Exhibit 1
VOTING AGREEMENT
VOTING AGREEMENT made this 23rd day of September, 1997 (the "AGREEMENT"),
between the Principal Stockholder (as defined herein) of Tejas Gas Corporation,
a Delaware corporation (the "COMPANY"), and Shell Oil Company, a Delaware
corporation ("SHELL").
The term "PRINCIPAL STOCKHOLDER", as used herein, shall mean each of Xx.
Xxxxxxxx X. Xxxxxxxx and each of the Persons set forth on the signature pages
hereof as Xxxxxxxx Owners, and each reference to the Principal Stockholder is
intended to encompass both Xx. Xxxxxxxx X. Xxxxxxxx and each of such Persons.
The term "SHARES", as used herein, shall mean any and all shares of capital
stock of the Company which carry ordinary voting power to elect a majority of
the board of directors of the Company now owned and/or subsequently acquired by
the Principal Stockholder through purchase, gift, stock splits, stock dividends
and exercise of stock options.
R E C I T A L S
WHEREAS, concurrently with the execution of this Agreement, Shell, Trango
Holdings Corporation, a Delaware corporation ("HOLDINGS"), Tango Acquisition
Corporation, a Delaware corporation ("MERGERSUB"), and the Company, have entered
into a Merger Agreement dated as of the date hereof (the "MERGER AGREEMENT")
pursuant to which MergerSub will merge with and into the Company (the "MERGER")
(all of the transactions contemplated by the Merger Agreement being hereinafter
collectively referred to as the "TRANSACTIONS"); and
WHEREAS, in order to induce Shell and Holdings to enter into the Merger
Agreement with the Company, Shell has requested that the Principal Stockholder,
and the Principal Stockholder has agreed to, enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE 1
VOTING AGREEMENT
The Principal Stockholder hereby agrees with Shell as follows:
SECTION 1.01. Voting of Shares. (a) At any meeting of the stockholders of
the Company, however called, and at every adjournment thereof, or in connection
with any written consent of the stockholders of the Company, the Principal
Stockholder will cause all of its Shares to be voted, during the term of this
Agreement, (A) in favor of (i) the Merger and the approval and adoption of the
Merger Agreement, and (ii) all other Transactions as to which stockholders of
the Company are called upon to vote, and (B) against any proposal submitted to
the Company s stockholders which could result in (i) a tender or exchange offer,
a merger, consolidation or other business combination involving the Company or
any of its Subsidiaries (including a merger of equals of the Company but
excluding a transaction where the Company or its Subsidiaries (as defined below)
is acquiring the stock or assets of another Person, unless the transaction
involves the issuance (other than in a broadly marketed public offering) by the
Company of 20% or more of its outstanding Shares (or securities convertible into
or exercisable for 20% or more of the outstanding Shares)), or (ii) the
acquisition of an equity interest in the Company representing in excess of 25%
of the power to vote for the election of a majority of directors of the Company
or (iii) the acquisition of assets of the Company or its Subsidiaries (including
stock of one or more Subsidiaries of the Company) representing 25% or more of
the consolidated assets of the Company, in each case by any Person other than
Shell or its Affiliates (including for purposes of this definition any parent of
Shell or any Subsidiaries of such parent) (each of the matters referred to in
clause (B) above, an "ACQUISITION PROPOSAL").
"AFFILIATE" shall, with respect to any Person, mean any other Person that
controls, is controlled by or is under common control with the former; provided
that, for purposes of this Agreement, none of the members of the Shell Group or
their Subsidiaries shall be considered an Affiliate of any entity that controls
Shell or any Subsidiaries of such entity (other than the members of the Shell
Group and their Subsidiaries), and none of the entities that control Shell shall
be considered an Affiliate of any member of the Shell Group or their
Subsidiaries. The term "CONTROL" and correlative terms shall have the meanings
ascribed to them in Rule 405 under the Securities Act of 1933.
"PERSON" shall mean an individual, partnership, limited liability company,
corporation, joint stock company, trust, estate, joint venture, association or
unincorporated organization, or any other entity or organization, including a
government or political subdivision or any agency or instrumentality thereof.
"SHELL GROUP" means MergerSub, Shell, Holdings and Sierra Acquisition, an
entity to be formed prior to the Effective Time.
"SUBSIDIARY" shall mean any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are directly or indirectly owned by a Person. Coral Energy, L.P., a Delaware
limited partnership, shall not be deemed to be a Subsidiary of either Shell or
the Company or their respective Subsidiaries.
(b) The Principal Stockholder agrees that during the term of this
Agreement, the Principal Stockholder shall attend or otherwise participate in
all duly called stockholder meetings and any adjournments thereof and in all
actions by written consent of stockholders
SECTION 1.02. No Proxies or Encumbrances. Other than as provided in this
Agreement, the Principal Stockholder, until the termination of this Agreement,
shall not (i) grant any proxies or enter into any voting trust or other
agreement or arrangement with respect to the voting of any of the Shares, (ii)
sell, assign, transfer, encumber or otherwise dispose of or enter into any
contract, option or other arrangement or understanding with respect to, the
direct or indirect sale, assignment, transfer, encumbrance or other disposition
of any of its Shares or any interest therein except for Permitted Transfers to
Permitted Transferees (as such terms are defined below) or (iii) seek or solicit
any of the foregoing. The Principal Stockholder shall notify Shell promptly and
provide all details requested by Shell if the Principal Stockholder shall be
approached or solicited, directly or indirectly, by any Person with respect to
any of the foregoing.
"PERMITTED TRANSFEREE" means, with respect to any particular Xxxxxxxx
Owner, (A) Xx. Xxxxxxxx X. Xxxxxxxx and his spouse, lineal descendants,
executor, administrator or testamentary trustee; (B) any trust established
solely for the benefit of any of the Persons named in clause (A) or an
organization qualified under Section 501(c)(3) of the Internal Revenue Code of
1986, as amended; (C) any partnership, the general or limited partners of which
include only Persons named in clauses (A) and (B); or (D) any Person controlled,
directly or indirectly, by Xx. Xxxxxxxx X. Xxxxxxxx.
Each transfer to a Permitted Transferee shall constitute a "PERMITTED
TRANSFER" only if it is:
(i) transfer to a Permitted Transferee of such Xxxxxxxx Owner and,
in the case of a Permitted Transferee, transfer to the Xxxxxxxx Owner who
transferred such securities to the Permitted Transferee or to other
Permitted Transferees of such Xxxxxxxx Owner; provided that, any such
Permitted Transferee shall enter into an agreement supplemental hereto,
consented to in writing by Shell, agreeing to be bound by the terms of this
Agreement; or
(ii) pledge to a bank or securities firm of such Xxxxxxxx Owner s
Shares securing a bona fide loan; provided that the pledge agreement with
the pledgee shall provide that the transferring Xxxxxxxx Owner shall
continue at all times to have the right, from time to time, to vote and to
give consents, ratifications and waivers with respect to such pledged
Shares; and provided further that any pledge agreement that any Xxxxxxxx
Owner enters into shall provide that the pledgee shall give written notice
to Shell at least 10 days prior to the date such pledgee takes any action
to exercise any remedies with respect to such Shares;
provided that no such transfer is in violation of applicable federal or state
securities laws.
SECTION 1.03. No Solicitation. The Principal Stockholder shall not,
during the term of this Agreement, directly or indirectly solicit, initiate or
encourage (or authorize any person to solicit, initiate or encourage) any
Acquisition Proposal.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
The Principal Stockholder represents and warrants to Shell as follows:
SECTION 2.01. Valid Title. The Principal Stockholder is the true and
lawful owner of 100% of the Shares set forth next to the name of the Principal
Stockholder on Schedule 2.01 with full power to vote and dispose of such Shares
and there are no restrictions on the Principal Stockholder's voting rights or
rights of disposition pertaining thereto except as set forth in this Agreement
or pursuant to bona fide pledge agreements to secure loans to such Principal
Stockholder or imposed by federal and state securities law. None of the Shares
is subject to any voting trust or other agreement or arrangement with respect to
the voting of such shares.
SECTION 2.02. Non-contravention. Except the accelerated vesting of
options under the Director Stock Option Plan, the execution, delivery and
performance by the Principal Stockholder of this Agreement and the consummation
of the transactions contemplated hereby, do not and will not contravene or
constitute a default under or give rise to a right of termination, cancellation
or acceleration of any material right or obligation of the Principal Stockholder
or to a loss of any material benefit of the Principal Stockholder under any
provision of applicable law or regulation or of any agreement, judgment,
injunction, order, decree or other instrument binding on the Principal
Stockholder.
SECTION 2.03. Authorization. The execution, delivery and performance by
the Principal Stockholder of this Agreement and the consummation by the
Principal Stockholder of the Transactions are within the Principal Stockholder s
powers and have been duly authorized by all necessary actions, if any, including
all necessary actions by the trustees of the Principal Stockholder, if the
Principal Stockholder is a trust.
SECTION 2.04. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Principal Stockholder, enforceable against the
Principal Stockholder in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors rights generally. If the Principal Stockholder is married and the
Shares set forth on the signature pages hereto next to the Principal
Stockholder s name constitute community property under applicable laws, this
Agreement has been duly authorized, executed and delivered by, and constitutes
the valid and binding agreement of, the Principal Stockholder's spouse,
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors rights generally. If this Agreement is being executed in a
representative or fiduciary capacity, the person signing this Agreement has full
power and authority to enter into and perform this Agreement and has obtained
any necessary consents in connection with execution of this Agreement.
SECTION 2.05. No Other Shares. The number of Shares set forth on
Schedule 2.01 next to the name of the Principal Stockholder are the only Shares
owned by the Principal Stockholder. Except as set forth on Schedule 2.01, the
Principal Stockholder owns no options to purchase or rights to subscribe for or
otherwise acquire any securities of the Company and has or have no other
interest in or voting rights with respect to any securities of the Company
(other than the Shares set forth on the signature pages hereof and shares of the
Company's 9.96% Cumulative Preferred Stock).
SECTION 2.06. Finder s Fees. No investment banker, broker, finder or
other intermediary has been retained by or is authorized to act on behalf of the
Principal Stockholder who is or may be entitled to a commission or fee from
Shell, Holdings, the Company or any of their respective Subsidiaries in respect
of this Agreement based upon any arrangement or agreement made by or on behalf
of the Principal Stockholder.
ARTICLE
MISCELLANEOUS
SECTION 3.01. Notices. All notices, requests and other communications to
any party hereunder shall be deemed to have been duly given when delivered in
person, by telegram, facsimile or by registered or certified mail (postage
prepaid, return receipt requested) to such party at its address set forth on the
signature pages hereto.
SECTION 3.02. Amendments; No Waivers. (a) Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by each of the parties hereto, or in
the case of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 3.03. Termination. This Agreement shall automatically terminate
upon termination of the Merger Agreement in accordance with its terms.
SECTION 3.04. Severability. If any provision of this Agreement or the
application thereof to any party or set of circumstances shall, in any
jurisdiction and to any extent, be finally held invalid or unenforceable, such
term or provision shall only be ineffective as to such jurisdiction, and only to
the extent of such invalidity or unenforceability, without invalidating or
rendering unenforceable any other terms or provisions of this Agreement or under
any other circumstances, and the parties shall negotiate in good faith a
substitute provision which comes as close as possible to the invalidated or
unenforceable term or provision, and which puts each party in a position as
nearly comparable as possible to the position it would have been in but for the
finding of invalidity or unenforceability, while remaining valid and
enforceable.
SECTION 3.05. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties with respect to the subject matter hereof.
SECTION 3.06. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns (and, in the case of the Principal
Stockholder, the heirs and executors of the Principal Stockholder); provided
that, except as permitted by Section 1.02 or by will or intestacy, no party may
assign, delegate or otherwise transfer all or any of its rights or obligations
under this Agreement without the consent of the other parties hereto.
SECTION 3.07. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts (or signature pages) hereof signed by
all of the other parties hereto.
SECTION 3.08. Governing Law; Jurisdiction; Specific Performance. (a)
Governing Law. The terms of this Agreement shall be construed in accordance
with and governed by the law of the State of Delaware (without regard to
principles of conflict of laws).
(b) Jurisdiction; Specific Performance. (i) Each of the parties
hereto agrees that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought against any of
the parties in the United States District Court for the District of Delaware or
any state court sitting in the City of Wilmington, Delaware, and each of the
parties hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts) in any such suit, action, or proceeding and waives
any objection to venue laid therein. Process in any suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
State Delaware. Without limiting the foregoing, each of the parties hereto
agrees that service of process upon such party at the address referred to in
Section 3.01, together with written notice of such service to such party, shall
be deemed effective service of process upon such party, and (ii) each of the
parties acknowledges and agrees that the parties respective remedies at law for
a breach or threatened breach of any of the provisions of this Agreement would
be inadequate and, in recognition of that fact, each agrees that, in the event
of a breach or threatened breach by any party of the provisions of this
Agreement, in addition to any remedies at law, each party, respectively, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available.
(c) Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or the actions of any of them in the negotiation,
administration, performance and enforcement thereof.
SECTION 3.09. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 3.10. Certain Events. The Principal Stockholder agrees that this
Agreement and the obligations hereunder shall attach to its Shares and shall be
binding upon any person to which legal or beneficial ownership of such shares
shall pass, whether by operation of law or otherwise.
SECTION 3.11. No Revocation. The voting agreements contained herein are
coupled with an interest and may not be revoked prior to termination of this
Agreement in accordance with Section 3.03, except by written consent of Shell.
SECTION 3.12. Action as Director. Nothing in this Agreement is intended
to restrict the Principal Stockholder from taking any action in his capacity
as a director of the Company that is required in order to satisfy his fiduciary
duties as a director under Delaware Law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be duly executed by their respective authorized
officers or representatives, as of the day and year first above written.
XXXXXXXX OWNERS:
Xxxxxxxx X. Xxxxxxxx
OIL & GAS FCH CORP.
By:
Name: Xxxxxxxx X. Xxxxxxxx
Title: President
Notices to:
Xxxxxxxx X. Xxxxxxxx
The Xxxxxxxx Companies
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
SHELL OIL COMPANY
By:
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
(Exploration and Production)
Notices to:
Xxxx X. Xxxxxx
Executive Vice President
(Exploration and Production)
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, XX 00000
Page 14 of 15 Pages
SCHEDULE 2.01
XXXXXXXX OWNERS: Number of Shares Number of Options
Xx. Xxxxxxxx X. Xxxxxxxx 1,416,201 39,600
OIL & GAS FCH CORP. 390
