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EXHIBIT 10.3
Flores Family Limited Partnership
VOTING AGREEMENT
VOTING AGREEMENT ("Agreement") dated as of November 24, 1998 between
Seagull Energy Corporation, a Texas corporation ("Seagull"), and the Flores
Family Limited Partnership (the "Stockholder").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Stockholder owns an aggregate of
3,305,016 shares (such shares any shares acquired after the date hereof, the
"Shares") of Common Stock, par value $.01 per share ("OEI Common Stock"), of
Ocean Energy, Inc., a Delaware corporation ( "OEI");
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 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 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
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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 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.
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(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
If to the Stockholder:
c/o 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
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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 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.
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(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
FLORES FAMILY LIMITED PARTNERSHIP
By: /s/ JAMES C. FLORES
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Name:
Title:
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