1
EXHIBIT 99.5
VOTING AGREEMENT
VOTING AGREEMENT ("Agreement") dated as of November 24, 1998 between
Ocean Energy, Inc., a Delaware corporation ("OEI"), and The Prudential Insurance
Company of America (the "Stockholder").
W I T N E S S E T H:
WHEREAS, the Stockholder owns an aggregate of 5,554,161 shares (the
"Shares") of Common Stock, par value $.10 per share ("Seagull Common Stock"), of
Seagull Corporation, a Texas corporation (the "Seagull").
WHEREAS, the Shares are managed by Prudential Capital Group, an
investment unit of the Stockholder (together with representatives, employees and
agents of the Stockholder assigned thereto, the "Manager").
WHEREAS, OEI is prepared to enter into an Agreement and Plan of Merger
to be dated as of the date hereof with Seagull (as amended from time to time,
the "Merger Agreement") providing for the merger of OEI with and into Seagull
(the "Merger");
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. Except for any agreement that
shall expire at an earlier date as expressly set forth below, from the date
hereof until the earliest to occur of (i) the termination of the Merger
Agreement, (ii) August 30, 1999 and (iii) the consummation of the Merger:
(a) The Stockholder owns the Shares and, on or before April
14, 1998, 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 Manager 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
2
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 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 of its officers, directors or
employees of the Stockholder assigned to the Manager or any investment
banker, financial advisor, attorney, accountant or other representative
retained by the Stockholder pursuant to any request by or suggestion of
the Manager to take any such action. The Manager shall promptly notify
OEI of all relevant terms of any such inquiries or proposals received
by the Manager or by any such officer, director, employee, 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 Manager shall deliver or cause to be delivered to OEI a
copy of such inquiry or proposal. For purposes of clarification, the
foregoing shall not be deemed to restrict (i) the ability of the
Stockholder and its Affiliates to engage in their investment operations
(including trading and arbitrage), including those conducted by or
through the Manager or (ii) Prudential Securities, Inc. or any
division, unit, or direct or indirect subsidiary thereof in any manner.
(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
Manager 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. OEI agrees to provide the Stockholder with a reasonable
opportunity to review any such description of the terms of this
Agreement in any such filings.
(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.
Notwithstanding anything to the contrary set forth herein, this
Agreement shall not restrict any representative, employee or agent of the
Stockholder from acting in accordance with such person's fiduciary duties as an
officer or director of Seagull.
2
3
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.
(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
3
4
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attention: J. Mark Metts
Facsimile No.: (713) 615-5605
If to the Stockholder:
The Prudential Insurance Company of America
c/o Prudential Capital Group
2200 Ross Avenue, Suite 4200E
Dallas, Texas 75201
Attention: Managing Director
Facsimile No.: (214) 720-6298
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 recitals 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,
including without limitation any increase in the Common Stock
Exchange Ratio (as defined in the Merger Agreement).
(iii) Person. A "person" shall mean any individual,
firm, corporation, partnership, trust, limited liability
company or other entity.
4
5
(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 (i) any of the terms, provisions or conditions
of the certificate of incorporation or bylaws of the Stockholder or
(ii) 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 of the 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.
(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.
5
6
IN WITNESS WHEREOF, the Stockholder and OEI have each caused this
Agreement to be duly executed by their respective officers, each of whom is duly
authorized, all as of the day and year first above written.
OCEAN ENERGY, INC.
By: /s/ JAMES C. FLORES
-------------------------------------
Name: James C. Flores
Title: President and Chief Executive Officer
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ R. A. WALKER
-------------------------------------
R. A. Walker
Vice President
6