxx and the Evercore Entities,
this Agreement shall constitute the Required Approval (as defined in Buyer's
Stockholder Agreement dated as of November 17, 1999, as amended) of the Subject
Transactions.
(c) Each Principal Shareholder severally and not jointly
agrees that it shall not enter into any agreement or understanding with any
Person the effect of which would be inconsistent with or violative of the
agreement contained in this Section 2, and shall take all such actions
reasonably necessary to approve, if so requested by Buyer, any actions incident
to the Subject Transactions or the other matters referred to in this Section 2
by Principal Shareholder written consent.
3. Representations and Warranties of Principal Shareholders. Each
Principal Shareholder hereby severally and not jointly (and solely with respect
to itself and the Shares owned by such Principal Shareholder) represents and
warrants to Company as follows:
(a) Ownership of Shares. Such Principal Shareholder is the
owner of record of the Shares as set forth in the Proxy Statement and
has sole voting power with respect thereto.
(b) Due Authorization; Binding Agreement. Such Principal
Shareholder is, as applicable, duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, and
has all requisite capacity, power and authority to execute and deliver
this Agreement and perform its obligations hereunder. The execution and
delivery by such Principal Shareholder of this Agreement and the
performance by such Principal Shareholder of its obligations hereunder
have been duly and validly authorized by such Principal Shareholder and
no other proceedings on the part of such Principal Shareholder are
necessary
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to authorize the execution, delivery or performance of this Agreement
or the consummation of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by such
Principal Shareholder and constitutes a valid and binding agreement
enforceable against such Principal Shareholder in accordance with its
terms except to the extent (i) such enforcement may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors
rights and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor
may be brought.
(c) No Conflicts. Except for filings, authorizations, consents
and approvals contemplated by the Transaction Documents and necessary
for the consummation of the transactions contemplated hereby and
thereby, (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary
for the execution and delivery of this Agreement by such Principal
Shareholder, the consummation by such Principal Shareholder of the
transactions contemplated hereby and the compliance by such Principal
Shareholder with the provisions hereof and (ii) none of the execution
and delivery of this Agreement by such Principal Shareholder, the
consummation by such Principal Shareholder of the transactions
contemplated hereby or compliance by such Principal Shareholder with
any of the provisions hereof shall (A) conflict with or result in any
breach of the organizational documents of such Principal Shareholder,
(B) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any
note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind, including, without limitation, any voting
agreement, proxy arrangement, pledge agreement, shareholders agreement
or voting trust, to which such Principal Shareholder is a party or by
which such Principal Shareholder or any of its properties or assets may
be bound, or (C) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to such Principal Shareholder or
any of its properties or assets.
4. Termination. This Agreement shall terminate upon the earlier of (i)
the approval of the Subject Transactions at a Buyer stockholder meeting, or (ii)
the termination of the Merger Agreement in accordance with its terms prior to
the Closing Date; provided that no such termination shall relieve any party of
liability for a breach hereof prior to termination.
5. General Provisions.
(a) Expenses. Whether or not the transactions contemplated hereby are
consummated, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such expenses.
(b) Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted if transmitted by telecopy, electronic
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or digital transmission method; the day after it is sent, if sent for next day
delivery to a domestic address by recognized overnight delivery service (e.g.,
Federal Express); and upon receipt, if sent by certified or registered mail,
return receipt requested. In each case notice shall be sent to:
(i) if to Company, to:
000 Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
Senior Vice President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxxx Xxxxxx L.L.P.
0000 Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
(ii) if to the Principal Shareholders, to the respective
addresses set forth in the Proxy Statement or as otherwise provided to
Company from time to time.
(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the word "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation". This Agreement shall not be construed for or against either party
by reason of the authorship or alleged authorship of any provision hereof or by
reason of the status of the respective parties. All terms defined in this
Agreement in the singular shall have comparable meanings when used in the
plural, and vice versa, unless otherwise specified.
(d) Entire Agreement; No Third-Party Beneficiaries. This Agreement
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, except for holders of warrants to be issued in the
Merger, is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
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(e) Assignment. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
permitted assigns. Each Principal Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shares and shall be binding upon any
person or entity to which ownership of such shares shall pass, whether by
operation of law or otherwise, including, without limitation, such Principal
Shareholder's heirs, distributees, guardians, administrators, executors, legal
representatives, or successors or other transferees (for value or otherwise) and
any other successors in interest.
(f) Governing Law. This Agreement shall be construed, interpreted and
the rights of the parties determined exclusively in accordance with the laws of
the State of Delaware (without reference to the choice of law provisions),
except with respect to matters of law concerning the internal corporate affairs
of any corporate entity which is a party to or the subject of this Agreement,
and as to those matters the law of the jurisdiction under which the respective
entity derives its powers shall govern.
(g) Severability. Each party agrees that, should any court or other
competent authority hold any provision of this Agreement or part hereof to be
null, void or unenforceable, or order any party to take any action inconsistent
herewith or not to take an action consistent herewith or required hereby, the
validity, legality and enforceability of the remaining provisions and
obligations contained or set forth herein shall not in any way be affected or
impaired thereby. Upon any such holding that any provision of this Agreement is
null, void or unenforceable, the parties will negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions contemplated
by this Agreement are consummated to the extent possible. Except as otherwise
contemplated by this Agreement, to the extent that a party hereto took an action
inconsistent herewith or failed to take action consistent herewith or required
hereby pursuant to an order or judgment of a court or other competent authority,
such party shall incur no liability or obligation unless such party did not in
good faith seek to resist or object to the imposition or entering of such order
or judgment.
(h) Injunctive Relief. The parties acknowledge that it will be
impossible to measure in money the damages that would be suffered if the parties
fail to comply with any of the obligations herein imposed on them and that in
the event of any such failure, an aggrieved person or entity will be irreparably
damaged and will not have an adequate remedy at law. Any such person or entity
shall, therefore, be entitled to injunctive relief, including specific
performance, to enforce such obligations, and if any action should be brought in
equity to enforce any of the provisions of this Agreement, none of the parties
shall raise the defense that there is an adequate remedy at law.
(i) Attorneys' Fees. If any party to this Agreement brings an action to
enforce its rights under this Agreement, the prevailing party shall be entitled
to recover its costs and expenses, including without limitation reasonable
attorneys' fees, incurred in connection with such action, including any appeal
of such action.
(j) Cumulative Remedies. All rights and remedies of either party hereto
are cumulative of each other and of every other right or remedy such party may
otherwise have at law or in equity,
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and the exercise of one or more rights or remedies shall not prejudice or impair
the concurrent or subsequent exercise of other rights or remedies.
(k) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same instrument and
shall become effective when executed and delivered by each of the parties.
(l) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(m) Obligations of the Principal Shareholders. The liabilities and
obligations of each Principal Shareholder under any provision of this Agreement
are several and not joint and apply solely to such Principal Shareholder and to
the Shares held of record by such Principal Shareholder. No Principal
Shareholder shall have any liability or obligation under this Agreement for any
act, omission or breach by any other Principal Shareholder.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Principal
Shareholders Voting Agreement as of the date first written above.
XXXX-XXXXXXX OIL COMPANY
By:
-------------------------------
Name:
Title:
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:
EVERCORE CO-INVESTMENT PARTNERSHIP
L.P.
By:
-------------------------------
Name:
Title:
ENERGY INCOME FUND, LP
By:
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Name:
Title:
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XXXXXXX X. XXXXXXXX
