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EXHIBIT 99.3
PARTNER VOTING AGREEMENT (this "Agreement") dated as of October 28, 2000,
among Stone Energy Corporation, a Delaware corporation ("Partner"), Basin
Exploration, Inc., a Delaware corporation ("Company"), and the other parties
signatory hereto (each a "Stockholder").
WHEREAS, each Stockholder desires that Company, Partner and Partner
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Partner
("Merger 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 Merger Sub with and into Company
(the "Merger") upon the terms and subject to the conditions set forth in the
Merger Agreement; and
WHEREAS, each Stockholder and Partner are executing this Agreement as an
inducement to Company to enter into and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Company
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 Company 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 Partner (the "Common Stock") set forth
opposite such Stockholder's name on Schedule A hereto (such shares of
Common Stock, together with any other shares of Common Stock or other
capital stock of Partner 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"). The Subject
Shares constitute the only shares, with respect to which such Stockholder
is the record or beneficial owner, of Common Stock, preferred stock or
other capital stock of Partner or options, warrants or other rights
(whether or not contingent) to acquire such shares of capital stock of
Partner that are or may be entitled to vote on the amendment of Partner's
certification of incorporation and the issuance of Partner's shares of
Common Stock in connection with the Merger at any meeting of stockholders
of Partner called to vote upon the amendment of Partner's certification of
incorporation and the issuance of Partner's shares of Common Stock in
connection with the Merger. 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, except as
provided by this Agreement (it being understood that any pledge of the
Pledged Shares (as defined below) shall not be a breach of this
representation). Such Stockholder has all requisite power and authority,
and, if such Stockholder is a natural person, the legal capacity, to enter
into this Agreement and to perform its obligations hereunder. 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 performance by such Stockholder of
its obligations hereunder have been 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 (collectively, the "Bankruptcy and Equity Exceptions").
(ii) Neither the execution and delivery of this Agreement nor the
performance by such Stockholder of its obligations hereunder will result in
a violation of, or a default under, or conflict with, (A) if such
Stockholder is an entity, any provision of its certificate of
incorporation, bylaws, partnership agreement,
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limited liability company agreement or similar organizational documents,
(B) any contract, trust, commitment, agreement, understanding, arrangement
or restriction of any kind (other than as may relate to the Pledged Shares
but subject to the proviso set forth in (iv) below) to which such
Stockholder is a party or bound or to which the Subject Shares are subject,
except, in the case of clause (B) above, as would not prevent, delay or
otherwise materially impair such Stockholder's ability to perform its
obligations hereunder. Execution, delivery and performance of this
Agreement by such Stockholder will not reasonably be expected to 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 (x) for any necessary filing
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, (y) for any
reports under Sections 13(d) and 16 of the Exchange Act as may be required
in connection with this Agreement and the transactions contemplated hereby
or (z) as would not reasonably be expected to prevent, delay or otherwise
materially impair such Stockholder's ability to perform its obligations
hereunder.
(iii) If the Stockholder is married and the Subject Shares of the
Stockholder constitute community property or spousal approval is otherwise
required for this Agreement to be legal, valid and binding, then, to the
extent so required, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, the
Stockholder's spouse, enforceable against such spouse in accordance with
its terms, subject to the Bankruptcy and Equity Exceptions. Except for any
consents duly obtained as of the date hereof and which will remain in full
force and effect at such time or times as may be necessary to duly consent
to such Stockholder's performance of its obligations hereunder, 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 performance by
such Stockholder of its obligations hereunder.
(iv) The Subject Shares and the certificates representing such Shares
are 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 (A) any such
encumbrances or proxies arising hereunder or under the existing terms of a
trust of which such Stockholder is the trustee or (B) any such encumbrances
arising pursuant to the pledge of any Subject Shares by such Stockholder
prior to the date hereof to a financial institution or a brokerage firm
(the "Pledged Shares"); provided, however, that such Stockholder represents
that any such arrangement regarding such Pledged Shares shall not prevent,
delay or otherwise materially impair such Stockholder's ability to execute
and deliver this Agreement or perform its obligations hereunder and such
Stockholder shall use his reasonable efforts to obtain an acknowledgment by
the pledgee of the terms of this Agreement and such pledgee's agreement to
execute a proxy or to otherwise vote the Pledged Shares (if and to the
extent the voting power of the Pledged Shares is being or to be exercised
by pledgee) in accordance with Section 2 hereof.
(v) No broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar
fee or commission based upon arrangements made by or on behalf of such
Stockholder in connection with its entering into this Agreement.
(vi) Such Stockholder understands and acknowledges that Company is
entering into the Merger Agreement in reliance upon such Stockholder's
execution and delivery of this Agreement.
(b) Company represents and warrants to each Stockholder that the execution
and delivery of this Agreement by Company and the consummation by Company of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of Company.
2. Voting Agreements. Each Stockholder severally agrees with, and covenants
to, Company that, during the Term (as defined below) of this Agreement, at any
meeting of stockholders of Partner called to vote upon the amendment of
Partner's certificate of incorporation and the issuance of shares of Partner
Common Stock in connection with the consummation of the Merger 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 amendment of
Partner's certificate of incorporation and the issuance of shares of Partner
Common Stock in
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connection with the consummation of the Merger is sought, such Stockholder
shall, including by executing a written consent solicitation if requested by
Company, vote (or cause to be voted) the Subject Shares in favor of the
amendment of Partner's certificate of incorporation and the issuance of shares
of Partner Common Stock in connection with the consummation of the Merger.
3. Other Covenants. Each Stockholder severally agrees with, and covenants
to, Company during the Term of this Agreement as follows:
(a) Such Stockholder shall not after the date hereof (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, (ii) enter into any contract, option or
other agreement 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 voting arrangement with respect to the
Subject Shares; provided, that any such Stockholder may (x) Transfer any of
the Subject Shares to any other Stockholder who is on the date hereof a
party to this Agreement, or to any other person or entity that, prior to or
coincident with such Transfer, executes an irrevocable proxy to vote such
Subject Shares in accordance with Section 2 and (y) Transfer a de minimus
amount of such Subject Shares (which in the case of Xx. Xxxxx Xxxxx, shall
include Transfers up to 75,000 shares in the aggregate); 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 Company, would preclude Partner's ability to account for the
business combination to be effected by the Merger as a pooling of
interests; provided, further the foregoing restrictions shall not be deemed
violated in the event of any action taken by the pledgee of any Pledged
Shares pursuant to the terms of any agreements existing as of the date
hereof with respect thereto so long as such Stockholder uses his reasonable
efforts to obtain an acknowledgment by the pledgee of the terms of this
Agreement and such pledgee's agreement to execute a proxy or to otherwise
vote the Pledged Shares (if and to the extent the voting power of the
Pledged Shares is being or to be exercised by pledgee) in accordance with
Section 2 hereof; provided, further, that the restrictions in this Section
3 shall not be deemed violated by any Transfer of Subject Shares pursuant
to a cashless exercise of stock options; and
(b) Such Stockholder (in his capacity as such) shall not, nor shall it
permit any investment banker, attorney or other adviser or representative
of such Stockholder (in his capacity as such) to, directly or indirectly,
(i) solicit, initiate or encourage the submission of, any Partner
Acquisition 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 inquires or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Partner Acquisition Proposal; provided, however, that nothing herein shall
prohibit any Stockholder that is an officer or director of Partner from
taking any action that Partner (or that such Stockholder in his capacity as
an officer or director of Partner) would be permitted to take under the
terms of the Merger Agreement.
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
Partner affecting the Common Stock, preferred stock or the acquisition of
additional shares of Common Stock, preferred stock or other voting securities of
Partner 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 Partner issued to or acquired by
such Stockholder.
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5. Stop Transfer. Partner agrees with, and covenants to, Company that
Partner shall not register the transfer of any certificate representing any
Subject Shares, unless such transfer is in compliance with this Agreement.
6. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director of Partner 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 Company,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Company 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 (and shall only be effective from the
date hereof until) the first to occur of (the "Term") (i) the Effective Time of
the Merger or (ii) the date upon which the Merger Agreement is terminated in
accordance with its terms; provided, however, that (x) Section 9 shall survive
any termination of this Agreement pursuant to clause (ii) above and (y)
termination of this Agreement shall not relieve any party hereto from liability
for any willful and knowing breach hereof prior to such termination.
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 Partner or Company, to the
appropriate address set forth in Section 9.02 of the Merger Agreement; and (ii)
if to a Stockholder, to the appropriate address set forth on Schedule A hereto.
(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
Partner, Company and such Stockholder and delivered to Partner, Company 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 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) As between any Stockholder and Partner, each of such parties agrees
that irreparable damage to the other, non-breaching party would occur and that
such non-breaching party 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 the non-breaching party shall be entitled to an injunction or injunctions
to prevent breaches by the other party 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
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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 and (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.
(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.
(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, Stone Energy Corporation, Basin Exploration, Inc. and
the Stockholders party hereto have caused this Agreement to be duly executed and
delivered as of the date first written above.
STONE ENERGY CORPORATION
By:
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Name:
Title:
BASIN EXPLORATION, INC.
By:
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Name:
Title:
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Name: XXXXX X. XXXXX
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Name: D. XXXXX XXXXX
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Name: XXXXXXX X. XXXX
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Name: XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXX
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Name: X.X. XXXXXXXXX
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Name: XXXX X. XXXXXXX
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Name: XXXXXX X. XXXXXXXX
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Name: XXX X. XXXXXX
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SCHEDULE A
