EXHIBIT 2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of this ___ day of October, 1999, by and between
SOUTHERN UNION COMPANY, a Delaware corporation ("SUG"), and Xxxxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxxx, Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxx X.X. Xxxxxxx,
Xxxxxxx X. Xxxxxxxx, Xx. and Xxxxxx X. Xxxxxxxx (each a "Stockholder" and
collectively the "Stockholders").
RECITALS:
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WHEREAS, the Stockholders currently beneficially own (as such term is used
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations issued thereunder) the shares of common stock, par value $.83 per
share ("Shares"), of Fall River Gas Company, a Massachusetts corporation ("FAL")
shown on Schedule A.
WHEREAS, as a condition of entering into the Agreement of Merger, made as
of the date hereof, by and between SUG and FAL (the "Merger Agreement"), SUG has
requested that the Stockholders agree, and the Stockholders have agreed (i) to
enter into a voting agreement and (ii) to give SUG an irrevocable proxy, coupled
with an interest, to vote the Shares held by the Stockholders, in each case as
more fully set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereby agree as follows:
1. Agreement to Vote Shares. Each Stockholder agrees during the term
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of this Agreement to vote, or cause to be voted, the Shares shown opposite the
Stockholder's name on Schedule A hereto and any other Shares acquired after the
date hereof, in person or by proxy, in favor of the Merger, the adoption and
approval of the Merger Agreement and the approval of the transactions
contemplated by the Merger Agreement at every meeting of the stockholders of FAL
at which such matters are considered and at every adjournment thereof.
2. Grant of Irrevocable Proxy. Each Stockholder hereby grants to SUG
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an irrevocable proxy, which proxy is coupled with an interest because of the
consideration recited herein, to exercise, at any time and from time to time,
all rights and powers of the Stockholder with respect to the Shares shown
opposite the Stockholder's name on Schedule A hereto to vote, give approvals,
and receive and waive notices of meetings for the purpose of securing the
approval and adoption by the stockholders of FAL of the Merger Agreement and the
consummation of the transactions contemplated thereby and to prevent any action
that would prevent or hinder in any material respect such approval or
consummation. By giving this proxy each Stockholder hereby revokes any other
proxy granted by the Stockholder to vote any of the Shares in a manner
inconsistent with the foregoing grant. The power and authority hereby conferred
shall not be terminated by any act of the Stockholder or by operation of law, by
the dissolution of, by lack of appropriate power or authority, or by the
occurrence of any other event or events and shall be binding upon all its
successors and assigns. If after the execution of this Agreement the Stockholder
shall dissolve, cease to have appropriate power or authority, or if any other
such event or events shall occur, SUG is nevertheless authorized and directed to
vote the Shares in accordance with the terms of this Agreement as if such
dissolution, lack of appropriate power or authority or other event or events had
not occurred and regardless of notice thereof.
3. No Other Grant of Proxy. Each Stockholder will not, directly or
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indirectly, grant any proxies or powers of attorney with respect to the Shares
shown opposite the Stockholder's name on Schedule A hereto or acquired after the
date hereof to any person in connection with its vote, consent or other approval
sought, in favor of the Merger (as defined in the Merger Agreement), the
adoption and approval of the Merger Agreement and the approval of the
transactions contemplated by the Merger Agreement, other than as set forth in
Sections 1 and 2 hereof.
4. Transfers. Each Stockholder will not, nor will such Stockholder
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permit any entity under such Stockholder's control to, sell, transfer, pledge,
assign or otherwise dispose of (including by gift) (collectively, "Transfer"),
or consent to any Transfer of, any Shares or any interest therein or enter into
any contract, option or other agreement or arrangement (including any profit
sharing or other derivative arrangement) with respect to the Transfer of, any
Shares or any interest therein to any person, unless prior to any such Transfer
the transferee of such Shares agrees to be subject to the provisions of this
Agreement.
5. No Solicitation. Until the Merger is consummated or the Merger
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Agreement is terminated in accordance with its terms, each Stockholder shall
not, nor shall it permit any investment banker, attorney or other advisor or
representative of such Stockholder to, directly or indirectly through another
person, solicit, initiate, encourage or otherwise facilitate any takeover
proposal.
6. Representations and Warranties of the Stockholders. Each
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Stockholder as to such Stockholder hereby represents and warrants to, and
covenants with, SUG as follows:
(a) The Stockholder beneficially owns with power to vote the number of
Shares shown opposite the Stockholder's name on Schedule A free and clear of any
and all claims, liens, charges, encumbrances, covenants, conditions,
restrictions, voting trust arrangements, options and adverse claims or rights
whatsoever, except as granted hereby or as would have no adverse effect on this
Agreement and/or the proxy granted hereby. The Stockholder does not own of
record or beneficially any shares of capital stock of FAL or other securities
representing or convertible into shares of capital stock of FAL except as set
forth in the preceding sentence, Shares purchased after the date hereof which
shall become subject to this Agreement and the proxy granted hereby, and Shares
which any of them may have the right to purchase upon exercise of options or
warrants;
(b) The Stockholder has the full right, power and authority to enter
into this Agreement and to grant an irrevocable proxy to SUG with respect to the
Shares; there are no options, warrants, calls, commitments or agreements of any
nature whatsoever pursuant to which any person will have the right to purchase
or otherwise acquire the Shares owned by the Stockholder except as would, if
exercised, require such purchaser or acquiror to abide by this Agreement and the
proxy granted hereby with respect thereto; except as provided in this Agreement,
the Stockholder has not granted or agreed to grant any proxy or entered into any
voting trust, vote pooling or other agreement with respect to the right to vote
or give consents or approval of any kind as to the Shares which proxy, trust,
pooling or other agreement remains in effect as of the date hereof and is in
conflict with this Agreement or the proxy granted hereby;
(c) The Stockholder is not a party to, subject to or bound by any
agreement or judgment, order, writ, prohibition, injunction or decree of any
court or other governmental body that would prevent the execution, delivery or
performance of this Agreement by the Stockholder or the exercise of proxy rights
by SUG with respect to the Shares;
(d) This Agreement has been duly and validly executed and delivered by
the Stockholder and constitutes a legal, valid and binding obligation of the
Stockholder, enforceable in accordance with its terms, subject only to (i) the
effect of bankruptcy, insolvency, reorganization or moratorium laws or other
laws generally affecting the enforceability of creditors' rights and (ii)
general equitable principles which may limit the right to obtain specific
performance or other equitable remedies; and
(e) The Stockholder will take all commercially reasonable action
necessary in order that its representations and warranties set forth in this
Agreement shall remain true and correct.
7. Stockholders' Covenants. Each Stockholder shall not enter into any
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voting trust agreement, give any proxy or other right to vote the Shares or take
any action that would limit the rights of any holder of the Shares to exercise
fully the right to vote such Shares that would be in conflict with this
Agreement or the proxy granted hereby.
8. Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
9. Assignment. This Agreement shall not be assigned or delegated by
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any party hereto, except that SUG may transfer its rights hereunder to any
wholly-owned subsidiary of SUG, and except that any assignment of any of the
Shares by any Stockholder shall require that such Shares remain subject to this
Agreement and the proxy granted hereby. This Agreement shall be binding upon and
inure to the benefit of SUG and its successors and assigns and shall be binding
upon and inure to the benefit of the Stockholders and their permitted successors
and any permitted assigns.
10. Specific Performance. The parties hereto acknowledge that damages
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would be an inadequate remedy for a breach of this Agreement and that the
obligations of the parties hereto shall be specifically enforceable. In addition
to any other legal or equitable remedies to which SUG would be entitled, in the
event of a breach or a threatened breach of this Agreement by any Stockholder,
SUG shall have the right to obtain equitable relief, including (but not limited
to) an injunction or order of specific performance of the terms hereof from a
court of competent jurisdiction.
11. Amendments. This Agreement may not be modified, amended, altered
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or supplemented except upon the execution and delivery of a written agreement
executed by all of the parties hereto.
12. Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be deemed given if
delivered personally, by cable, telegram or telex, or mailed by a party hereto
by registered or certified mail (return receipt requested) or by a nationally
recognized overnight mail deliver service, to the other party at the following
addresses (or such other address for a party as shall be specified by like
notice):
if to SUG:
Southern Union Company
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
President and Chief Operating Officer
Fax Number: (000) 000-0000
with a copy to:
Pennsylvania Enterprises, Inc.
Xxx XXX Xxxxxx
Xxxxxx-Xxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
President and Chief Executive Officer
Fax Number: (000) 000-0000
and:
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax Number: (000) 000-0000
if to any Stockholder, to such Stockholder:
c/o Fall River Gas Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxxxxx 00000
Fax Number: (000) 000-0000
with a copy to:
Rich, May, Xxxxxxxx & Xxxxxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
Fax Number: (000) 000-0000
Any party may change its address for notice by notice so given.
13. Governing Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the Commonwealth of Massachusetts regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws.
14. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
15. Term. This Agreement shall terminate, and the proxy granted herein
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shall cease to be irrevocable, upon the consummation of the Merger in accordance
with and as defined in the Merger Agreement or such other expiration or
termination of the Merger Agreement in accordance with its terms, and thereafter
this Agreement shall be of no further force or effect and there shall be no
liability on the part of any party with respect thereto except nothing herein
will relieve any party from liability for any prior breach hereof.
IN WITNESS WHEREOF, SUG has caused this Agreement to be duly executed,
and each Stockholder has duly executed this Agreement, on the day and year first
above written.
SOUTHERN UNION COMPANY
By:
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Name: Xxxxx X. Xxxxxx
Title: President and Chief Operating Officer
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Xxxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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Xxxxx X.X. Xxxxxxx
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Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx
SCHEDULE A
Stockholder Number of Shares
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Xxxxxxx X. Xxxxxxx 295,710
Xxxxxx X. Xxxxxx 145,059
Xxxxxxxx X. Xxxxx 40,306
Xxxxxxx X. Xxxxx 57,370
Xxxxx X.X. Xxxxxxx 13,190
Xxxxxxx X. Xxxxxxxx, Xx. 12,539
Xxxxxx X. Xxxxxxxx 9,006
