1
EXHIBIT 10.5
Hackett
VOTING AGREEMENT
VOTING AGREEMENT ("Agreement") dated as of November 24, 1998 between
Ocean Energy, Inc., a Delaware corporation ("OEI"), and James T. Hackett (the
"Stockholder").
W I T N E S S E T H:
WHEREAS, as of the date hereof the Stockholder owns an aggregate of
131,000 shares (together with any shares acquired after the date hereof, the
"Shares") of Common Stock, par value $.10 per share ("Seagull Common Stock"), of
Seagull Energy Corporation, a Texas corporation (the "Seagull").
WHEREAS, OEI is prepared to enter into an Agreement and Plan of Merger
with Seagull (as amended from time to time, the "Merger Agreement") providing
for the merger of OEI with and into Seagull (the "Merger") with Seagull being
the surviving entity;
WHEREAS, in order to encourage OEI to enter into the Merger Agreement
with Seagull, 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 OEI 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 OEI 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 Seagull 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, Seagull or any of its Subsidiaries, other than the
transactions contemplated by this Agreement or the Merger Agreement (a
"Competing Transaction"), or enter into discussions
2
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 OEI 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 OEI
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 the
election of directors contemplated by the Merger Agreement 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 OEI, 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 Seagull 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 Seagull.
2. Miscellaneous
(a) The Stockholder, on the one hand, and OEI, 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.
2
3
(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 OEI:
Ocean Energy, Inc.
1201 Louisiana, Suite 1400
Houston, Texas 77002
Attention: Robert K. Reeves
Facsimile No.: (713) 420-1182
With copies to:
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
Seagull Energy Corporation
1001 Fannin, Suite 1700
Houston, Texas 77002
Attention: General Counsel
Facsimile No.: (713) 210-2194
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attention: J. Mark Metts
Facsimile No.: (713) 615-5605
3
4
If to the Stockholder:
James T. Hackett
c/o Seagull Energy Corporation
1001 Fannin, Suite 1700
Houston, Texas 77002
Facsimile No.: 713-951-4790
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 OEI 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
4
5
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.
(l) Effectiveness. This Agreement shall not become effective
until Seagull has amended the Seagull Rights Plan (as defined in the
Merger Agreement) to provide that OEI will not become an "Acquiring
Person" thereunder as a result of its entering into this Agreement and
the other Voting Agreements to be entered into by OEI in connection
with the Merger.
5
6
IN WITNESS WHEREOF, the Stockholder and OEI have each caused this
Agreement to be duly executed as of the day and year first above written.
OCEAN ENERGY, INC.
By: /s/ JAMES C. FLORES
---------------------------------------
James C. Flores
President and Chief Executive Officer
JAMES T. HACKETT
/s/ JAMES T. HACKETT
------------------------------------------
6