EXHIBIT 2.8
STOCKHOLDER AGREEMENT
(Directors/Executive Officers)
This Stockholder Agreement dated as of May __, 1998 is between Pogo
Producing Company, a Delaware corporation ("Pogo") and [Insert Name of
Director/Officer] (the "Stockholder"), an individual and [title] of Arch
Petroleum Inc., a Delaware corporation ("Arch").
WHEREAS, Pogo, Alphac, Inc., a Delaware corporation and a wholly
owned subsidiary of Pogo ("Sub"), and Arch are entering into an Agreement and
Plan of Merger dated as of the date hereof (as amended from time to time
pursuant thereto, the "Merger Agreement");
WHEREAS, the Stockholder is the record and beneficial owner of
[insert number] shares of Common Stock, par value $0.01 per share, of Arch (the
"Arch Common Stock") (such shares of Arch Common Stock, together with any shares
of capital stock of Arch acquired by the Stockholder after the date hereof and
during the term of this Agreement, being collectively referred to herein as the
"Stockholder Shares"); and
WHEREAS, as a condition to the willingness of Pogo to enter into the
Merger Agreement, and as an inducement to it to do so, the Stockholder has
agreed for the benefit of Pogo as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained in this
Agreement, the parties hereby agree as follows (terms defined in the Merger
Agreement and used but not defined herein having the meanings assigned to such
terms in the Merger Agreement):
ARTICLE I
COVENANTS OF THE STOCKHOLDER
Section 1.01. Agreement to Vote. At any meeting of the stockholders
of Arch held prior to the earlier of (i) the Effective Time of the Merger and
(ii) the termination of the Merger Agreement (such earlier time being herein
referred to as the "Voting Termination Date"), however called, and at every
adjournment or postponement thereof prior to the Voting Termination Date, or in
connection with any written consent of the stockholders of Arch given prior to
the Voting Termination Date, the Stockholder shall vote or cause to be voted the
Stockholder Shares in favor of the approval of the Merger and each of the other
transactions contemplated by the Merger Agreement and in favor of the approval
and adoption of the Merger
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Agreement, and any actions required in furtherance hereof and thereof. The
Stockholder shall not enter into any agreement or understanding with any person
prior to the Voting Termination Date, directly or indirectly, to vote, grant any
proxy or give instructions with respect to the voting of the Stockholder Shares
in any manner inconsistent with the preceding sentence.
Section 1.02. Proxies and Voting Agreements. The Stockholder hereby
revokes any and all previous proxies granted with respect to matters set forth
in Section 1.01. Prior to the Voting Termination Date, the Stockholder shall
not, directly or indirectly, except as contemplated hereby, grant any proxies or
powers of attorney with respect to matters set forth in Section 1.01, deposit
any of the Stockholder Shares or enter into a voting agreement with respect to
any of the Stockholder Shares.
Section 1.03. No Solicitation.
(a) From and after the date hereof until the termination of the
Merger Agreement, the Stockholder will not, and will not authorize or permit any
of his agents, affiliates or other representatives (collectively, "Stockholder
Representatives") to, directly or indirectly, solicit or encourage (including by
way of providing information) any prospective acquiror or the invitation or
submission of any inquiries, proposals or offers or any other efforts or
attempts that constitute, or may reasonably be expected to lead to, an
Acquisition Proposal.
(b) The Stockholder shall immediately cease and cause to be
terminated any existing solicitation, initiation, encouragement, activity,
discussion or negotiation with any parties conducted heretofore by the
Stockholder or any Stockholder Representatives with respect to any Acquisition
Proposal existing on the date hereof.
(c) Prior to the termination of the Merger Agreement, the
Stockholder will promptly notify Pogo of any requests for information made to
the Stockholder or any Stockholder Representative or the receipt of any
Acquisition Proposal made to the Stockholder or any Stockholder Representative,
including the identity of the person or group engaging in such discussions or
negotiations, requesting such information or making such Acquisition Proposal,
and the material terms and conditions of any Acquisition Proposal.
(d) Prior to the termination of the Merger Agreement, the
Stockholder shall not enter into any agreement with any person that provides
for, or in any way facilitates, an Acquisition Proposal.
(e) The provisions of this Section 1.03 do not prohibit any
Stockholder Representative who is also an Arch Representative from taking
actions permitted by Section 4.2 of the Merger Agreement.
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Section 1.04. Transfer of Stockholder Shares by the Stockholder.
Prior to the record date for the Arch stockholder meeting to vote on the Merger
Agreement, the Stockholder will not sell, transfer, assign, convey or otherwise
dispose of any of the Stockholder Shares.
Section 1.05. Other Actions.
(a) Prior to the termination of the Merger Agreement, the
Stockholder shall not take any action that would in any way restrict, limit,
impede or interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement.
(b) The Stockholder agrees that from and after the date of this
Stockholder Agreement, the Stockholder will not sell or in any other way reduce
such party's risk relative to any Stockholder Shares, shares of Pogo Common
Stock, or securities convertible into Pogo Common Stock controlled, owned or
held by such Stockholder prior to the Merger, nor will it sell, or in any other
way reduce its risk relative to any shares of Pogo Common Stock received in
exchange for the Stockholder Shares in the Merger (within the meaning of Section
201.01 of the SEC's Financial Reporting Release No. 1) or any securities
convertible into Pogo Common Stock, until the earlier of (i) such time as
financial results (including combined sales and net income) covering at least 30
days of Pogo's post-merger operations have been published, except as permitted
by Staff Accounting Bulletin No. 76 (or any successor thereto) issued by the SEC
and (ii) 60 days after the first full calendar month of Pogo's post-merger
operations (the "Restricted Period").
(c) The Stockholder agrees that, at the Effective Time, he shall
convert all of the Stockholder Shares controlled, owned or held by him in
accordance with, and for the consideration described in, the Merger Agreement.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF THE STOCKHOLDER
The Stockholder represents, warrants and covenants to Pogo that:
Section 2.01. Ownership. Except as set forth on Schedule 2.01, the
Stockholder is, as of the date hereof, the beneficial and record owner of the
Stockholder Shares, the Stockholder has the sole right to vote the Stockholder
Shares and there are no restrictions on rights of disposition or other lien,
pledge, security interest, charge or other encumbrance or restriction pertaining
to the Stockholder Shares. None of the Stockholder Shares is subject to any
voting trust or other agreement, arrangement or restriction with respect to the
voting of the Stockholder Shares, and no proxy, power of attorney or other
authorization has been granted with respect to any of the Stockholder Shares.
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Section 2.03. Binding Effect. This Agreement has been duly executed
and delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
Section 2.04. Total Shares. The Stockholder Shares are the only
shares of capital stock of Arch owned beneficially or of record as of the date
hereof by the Stockholder, and the Stockholder does not have any option to
purchase or right to subscribe for or otherwise acquire any securities of Arch
and has no other interest in or voting rights with respect to any other
securities of Arch.
Section 2.05. Finder's Fees. No investment banker, broker or finder
is entitled to a commission or fee from Arch, Pogo or Sub in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder.
Section 2.06. Reasonable Efforts. Prior to the Termination Date, the
Stockholder shall, solely in his capacity as a stockholder of Arch, use
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with Pogo in doing, all things
necessary, proper or advisable to consummate and make effective the Merger and
the other transactions contemplated by the Merger Agreement and this Agreement.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF POGO
Pogo represents, warrants and covenants to the Stockholder that:
Section 3.01. Corporate Power and Authority. Pogo has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Pogo of this
Agreement and the consummation by Pogo of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of Pogo.
Section 3.02. Binding Effect. This Agreement has been duly executed
and delivered by Pogo and is a valid and binding agreement of Pogo, enforceable
against Pogo in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally and by equitable principles to which the remedies of
specific performance and injunctive and similar forms of relief are subject.
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Section 3.03. Cooperation. Subject to Section 5.16 of the Merger
Agreement and the rules and requirements of applicable securities laws, Pogo
shall use reasonable efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with the Stockholder in
doing, all things necessary, proper or advisable to allow the Stockholder to
publicly sell shares of Pogo Common Stock received in the Merger after the
Restricted Period without any unreasonable delay or restrictions.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Expenses. Each party hereto shall pay its own expenses
incident to preparing for entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby; provided, however, that
Arch may pay such expenses of the Stockholder.
Section 4.02. Further Assurances. From time to time, at the request
of the other party, each party shall execute and deliver or cause to be executed
and delivered such additional documents and instruments and take all such
further action as may be necessary or desirable to consummate the transactions
contemplated by this Agreement.
Section 4.03. Specific Performance. (a) The Stockholder agrees that
Pogo would be irreparably damaged if for any reason the Stockholder fails to
perform any of the Stockholder's obligations under this Agreement, and that Pogo
would not have an adequate remedy at law for money damages in such event.
Accordingly, Pogo shall be entitled to seek specific performance and injunctive
and other equitable relief to enforce the performance of this agreement by the
Stockholder. This provision is without prejudice to any other rights that Pogo
may have against the Stockholder for any failure to perform his obligations
under this Agreement; (b) Pogo agrees that the Stockholder would be irreparably
damaged if for any reason Pogo fails to perform any of Pogo's obligations under
this Agreement, and that the Stockholder would not have an adequate remedy at
law for money damages in such event. Accordingly, the Stockholder shall be
entitled to seek specific performance and injunctive and other equitable relief
to enforce the performance of this agreement by Pogo. This provision is without
prejudice to any other rights that the Stockholder may have against Pogo for any
failure to perform its obligations under this Agreement.
Section 4.04. Notices. Any notice or communication required or
permitted hereunder shall be in writing and either delivered personally,
telegraphed or telecopied or sent by certified or registered mail, postage
prepaid, and shall be deemed to be given, dated and received when so delivered
personally, telegraphed or telecopied or, if mailed, five business days after
the date of mailing to the following address or telecopy number, or to such
other address or addresses as such person may subsequently designate by notice
given hereunder:
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(a) if to Pogo or Sub, to:
Pogo Producing Company
0 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxxxx
Xxxxx & Xxxxx, L.L.P.
0000 Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
(b) if to Stockholder, to:
[Insert name]
[Insert address]
Facsimile: [Insert fax no.]
with a copy to:
--------------------------
--------------------------
Attention: ---------------
Facsimile: ---------------
Section 4.05. Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. 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. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." Unless the context otherwise requires, "or" is
disjunctive but not necessarily exclusive, and words in the singular include the
plural and in the plural include the singular. The term "person" is to be
interpreted broadly to include any individual, corporation, partnership, trust,
limited liability company, government or other entity and any group (as used
with respect to Section 13(d) of the Securities Exchange Act of 1934, as
amended).
Section 4.06. Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become
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effective when a counterpart has been signed by each of the parties and
delivered to the other party, it being understood that all parties need not sign
the same counterpart.
Section 4.07. Entire Agreement; No Third Party Beneficiaries. This
Agreement (a) 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 (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 4.08. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
Section 4.09. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
Section 4.10. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
shall terminate upon the termination of the Merger Agreement in accordance with
the terms thereof.
Section 4.11. Certain Events. The Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Stockholder Shares
beneficially owned by such Stockholder 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.
Section 4.12. Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid but if any provision or portion of any provision of
this agreement is held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability will not affect any other
provision or portion of any provision, and this Agreement will be reformed,
construed and enforced as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein. The parties shall
endeavor in good faith negotiations to replace any invalid, illegal or
unenforceable provision with a valid provision the effects of which come as
close as possible to those of such invalid, illegal or unenforceable provision.
Section 4.13. Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements, in addition to any other relief to which such party may be
entitled.
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IN WITNESS WHEREOF, Pogo and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
[Stockholder]
POGO PRODUCING COMPANY
By
Xxxxxx X. Xxxxxx
Vice President-Law
and Corporate Secretary
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