EXHIBIT 10.4
VOTING AGREEMENT
VOTING AGREEMENT ("Agreement") dated as of December 13, 1999 between
Union Oil Company of California, a California corporation ("Union Oil"), and
Xxxx X. Xxxxxxxxx (the "Stockholder").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Stockholder beneficially owns an
aggregate of 4,389,690 shares of Common Stock, par value $.01 per share ("Titan
Common Stock"), of Titan Exploration, Inc., a Delaware corporation ( "Titan")
(such shares of Titan Common Stock and any shares of Titan Common Stock acquired
by the Stockholder after the date hereof, the "Shares");
WHEREAS, Union Oil is prepared to enter into an Agreement and Plan of
Merger among Titan Resources Holdings, Inc., a Delaware corporation and wholly
owned subsidiary of Union Oil ("Resources"), TRH, Inc., a Delaware corporation
and wholly owned subsidiary of Resources ("Sub"), and Titan (as amended from
time to time, the "Merger Agreement") providing for the merger of Titan with Sub
(the "Merger"), as a result of which Titan will become a wholly owned subsidiary
of Resources;
WHEREAS, in order to encourage Union Oil, Resources and Sub to enter
into the Merger Agreement with Titan, 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 agrees that it will maintain beneficial
ownership of the Shares and will not, directly or indirectly, (i) sell,
transfer, pledge or otherwise dispose of any Shares to any person other
than Union Oil 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 Union Oil 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 Titan 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, Titan 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 investment
banker, financial advisor, attorney, accountant or other representative
retained by the Stockholder to take any such action. The Stockholder shall
promptly notify Union Oil 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 Union Oil 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 any other matters that are
conditions to consummation of the Merger 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 Union Oil, 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 Titan held by the Stockholder.
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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 Titan.
In addition, this Agreement shall not be effective with respect to such
number of Shares, if any, as shall be necessary so that none of the entry into
this Agreement or the existence of this Agreement or the rights of Union Oil
hereunder would cause Union Oil or any of its Affiliates to be deemed to be an
"Acquiring Person" within the meaning of the Rights Agreement dated as of June
10, 1999 between Titan and First Union National Bank, as such Rights Agreement
shall be amended from time to time.
2. Miscellaneous
(a) The Stockholder, on the one hand, and Union Oil, 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:
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If to Union Oil:
Union Oil Company of California
One Sugar Creek Place
00000 Xxxxxxxxx Xxxxxxx
Xxxxx Xxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Union Oil Company of California
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: (1) General Counsel, and
(2) Vice President, Corporate Development
Fax No: (000) 000-0000
If to the Stockholder:
Titan Resources Holdings, Inc.
000 Xxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Fax: (000) 000-0000
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.
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(e) Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(i) 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.
(ii) 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 Union Oil 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 non-governmental 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 Delaware.
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(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.
(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.
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IN WITNESS WHEREOF, the Stockholder and Union Oil have each caused this
Agreement to be duly executed as of the day and year first above written.
UNION OIL COMPANY OF CALIFORNIA
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Xxxxxxx X. Xxxx
Executive Vice President, North
American Energy Operations and Chief
Financial Officer
XXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
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