EXHIBIT 10.4
THIS EXCHANGE AGENT
AGREEMENT (this “
Agreement ”) between Energy Partners, Ltd., a Delaware
corporation (the “ Company ”), and Mellon
Investor Services LLC (operating with the service name BNY Mellon
Shareowner Services), a New Jersey limited liability company
(“ Agent ”), is dated as of September 15,
2009.
WHEREAS , on May 1, 2009, the Company and certain
of its subsidiaries filed voluntary petitions for reorganization
(the “ Chapter 11 Cases ”) under Chapter 11 of
Title 11 of the United States Code, 11 U.S.C. §§ 101 et
seq., as amended, in the United States Bankruptcy Court for the
Southern District of Texas, Houston Division (the “
Bankruptcy Court ”);
WHEREAS , on August 3, 2009, the Bankruptcy Court
issued a confirmation order (the “ Confirmation Order
”) confirming the Company’s Second Amended Joint Plan
of Reorganization, as modified as of July 31, 2009 and as
further modified by the Confirmation Order (the “ Plan
”);
WHEREAS , pursuant to the Plan, (i) the
Company’s 8.75% unsecured notes due 2010, 9.75% senior
unsecured notes due 2014, Senior Floating Notes due 2013
(collectively, the “ Senior Notes ”),
(ii) shares of issued and outstanding Company common stock,
par value $0.01 per share (“ Old Shares ”), and
(iii) stock-settled restricted stock units issued pursuant to
the Company’s existing long-term incentive plans deemed
vested under the Plan (the “ RSUs ”), will be
exchanged (the “ Exchange ”) for shares of new
Company common stock, par value $0.01 per share (“ New
Shares ”);
WHEREAS , pursuant to Section 5.03 of the Plan, as
of the effective time of the Exchange (the “ Effective
Time ”), certificates representing Old Shares that have
not been previously surrendered to the Agent shall be deemed to
have been surrendered; and
WHEREAS , in accordance with, and subject to, the terms
and conditions set forth in this Agreement, the Company desires to
appoint the Agent as exchange agent for the Exchange, and the Agent
desires to accept such appointment.
1. Appointment; Exchange
.
(a) In accordance with, and subject
to, the terms and conditions set forth in this Agreement, the
Company hereby appoints Agent to act as exchange agent with respect
to the Exchange, and Agent hereby accepts such
appointment.
(b) The Company shall inform Agent
of the Effective Time at least three (3) business days prior
thereto.
(c) Prior to the Effective Time, the
Company shall deliver to Agent, or cause to be delivered to Agent,
a letter certifying the registered holders of the Senior Notes and
the aggregate amount of principal outstanding under the Senior
Notes (the “ Senior Notes Letter ”).
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(d) Prior to the Effective Time, the
Agent shall prepare a list of holders of record of Old Shares as of
the close of business on the date immediately preceding the date on
which the Effective Time is to occur (the “ Record
Stockholder List ”), which shall include each such
holder’s name, address, taxpayer identification number and
amount of Old Shares held.
(e) Prior to the Effective Time, the
Company will furnish the Agent with written instructions (the
“ Company Instructions ”) from an authorized
representative which shall include (i) the rates at which each
of the Senior Notes, Old Shares and RSUs shall be exchangeable into
the New Shares, (ii) a list of holders of RSUs setting forth
each such holder’s name, address and settlement amounts in
Old Shares in respect of each such holder’s RSUs (the “
RSU List ”), (iii) an instruction to close the
transfer books for the Old Shares at the Effective Time,
(iv) instructions to perform the Exchange in accordance with
Section 1(f) of this Agreement and (v) instructions to
create a balance account for the benefit of unexchanged holders for
the number of New Shares to be issued in exchange for the Senior
Notes, Old Shares and the RSUs at the Effective Time.
(f) Subject to the terms and
conditions of this Agreement and the Company’s confirmation
of the Effective Time pursuant to Section 1(b) hereof, and in
accordance with the Company Instructions, Agent in its capacity as
exchange agent hereunder shall:
(i) with respect to the Senior
Notes, (1) credit the appropriate number of book-entry New
Shares to holders of Senior Notes as set forth in the Senior Notes
Letter and (2) mail a transaction notice reflecting such
credit (along with a notice stating that the Senior Notes were
deemed cancelled as of the Effective Time) to each such holder of
Senior Notes;
(ii) with respect to certificated
Old Shares:
(A) (1) debit all certificated Old
Shares reflected in the stockholder accounts of holders of record
of certificated Old Shares at the Effective Time as set forth in
the Record Stockholder List, (2) credit the appropriate number
of book-entry New Shares to each holder of certificated Old Shares
at the Effective Time as set forth in the Record Stockholder List
and (3) mail a transaction notice reflecting such credit
(along with a notice stating that the certificates representing Old
Shares were deemed cancelled as of the Effective Time) to each such
holder of Old Shares; and
(B) accept any certificates
representing Old Shares sent by holders of record of Old Shares,
provided that , for the avoidance of doubt, the receipt of
such certificates of Old Shares shall not be a condition to
Agent’s obligations set forth in
Section 1(f)(ii)(A);
(iii) with respect to book-entry Old
Shares, (1) debit all book-entry Old Shares held in the
stockholder accounts of holders of record of book-entry Old Shares
at the Effective Time as set forth in the Record Stockholder List,
(2) credit the appropriate number of book-entry New Shares to
each holder of book-entry Old
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Shares and (3) mail a
transaction notice reflecting such credit (along with a notice
stating that the book-entry Old Shares were deemed cancelled as of
the Effective Time) to each such holder of Old Shares;
and
(iv) with respect to the RSUs,
(1) credit the appropriate number of book-entry New Shares to
each holder of RSUs as set forth in the RSU List and (2) mail
a transaction notice reflecting such credit (along with a notice
stating that the RSUs were deemed cancelled as of the Effective
Time) to each such holder of RSUs.
2. Treasury Shares.
The Company shall, at or prior to the Effective Time, provide to
Agent a written list of all Old Shares held in treasury to be
cancelled as of the Effective Time, indicating whether such
treasury shares are certificated, in book-entry form or registered
through a brokerage account. At or prior to the Effective Time, the
Company shall deliver any and all certificates representing such
treasury shares to Agent for proper cancellation. The Company
hereby authorizes and instructs Agent to cancel all such treasury
shares delivered to Agent hereunder in certificated form or
maintained by Agent in book-entry.
3. Fractional Shares.
No fractional shares of the New Shares will be issued in the
Exchange. Whenever any distribution to a particular holder would
otherwise call for distribution of a fraction of a share of the New
Shares, such number of New Shares to be distributed shall be
rounded up or down to the nearest whole number and such holder
shall receive no separate consideration for such fractional
shares.
4. Treatment of Restrictive
Legends. All New Shares issued in exchange for Old Shares
may be issued without restrictive legend(s).
5. Cancellation and Debit of
Old Shares. As of the Effective Time, Agent will become the
sole recordkeeping agent for the Old Shares, and shall maintain
such records in accordance with its standard practices. At the
Effective Time, (a) any certificates representing Old Shares
surrendered to Agent prior to the Effective Time shall be canceled
by the Agent, (b) any certificates representing Old Shares
deemed surrendered at the Effective Time pursuant to
Section 5.03 of the Plan shall be deemed canceled by Agent and
(c) the book-entry Old Shares held in the stockholder account
of the applicable holder will be debited, and such cancellation or
debit shall be reflected within the records maintained by
Agent.
6. Report of Exchange
Activity. Within ten (10) business days of the
Effective Time, Agent will prepare and provide to the Company a
report setting forth in tabular form (i) the name and address
of each holder of Senior Notes, Old Shares and RSUs as of the
Effective Time; (ii) the aggregate principal amount
outstanding with respect to any Senior Notes held by such holder,
the number of Old Shares held by such holder and the number of RSUs
held by such holder, as applicable, and (iii) the number of
New Shares issued to such holder.
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7. Tax Reporting. Should any issue
arise regarding federal income tax reporting or withholding, Agent
shall take such reasonable action as the Company may reasonably
request in writing. Such action may be subject to additional
fees.
8. Authorizations and
Protections. As agent for the Company hereunder,
Agent:
(a) shall have no duties or
obligations other than those specifically set forth herein or as
may subsequently be agreed to in writing by Agent and the
Company;
(b) shall have no obligation to
conduct the Exchange unless the Company shall have provided a
sufficient number of New Shares;
(c) shall be regarded as making no
representations and having no responsibilities as to the validity,
sufficiency, value, or genuineness of any certificates or the Old
Shares represented thereby surrendered or deemed surrendered
hereunder or New Shares issued in exchange therefor, and will not
be required to or be responsible for and will make no
representations as to the validity, sufficiency, value or
genuineness of the Exchange;
(d) shall not be obligated to take
any legal action hereunder; if, however, Agent determines to take
any legal action hereunder, and where the taking of such action
might, in Agent’s judgment, subject or expose it to any
expense or liability, Agent shall not be required to act unless it
shall have been furnished with an indemnity satisfactory to
it;
(e) may reasonably rely on and shall
be fully authorized and protected in acting or failing to act upon
any certificate, instrument, opinion, notice, letter, telegram,
telex, facsimile transmission or other document or security
delivered to Agent and reasonably believed by Agent to be genuine
and to have been signed by the proper party or parties;
(f) shall not be liable or
responsible for any recital or statement contained in the Plan or
any other documents relating thereto;
(g) shall not be liable or
responsible for any failure of the Company or any other party to
comply with any of its obligations relating to the Plan, including
without limitation obligations under applicable securities
laws;
(h) shall not be liable to any
holder of Old Shares for any New Shares or dividends
thereon;
(i) may reasonably rely on and shall
be fully authorized and protected in acting or failing to act upon
(i) the written, telephonic, electronic or oral instructions
of any authorized representative of the Company with respect to any
matter relating to Agent acting as exchange agent pursuant to this
Agreement; (ii) any guaranty of signature by an
“eligible guarantor institution” that is a member or
participant in the Securities Transfer Agents Medallion Program or
other comparable “signature guarantee program” or
insurance program in addition to, or in substitution for, the
foregoing; or (iii) any law, act, regulation or any
interpretation of the same even though such law, act, or regulation
may thereafter have been altered, changed, amended or
repealed;
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(j) may consult counsel satisfactory
to Agent (including internal counsel), and the advice of such
counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by Agent hereunder
in good faith and in reliance upon the advice of such
counsel;
(k) may perform any of its duties
hereunder either directly or by or through agents or attorneys and
Agent shall not be liable or responsible for any misconduct or
negligence on the part of any agent or attorney appointed with
reasonable care hereunder; and
(l) is not authorized, and shall
have no obligation, to pay any brokers, dealers, or soliciting fees
to any person.
9. Indemnification.
The Company shall indemnify Agent for, and hold Agent harmless from
and against, any loss, liability, claim (whether with or without
basis in fact or law), demand, cost or expense (collectively,
“ Loss ”) arising out of or in connection with
Agent’s duties under this Agreement or this appointment,
including the costs and expenses of defending itself against any
Loss or enforcing this Agreement, except to the extent that such
Loss shall have been determined by a court of competent
jurisdiction to be a result of Agent’s gross negligence or
intentional misconduct.
10. Limitation of
Liability .
(a) In the absence of gross
negligence or intentional misconduct on its part, Agent shall not
be liable for any action taken, suffered, or omitted by it or for
any error of judgment made by it in the performance of its duties
under this Agreement. Anything in this Agreement to the contrary
notwithstanding, in no event shall Agent be liable for special,
indirect, incidental, consequential or punitive losses or damages
of any kind whatsoever (including but not limited to lost profits),
even if Agent has been advised of the possibility of such losses or
damages and regardless of the form of action. Any liability of
Agent will be limited in the aggregate to the amount of fees paid
by the Company hereunder.
(b) If any question or dispute
arises with respect to the proper interpretation of this Agreement
or Agent’s duties hereunder or the rights of the Company or
of any stockholders, Agent shall not be required to act and shall
not be held liable or responsible for failing or refusing to act
until the question or dispute has been (i) judicially settled
(and Agent may, if it deems it advisable, but shall not be
obligated to, file a suit in interpleader or for a declaratory
judgment for such purpose) by a final judgment of a court of
competent jurisdiction that is binding on all stockholders and
parties interested in the matter and is no longer subject to review
or appeal, or (ii) settled by a written document in form and
substance satisfactory to Agent and executed by the Company and
each such stockholder and party.
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11. Representations, Warranties and
Covenants. The Company represents, warrants and covenants
that (a) it is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation,
(b) the making and consumm
