EXHIBIT 10.90
VOTING
AGREEMENT
THIS AGREEMENT entered into as of December
31, 2004 by and among Alfred Schwartz and Robert Holman as
Trustees of the Cap Rock Energy Trustees’ Trust (Trustees)
and Cap Rock Energy Corporation (“Cap
Rock”).
W I T N E S S E T
H:
WHEREAS, Trustees currently hold and control
325,223 shares of issued and outstanding voting common stock of Cap
Rock, a corporation organized and existing under the laws of
Texas;
WHEREAS, the Trustees and Cap Rock desire to
maintain the continuity and stability of the policy and management
of the Corporation; and
WHEREAS, the Trustees believe it to be in the
best interests of the shareholders whose stock is currently held in
the Cap Rock Shareholders’ Trust (the “Trust”)
and in the best interest of Cap Rock that the shares held and
controlled by Trustees (the “Shares”) be voted in
accordance with the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the
foregoing, and of the mutual promises and covenants contained
herein, it is hereby agreed as follows:
A.
Voting
1.
General . The Trustees hereby agree to pool the voting
of the Shares held in the Cap Rock Energy Shareholders’ Trust
(the “Trust”), and to vote or consent with respect to
all of such Shares as a block or unit in all votes, in person or by
proxy at any and all meetings of the shareholders of Cap Rock, for
whatever purpose called or held, and in any and all proceedings,
whether at a meeting of the shareholders or otherwise, wherein the
vote or written consent of the Trustees (or subsequent holder or
owner of the Shares) may be required or authorized by law.
Without limiting the generality of the foregoing, with respect to
the following matters the Trustees, or their successors or the
subsequent holders or owners of the Shares, shall vote the Shares
as follows:
(a)
Vote for Directors
(i)
Election . The Shares shall be voted for the persons
nominated by Cap Rock’s nominating committee.
(ii)
Replacement . If any director so elected should die,
resign, be removed or become incapacitated or otherwise refuse to
act in his or her capacity as director, the Trustees shall vote for
the
replacement nominated or appointed by the Board
or the nominating committee at any election required.
(b) Vote on Other Issues .
In the event of a vote of the shareholders involving authorization
of (i) any amendment to the Corporation’s Certificate of
Incorporation; (ii) any amendment to the Corporation’s
By-laws; (iii) merger, consolidation or binding share exchange;
(iv) sale or other disposition of all or substantially all of the
assets of the Corporation; (v) bankruptcy; (vi) dissolution; or
(vii) any other matter submitted to a vote of the shareholders, the
Trustees agree to pool the Shares and to vote them as a block or
unit. A vote on any particular issue shall be made in the
manner that the Board of Directors of Cap Rock has recommended,
provided, however, that notwithstanding the foregoing, with regard
to any tender offer if the premium (i.e., the price per Share
offered in the tender offer or other repurchase offer over the then
market price per share of the Shares) for the Shares covered by the
tender offer ( or other repurchase offer) is 25% or greater, the
Trustees shall sell all of the Shares held in the corpus of the
Trust to the Offeror at the highest cash price offered under the
tender offer or other repurchase offer.
B.
Arbitration . Any dispute regarding this
Agreement, or any vote hereunder, shall be settled by the
appointment of an independent third party arbitrator in accordance
with the rul
