EXHIBIT 10.6
EXECUTION COPY
PLAINS EXPLORATION & PRODUCTION COMPANY
Common Stock, Par Value $0.01 Per Share
Underwriting Agreement
April 15, 2004
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders of Plains Exploration & Production Company, a
Delaware corporation (the "Company"), named in Schedule I hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to Xxxxxx Brothers Inc. (the "Underwriter" or "you") an aggregate of
2,371,868 shares (the "Shares") of the common stock, par value $0.01 per share
(the "Common Stock"), of the Company.
1. The Company represents and warrants to, and agrees
with, the Underwriter that:
(a) The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-3 (File No. 333-12027), including a
prospectus relating to the Shares. Such registration statement, as
amended at the time it became effective, is referred to herein as the
"Registration Statement"; and as used herein, the term "Prospectus"
means the final prospectus in the form first used to confirm sales of
the Shares (including any final prospectus supplement). The
Registration Statement has been declared effective by the Commission,
and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission. Any reference in this
Agreement to the Registration Statement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of
the effective date of the Registration Statement or the date of the
Prospectus, as the case may be, and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated
by reference therein.
(b) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all material
respects to the requirements of the Securities Act and the rules and
regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein;
(c) The financial statements and the related notes
thereto incorporated by reference in the Prospectus present fairly the
combined financial position of the Company and its subsidiaries as of
the dates indicated and the results of their operations and the changes
in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods covered thereby; the other financial information incorporated
by reference in the Prospectus has been derived from the accounting
records of the Company and its subsidiaries and presents fairly the
information shown thereby; and the pro forma financial information and
the related notes thereto incorporated by reference in the Prospectus
has been prepared in accordance with the Commission's rules and
guidance with respect to pro forma financial information, and the
assumptions underlying such pro forma financial information are
reasonable and are described therein;
(d) Since the date of the most recent financial
statements of the Company and its subsidiaries incorporated by
reference in the Prospectus, (i) there has not been any change in the
capital stock or long-term debt (other than ordinary course draw downs
on revolving credit facilities) of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set
aside for payment, paid or made by the Company on any class of capital
stock, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
properties, management, financial position or results of operations of
the Company and its subsidiaries taken as a whole; (ii) neither the
Company nor any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries taken as
a whole or incurred any liability or obligation, direct or contingent,
that is material to the Company and its subsidiaries taken as a whole;
and (iii) neither the Company nor any of its subsidiaries has sustained
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in the
Prospectus;
(e) The documents incorporated by reference in the
Registration Statement and the Prospectus when they became effective or
were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
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statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement and the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(f) The Company and each of its subsidiaries have been
duly organized and are validly existing and in good standing under the
laws of their respective jurisdictions of organization, are duly
qualified to do business and are in good standing in each jurisdiction
in which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification, and have
all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or have such power or
authority would not, individually or in the aggregate, have a material
adverse effect on the business, properties, management, financial
position, results of operations or prospects of the Company and its
subsidiaries taken as a whole or on the performance by the Company of
its obligations under this Agreement (a "Material Adverse Effect"). The
Company does not own or control, directly or indirectly, any
corporation, association or other entity other than (i) the
subsidiaries listed in Schedule II to this Agreement and (ii) the
general partner interests of Xxxxxxxx Inc. in the entities owning and
operating the Point Xxxxxxxx unit;
(g) The Company has an authorized capitalization as set
forth or incorporated by reference in the Prospectus; and all the
outstanding shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or
any other claim of any third party, except for pledges under the
Company's $500 million senior revolving credit facility (the "Credit
Facility");
(h) The Shares to be sold by the Selling Stockholders to
the Underwriter hereunder have been duly and validly authorized;
(i) The Company has the corporate power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder; and all action required to be taken for the due and proper
authorization, execution and delivery of each of this Agreement and the
consummation of the transactions contemplated hereby has been duly and
validly taken;
(j) Neither the Company nor any of its subsidiaries is
(i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice
or lapse of time or both, would constitute such a default, in the due
performance or
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observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject; or (iii) in violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses
(ii) and (iii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect;
(k) The execution, delivery and performance by the
Company of this Agreement and compliance by the Company with the terms
hereof and the consummation of the transactions contemplated hereby
will not (i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) result in any violation of the provisions
of the charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the violation of
any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority, except, in
the case of clauses (i) and (iii) above, for any such conflict, breach
or violation that would not, individually or in the aggregate, have a
Material Adverse Effect;
(l) No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution,
delivery and performance by the Company of this Agreement and
compliance by the Company with the terms hereof and the consummation of
the transactions contemplated hereby, except for (i) such consents,
approvals, authorizations, orders and registrations or qualifications
as may be required under applicable state securities laws in connection
with the purchase and resale of the Shares by the Underwriter and (ii)
such consents, approvals, authorizations, orders and registrations or
qualifications as have been obtained or made;
(m) Except as disclosed in the Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its subsidiaries is
or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject that, individually or in the
aggregate, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse
Effect; and no such investigations, actions, suits or proceedings are
threatened or, to the knowledge of each of the Company, contemplated by
any governmental or regulatory authority or threatened by others;
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(n) PricewaterhouseCoopers LLP, who have certified
certain financial statements of the Company and its subsidiaries, and
KPMG LLP, who have certified certain financial statements of 3TEC
Energy Corporation ("3TEC"), are independent public accountants with
respect to the Company and its subsidiaries and 3TEC, respectively,
within the meaning of Rule 101 of the Code of Professional Conduct of
the American Institute of Certified Public Accountants and its
interpretations and rulings thereunder;
(o) Except as disclosed in the Prospectus, the Company
and its subsidiaries have good and marketable title in fee simple to,
or have valid rights to lease or otherwise use, all items of real and
personal property that are material to the respective businesses of the
Company and its subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; (ii) could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect; or (iii) were created
under the Credit Facility; or (iv) are created by the instruments
creating the general partnerships and limited partnerships in which
Xxxxxxxx Inc. owns an interest;
(p) The Company and its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses, except where
the failure to own or possess such rights would not, individually or in
the aggregate, have a Material Adverse Effect; and the conduct of their
respective businesses will not conflict in any material respect with
any such rights of others, and the Company and its subsidiaries have
not received any notice of any claim of infringement of or conflict
with any such rights of others, except where such notice, claim or
conflict would not, individually or in the aggregate, have a Material
Adverse Effect;
(q) Neither the Company nor any of its subsidiaries is,
and after giving effect to the offering and sale of the Shares none of
them will be, an "investment company" or an entity "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, "Investment Company Act");
(r) The Company and its subsidiaries have paid all
federal, state, local and foreign taxes and filed all tax returns
required to be paid or filed through the date hereof, except where the
failure to make such payments or filings would not, individually or in
the aggregate, have a Material Adverse Effect; and except as otherwise
disclosed in the Prospectus, there is no tax deficiency that has been,
or could reasonably be expected to be, asserted against the Company or
any of its subsidiaries or any of their respective properties or
assets, except where such deficiency would not, individually or in the
aggregate, have a Material Adverse Effect;
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(s) The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and
have made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that are
necessary for the ownership or lease of their respective properties or
the conduct of their respective businesses as described in the
Prospectus, except where the failure to possess or make the same would
not, individually or in the aggregate, have a Material Adverse Effect;
and except as described in the Prospectus, neither the Company nor any
of its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or authorization
or has any reason to believe that any such license, certificate, permit
or authorization will not be renewed in the ordinary course, except
where the failure to receive such renewal would not, individually or in
the aggregate, have a Material Adverse Effect;
(t) The Company and its subsidiaries (i) are, and at all
times prior to the date hereof have been, in compliance with any and
all applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, "Environmental
Laws"); (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii)
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except in any
such case for any such failure to comply with, or failure to receive
required permits, licenses or approvals, or liability, as would not,
individually or in the aggregate, have a Material Adverse Effect;
(u) There has been no storage, generation,
transportation, handling, treatment, disposal, discharge, emission, or
other release of any kind of toxic wastes or hazardous substances,
including, but not limited to, any naturally occurring radioactive
materials, brine, drilling mud, crude oil, natural gas liquids and
other petroleum materials, by, due to or caused by the Company or any
of its subsidiaries (or, to the Company's knowledge, any other entity
(including any predecessor) for whose acts or omissions the Company or
any of its subsidiaries is or could reasonably be expected to be
liable) upon any of the property now or previously owned or leased by
the Company or any of its subsidiaries, or upon any other property, in
violation of any Environmental Laws or in a manner or to a location
that could reasonably be expected to give rise to any liability under
any Environmental Laws, except for any violation or liability which
could not reasonably be expected to have, individually or in the
aggregate with all such violations and liabilities, a Material Adverse
Effect;
(v) The Company has not taken, directly or indirectly,
any action designed to or that could reasonably be expected to cause or
result in any stabilization or manipulation of the price of the Shares;
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(w) Nothing has come to the attention of the Company that
has caused the Company to believe that the statistical and
market-related data included in the Prospectus is not based on or
derived from sources that are reliable and accurate in all material
respects;
(x) The oil and gas reserve estimates of the Company and
its subsidiaries incorporated by reference in the Prospectus are
derived from reports that have been prepared by independent petroleum
consulting firms, such reserve estimates fairly reflect the oil and gas
reserves of the Company and its subsidiaries at the dates indicated
therein and are in accordance with the Commission's guidelines applied
on a consistent basis throughout the periods involved;
(y) Netherland, Xxxxxx & Associates, Inc. and Xxxxx Xxxxx
Company, L.P. are independent petroleum engineers with respect to the
Company and its subsidiaries, X.X. Xxxx and Associates, Inc. was the
former independent petroleum engineer with respect to the Company and
its subsidiaries; and
(z) The Shares have been listed on the New York Stock
Exchange.
2. Each of the Selling Stockholders severally but not
jointly represents and warrants to the Underwriter and the Company that as to
itself and not the other Selling Stockholders:
(a) All consents, approvals, authorizations and orders
necessary for the execution and delivery by the Selling Stockholder of
this Agreement, and for the sale and delivery of the Shares to be sold
by the Selling Stockholder hereunder, have been obtained; and the
Selling Stockholder has full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the Shares to
be sold by the Selling Stockholder hereunder; this Agreement has been
duly authorized, executed and delivered by the Selling Stockholder.
(b) The execution, delivery and performance by the
Selling Stockholder of this Agreement, the sale of the Shares to be
sold by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions herein contemplated will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Selling Stockholder is a party or by which the Selling Stockholder
is bound or to which any of the property or assets of the Selling
Stockholder are subject, (ii) result in any violation of the provisions
of the charter or by-laws or similar organizational or constituent
documents of the Selling Stockholder or (iii) result in the violation
of any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory agency.
(c) The Selling Stockholder has good and valid legal
title to the Shares to be sold at the Time of Delivery by the Selling
Stockholder hereunder, free and clear of all liens, encumbrances,
equities or adverse claims; the Selling Stockholder will have,
immediately prior to the Time of Delivery, good and valid legal title
to the Shares to be sold at the Time of
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Delivery, by the Selling Stockholder, free and clear of all liens,
encumbrances, equities or adverse claims; and, upon delivery of the
certificates representing such Shares and payment therefor pursuant
hereto, good and valid legal title to such Shares, free and clear of
all liens, encumbrances, equities or adverse claims, will pass to the
Underwriter.
(d) The Selling Stockholder is not prompted to sell the
Shares by the use of any material nonpublic information concerning the
Company in violation of applicable law.
(e) The Selling Stockholder has not taken, directly or
indirectly, any action designed to or that could reasonably be expected
to cause or result in any stabilization or manipulation of the price of
the Shares.
(f) The Selling Stockholder is not a party to any
contract, agreement or understanding with any person (other than this
Agreement) that would give rise to a valid claim against it or the
Underwriter for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Shares.
3. Subject to the representations, warranties and
agreements herein set forth, each Selling Stockholder agrees to sell to the
Underwriter the number of shares of Common Stock set forth opposite its name in
Schedule I hereto, and the Underwriter agrees to purchase from each Selling
Stockholder, at a purchase price per share of $18.925, the number of shares of
Common Stock set forth opposite each Selling Stockholder's name in Schedule I
hereto.
4. (a) The Shares to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as the Underwriter may request shall be delivered by or
on behalf of the Selling Stockholders to the Underwriter, through the facilities
of the Depository Trust Company, for the account of the Underwriter, against
payment by or on behalf of the Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Selling Stockholders to the Underwriter. The Selling Stockholders will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of the Underwriter, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on April 15, 2004, or such other time
and date as the Underwriter and the Company may agree upon in writing. Such time
and date for delivery of the Shares is herein called the "Time of Delivery."
5. The Company agrees with the Underwriter:
(a) To prepare the Prospectus in a form approved by you
and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the pricing of the Shares; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has
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been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish you with copies
thereof; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus, of the suspension
of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
prospectus or suspending any such qualification, promptly to use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you
may reasonably request to qualify the Shares for offering and sale
under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) From time to time, to furnish the Underwriter with
written and electronic copies of the Prospectus in New York City in
such quantities as the Underwriter may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Underwriter and upon the Underwriter's
request to prepare and furnish without charge to the Underwriter and to
any dealer in securities as many written and electronic copies as the
Underwriter may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case the
Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the
time of issue of the Prospectus, upon the Underwriter's request but at
the expense of the Underwriter, to prepare and deliver to the
Underwriter as many written and electronic copies as the Underwriter
may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Securities Act;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Securities Act), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act
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and the rules and regulations thereunder (including, at the option of
the Company, Rule 158); and
(e) To the extent not available on the Company's website
or on the XXXXX website maintained by the Commission, during a period
of five years from the effective date of the Registration Statement, to
furnish to you copies of all reports or other communications (financial
or other) furnished to stockholders, and to deliver to you as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed.
6. Each of the Selling Stockholders agrees to deliver to
the Underwriter prior to the Time of Delivery a properly completed and executed
United States Treasury Department Form W-8 or Form W-9, as applicable.
7. (a) The Company covenants and agrees with the
Underwriter that the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's counsel, accountants and
petroleum engineering consultants in connection with the registration of the
Shares under the Securities Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement and the
Prospectus and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriter and any dealers; (ii) the cost
of printing or producing this Agreement, the Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriter in connection with
such qualification and in connection with the Blue Sky survey; (iv) the filings
fees incident to (but not the fees and disbursements of counsel for the
Underwriter in connection with) securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(v) the cost of preparing stock certificates; (vi) the cost and charges of any
transfer agent or registrar; and (vii) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
(b) If (i) this Agreement is terminated pursuant to
Section 8(i)(ii), (ii) the Selling Stockholders for any reason fail to tender
the Shares for delivery to the Underwriter or (iii) the Underwriter declines to
purchase the Shares because a condition to closing to be performed by the
Company is not satisfied, the Company agrees to reimburse the Underwriter for
all out-of-pocket costs and expenses (including the fees and expenses of its
counsel) reasonably incurred by the Underwriter in connection with this
Agreement and the offering contemplated hereby.
8. The obligations of the Underwriter hereunder shall be
subject, in its discretion, to the condition that all representations and
warranties and other statements of the Company and the Selling Stockholders
herein are, as of the date hereof and as of the Time of Delivery, true and
correct,
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the performance by the Company and the Selling Stockholders of their obligations
hereunder, and the following additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction;
(b) Xxxxxxxx & Knight LLP, counsel for the Selling
Stockholders shall have furnished to you its written opinion, addressed
to the Underwriter and dated the Time of Delivery, in form and
substance reasonably satisfactory to you, to the effect set forth in
Annex A hereto;
(c) Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the
Company, shall have furnished to you their written opinion, dated the
Time of Delivery, in form and substance reasonably satisfactory to you;
(d) At the Time of Delivery, PricewaterhouseCoopers LLP
shall have furnished to you a letter, dated the Time of Delivery, in
form and substance reasonably satisfactory to you;
(e) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act, and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, or has changed its outlook with respect to, its
rating of any of the Company's debt securities or preferred stock
(other than an announcement with positive implications of a possible
upgrading);
(f) The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on
and as of the Time of Delivery; and the statements of the Company and
its respective officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Time of
Delivery;
(g) Subsequent to the execution and delivery of this
Agreement, no event or condition of a type described in Section 1(d)
hereof shall have occurred or shall exist, which event or condition is
not described in the Prospectus (excluding any amendment or supplement
thereto) and the effect of which in the judgment of the Underwriter
makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Shares on the terms and in the manner
contemplated by this Agreement and the Prospectus;
11
(h) The Underwriter shall have received on and as of the
Time of Delivery a certificate of an executive officer of the Company
who has specific knowledge of the Company's financial matters and is
satisfactory to the Underwriter (i) confirming that such officer has
carefully reviewed the Registration Statement and Prospectus and, to
the knowledge of such officer, the representation set forth in Section
1(b) and (d) hereof is true and correct as of the Time of Delivery,
(ii) confirming that the other representations and warranties of the
Company in this Agreement are true and correct as of the Time of
Delivery and that the Company has complied with all agreements and
satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Time of Delivery and (iii) to the effect
set forth in paragraphs (a), (e) and (g) above (except as such
provision may include discretion on the Underwriter's behalf);
(i) On or after the date hereof there shall not have
occurred any of the following: (i) trading generally shall have been
suspended or materially limited on the New York Stock Exchange or the
over-the-counter market; (ii) trading of any securities issued or
guaranteed by the Company shall have been suspended on any exchange;
(iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there
shall have occurred any outbreak or escalation of hostilities or any
change in major financial markets or any calamity or crisis, either
within or outside the United States, that in the judgment of the
Underwriter is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the
Shares on the terms and in the manner contemplated by this Agreement
and the Prospectus;
(j) Each Selling Stockholder shall have furnished to the
Underwriter at the Time of Delivery a certificate, dated the Time of
Delivery, signed by each Selling Stockholder stating that the
representations, warranties and agreements of each of the Selling
Stockholders contained herein are true and correct as of the Time of
Delivery and that each Selling Stockholder has complied with all
agreements contained herein to be performed by each Selling Stockholder
at or prior to the Time of Delivery; and
(k) The Shares have been listed on the New York Stock
Exchange.
9. (a) The Company agrees to indemnify and hold harmless
the Underwriter, its affiliates, directors and officers and each person, if any,
who controls the Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, legal fees and
other expenses incurred in connection with any suit, action or proceeding or any
claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon any untrue statement or omission or
alleged untrue statement or omission made in
12
reliance upon and in conformity with any information relating to the Underwriter
furnished to the Company in writing by the Underwriter expressly for use
therein. The foregoing indemnity shall not be available to the Underwriter or
any Person controlling the Underwriter if copies of the Prospectus (or any
amendments or supplements thereto) were timely delivered to the Underwriter and
the Underwriter failed deliver a copy of such Prospectus (or amendment or
supplement thereto) at or prior to the written confirmation of the sale of
Shares to such Person if such delivery is required by the Securities Act to the
extent that such loss, claim, damage or liability of such Underwriter resulted
from such failure.
(b) The Underwriter agrees to indemnify and hold harmless
the Company and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the indemnity set forth in paragraph (a) above, but only with
respect to any losses, claims, damages or liabilities that arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to the Underwriter furnished to the Company in writing by the Underwriter
expressly for use in the Prospectus (or any amendment or supplement thereto), it
being understood and agreed that the only such information consists of the
following: (i) the information on the front cover page with respect to the
public offering price of the Shares, (ii) the statements concerning the
Underwriter contained in the eighth and ninth paragraphs under the heading
"Underwriting".
(c) Each Selling Stockholder severally, but not jointly,
agrees to indemnify and hold harmless each of the Company and the Underwriter,
its respective affiliates, directors and officers and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission is based upon information provided in writing by the Selling
Stockholders (it being understood and agreed that the only such information is
that provided for use under the caption "Selling Stockholders") or contained in
a representation or warranty given by the Selling Stockholders in this
Agreement; and provided, further, that the liability under this subsection of
each Selling Stockholder shall be limited to an amount equal to the aggregate
gross proceeds, net of underwriting discounts and commissions before deducting
expenses, to such Selling Stockholder from the sale of Shares sold by such
Selling Stockholder hereunder.
(d) If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a), (b) or (c) above, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be
13
sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 9 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 9. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 9 that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) counsel to the
Indemnified Person shall have reasonably concluded in writing that there may be
legal defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses to the extent reasonable and
properly documented of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriter,
its affiliates, directors and officers and any control persons of the
Underwriter shall be designated in writing by the Underwriter and any such
separate firm for the Company and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(e) If the indemnification provided for in paragraphs
(a), (b) and (c) above is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion
14
as is appropriate to reflect the relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriter on the other from
the offering of the Shares or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) but also the relative
fault of the Company and the Selling Stockholder on the one hand and the
Underwriter on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriter on the other
shall be deemed to be in the same respective proportions as the net proceeds
(before deducting expenses) received by the Company and the Selling Stockholders
from the sale of the Shares and the total discounts and commissions received by
the Underwriter in connection therewith, as provided in this Agreement, bear to
the aggregate offering price of the Shares. The relative fault of the Company
and the Selling Stockholders on the one hand and the Underwriter on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Selling Stockholders or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(f) The Company, the Selling Stockholders and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (e) above. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (e) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 9, in no event shall the Underwriter be required
to contribute any amount in excess of the amount by which the total discounts
and commissions received by the Underwriter with respect to the offering of the
Shares exceeds the amount of any damages that the Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. In addition, the maximum liability of the Selling
Stockholders under this Agreement shall in no event exceed the amount of the net
proceeds received by the Selling Stockholders from the sale of the Shares
pursuant to this Agreement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(g) The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any Indemnified Person at law or in equity.
10. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Selling
Stockholders and the Underwriter, as set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement or any certificate
delivered pursuant hereto, shall survive the delivery of and payment for the
Shares and shall remain in
15
full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company, the Selling Stockholders or
the Underwriter.
11. All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriter shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx Brothers Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (fax: 000-000-0000), Attention:
Syndicate Registration; if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to Plains Exploration & Production Company, 000
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (fax: 000-000-0000), Attention: Xxxx X.
Xxxxxxxx, Executive Vice President, General Counsel and Secretary; and if to the
Selling Stockholders shall be delivered or sent by mail, telex or facsimile
transmission to EnCap Investments L.P., (fax: 000-000-0000), Attention: D.
Xxxxxx Xxxxxxxx or Xxxxxx X. Xxxxxx. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and any
controlling persons referred to herein, and the affiliates, officers and
directors of the Underwriter referred to in Section 9 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of Shares from the Underwriter shall be
deemed to be a successor merely by reason of such purchase.
13. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City; and (c) the term "subsidiary" has the meaning set forth in Rule 405
of the Securities Act.
14. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
16
Very truly yours,
Plains Exploration & Production Company
By: _________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
EnCap Energy Capital Fund III, L.P.
By: EnCap Investments L.L.C., General
Partner
By: EnCap Investments L.P.,
Manager of EnCap Investments L.L.C.
By: EnCap Investments GP, L.L.C.,
General Partner of EnCap Investments
L.P.
By: __________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
EnCap Energy Capital Fund III-B, L.P.
By: EnCap Investments L.L.C., General
Partner
By: EnCap Investments L.P.,
Manager of EnCap Investments L.L.C.
By: EnCap Investments GP, L.L.C.,
General Partner of EnCap Investments
L.P.
By: __________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
17
BOCP Energy Partners, L.P.
By: EnCap Investments L.L.C., Manager
By: EnCap Investments L.P.,
Manager of EnCap Investments L.L.C.
By: EnCap Investments GP, L.L.C.,
General Partner of EnCap Investments
L.P.
By: __________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
Accepted as of the date hereof:
Xxxxxx Brothers Inc.
By: ________________________
Name:
Title:
18
Schedule I
Number of Shares of Common
Stock to be Purchased from
the Selling Stockholders by
Selling Stockholders Xxxxxx Brothers Inc.
--------------------------------------------- ---------------------------
EnCap Energy Capital Fund III, L.P........... 1,194,700
EnCap Energy Capital Fund III-B, L.P......... 886,814
BOCP Energy Partners, L.P.................... 290,354
---------
Total.................................... 2,371,868
=========
I-1
Schedule II
Subsidiaries
Plains E&P Company
Xxxxxxxx Inc.
Plains Illinois Inc.
Plains Resources International Inc.
PMCT Inc.
PXP Gulf Coast Inc.
II-1
Annex A
Form of Opinion of Legal Counsel for the Selling Stockholders
(a) Each of the Selling Stockholders has full right, power and
authority to enter into this Agreement; the execution, delivery and performance
of this Agreement by each of the Selling Stockholders and the consummation by
each of the Selling Stockholders of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel to which any of the Selling Stockholders is a party or by which
any of the Selling Stockholders is bound or to which any of the property or
assets of any of the Selling Stockholders is subject, nor will such actions
result in any violation of any partnership agreement, charter, bylaws or similar
organizational documents of any of the Selling Stockholders or any statute or
any order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over any of the Selling Stockholders or the
property or assets of any of the Selling Stockholders.
(b) This Agreement has been duly authorized, executed and delivered by
each Selling Stockholder.
(c) Upon payment for and delivery of the Shares in accordance with the
Underwriting Agreement, the Underwriters will acquire all of the rights of each
Selling Stockholder in the Shares and will also acquire their interest in such
Shares free of any adverse claim.
(d) All consents, approvals, authorizations and orders necessary for
the execution, delivery or performance by each of the Selling Stockholders of
this Agreement, the sale and delivery of the Shares to be sold by each of the
Selling Stockholders in accordance with this Agreement and the performance of
the Selling Stockholder's other obligations under the Agreement, have been
obtained, except for such consent, approvals, authorizations, registrations or
qualifications as may be required under applicable state securities or Blue Sky
laws of the various states in connection with the purchase and distribution of
the Shares by the Underwriter, as to which such counsel may express no opinion.
A-1
