Exhibit 99.2
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (this "Agreement"), dated as of July 19, 2007, is by
and between Plains Exploration & Production Company, a Delaware corporation
("Parent"), and Third Point LLC, a Delaware limited liability company (the
"Stockholder").
WHEREAS, Pogo Producing Company, a Delaware corporation (the "Company"),
and Parent have entered into a Merger Agreement, dated as of July 19, 2007, by
and among Company, Parent, and a wholly-owned subsidiary of Parent (the "Merger
Agreement"); and
WHEREAS, the Stockholder is the beneficial owner, for the benefit of
certain funds and/or accounts managed by it, of that number of shares of common
stock, par value $1.00 per share, of the Company (the "Shares") set forth below
the Stockholder's name on the signature page hereto (the Shares owned by such
Stockholder, together with any additional Shares of the Company acquired after
the date hereof, being collectively referred to herein as the Stockholder's
"Subject Shares"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, and as an inducement to it to do so, the Stockholder has
agreed for the benefit of Parent as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained in this Agreement, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING AGREEMENT AND PROXY
Section 1.1 Agreement to Vote. At any meeting of the holders of the
Company's Shares held prior to the termination of Article I of this Agreement
pursuant to Section 3.12 hereof (the "Article I Termination Date"), however
called, and at every adjournment or postponement thereof prior to the Article I
Termination Date, the Stockholder shall vote or cause to be voted the Subject
Shares (a) in favor of (i) the adoption of the Merger Agreement by the Company,
(ii) the merger (the "Merger") and other transactions contemplated by the Merger
Agreement, and (iii) any actions required in furtherance of the Merger and the
other transactions contemplated by the Merger Agreement, and (b) against (i) any
Alternative Proposal (including a Superior Proposal) (each as defined in the
Merger Agreement), (ii) any proposal for action or agreement that is reasonably
likely to result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or that
is reasonably likely to result in any of the conditions to the obligations of
the Company under the Merger Agreement not being fulfilled, or (iii) any other
action which could reasonably be expected to impede, interfere with, delay,
postpone or materially affect the transactions contemplated by the Merger
Agreement or the likelihood of such transactions being consummated (clauses (a)
and (b) together, the "Proxy Matters").
Section 1.2 Proxies and Voting Agreements. The Stockholder hereby revokes
any and all previous proxies granted with respect to the Subject Shares with
respect to the Proxy Matters. Prior to the Article I Termination Date, the
Stockholder agrees not to, directly or indirectly, with respect to the Subject
Shares (a) grant any proxies or powers of attorney, (b)
deposit any of such Shares into any voting trust or (c) enter into any other
voting agreement or understanding, in each case relating to the Proxy Matters.
Section 1.3 Transfer of Shares by the Stockholder. Prior to the Article I
Termination Date, the Stockholder agrees not to sell, transfer, assign, convey
or otherwise dispose of, directly or indirectly, any of the Subject Shares held
by the Stockholder, except as contemplated by the Merger Agreement.
Section 1.4 Stockholder Representations and Warranties. The Stockholder
represents and warrants to Parent that (i) the Stockholder has duly authorized,
executed and delivered this Agreement and that this Agreement constitutes a
valid and binding agreement and neither the execution and delivery of this
Agreement nor the consummation by the Stockholder of the transactions
contemplated hereby will constitute a violation of, a default under, or conflict
with any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Stockholder is party or by which the
Stockholder is bound, (ii) the consummation by the Stockholder of the
transactions contemplated hereby will not violate, or require any consent,
approval or notice under, any provision of law applicable to the Stockholder,
(iii) there are no outstanding options, warrants or rights to purchase or
acquire, or proxies, powers-of-attorney or voting agreements relating to, the
Subject Shares, other than this Agreement and the Stockholders Agreement, dated
March 12, 2007, by and among the Company, Third Point LLC, Xxxxxx X. Xxxx,
Xxxxxxx X. Xxxxxx, Third Point Offshore Fund, Ltd., Third Point Ultra Ltd.,
Third Point Partners LP, Third Point Partners Qualified LP and Lyxor/Third Point
Fund Limited (the "Stockholders Agreement"), (iv) the Shares set forth below the
Stockholder's name on the signature page hereto constitute all of the securities
of the Company owned beneficially or of record by the Stockholder on the date
hereof and (v) the Stockholder has the present power and right to direct, as to
the voting of all of the Shares set forth below the Stockholder's name on the
signature page hereto, the record owner thereof as contemplated herein.
ARTICLE II
STANDSTILL AGREEMENT
Section 2.1 Standstill. Except through the transactions contemplated by the
Merger Agreement, the Stockholder agrees that, without the prior written consent
of Parent, it will not (and it will not assist or encourage others to) at any
time prior to the termination of Article II of this Agreement pursuant to
Section 3.12 hereof (the "Article II Termination Date"):
(a) acquire or agree, offer, seek or propose to acquire, directly or
indirectly, alone or in concert with any other association, corporation,
company, group, partnership or other entity or individual (each a "Person"), by
purchase or otherwise, any ownership, including but not limited to beneficial
ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended ("Exchange Act"), of any securities of Parent or any subsidiary thereof,
or any rights or options to acquire such ownership (including from any third
party);
(b) solicit proxies (as such term is defined in Rule 14a-l under the
Exchange Act), or consents to vote, whether or not such solicitation is exempt
under Rule 14a-2 under the Exchange Act with respect to any matter from holders
of securities of Parent, or make any
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communication exempted from the definition of solicitation by Rule
14a-l(l)(2)(iv) under the Exchange Act;
(c) initiate, or induce or attempt to induce any other Person, entity
or group to initiate, any stockholder proposal or tender offer or exchange offer
for any securities of Parent or any subsidiary thereof, any change of control of
Parent or any subsidiary thereof, any merger or other business combination
involving Parent, any recapitalization, restructuring, liquidation, dissolution
or other extraordinary transaction with respect to Parent or its subsidiaries,
or the convening of a stockholders' meeting of Parent or any subsidiary thereof;
(d) form, join or in any way participate in a "group" (as defined in
the Exchange Act) with respect to securities of Parent or otherwise seek or
propose to influence or control the management or policies of Parent or any
subsidiary thereof;
(e) enter into any discussions, negotiations, arrangements or
understandings with any other Person other than Parent's representatives with
respect to any matter described in the foregoing subparagraphs (a) through (d);
or
(f) take any action inconsistent with any of the foregoing
subparagraphs (a) through (e).
The foregoing shall not prohibit or restrict (a) actions taken by directors or
officers of the Company in their capacities as such (including, in the case of
directors, in the exercise of their fiduciary duties), (b) actions allowed by
the Merger Agreement or (c) transactions leading to the ownership of less than
5% of the securities of Parent.
ARTICLE III
MISCELLANEOUS
Section 3.1 Termination of Stockholders Agreement. Concurrently with the
execution of this Agreement, each Stockholder shall enter into a written
agreement with the Company to effect the termination of the Stockholders
Agreement, which termination shall be effective simultaneously with the
"Effective Time" as defined in the Merger Agreement.
Section 3.2 Further Assurances. From time to time, at the reasonable
request of Parent, the Stockholder 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 3.3 Specific Performance. The Stockholder agrees that Parent would
be irreparably damaged if for any reason the Stockholder fails to perform any of
its obligations under this Agreement, and that Parent would not have an adequate
remedy at law for money damages in such event. Accordingly, Parent 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 Parent may have against the
Stockholder for any failure to perform its obligations under this Agreement.
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Section 3.4 Notices. All notices to be given pursuant hereto shall be given
in accordance with Section 8.3 of the Merger Agreement, with the address for the
Stockholder as set forth on the signature page hereof.
Section 3.5 Definitions and Interpretation. Capitalized terms that are used
but not defined herein shall have the meanings ascribed to them in the Merger
Agreement. Section 8.11 of the Merger Agreement shall govern the interpretation
hereof.
Section 3.6 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement.
Section 3.7 Binding Effect and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, their respective permitted
successors and assigns and any transferee of the Stockholder's Subject Shares.
This Agreement shall not be assignable by either party hereto without the
written consent of the other party hereto; provided that Parent may assign its
rights under this Agreement to a wholly owned subsidiary of Parent, but any such
assignment shall not relieve Parent of its obligations hereunder. Nothing in
this Agreement, express or implied, is intended to confer upon any person other
than the parties hereto and their respective permitted successors and assigns,
any rights, benefits or obligations hereunder. No Person other than the parties
hereto is an intended beneficiary of this Agreement or any portion hereof.
Section 3.8 Governing Law; Jurisdiction; Waiver of Jury Trial. To the
maximum extent permitted by applicable Law, the provisions of this Agreement
shall be governed by and construed and enforced in accordance with the Laws of
the State of Delaware, without regard to principles of conflicts of law. Each of
the parties hereto agrees that this Agreement involves at least U.S. $100,000
and that this Agreement has been entered into in express reliance upon 6 Del. C.
ss. 2708. Each of the parties hereto irrevocably and unconditionally confirms
and agrees that it is and shall continue to be (i) subject to the jurisdiction
of the courts of the State of Delaware and of the federal courts sitting in the
State of Delaware, and (ii) subject to service of process in the State of
Delaware. Each party hereto hereby irrevocably and unconditionally (a) consents
and submits to the exclusive jurisdiction of any federal or state court located
in the State of Delaware (the "Delaware Courts"), including the Delaware Court
of Chancery in and for New Castle County, for any actions, suits or proceedings
arising out of or relating to this Agreement or the transactions contemplated by
this Agreement (and agrees not to commence any litigation relating thereto
except in such courts), (b) waives any objection to the laying of venue of any
such litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in any
inconvenient forum and (c) acknowledges and agrees that any controversy that may
arise under this Agreement is likely to involve complicated and difficult
issues, and therefore each such party hereby irrevocably and unconditionally
waives any right such party may have to a trial by jury in respect of any
litigation directly or indirectly arising or relating to this Agreement or the
transactions contemplated by this Agreement.
Section 3.9 Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral
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or written, of the parties, and there are no other agreements between the
parties in connection with the subject matter hereof except as set forth
specifically herein or contemplated hereby. No supplement, modification or
waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. The failure of a party to exercise any right or
remedy shall not be deemed or constitute a waiver of such right or remedy in the
future. No waiver of any of the provisions of this Agreement shall be deemed to
or shall constitute a waiver of any other provision hereof (regardless of
whether similar), nor shall any such waiver constitute a continuing waiver
unless otherwise expressly provided.
Section 3.10 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 3.11 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.
Section 3.12 Termination. This Agreement shall terminate and be of no
further force and effect upon (i) the termination of the Merger Agreement in
accordance with its terms or (ii) if the Effective Time (as defined in the
Merger Agreement) occurs, then Article I shall terminate and be of no further
force and effect upon the Effective Time and the remaining Articles and Sections
shall terminate and be of no further force and effect upon the third anniversary
of the date of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
Plains Exploration & Production Company
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
Third Point LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Portfolio Manager
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