EXHIBIT 99.2
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made as of May 14, 2002 by and
between ENSCO International Inc., a Delaware corporation ("Parent"), and Xxxxxx
Xxxxxxx Morphy ("Stockholder").
PRELIMINARY STATEMENTS
A. Parent, Xxxxxx Offshore Inc., a Delaware corporation ("Company"),
and Chore Acquisition, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent ("Merger Sub"), are entering into a Merger Agreement dated
as of the date hereof (as may be amended from time to time, the "Merger
Agreement").
B. Stockholder is the legal and beneficial owner (as determined
pursuant to Rule 13d-3 under the Exchange Act) of 822,434 shares of Common
Stock, par value $0.01 per share, of Company (the "Company Common Stock").
C. As a condition to the willingness of Parent to enter into the Merger
Agreement, and as an inducement for Parent to do so, Stockholder has agreed to
vote the Stockholder Shares as set forth in this Agreement and agreed to the
other covenants, obligations and agreements herein.
D. The Board of Directors of Stockholder has approved Stockholder
entering into this Agreement, the form of this Agreement and the transactions
contemplated hereby.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
..1 DEFINITIONS FROM MERGER AGREEMENT
Terms used but not defined in this Agreement shall have the meanings
assigned to such terms in the Merger Agreement.
..2 STOCKHOLDER SHARES
The term "Stockholder Shares" shall mean (i) the Company Common Stock
owned by Stockholder on the date hereof as described in the Preliminary
Statements, (ii) any shares or securities of Company acquired by Stockholder
after the date hereof, (iii) any shares or capital stock of any Person or any
securities or other property that Stockholder is or becomes entitled to receive
by reason of being a holder of any the Stockholder Shares, and (iv) any capital
stock, securities or other property into which any the Stockholder Shares shall
have been or shall be
converted or changed, whether by amendment to the certificate of incorporation
of Company, merger, consolidation, reorganization, reclassification, capital
change or otherwise.
ARTICLE II
COVENANTS OF THE STOCKHOLDER
2.1 AGREEMENT TO VOTE
At any meeting of the stockholders of Company held prior to the
Expiration Date (as defined in Section 5.13), however called, and at every
adjournment or postponement thereof prior to the Expiration Date, or in
connection with any written consent of or any other action by the stockholders
of Company given prior to the Expiration Date, Stockholder shall vote or cause
to be voted the Stockholder Shares (y) in favor of approval of adoption of the
Merger Agreement and each of the Contemplated Transactions, and any actions
required in furtherance thereof and (z) against any action, agreement,
transaction or Acquisition Proposal that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
Company contained in the Merger Agreement (or of Stockholder contained in this
Agreement) or that might hinder, delay, impede or frustrate the Merger or
Contemplated Transactions. Stockholder shall not enter into any Contract or
understanding with any Person prior to the Expiration Date directly or
indirectly to vote, grant any proxy or give instructions with respect to the
voting of the Stockholder Shares in any manner inconsistent with this Section.
2.2. IRREVOCABLE PROXY
(a) In furtherance of Stockholder's obligations under Section 2.1,
Stockholder hereby irrevocably appoints and constitutes Xxxx X. Xxxxxx and C.
Xxxxxxxxxxx Xxxx, and each of them (the "Proxyholders"), the agents, proxies and
attorneys-in-fact of Stockholder, with full power of substitution and
resubstitution, to the full extent of Stockholder's rights with respect to the
Stockholder Shares, to vote, express, consent or dissent or otherwise to utilize
such voting power as Parent shall, in Parent's sole discretion, deem proper in
furtherance of Stockholder's obligations under Section 2.1, including without
limitation, the right to sign Stockholder's name to any proxy card, consent,
certificate or other document relating to Company in furtherance of the approval
and adoption of the Merger, the Merger Agreement and the Contemplated
Transactions, or with respect to any other Acquisition Proposal.
(b) This proxy is granted as of the date of this Agreement in order to
secure the obligations of Stockholder set forth in Section 2.1. Such proxy is
irrevocable and coupled with an interest and shall survive the insolvency or
liquidation of the Stockholder. This proxy will terminate on the Expiration
Date.
(c) Stockholder hereby revokes any and all prior proxies with respect
to the Stockholder Shares. Prior to the Expiration Date, Stockholder shall not
directly or indirectly, except as contemplated hereby, grant any proxies or
powers of attorney with respect to the
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matters set forth in Section 2.1, deposit any of the Stockholder Shares or enter
into a voting agreement with respect to any of the Stockholder Shares.
(d) The Proxyholders may not exercise this proxy on any matters other
than as set forth in this Section 2.2 and Stockholder may vote the Stockholder
Shares on all such other matters.
2.3 NO SOLICITATION
(a) Stockholder shall not, and shall cause its Affiliates (other than
the Company and any of the Acquired Companies) and its Representatives (other
than Representatives of Stockholder who are are also Representatives of the
Company and who act or purport to act on behalf of the Company) not to, (i)
solicit, initiate, encourage, induce or facilitate the making, submission or
announcement of any Acquisition Proposal or take any action that could
reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any
information regarding any of the Acquired Companies to any Person in connection
with or in response to an Acquisition Proposal or an inquiry or indication of
interest that could reasonably be expected to lead to an Acquisition Proposal,
(iii) engage in discussions or negotiations with any Person with respect to any
Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition
Proposal or (v) enter into any letter of intent or similar document or any
Contract contemplating or otherwise relating to any Acquisition Transaction.
(b) Stockholder shall immediately cease and cause to be terminated any
existing (as of the date of this Agreement) solicitation, initiation,
encouragement, activity, discussion or negotiation with any parties conducted
heretofore by Stockholder or any of its Representatives with respect to any
Acquisition Proposal.
(c) Stockholder shall not enter into any Contract with any Person that
provides for, or could reasonably be expected to materially facilitate or is
designed to facilitate, an Acquisition Proposal.
(d) Notwithstanding anything to the contrary contained in this
Agreement: (i) the provisions of this Section 2.3 apply solely to the
Stockholder when acting in his or its capacity as a Stockholder of the Company
and not when acting or purporting to act as a Representative of the Company (it
being understood that the Company has separate and independent obligations to
Parent and Merger Sub in respect of the solicitation of Acquisition Proposals
under Section 4.3 of the Merger Agreement); (ii) none of the provisions of this
Section 2.3 shall be construed to prohibit, limit or restrict the Stockholder or
any of its Representatives (A) who is a member of the Board of Directors of the
Company from exercising its fiduciary duties to the Company by voting or taking
any other action whatsoever in his capacity as a director or (B) who is an
officer or employee of the Company from taking any action whatsoever in such
capacity; and (iii) no action taken by the Company in compliance with the
covenants of the Merger Agreement in respect of any Acquisition Proposal shall
serve as the basis of a claim that the Stockholder is in breach of its
obligations under this Section 2.3 notwithstanding the fact that the Stockholder
or its Representatives have provided advice or assistance to the Company in
connection therewith.
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2.4 TRANSFER OF STOCKHOLDER SHARES BY THE STOCKHOLDER
Stockholder shall not (a) subject any of the Stockholder Shares to, or
suffer to exist on any of the Stockholder Shares, any Encumbrance, other than
pursuant to this Agreement, or (b) sell, transfer, assign, convey or otherwise
dispose of any interest in or title to any of the Stockholder Shares (including
any such action by operation of Law), other than a disposition by operation of
Law pursuant to the Merger.
2.5 OTHER ACTIONS
Stockholder agrees not to make a written demand for appraisal in
respect of the Stockholder Shares in accordance with Section 262 of the Delaware
General Corporation Law, if such Section 262 provides for appraisal rights for
such Stockholder Shares in the Merger.
2.6 RELATED PARTY AGREEMENT
Neither Stockholder nor any of its Affiliates is currently a party to
any Contract or understanding with any Acquired Company other than the Agreement
with Respect to Ownership of Tonala, dated July 20, 2000, among Company,
Stockholder, certain of its Affiliates, and the other parties named therein (the
"Related Party Agreement"). Stockholder hereby consents to the Merger and the
assignment of the Related Party Agreement by the Company as a result of the
Merger pursuant to Section 7.11 of the Related Party Agreement. Attached to the
Related Party Agreement as Exhibit B is an Agreement and Plan of Merger entered
into at the time of the Related Party Agreement, which agreement required, among
other things, that Company nominate certain Affiliates of Stockholder to
Company's Board of Directors. For the avoidance of doubt, Stockholder agrees and
acknowledges that nothing under Section 1.5 of that agreement or otherwise
requires or would require the Surviving Corporation after the Effective Time to
nominate the Persons named therein as directors of the Surviving Corporation.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF THE STOCKHOLDER
Stockholder represents, warrants and covenants to Parent that:
3.1 OWNERSHIP
Stockholder is as of the date hereof the beneficial and legal owner of
the Stockholder Shares identified in the Preliminary Statements, Stockholder has
the sole right to vote the Stockholder Shares and there are no restrictions on
rights of disposition or other Encumbrances pertaining to the Stockholder
Shares. None of the Stockholder Shares is subject to any voting trust or other
Contract with respect to the voting of the Stockholder Shares, and no proxy,
power of attorney or other authorization has been granted with respect to any of
the Stockholder Shares.
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3.2 AUTHORITY AND NON-CONTRAVENTION
(a) If the Stockholder is a corporation, Stockholder is a corporation
duly organized, validly existing and in good standing under the Laws of its
jurisdiction of organization.
(b) Assuming due authorization, execution and delivery of this
Agreement by Parent, this Agreement constitutes the legal, valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance with
its terms. Stockholder has the power and authority to execute and deliver this
Agreement and to perform its obligations under this Agreement. If Stockholder is
a corporation, such actions have been duly authorized and approved by all
necessary corporate action of Stockholder.
(c) Stockholder is not nor will it be required to make any filing with
or give any notice to, or to obtain any Consent from, any Person in connection
with the execution, delivery or performance of this Agreement or any of the
transactions contemplated hereby.
(d) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will directly or indirectly
(with or without notice or lapse of time) (i) If Stockholder is a corporation,
contravene any provision of the Governing Documents of Stockholder, (ii)
Contravene any Contract to which Stockholder is a party, Governmental
Authorization, Law or Order to which Stockholder, or any of the assets owned or
used by Stockholder, may be subject, or (iii) result in the imposition or
creation of any Encumbrance upon or with respect to any of the assets owned or
used by Stockholder.
3.3 TOTAL SHARES
The Stockholder Shares are the only shares of Company owned
beneficially by Stockholder or registered in the name of Stockholder as of the
date hereof, and Stockholder does not have any option to purchase or right to
subscribe for or otherwise acquire any securities of Company and has no other
interest in or voting rights with respect to any other securities of Company.
3.4 BROKERS OR FINDERS
Except as provided in the Merger Agreement, no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with this Agreement or any of the other transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
Stockholder.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARENT
Parent represents, warrants and covenants to Stockholder that:
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4.1 AUTHORITY
Assuming due authorization, execution and delivery of this Agreement by
Stockholder, this Agreement constitutes the legal, valid and binding obligation
of Parent, enforceable against Parent in accordance with its terms, or make
reciprocal,. Parent has the power and authority to execute and deliver this
Agreement and to perform its obligations under this Agreement, which actions
have been duly authorized and approved by all necessary corporate action of
Parent.
ARTICLE V
GENERAL PROVISIONS
5.1 NOTICES
All notices, consents, waivers and other communications under this
Agreement must be in writing and will be deemed given to a party when (a)
delivered to the appropriate address by hand or by nationally recognized
overnight courier service (costs prepaid), (b) sent by facsimile or e-mail with
confirmation of transmission by the transmitting equipment, or (c) received or
rejected by the addressee, if sent by certified mail, return receipt requested;
in each case to the following addresses, facsimile numbers or e-mail addresses
and marked to the attention of the individual (by name or title) designated
below (or to such other address, facsimile number, e-mail address or individual
as a party may designate by notice to the other parties):
If to Parent:
ENSCO International Incorporated
Attention: C. Xxxxxxxxxxx Xxxx
Address: 0000 Xxxxxxxx Xxxxx
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000-000
Facsimile No.: (000) 000-0000
E-mail Address: xxxxx@xxxxxxx.xxx
with a copy (which will not constitute notice) to:
Xxxxx & XxXxxxxx
Attention: Xxxxxx X. Xxxxx
Address: 0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
E-mail Address: xxxxxx.x.xxxxx@xxxxxxxx.xxx
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If to Stockholder:
Xxxxxx Xxxxxxx Morphy
Address: Monte Urales Xx. 000
Xxxxx xx Xxxxxxxxxxx 00000
Xxxxxx
Facsimile No.: 000-00-0000-0000
E-mail Address: xxxx@xxxxxxx.xxx.xx
5.2 FURTHER ACTIONS
Upon the request of any party to this Agreement, the other parties will
(a) furnish to the requesting party any additional information, (b) execute and
deliver, at their own expense, any other documents and (c) take any other
actions as the requesting party may reasonably require to more effectively carry
out the intent of this Agreement.
5.3 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements among the parties with
respect to its subject matter and constitutes (along with the documents
delivered pursuant to this Agreement) a complete and exclusive statement of the
terms of the agreement between the parties with respect to its subject matter.
This Agreement may not be amended, supplemented or otherwise modified except in
a written document executed by the party against whose interest the modification
will operate. In the event of a conflict between the terms of this Agreement and
the Merger Agreement, the terms of the Merger Agreement shall control.
5.4 TIME OF ESSENCE
With regard to all dates and time periods set forth or referred to in
this Agreement, time is of the essence.
5.5 DRAFTING AND REPRESENTATION
The parties have participated jointly in the negotiation and drafting
of this Agreement. No provision of this Agreement will be interpreted for or
against any party because that party or its legal representative drafted the
provision.
5.6 SEVERABILITY
If a court of competent jurisdiction holds any provision of this
Agreement invalid or unenforceable, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
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5.7 ASSIGNMENT; SUCCESSORS; NO THIRD-PARTY RIGHTS
No party may assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of the other
parties, except that Parent may without the consent of Stockholder assign any of
its rights and delegate any of its obligations under this Agreement to any
Related Person of Parent. Subject to the preceding sentence, this Agreement will
apply to, be binding in all respects upon, and inure to the benefit of
Stockholder's heirs, executors, administrators and permitted assigns and
Parent's successors and permitted assigns. Nothing expressed or referred to in
this Agreement will be construed to give any Person, other than the parties to
this Agreement, any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provision of this Agreement except such rights
as may inure to a successor or permitted assignee under this Section.
Notwithstanding the above, any Related Person of Parent shall be deemed a third
party beneficiary to this Agreement.
5.8 ENFORCEMENT OF AGREEMENT
Stockholder acknowledges and agrees that Parent could be damaged
irreparably if any of the provisions of this Agreement are not performed in
accordance with their specific terms and that any breach of this Agreement by
Stockholder could not be adequately compensated in all cases by monetary damages
alone. Accordingly, Stockholder agrees that, in addition to any other right or
remedy to which Parent may be entitled, at Law or in equity, it will be entitled
to enforce any provision of this Agreement by a decree of specific performance
and to temporary, preliminary and permanent injunctive relief to prevent
breaches or threatened breaches of any of the provisions of this Agreement,
without posting any bond or other undertaking.
5.9 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither any failure nor any delay by any party in
exercising any right, power or privilege under this Agreement or any of the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege, and no single or partial exercise of any such right, power
or privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. To the maximum
extent permitted by applicable Law, (a) no claim or right arising out of this
Agreement or any of the documents referred to in this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in a written document signed by the other party, (b) no
waiver that may be given by a party will be applicable except in the specific
instance for which it is given, and (c) no notice to or demand on one party will
be deemed to be a waiver of any obligation of that party or of the right of the
party giving such notice or demand to take further action without notice or
demand as provided in this Agreement or the documents referred to in this
Agreement.
5.10 GOVERNING LAW
This Agreement will be governed by and construed under the Laws of
Delaware without regard to conflicts of Law principles that would require the
application of any other Law.
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5.11 JURISDICTION; SERVICE OF PROCESS
Any action, hearing, suit or proceeding arising out of or relating to
this Agreement or any Contemplated Transaction must be brought in the courts of
the State of Delaware, County of New Castle, or, if it has or can acquire
jurisdiction, in the United States District Court for the District of Delaware.
Each of the parties irrevocably submits to the exclusive jurisdiction of each
such court in any such Proceeding, waives any objection it may now or hereafter
have to venue or to convenience of forum and acknowledges that such exclusive
jurisdiction benefits both parities. The parties agree that any or all of them
may file a copy of this Section with any court as written evidence of the
knowing, voluntary and bargained agreement between the parties irrevocably to
waive any objections to venue or to convenience of forum. Process in any
Proceeding referred to in this Section may be served on any party anywhere in
the world. Stockholder irrevocably appoints The Corporation Trust Company, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Process Agent") to receive, for it
and on its behalf, service of process in any Proceedings. If for any reason
Process Agent is unable to act as such, Stockholder will promptly notify Parent
and within 30 days from the date on which Stockholder first learns that Process
Agent is unable to act as such, Stockholder will appoint a substitute process
agent acceptable to Parent. Stockholder irrevocably consents to service of
process given in the manner provided for notices in Section 5.1. Nothing in this
Agreement will affect the right of Parent to serve process in any other manner
permitted by law.
5.12 COUNTERPARTS
This Agreement may be executed in one or more counterparts.
5.13 TERMINATION
This Agreement shall terminate upon the earliest of (a) the Effective
Time, (b) the termination of the Merger Agreement for any reason whatsoever or
(c) written notice by Parent to Stockholder of termination of this Agreement
(the "Expiration Date").
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The parties have executed and delivered this Agreement as of the date
indicated in the first sentence of this Agreement.
ENSCO INTERNATIONAL INCORPORATED
By: /s/ C. XXXXXXXXXXX XXXX
--------------------------------
Name: C. Xxxxxxxxxxx Xxxx
------------------------------
Title: Sr. Vice President
-----------------------------
/s/ XXXXXX XXXXXXX MORPHY
-------------------------------------
XXXXXX XXXXXXX MORPHY
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