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EXHIBIT 10.4
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated March 13, 1999 by and
between El Paso Energy Corporation, a Delaware corporation ("Parent"), and
Xxxxxx X. Xxxxx, Xx. ( the "Stockholder").
RECITALS
A. Parent and Sonat Inc., a Delaware corporation (the "Company"),
are entering into an Agreement and Plan Merger of even date herewith (the
"Merger Agreement") providing for, among other things, a business combination
between Parent and the Company.
B. As of the date of this Agreement, the Stockholder owns
beneficially and of record the shares of common stock, par value $1.00 per
share, of the Company ("Company Common Stock"), set forth opposite his name on
Exhibit A (the shares of Company Common Stock owned by the Stockholder are
referred to as the "Owned Shares").
C. As an inducement and a condition to its willingness to enter
into the Merger Agreement, Parent has required that the Stockholder enter into
this Agreement.
D. Capitalized terms not defined herein shall have the meanings
set forth in the Merger Agreement.
E. This Agreement and the Merger Agreement are being entered into
simultaneously.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, and intending to be legally bound
hereby, the parties agree as follows:
1. Voting Agreement. The Stockholder hereby agrees that, during
the time this Agreement is in effect, at any meeting of the stockholders of the
Company (a "Company Stockholders' Meeting"), however called, and at every
adjournment or postponement thereof, he shall (i) appear at the meeting or
otherwise cause his Owned Shares, together with any shares of Company Common
Stock acquired by him after the date of this Agreement, whether upon the
exercise of options, conversion of convertible securities or otherwise (such
acquired shares, together with the Owned Shares, are referred to herein as the
"Shares"), to be counted as present thereat for purposes of establishing a
quorum, or (ii) vote his Shares, or cause his Shares to be voted, in favor of
the approval and adoption of the Merger Agreement and the transactions
contemplated thereby, and any action required in furtherance thereof, if the
Merger Agreement (as in
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effect as of the date hereof and amendments thereto that do not effect a change
to the transactions contemplated thereby as of the date hereof that would
materially and adversely affect the Stockholder) and the transactions
contemplated thereby are presented at the Company Stockholders' Meeting.
2. Irrevocable Proxy. As security for the Stockholder's
obligations under Section 1 hereof, the Stockholder hereby irrevocably
constitutes and appoints Parent as his attorney and proxy in accordance with
the provisions of Section 212(c) of the DGCL, with full power of substitution
and resubstitution, to vote the Shares at any Company Stockholders' Meeting,
however called, as and to the extent provided in clauses (i) and (ii) of
Section 1 hereof. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Stockholder hereby revokes all other proxies and powers
of attorney with respect to his Shares that he may have heretofore appointed or
granted, and no subsequent proxy or power of attorney shall be granted (and if
granted, shall not be effective) by the Stockholder with respect thereto, other
than for the sole purpose of voting Shares as contemplated by Section 1 hereof.
3. Termination. This Agreement shall terminate upon the earliest
to occur of (i) the Effective Time and (ii) the termination of the Merger
Agreement in accordance with its terms.
4. Representations and Warranties of Parent. Parent represents
and warrants to the Stockholder as follows:
(a) Organization; Due Authorization; Enforceability. Parent is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Parent has full corporate power and authority to
execute and deliver this Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of Parent, and no
other corporate proceedings on the part of Parent are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Parent and
constitutes a valid and binding agreement of Parent, enforceable against Parent
in accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights and to general
principles of equity.
(b) No Conflicts. No authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
consummation by Parent of the transactions contemplated by this Agreement. The
execution, delivery and performance of this Agreement by Parent will not
constitute a breach, violation or default (or any event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in a right
of
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termination or acceleration under, or result in the creation of any lien or
encumbrance upon any of the properties or assets of Parent under, any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument to which Parent is a party or by which its properties or assets are
bound, other than breaches, violations, defaults, terminations, accelerations
or creation of liens and encumbrances which, in the aggregate, would not
materially impair the ability of Parent to perform its obligations hereunder.
5. [Intentionally Omitted.]
6. Covenants. The Stockholder hereby covenants and agrees as
follows:
(a) The Stockholder hereby agrees that, while this Agreement is
in effect, and except as contemplated hereby, (i) not to grant any proxies,
powers of attorney or other authorization or consent, deposit any shares of
capital stock of the Company into a voting trust or enter into a voting
agreement with respect to any such Shares and (ii) not to take any action that
would make any representation or warranty of the Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling the
Stockholder from performing his obligations under this Agreement.
(b) The Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of new shares of capital stock
acquired by the Stockholder, if any, after the date of this Agreement.
(c) The Stockholder shall immediately cease any discussions or
negotiations with any parties other than Parent that may be ongoing with
respect to a Takeover Proposal. While this Agreement is in effect, the
Stockholder shall not (i) solicit, initiate or encourage any inquiries or the
making of any Takeover Proposal, or (ii) participate in any discussions or
negotiations regarding any Takeover Proposal, except to the extent such
discussions or negotiations are participated in by the Stockholder in his
capacity as a director or officer of the Company in accordance with the terms
of the Merger Agreement.
7. Miscellaneous.
(a) Fees and Expenses. Except as otherwise provided in the Merger
Agreement, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be borne by the party incurring
such expenses.
(b) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
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DELAWARE, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES OR PRINCIPLES.
(d) Notices. All notices or other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by cable, telegram, telex
or other standard form of telecommunications, or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to the Stockholder:
to the address set forth beneath
the name of the Stockholder on
Exhibit A
If to Parent:
El Paso Energy Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy No: (000) 000-0000
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxxx, Esq.
Xxxxxx xx Xxxx, Esq.
Telecopy No.: (000) 000-0000
or to such other address as any party may have furnished to the other parties
in writing in accordance with this Section.
(e) Assignment; Binding Effect; No Third Party Beneficiaries.
Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by either of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
party. Notwithstanding anything contained in this Agreement to the contrary,
nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
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(f) ENFORCEMENT. THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE
WOULD OCCUR IN THE EVENT THAT 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, SUBJECT TO THE NEXT SENTENCE,THE PARTIES SHALL
BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF THIS
AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF IN ANY
COURT OF THE UNITED STATES OR ANY STATE HAVING JURISDICTION, THIS BEING IN
ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
EACH OF THE PARTIES HERETO (I) CONSENTS TO SUBMIT ITSELF TO THE PERSONAL
JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE STATE OF DELAWARE OR ANY
DELAWARE STATE COURT IN THE EVENT ANY DISPUTE ARISES OUT OF THIS AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (II) AGREES THAT IT
SHALL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR
OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT, AND (III) AGREES THAT IT SHALL NOT
BRING ANY ACTION RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT IN ANY COURT OTHER THAN A FEDERAL COURT SITTING
IN THE STATE OF DELAWARE OR A DELAWARE STATE COURT.
(g) 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.
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IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
EL PASO ENERGY CORPORATION
By: /s/ Xxxxxxx Xxxxx Xx.
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Name: Xxxxxxx Xxxxx Xx.
Title: Executive Vice President
/s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx.
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EXHIBIT A
XXXXXX X. XXXXX, XX.
SHARES OF SONAT INC.
COMMON STOCK
DIRECT 4,654
RESTRICTED 118,400
SONAT SAVINGS PLAN 53,455
