FORM OF VOTING AGREEMENT
Exhibit 99.1
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of March 20, 2011, is by and among TGC
Industries, Inc., a Texas corporation (the “Company”), and each of the individuals or entities
listed on a signature page hereto (each, a “Voting Shareholder” and collectively, the “Voting
Shareholders”).
RECITALS
A. Concurrently with the execution and delivery of this Agreement, the Company, Xxxxxx
Geophysical Company, a Texas corporation (“Parent”), 6446 Acquisition Corp., a Texas corporation
and a direct wholly owned subsidiary of Parent (“Merger Sub”), are entering into an Agreement and
Plan of Merger, dated as of the date hereof (as the same may be amended from time to time, the
“Merger Agreement”), which provides, among other things, for (i) Merger Sub to be merged with and
into the Company, with the Company continuing as the surviving entity (the “Merger”), and (ii) each
issued and outstanding share of common stock, par value $0.01 per share, of the Company (“Company
Common Stock”) (other than any Company Common Stock owned by Parent, Merger Sub or the Company or
any wholly owned Subsidiary of the Company), to be converted into the right to receive the shares
of common stock, par value $0.33-1/3 per share, of Parent (“Parent Common Stock”).
B. As of the date hereof, each Voting Shareholder is the Beneficial Owner (as defined below)
of the shares of Parent Common Stock set forth opposite such Voting Shareholder’s name on Schedule
A hereto (all such shares set forth on Schedule A, together with any shares of Parent Common Stock
that are hereafter issued to or otherwise acquired or owned by any Voting Shareholder prior to the
termination of this Agreement being referred to herein as the “Subject Shares”), which Subject
Shares represent 3.82% of the outstanding shares of Parent Common Stock and voting power of the
outstanding capital stock of Parent.
C. As a condition to its willingness to enter into the Merger Agreement, the Company has
required that each Voting Shareholder, and in order to induce the Company to enter into the Merger
Agreement each Voting Shareholder (in such Voting Shareholder’s capacity as a holder of the Subject
Shares) has agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration of premises and the representations, warranties and
agreements contained herein, the benefits to be derived by each party hereunder and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
Section 1. Certain Definitions. Capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Merger Agreement. In addition, for
purposes of this Agreement:
(a) “Agreement” shall have the meaning set forth in the preamble.
(b) “Beneficially Owned” or “Beneficial Ownership” shall have the meaning given
to such term in Rule 13d-3 under the Exchange Act.
“Beneficial Owner” shall mean, with respect to any securities, a Person who has
Beneficial Ownership of such securities.
(c) “Company” shall have the meaning set forth in the recitals.
(d) “Company Common Stock” shall have the meaning set forth in the recitals.
(e) “Expiration Date” shall mean the earlier of (i) the date upon which the
Merger Agreement is validly terminated pursuant to its terms, (ii) the date upon
which the parties hereto agree to terminate this Agreement, (iii) the occurrence of
a Parent Adverse Recommendation Change made in accordance with the provisions of
Section 7.3(b) of the Merger Agreement and (iv) the Effective Time.
(f) “Merger” shall have the meaning set forth in the recitals.
(g) “Merger Agreement” shall have the meaning set forth in the recitals.
(h) “Merger Sub” shall have the meaning set forth in the recitals.
(i) “Parent Common Stock” shall have the meaning set forth in the recitals.
(j) “Parent” shall have the meaning set forth in the preamble.
(k) “Subject Shares” shall have the meaning set forth in the recitals.
(l) “Transfer” shall mean, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security,
rights relating thereto or the Beneficial Ownership of such security or rights
relating thereto, the offer to make such a sale, transfer, pledge, hypothecation,
encumbrance, assignment or disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing. As a
verb, “Transfer” shall have a correlative meaning.
(m) “Voting Shareholder” shall have the meaning set forth in the preamble.
Section 2. No Disposition or Solicitation.
(a) Except as set forth in Section 5 of this Agreement, each Voting Shareholder
undertakes that such Voting Shareholder shall not (i) Transfer or agree to Transfer
any Subject Shares or (ii) grant or agree to grant any proxy or power-of-attorney
with respect to any Subject Shares.
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(b) Each Voting Shareholder undertakes that, in his, her or its capacity as a
shareholder of Parent, such Voting Shareholder shall not, and shall cause his, her
or its investment bankers, financial advisors, attorneys, accountants and other
advisors, agents and representatives not to, directly or indirectly solicit,
initiate, facilitate or encourage any inquiries or proposals from discuss or
negotiate with, or provide any non-public information to, any Person relating to, or
otherwise facilitate, any Acquisition Proposal.
Section 3. Voting of Subject Shares. Each Voting Shareholder undertakes that (a) at such time
as Parent conducts a meeting of, or otherwise seeks a vote or consent of, its shareholders, each
Voting Shareholder shall, or shall cause the holder of record on any applicable record date to,
vote the Subject Shares Beneficially Owned by such Voting Shareholder in favor of, or provide a
consent with respect to, (i) approval of the issuance of shares of Parent Common Stock in the
Merger, (ii) approval of any proposal to adjourn or postpone any shareholder meeting to a later
date if there are not sufficient votes for the approval of the issuance of shares of Parent Common
Stock in the Merger on the date on which such meeting is held, and (iii) any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement which is considered at
any such meeting or is the subject of any such consent solicitation, and (b) at each meeting of
shareholders of Parent and in connection with each consent solicitation, such Voting Shareholder
shall, or shall cause the holder of record on any applicable record date to, vote the Subject
Shares Beneficially Owned by such Voting Shareholder against, and not provide consents with respect
to, (i) any agreement or arrangement related to or in furtherance of any Acquisition Proposal, (ii)
any liquidation, dissolution, recapitalization, extraordinary dividend or other significant
corporate reorganization of Parent, (iii) any action, proposal, transaction or agreement that would
delay, prevent, frustrate, impede or interfere with the Merger or the other transactions
contemplated by the Merger Agreement or result in the failure of any condition set forth in ARTICLE
VIII of the Merger Agreement to be satisfied, and (iv) any action, proposal, transaction or
agreement that would result in a breach of any covenant, representation or warranty or other
obligation or agreement of Parent under the Merger Agreement or of such Voting Shareholder under
this Agreement.
Section 4. Reasonable Efforts to Cooperate. Each Voting Shareholder hereby consents to the
publication and disclosure in the Proxy Statement/Prospectus (and, as and to the extent otherwise
required by securities laws or the SEC or any other securities authorities, any other documents or
communications provided by the Company, Parent or Merger Sub to any Governmental Authority or to
securityholders of Parent) of such Voting Shareholder’s identity and Beneficial Ownership of
Subject Shares and the nature of such Voting Shareholder’s commitments, arrangements and
understandings under and relating to this Agreement and, if deemed appropriate by the Company or
Parent, a copy of this Agreement. Each Voting Shareholder will promptly provide any information
reasonably requested by the Company, Parent or Merger Sub for any regulatory application or filing
made or approval sought in connection with the Merger or the other transactions contemplated by the
Merger Agreement (including filings with the SEC).
Section 5. Irrevocable Proxy. In furtherance of the agreements contained in Section 3 of this
Agreement, each Voting Shareholder hereby irrevocably grants to and appoints the
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Company and each of the executive officers of the Company, in their respective capacities as
officers of the Company, as the case may be, and any individual who shall hereafter succeed to any
such office of the Company, and each of them individually, such Voting Shareholder’s proxy and
attorney-in-fact (with full power of substitution), for and in the name, place and stead of such
Voting Shareholder, to vote all Subject Shares Beneficially Owned by such Voting Shareholder that
are outstanding from time to time, to grant or withhold a consent or approval in respect of such
Subject Shares and to execute and deliver a proxy to vote such Subject Shares, in each case solely
to the extent and in the manner specified in Section 3 of this Agreement. Each Voting Shareholder
represents and warrants to the Company that all proxies heretofore given in respect of the Subject
Shares are not irrevocable and that all such proxies have been properly revoked or are no longer in
effect as of the date hereof. Each Voting Shareholder hereby affirms that the irrevocable proxy
set forth in this Section 5 is given by such Voting Shareholder in connection with, and in
consideration of, the execution of the Merger Agreement by the Company and that the irrevocable
proxy set forth in this Section 5 is coupled with an interest and, except as set forth in Section 8
hereof, may under no circumstances be revoked. The irrevocable proxy set forth in this Section 5
is executed and intended to be irrevocable in accordance with the provisions of Section 21.369 of
the TBOC, subject, however, to automatic termination on the Expiration Date.
Section 6. Further Action. If any further action is necessary or desirable to carry out the
purposes of this Agreement, each Voting Shareholder shall take all such action reasonably requested
by the Company.
Section 7. Representations and Warranties of the Voting Shareholders. Each Voting Shareholder
represents and warrants to the Company as to such Voting Shareholder, severally and not jointly, as
follows:
(a) Such Voting Shareholder has all necessary power and authority and legal
capacity to execute and deliver this Agreement and perform his, her or its
obligations hereunder. Such Voting Shareholder, if it is a corporation,
partnership, limited liability company, trust or other entity, is duly organized and
validly existing and in good standing under the laws of the jurisdiction of its
organization. The execution, delivery and performance of this Agreement by such
Voting Shareholder and the consummation by such Voting Shareholder of the
transactions contemplated hereby have been duly authorized by all necessary action
on the part of such Voting Shareholder and no further proceedings or actions on the
part of such Voting Shareholder are necessary to authorize the execution, delivery
or performance of this Agreement or the consummation of the transactions
contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered by such
Voting Shareholder and, assuming it has been duly and validly authorized, executed
and delivered by the Company, constitutes the valid and binding agreement of such
Voting Shareholder, enforceable against such Voting Shareholder in accordance with
its terms, except to the extent that enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium,
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fraudulent conveyance or other similar laws now or hereafter in effect relating
to creditor’s rights generally and (ii) general principles of equity.
(c) Such Voting Shareholder is the sole Beneficial Owner of his, her or its
Subject Shares. Such Voting Shareholder has legal, good and marketable title (which
may include holding in nominee or “street” name) to all of the Subject Shares
Beneficially Owned by such Voting Shareholder, free and clear of all liens, claims,
options, proxies, voting agreements and security interests (other than as created by
this Agreement or the restrictions on Transfer under the Securities Act). The
Subject Shares listed on Schedule A opposite such Voting Shareholder’s name
constitute all of the shares of Company Common Stock Beneficially Owned by such
Voting Shareholder as of the date hereof.
(d) Except as set forth on Schedule A hereto, such Voting Shareholder has full
voting power, full power of disposition, full power to issue instructions with
respect to the matters set forth herein and full power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the Subject
Shares Beneficially Owned by such Voting Shareholder. None of such Voting
Shareholder’s Subject Shares are subject to any voting trust or other agreement or
arrangement with respect to the voting of such shares, except as provided hereunder.
(e) The execution and delivery of this Agreement by such Voting Shareholder
does not and the performance of this Agreement by such Voting Shareholder will not
(i) conflict with, result in any violation of, require any consent under or
constitute a default (whether with notice or lapse of time or both) under any
mortgage, bond, indenture, agreement, instrument or obligation to which such Voting
Shareholder is a party or by which such Voting Shareholder or any of his, her or its
properties (including the Subject Shares) is bound, (ii) if such Voting Shareholder
is a corporation, partnership, limited liability company, trust or other entity,
conflict with, result in any violation of, require any consent under or constitute a
default (whether with notice or lapse of time or both) under such Voting
Shareholder’s constituent documents, (iii) violate any judgment, order, injunction,
decree or award of any court, administrative agency or other Governmental Authority
that is binding on such Voting Shareholder or any of his, her or its properties or
assets (including the Subject Shares), and (iv) constitute a violation by such
Voting Shareholder of any law applicable to such Voting Shareholder, except for any
violation, conflict or consent in clause (i), (iii) and (iv) as would not reasonably
be expected to materially impair the ability of such Voting Shareholder to perform
his, her or its obligations hereunder or to consummate the transactions contemplated
herein on a timely basis.
(f) As of the date hereof, there is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Voting Shareholder,
threatened against or affecting, such Voting Shareholder or any of his, her or its
properties or assets (including the Subject Shares) that could reasonably be
expected to impair the ability of such Voting Shareholder to perform his, her or its
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obligations hereunder or to consummate the transactions contemplated hereby on
a timely basis.
(g) Such Voting Shareholder has had the opportunity to review this Agreement
and the Merger Agreement with counsel of his, her or its own choosing. Such Voting
Shareholder understands and acknowledges that the Company is entering into the
Merger Agreement in reliance upon such Voting Shareholder’s execution, delivery and
performance of this Agreement.
Section 8. Termination. This Agreement shall terminate automatically, without any notice or
other action by any Person, on the Expiration Date; provided, however, nothing set forth in this
Section 8 or elsewhere in this Agreement shall relieve any party hereto from liability, or
otherwise limit the liability of any party hereto, for any material breach of this Agreement.
Section 9. Shareholder Capacity. Notwithstanding anything herein to the contrary, nothing set
forth herein shall restrict any officer or director of Parent in the exercise of his or her
fiduciary duties as an officer or director of Parent, but such officer or director shall take no
action that would cause Parent to breach the Merger Agreement or any agreements contemplated
thereby.
Section 10. Miscellaneous.
(a) Notices. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by facsimile transmission or by courier service
(with proof of service), hand delivery or certified or registered mail (return
receipt requested and first-class postage prepaid), addressed as follows:
(i) if to the Company, to it at:
TGC Industries, Inc.
000 Xxxx Xxxx Xxxx., Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
000 Xxxx Xxxx Xxxx., Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy, which will not constitute notice for purposes hereof, to:
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Rice Xxxxxx
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Rice Xxxxxx
Facsimile: (000) 000-0000
and
(ii) if to a Voting Shareholder, to his, her or its address set forth
on a signature page hereto
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with a copy, which will not constitute notice for purposes hereof, to:
Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
or to such other address as any party shall specify by written notice so given, and
such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
(b) Assignment; Binding Effect; Benefit. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of and be enforceable
by the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, shall or is intended to confer on any Person other than the
parties hereto or their respective heirs, successors, executors, administrators and
assigns any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
(c) Entire Agreement. This Agreement, Schedule A hereto and any
documents delivered by the parties in connection herewith constitute the entire
agreement among the parties with respect to the subject matter hereof and supersede
all prior agreements and understandings, both written and oral, among the parties
with respect thereto.
(d) Amendments. This Agreement may be amended by the parties hereto in
any and all respects. To be effective, any amendment or modification hereto must be
in a written document each party has executed and delivered to the other parties.
(e) Extension; Waiver. At any time prior to the Expiration Date, each
party may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive in
whole or in part any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto or (iii) waive
in whole or in part compliance with any of the agreements or conditions for the
benefit of such party contained herein. Any agreement on the part of a party hereto
to any such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. Except as provided in this Agreement, no
action taken pursuant to this Agreement, including
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any investigation by or on behalf of any party, or delay or omission in the
exercise of any right, power or remedy accruing to any party as a result of any
breach or default hereunder by any other party, shall be deemed to impair any such
right, power or remedy, nor will it be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants or
agreements contained in this Agreement. The waiver by any party hereto of a breach
of any provision hereunder shall not operate or be construed as a waiver of any
prior or subsequent breach of the same or any other provision hereunder.
(f) Governing Law. This Agreement and the rights and obligations of
the parties hereto shall be governed by and construed and enforced in accordance
with the substantive laws of the State of Texas, without regard to the conflicts of
law provisions thereof that would cause the laws of any other jurisdiction to apply.
(g) Headings. Headings of the Sections of this Agreement are for the
convenience of the parties only and shall be given no substantive or interpretative
effect whatsoever.
(h) Severability. If any provision of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, that provision will, as to that
jurisdiction, to the extent possible, be modified in such a manner as to be valid,
legal and enforceable but so as to retain most nearly the intent of the parties as
expressed herein. If such a modification is not possible, that provision will be
severed from this Agreement, and in either case the validity, legality and
enforceability of the remaining provisions of this Agreement will not in any way be
affected or impaired thereby. If any provision of this Agreement is so broad as to
be unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
(i) Enforcement of Agreement. The parties hereto agree that the
Company would be irreparably damaged in the event that any Voting Shareholder fails
to perform any of its obligations under this Agreement in accordance with its
specific terms of this Agreement and that the Company would not have an adequate
remedy at law for money damages in such event. It is accordingly agreed that the
Company shall be entitled to specific performance of the terms of this Agreement in
addition to any other remedy at law or equity. The parties accordingly agree that
the Company will be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which the Company is
entitled at law or in equity or under this Agreement.
(j) Consent to Jurisdiction and Venue; WAIVER OF JURY TRIAL. To the
fullest extent permitted by applicable law, each party hereto (i) agrees that any
claim, action or proceeding by such party seeking any relief whatsoever arising out
of, or in connection with, this Agreement or the
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transactions contemplated hereby shall be brought only in a state or federal
court located in the State of Texas and not in any other state or federal court in
the United States of America or any court in any other country, (ii) agrees to
submit to the exclusive jurisdiction of such courts located in the State of Texas
for purposes of all legal proceedings arising out of, or in connection with, this
Agreement or the transactions contemplated hereby, (iii) waives and agrees not to
assert any objection that it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court or any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum, (iv) agrees that
mailing of process or other papers in connection with any such action or proceeding
in the manner provided in Section 10(a)or any other manner as may be permitted by
law shall be valid and sufficient service thereof and (v) agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
applicable law. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(k) Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each signed
by less than all, but together signed by all of the parties hereto.
(l) No Presumption. This Agreement shall be construed without regard
to any presumption or rule requiring construction or interpretation against the
party drafting of causing any instrument to be drafted.
(m) Obligations. The obligations of each Voting Shareholder under this
Agreement are several and not joint, and no Voting Shareholder shall have any
liability or obligation under this Agreement for any breach hereunder by any other
Voting Shareholder.
[signature pages follow]
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The parties hereto have executed this Voting Agreement as of the date first written above.
| TGC INDUSTRIES, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Voting Agreement — Company Signature Page]
[Voting Shareholder Signature Page Begins on Next Page]
Schedule A
| Name | Number of Shares |
A-1
