Exhibit 10.1
VOTING AGREEMENT (3TEC)
VOTING AGREEMENT (this "AGREEMENT") dated as of February 2, 2003, by
and among Plains Exploration & Production Company, a Delaware corporation
("PXP"), 3TEC Energy Corporation, a Delaware corporation ("3TEC"), EnCap Energy
Capital Fund III-B, L.P., EnCap Energy Capital Fund III, L.P., BOCP Energy
Partners, L.P., and Energy Capital Investment Company PLC (together with EnCap
Energy Capital Fund III-B, L.P., EnCap Energy Capital Fund III, L.P. and BOCP
Energy Partners, L.P., the "ENCAP ENTITIES"), Sable Management, L.P. ("SABLE"),
and Xxxxx X. Xxxxxx (with the EnCap Entities and Sable, each a "STOCKHOLDER" and
collectively, the "STOCKHOLDERS").
WHEREAS, each Stockholder desires that 3TEC, PXP Gulf Coast, Inc., a
Delaware corporation and wholly-owned subsidiary of PXP ("MERGER SUB"), and PXP,
enter into an Agreement and Plan of Merger dated the date hereof (the "MERGER
AGREEMENT"; undefined capitalized terms herein are defined in the Merger
Agreement) providing for the merger of 3TEC with and into Merger Sub (the
"MERGER") upon the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS, each Stockholder is executing this Agreement as an inducement
to 3TEC to enter into and execute the Merger Agreement; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, PXP is entering into a voting agreement with certain 3TEC
stockholders under which such parties have, among other things, agreed to
support the Merger upon the terms and conditions set forth therein.
NOW, THEREFORE, in consideration of the execution and delivery by 3TEC
of the Merger Agreement and the mutual covenants, conditions and agreements
contained herein and therein, the parties agree as follows:
1. Representations and Warranties.
(a) Each Stockholder severally represents and warrants to 3TEC as
follows:
(i) Such Stockholder is the record and beneficial owner of
that number of shares of capital stock of PXP set forth opposite such
Stockholder's name on Schedule A (together with any other shares of
other capital stock of PXP acquired after the date hereof including
through the exercise of any stock options, warrants or similar
instruments) being collectively referred to herein as the "SUBJECT
SHARES"). The Subject Shares constitute the only shares, with respect
to which such Stockholder is the record or beneficial owner, of capital
stock of PXP or options, warrants or other rights (whether or not
contingent) to acquire such shares of capital stock of PXP that are or
may be entitled to vote on the Merger or the Merger Agreement at any
meeting of PXP's Stockholders called to vote upon the Merger or the
Merger Agreement. Such Stockholder has the sole right to vote and
Transfer (as defined herein) the Subject Shares set forth opposite its
name on Schedule A, and none of such Subject Shares is subject to any
voting trust or other agreement, arrangement or restriction with
respect to the voting or the Transfer of the Subject Shares, except (A)
as provided by this Agreement (it being understood that any pledge of
the Pledged Shares (as defined below) shall not be a breach of this
representation) and (B) those arising under applicable securities laws.
Such Stockholder has all requisite power and authority, and, if such
Stockholder is a natural person, the legal capacity, to enter into this
Agreement and to perform its obligations hereunder. To the extent that
such Stockholder is an entity and not an individual, such Stockholder
is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization. The execution and delivery of this
Agreement by such Stockholder and the performance by such Stockholder
of its obligations hereunder have been duly authorized by all necessary
action on the part of such Stockholder. This Agreement has been duly
executed and delivered by, and constitutes a valid and binding
agreement of, such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as enforcement may be limited by the
Enforceability Exceptions.
(ii) Neither the execution and delivery of this Agreement nor
the performance by such Stockholder of its obligations hereunder will
result in a violation of, or a default under, or conflict with, (A) if
such Stockholder is an entity, any provision of its certificate of
incorporation, bylaws, partnership agreement, limited liability company
agreement or similar organizational documents, (B) any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any
kind (other than as may relate to the Pledged Shares but subject to the
proviso set forth in (iv) below) to which such Stockholder is a party
or bound or to which the Subject Shares are subject, except, in the
case of clause (B), as would not prevent, delay or otherwise materially
impair such Stockholder's ability to perform its obligations hereunder.
Execution, delivery and performance of this Agreement by such
Stockholder will not violate, or require any consent, approval or
notice under, any provision of any judgment, order, decree, statute,
law, rule or regulation applicable to such Stockholder or the Subject
Shares, except (x) for any reports under Sections 13(d) and 16 of the
Exchange Act as may be required in connection with this Agreement and
the transactions contemplated hereby or (y) as would not reasonably be
expected to prevent, delay or otherwise materially impair such
Stockholder's ability to perform its obligations hereunder.
(iii) If the Stockholder is married and the Subject Shares of
the Stockholder constitute community property or spousal approval is
otherwise required for this Agreement to be legal, valid and binding,
then, to the extent so required, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder's spouse, enforceable against
such spouse in accordance with its terms, subject to the Enforceability
Exceptions.
(iv) The Subject Shares and the certificates representing such
Subject Shares are held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for (A) any such encumbrances arising hereunder, or
(B) any such encumbrances arising pursuant to the pledge of any Subject
Shares by such Stockholder to a financial institution or a brokerage
firm (the "PLEDGED SHARES"); provided, however, that such Stockholder
represents that any such arrangement regarding such Pledged Shares
shall not prevent, delay or otherwise materially impair such
Stockholder's ability to execute and deliver this Agreement or perform
its obligations hereunder and such Stockholder
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shall use his reasonable efforts to obtain an acknowledgment by the
pledgee of the terms of this Agreement and such pledgee's agreement to
vote the Pledged Shares (if and to the extent the voting power of the
Pledged Shares is being or to be exercised by pledgee) in accordance
with Section 2.
(v) No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission based upon arrangements made by or on
behalf of such Stockholder in connection with its entering into this
Agreement.
(vi) Such Stockholder understands and acknowledges that 3TEC
is entering into the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
(b) 3TEC represents and warrants to each Stockholder and PXP that the
execution and delivery of this Agreement by 3TEC and the consummation by 3TEC of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of 3TEC.
(c) PXP represents and warrants to each Stockholder and 3TEC that the
execution and delivery of this Agreement by PXP and the consummation by PXP of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of PXP.
2. Voting Agreements. During the Term (as defined below) of this
Agreement, at any meeting of stockholders of PXP or at any adjournment thereof
or in any other circumstances upon which a vote, consent or other approval
(including by written consent) is sought, each Stockholder shall, including by
executing a written consent solicitation if requested by 3TEC, vote (or cause to
be voted) the Subject Shares: (a) in favor of the Merger, the adoption by PXP of
the Merger Agreement and the approval of the terms thereof and each of the other
Transactions and (b) against any transaction, agreement, matter or PXP
Acquisition Proposal that would impede, interfere with, delay, postpone or
attempt to discourage the Merger and the Merger Agreement.
3. Irrevocable Proxy. Each Stockholder hereby appoints 3TEC as its
proxy to vote all of such Stockholder's Subject Shares at any meeting of
stockholders of PXP (including any adjournments and postponements thereof) on
the matters described in Section 2, and to execute and deliver any written
consents to fulfill such Stockholder's obligations under this Agreement. This
proxy is coupled with an interest and is irrevocable until the end of the Term.
4. Revocation of Other Proxies. To the extent inconsistent with the
other provisions of this Agreement or the Merger Agreement, each Stockholder
hereby revokes any and all previous proxies with respect to such Stockholder's
Subject Shares.
5. Other Covenants. Each Stockholder severally agrees with, and
covenants to, 3TEC during the Term of this Agreement as follows: such
Stockholder shall not after the date hereof (i) sell, transfer, pledge, assign
or otherwise dispose of (including by gift) (collectively, "TRANSFER"), or
consent to any Transfer of, any Subject Shares or any interest therein, except
pursuant to the Merger, (ii) enter into any contract, option or other agreement
with respect to any
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Transfer of any or all of the Subject Shares or any interest therein, (iii)
grant any proxy, power-of-attorney or other authorization in or with respect to
the Subject Shares or (iv) deposit the Subject Shares into a voting trust or
enter into a voting agreement or voting arrangement with respect to the Subject
Shares; provided, that any such Stockholder may Transfer any of the Subject
Shares to an affiliate of such Stockholder (provided such affiliates evidences
in a writing reasonably satisfactory to the other parties hereto such
affiliate's agreement to the terms hereof) or any other Stockholder who is on
the date hereof or hereafter becomes a party to this Agreement; provided,
further, that the restrictions in this Section 5 shall not be deemed violated by
any Transfer of Subject Shares pursuant to a cashless exercise of stock options
or warrants; and provided, further, that a pledge of Pledged Shares made in
accordance with Section 1(a)(iv) shall not be deemed to be a violation of the
restrictions in this Section 5.
6. Certain Events. This Agreement and the obligations hereunder shall
attach to each Stockholder's Subject Shares and shall be binding upon any Person
to which legal or beneficial ownership of such Shares shall pass, whether by
operation of law or otherwise, including such Stockholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of PXP affecting the Subject Shares or the acquisition of additional
shares of Subject Shares or other voting securities of PXP by any Stockholder,
the number of Subject Shares listed on Schedule A beside the name of such
Stockholder shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional Subject Shares or other
voting securities of PXP issued to or acquired by such Stockholder.
7. Stop Transfer. PXP shall not register the transfer of any
certificate representing any Subject Shares, unless such transfer is made to
3TEC or otherwise in compliance with this Agreement.
8. Stockholder Capacity. No person executing this Agreement (or an
affiliate thereof) who is or becomes during the Term a director of PXP makes any
agreement or understanding herein in his or her capacity as such director. Each
Stockholder signs solely in his or her capacity as the record and beneficial
owner of, or the trustee of a trust whose beneficiaries are the beneficial
owners of, such Stockholder's Subject Shares.
9. Further Assurances. Each Stockholder shall, upon request of 3TEC,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by 3TEC to be necessary or desirable to carry out the
provisions hereof.
10. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon (and shall only be effective from the
date hereof until) the first to occur of (i) the Effective Time of the Merger,
or (ii) the date upon which the Merger Agreement is terminated in accordance
with its terms (such period from the date hereof until such termination is
referred to herein as the "TERM"); provided, however, that (x) Section 12 shall
survive any termination of this Agreement and (y) termination of this Agreement
pursuant to clause (ii) above shall not relieve any party hereto from liability
for any willful and knowing breach hereof prior to such termination.
11. Miscellaneous.
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(a) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to 3TEC or PXP, to the appropriate
address set forth in Section 11.1 of the Merger Agreement; and (ii) if to a
Stockholder, to the appropriate address set forth on Schedule A.
(b) Each Party submits to the jurisdiction of any state or federal
court sitting in the State of Delaware in any dispute or action arising out of
or relating to this Agreement and agrees that all claims in respect of such
dispute or action may be heard and determined in any such court. Each Party also
agrees not to bring any dispute or action arising out of or relating to this
Agreement in any other court. Each Party agrees that a final judgment in any
dispute or action so brought will be conclusive and may be enforced by action on
the judgment or in any other manner provided at law (common, statutory or other)
or in equity. Each Party waives any defense of inconvenient forum to the
maintenance of any dispute or action so brought and waives any bond, surety, or
other security that might be required of any other Party with respect thereto.
(c) Each Party appoints RLF Service Corp., Xxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 as their agent to receive on their behalf service of
copies of the summons and complaint and any other process that might be served
in an dispute or action (the "PROCESS AGENT"). Any Party may make service on any
other Party by sending or delivering a copy of the process (i) to the Party to
be served at the address and in the manner provided for the giving of notices in
Section 11(a) or (ii) to the Party to be served in care of the Process Agent at
the address and in the manner provided for the giving of notices in Section
11(a).
(d) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
(e) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
as to any Stockholder when one or more counterparts have been signed by each of
3TEC, PXP and such Stockholder and delivered to 3TEC, PXP and such Stockholder.
(f) This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof, and this Agreement is not intended to confer upon any
other person (other than 3TEC) any rights or remedies hereunder.
(g) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(h) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except by laws of descent or as expressly provided
by Section 5. Any assignment in violation of the foregoing shall be void.
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(i) As between any Stockholder and 3TEC, each of such parties agrees
that irreparable damage to the other, non-breaching party would occur and that
such non-breaching party would not have any adequate remedy at law 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 the non-breaching party shall be entitled to an injunction or injunctions
to prevent breaches by the other party of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which it may be entitled at law or in equity.
(j) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(k) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, 3TEC, PXP, and the Stockholders party hereto have
caused this Agreement to be duly executed and delivered as of the date first
written above.
PLAINS EXPLORATION & PRODUCTION COMPANY
By:
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
3TEC ENERGY CORPORATION
By:
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
STOCKHOLDERS:
SABLE MANAGEMENT, L.P.
By: Sable Management, LLC, its
general partner
By:
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Member
----------------------------------------
Xxxxx X. Xxxxxx
ENCAP ENERGY CAPITAL FUND III, L.P.
By: ENCAP INVESTMENTS L.L.C.,
General Partner
By:
------------------------------------
Name:
----------------------------------
Title: Managing Director
[Signature Page to 3TEC Voting Agreement]
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ENCAP ENERGY FUND III-B, L.P.
By: ENCAP INVESTMENTS L.L.C.,
General Partner
By:
------------------------------------
Name:
----------------------------------
Title: Managing Director
BOCP ENERGY PARTNERS, L.P.
By: ENCAP INVESTMENTS L.L.C., Manager
By:
------------------------------------
Name:
----------------------------------
Title: Managing Director
ENERGY CAPITAL INVESTMENT COMPANY PLC
By:
------------------------------------
Name:
----------------------------------
Title: Authorized Representative
[Signature Page to 3TEC Voting Agreement Cont.]
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SCHEDULE A
STOCKHOLDER NAME AND ADDRESS COMMON STOCK OTHER SECURITIES
---------------------------- ------------ ----------------
EnCap Energy Capital Fund III-B, L.P.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Managing Director 593,864 -0-
EnCap Energy Capital Fund III, L.P.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Managing Director 785,455 -0-
BOCP Energy Partners, L.P.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Managing Director 192,134 -0-
Energy Capital Investment Company, PLC
c/o EnCap Investments, LLC
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Managing Director 277,275 -0-
Sable Management, L.P.
c/o Plains Exploration & Production Company
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000 1,082,000 -0-
Xxxxx X. Xxxxxx
c/o Plains Exploration & Production Company 82,500 Restricted Shares
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000 100 1,425,000 SARs
TOTAL 2,930,828
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