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EXHIBIT 10.2
Flores
VOTING AGREEMENT
VOTING AGREEMENT ("Agreement") dated as of November 24, 1998 between
Seagull Energy Corporation, a Texas corporation ("Seagull"), and James C. Flores
(the "Stockholder").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Stockholder beneficially (i) owns
an aggregate of 3,876,235 shares of Common Stock, par value $.01 per share ("OEI
Common Stock"), of Ocean Energy, Inc., a Delaware corporation ( "OEI"), and (ii)
has the right to vote or direct the vote of 3,744,000 shares of OEI Common Stock
pursuant to that certain Irrevocable Proxy, dated September 25, 1996, executed
by William W. Rucks, IV, Catherine May Rucks and the Rucks Family Partnership in
favor of the Stockholder (such shares of OEI Common Stock referred to in clauses
(i) and (ii) above and any shares of OEI Common Stock acquired by the
Stockholder after the date hereof, the "Shares");
WHEREAS, Seagull is prepared to enter into an Agreement and Plan of
Merger with OEI (as amended from time to time, the "Merger Agreement") providing
for the merger of OEI with and into Seagull (the "Merger"), with Airplane being
the surviving entity;
WHEREAS, in order to encourage Seagull to enter into the Merger
Agreement with OEI, the Stockholder is willing to enter into certain
arrangements with respect to the Shares;
NOW, THEREFORE, in consideration of the premises set forth above, the
mutual promises set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Stockholder's Support of the Merger. From the date hereof until the
earliest to occur of (i) the termination of the Merger Agreement, and (ii) the
consummation of the Merger:
(a) The Stockholder beneficially owns the Shares and will not,
directly or indirectly, (i) sell, transfer, pledge or otherwise dispose
of any Shares to any person other than Seagull or its designee unless
such person shall have agreed in writing to be bound by the terms of
this Agreement, or (ii) grant a proxy with respect to any Shares to any
person other than Seagull or its designee, or grant an option with
respect to any of the foregoing, or enter into any other agreement or
arrangement with respect to any of the foregoing.
(b) The Stockholder will not initiate, solicit or encourage
(including by way of furnishing information or assistance), or take any
other action to facilitate, any inquiries or the making of any proposal
relating to, or that may reasonably be expected to lead to, any merger,
consolidation, share exchange, business combination or similar
transaction involving
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OEI or any of its subsidiaries or the acquisition in any manner,
directly or indirectly, of a material equity interest in any voting
securities of, or a substantial portion of the assets of, OEI or any of
its Subsidiaries, other than the transactions contemplated by this
Agreement or the Merger Agreement (a "Competing Transaction"), or enter
into discussions or negotiate with any person or entity in furtherance
of such inquiries or to obtain a Competing Transaction, or agree to, or
endorse, any Competing Transaction, or authorize or permit any
investment banker, financial advisor, attorney, accountant or other
representative retained by the Stockholder to take any such action. The
Stockholder shall promptly notify Seagull of all relevant terms of any
such inquiries or proposals received by the Stockholder or by any such
investment banker, financial advisor, attorney, accountant or other
representative relating to any of such matters and if such inquiry or
proposal is in writing, the Stockholder shall deliver or cause to be
delivered to Seagull a copy of such inquiry or proposal.
(c) The Stockholder agrees that it will vote all Shares (i) in
favor of approval of the Merger Agreement and the Merger and (ii)
subject to the provisions of paragraph (d) below, against any
combination proposal or other matter that may interfere or be
inconsistent with the Merger (including without limitation a Competing
Transaction).
(d) The Stockholder agrees that, if requested by Seagull, the
Stockholder will not attend and the Stockholder will not vote the
Shares at any annual or special meeting of stockholders at which a
Competing Transaction is being considered, or execute any written
consent of stockholders relating directly or indirectly to a Competing
Transaction, during such period.
(e) The Stockholder acknowledges that the terms of this
Agreement will be required to be described, and this Agreement will be
required to be filed, in certain securities law filings relating to the
Merger.
(f) To the extent inconsistent with the provisions of this
Section 1, the Stockholder hereby revokes any and all proxies with
respect to the Shares or any other voting securities of OEI held by the
Stockholder.
Notwithstanding anything to the contrary set forth herein, this
Agreement shall not restrict the Stockholder from acting in accordance with his
fiduciary duties as an officer or director of OEI.
2. Miscellaneous
(a) The Stockholder, on the one hand, and Seagull, on the
other, acknowledge and agree that irreparable damage would occur if 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 parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and
to enforce specifically the terms and
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provisions hereof in any court of the United States or any state
thereof having jurisdiction, in addition to any other stockholder to
which they may be entitled at law or equity.
(b) Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provision of
this Agreement.
(c) All notices, consents, requests, instructions, approvals
and other communications provided for herein shall be validly given,
made or served, if in writing and delivered personally, by telecopy or
sent by registered mail, postage prepaid:
If to Seagull:
Seagull Energy Corporation
1001 Fannin, Suite 1700
Houston, Texas 77002
Attention: General Counsel
Facsimile No.: (713) 210-2194
With copies to:
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attention: J. Mark Metts
Facsimile No.: (713) 615-5605
Ocean Energy, Inc.
1201 Louisiana, Suite 1400
Houston, Texas 77002
Attention: Robert K. Reeves
Facsimile No.: (713) 420-1182
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4675
Attention: Michael E. Dillard, P.C.
Facsimile No.: (214) 969-4343
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If to the Stockholder:
James C. Flores
c/o Ocean Energy Inc.
1201 Louisiana, Suite 1400
Houston, Texas 77002
Facsimile No.: (713) 420-1982
or to such other address or telecopy number as any party may, from time
to time, designate in a written notice given in a like manner. Notice
given by telecopy shall be deemed delivered on the day the sender
receives telecopy confirmation that such notice was received at the
telecopy number of the addressee. Notice given by mail as set out above
shall be deemed delivered three days after the date the same is
postmarked.
(d) From and after the termination of this Agreement, the
covenants of the parties set forth herein shall be of no further force
or effect and the parties shall be under no further obligation with
respect thereto.
(e) Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(i) Affiliate. "Affiliate" shall have the meaning
ascribed to it in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act, as in effect on the date
hereof.
(ii) Merger. "Merger" shall mean the transaction
referred to in the second whereas clause of this Agreement, or
any amendment to or modification that does not adversely
affect the economic value of the Merger to the Stockholder
pursuant to the transaction set forth in the Merger Agreement.
(iii) Person. A "person" shall mean any individual,
firm, corporation, partnership, trust, limited liability
company or other entity.
(f) Due Authorization; No Conflicts. The Stockholder hereby
represents and warrants to Seagull as follows: the Stockholder has full
power and authority to enter into this Agreement. Neither the execution
or delivery of this Agreement nor the consummation of the transactions
contemplated herein will (a) conflict with or result in a breach,
default or violation of any agreement, proxy, document, instrument,
judgment, decree, order, governmental permit, certificate, license,
law, statute, rule or regulation to which the Stockholder is a party or
to which it is subject, (b) result in the creation of any lien, charge
or other encumbrance on any Shares or (c) require the Stockholder to
obtain the consent of any private nongovernmental third party. No
consent, action, approval or authorization of, or registration,
declaration or filing with, any governmental department, commission,
agency
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or other instrumentality or any other person or entity is required to
authorize, or is otherwise required in connection with, the execution
and delivery of this Agreement or the Stockholder's performance of the
terms of this Agreement or the validity or enforceability of this
Agreement.
(g) Successors and Assigns. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their
respective heirs, personal representatives, successors and assigns,
but, except as contemplated pursuant to paragraph 1(a), shall not be
assignable by any party hereto without the prior written consent of the
other parties hereto.
(h) Waiver. No party may waive any of the terms or conditions
of this Agreement except by a duly signed writing referring to the
specific provision to be waived.
(i) Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Texas.
(j) Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all other and prior agreements and
understandings, both written and oral, among the parties hereto and
their Affiliates.
(k) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Stockholder and Seagull have each caused this
Agreement to be duly executed as of the day and year first above written.
SEAGULL ENERGY CORPORATION
By: /s/ JAMES T. HACKETT
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Name: James T. Hackett
Title: President and Chief Executive Officer
JAMES C. FLORES
/s/ JAMES C. FLORES
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