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EXHIBIT 4.3
STANDSTILL AND VOTING AGREEMENT
THIS STANDSTILL AND VOTING AGREEMENT is dated as of March 14,
2001 (this "Agreement") between Pogo Producing Company, a Delaware corporation
(the "Company"), and the Shareholders (as defined below) who are signatories
hereto.
W I T N E S S E T H:
WHEREAS, in connection with that certain Merger Agreement among
the Company, NORIC Corporation, a New York corporation ("NORIC") and the
Shareholders of NORIC named therein (the "Merger Agreement"), dated November 19,
2000, the parties have agreed that NORIC would be acquired by the Company
through the Merger of NORIC with and into the Company on the terms set forth
therein (the "Merger"),
WHEREAS, pursuant to the Merger Agreement, upon consummation of
the Merger, the Shareholders will receive in exchange for their shares of common
stock of NORIC, the number of shares of common stock, par value $1.00 per share,
of the Company ("Common Stock"), as is set forth opposite each Shareholders'
name on Exhibit A (the "Shares") and
WHEREAS, the Shareholders and the Company desire to set forth
herein their agreement with respect to the restrictions on acquisitions of
additional Common Stock, restriction on voting, and certain other covenants
applicable to the Shares;
NOW, THEREFORE, in consideration of the premises and the mutual
obligations, covenants and agreements herein contained, the parties hereto agree
as follows:
Section 1. Definitions.
1.1 Certain Defined Terms. For purposes of this Agreement, the
following terms shall have the following meanings (all terms defined in this
Section 1.1 or in other provisions of this Agreement in the singular to have the
same meanings when used in the plural and vice versa):
"Affiliate" shall mean any corporation, partnership or other
Person directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with any Shareholder, and shall include
any Person acting on behalf of any Shareholder or affiliates of either of them,
as the case may be. For purposes of the preceding sentence, "control" (including
the terms "controlling," "controlled by" and "under common control with") means
possession, directly or indirectly, of the power to direct or cause direction of
management and policies of a Person through ownership of equity, by contract,
pursuant to a voting trust or otherwise.
"Associate" shall have the meaning assigned to such term in Rule
12b-2 under the Exchange Act, as in effect on the date hereof.
"Beneficial owner" or "beneficially owned" or "beneficial
ownership" shall have the meaning assigned to such terms in Rule 13d-3 under the
Exchange Act, as in effect on the date hereof.
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"Common Stock" shall have the meaning set forth in the recitals.
"Company" shall have the meaning set forth in the recitals.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Matter" shall mean any item that comes before the holders of
Voting Securities at a regular, annual, or special meeting of holders of Voting
Securities, or that comes before them by written consent, whether for majority,
plurality, unanimous or other vote, and whether or not duly announced by notice
or agenda. "Matter" shall include, but not be limited to: the election of
directors, the calling, postponement, or adjournment of meetings; the sale of
the Company's stock or assets; any merger, consolidation, dissolution,
liquidation or business combination of the Company; the adoption of amendments
to the Company's charter or bylaws; any change in the authorized capital
structure of the Company or of the classes or series of shares authorized or of
the rights, privileges and preferences thereof; the issuance of debt securities
of the Company; the adoption of any employee benefit or incentive plan, the
selection or approval of independent public accountants, or the execution of a
loan or line of credit agreement by the Company.
"Person" shall mean any association, corporation, company, group
or partnership or other entity or individual.
"Registration Rights Agreement" shall mean that certain
Registration Rights Agreement dated as of the date hereof between the Company
and the Shareholders.
"Shareholder Representative" shall have the meaning set forth in
the Registration Rights Agreement.
"Shareholders" shall mean those certain stockholders of the
Company who are parties to this Agreement, the Merger Agreement or the
Registration Rights Agreement (each a "Shareholder" and collectively the
"Shareholders").
"Voting Securities" shall mean Common Stock and any other
securities of the Company or any of its successors entitled to vote generally in
the election of directors, and securities exercisable for and convertible into
such securities, in each case now or hereafter outstanding.
Section 2. Agreements of the Shareholders.
2.1 Standstill Agreement. Each of the Shareholders agrees that, so
long as this Agreement remains in effect, neither he, she nor it, nor any of
his, her or its Affiliates or Associates shall, directly or indirectly:
(a) (i) in any manner acquire or offer to acquire, directly
or indirectly, by purchase or otherwise, beneficial ownership of any
Voting Securities, or (ii) propose to enter into, directly or
indirectly, any merger, tender or exchange offer, restructuring or
business combination or joint venture transaction involving the Company
or any of its subsidiaries or the assets of the Company or any of its
subsidiaries, or (iii) propose to
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purchase, directly or indirectly, a material portion of the assets of
the Company or any of its subsidiaries;
(b) "solicit," or participate in the "solicitation" of,
"proxies" (as such terms are defined or used in Rule 14a-1 under the
Exchange Act) in opposition to the recommendation of the majority of the
Board of Directors of the Company or become a participant in an election
contest with respect to the election of directors of the Company or
otherwise influence or affect the vote of any stockholder;
(c) form, join or participate in a partnership, limited
partnership, syndicate or other "group" (as defined in Section 13(d)(3)
of the Exchange Act) or enter into any contract, arrangement,
understanding or relationship or otherwise act in concert with any other
person for the purpose of acquiring, holding, voting or disposing of
Voting Securities;
(d) seek to appoint, elect or remove any member of the Board
of Directors of the Company or seek to affect or influence the Company's
management, Board of Directors, business or affairs or make any public
statements proposing or suggesting any change in the Board of Directors
or management of the Company or its business or affairs or any action
taken by the Board of Directors or management of the Company;
(e) initiate or propose to the holders of Voting Securities,
or otherwise solicit their approval of, any proposal, resolution or
Matter to be voted on by the holders of Voting Securities;
(f) ask the Company to, or seek to cause the Company (or its
directors) to, call a special meeting of stockholders to amend the
Company's charter or bylaws or any other governing documents;
(g) initiate, induce or attempt to induce or encourage
another Person to propose a tender or exchange offer or change of
control of the Company;
(h) make any public statements (or statements that must be
publicly disclosed) inconsistent with the provisions of this Agreement;
or
(i) disclose any intention, plan or arrangement to take any
of the actions enumerated in clauses (a) through (h) above or
participate in, aid or abet or otherwise induce or attempt to induce or
encourage any person to take any of the actions enumerated in clauses
(a) through (h) above or take any other action inconsistent with the
foregoing.
2.2 Voting. With respect to all Matters, the Shareholders will vote
all Voting Securities either (1) in accordance with the recommendation of the
Board of Directors or (2) in equal proportion to the votes cast by stockholders
of the Company who are not parties to this Agreement.
2.3 Irrevocable Proxy and Power of Attorney. To facilitate the
operation of this Agreement, each Shareholder hereby grants to the Shareholder
Representative an irrevocable
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proxy and power of attorney to vote all such Shareholder's Shares on all Matters
in accordance with Section 2.2 hereof. Such proxy shall be durable and shall
continue in force until terminated in writing by the Shareholder Representative
by notice to the Company and the Shareholders, and such proxy shall be deemed
coupled with an interest. Termination of the proxy with respect to some or all
Shares will not affect any proxy respecting any other Shares and will not
terminate this Agreement. The Shareholder Representative's exercise of his proxy
will extinguish any prior proxy granted by any Shareholder. The foregoing proxy
and power of attorney is intended to be a durable power of attorney and shall
survive, and shall not be affected by, the subsequent death, incompentency,
disability, incapacity, bankruptcy or termination of any Shareholder and shall
bind each Shareholder's heirs, personal representatives, executors,
administrators and assigns.
2.4 Disposition of Shares. Until the date which is two years
following the Closing Date of the Merger Agreement, no Shareholder will sell,
transfer, give, donate, bequeath or otherwise dispose of Shares except:
2.4.1 Pursuant to the procedures set forth in the Registration
Rights Agreement, including without limitation that no public resales may be
made (other than pursuant to a Public Offering (as defined in the Registration
Rights Agreement) in which shareholders participate under Section 2.4 of the
Registration Rights Agreement) until the 181st day following the Effective Time
(as defined in the Registration Rights Agreement) and that any public resales
during the twelve-month period specified in Section 2.6 of the Registration
Rights Agreement shall be subject to the volume limitations specified in such
Section 2.6; or
2.4.2 To a Person who (1) upon closing of such transfer will
own less than 5% of the Voting Securities and (2) is not a member of a "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) or an Affiliate or
an Associate of a member of such a "group" and (3) has not publicly announced
that he, she or it is accumulating Voting Securities for any of the purposes set
forth in Section 2.1 hereof, provided that as a condition to such transfer, the
Company shall be provided such documentation as it may reasonably request,
including an opinion of counsel, to the effect that such transfer does not
require registration under the Securities Act of 1933 or any applicable state
securities law.
2.5 Addition of New Shareholders. Additional Persons may be added as
parties to this Agreement, and will be deemed to have agreed to the provisions
hereof, upon execution and delivery to the Company of a copy of this Standstill
and Voting Agreement executed by such Persons and by delivery to the Company
supplemental forms of Exhibit A, containing as to such Persons the information
required by Exhibit A (namely, name, address for notice, and number of Shares
owned) for attachment to this Agreement. Upon such delivery such persons shall
be "Shareholders" for all purposes hereof, and the Common Stock identified on
Exhibit A by such Stockholders shall be "Shares" for all purposes hereof, until
terminated as provided herein.
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Section 3. Term of Agreement. This Agreement shall continue in full
force and effect until the Shareholders and their Affiliates and Associates
collectively beneficially own less than 10% of the Voting Securities.
Section 4. General.
4.1 Remedies. Each of the parties hereto acknowledge and agree that
the Company would be irreparably damaged if any of the provisions of this
Agreement are not performed by the other parties hereto in accordance with their
specific terms or are otherwise breached, and that money damages alone would not
be easily calculable and would not be a sufficient remedy for any breach of this
Agreement. Accordingly, the Company shall be entitled, without the requirement
of posting a bond or other security, to equitable relief, including injunctive
relief and specific performance, in the event of any breach of the provisions of
this Agreement by the other parties hereto, in addition to all other remedies
available at law or in equity.
4.2 Amendments; Waivers. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the Company and the
Shareholders.
4.3 Notices. All notices and other communications hereunder shall be
given in writing and delivered personally, by registered or certified mail
(postage prepaid, return receipt requested), by overnight courier (postage
prepaid), facsimile transmission or similar means, to the party to receive such
notices or communications at the address set forth below (or such other address
as shall from time to time be designated by such party to the other parties by
like notice):
If to the Company: Pogo Producing Company
5 Greenway Plaza, Suite 2700
P.O. Box 2504
Houston, Texas 77252-2504
Telecopy: (713) 297-4970
Attention: Gerald A. Morton, Vice President-Law
and Corporate Secretary
If to a Shareholder: To the Shareholder Representative
All such notices and communications hereunder shall be deemed given when
received, as evidenced by the signed acknowledgement of receipt of the person to
whom such notice or communication shall have been personally delivered, the
acknowledgement of receipt returned to the sender by the applicable postal
authorities, the confirmation of delivery rendered by the applicable overnight
courier service, or the confirmation of a successful facsimile transmission of
such notice or communication. A copy of any notice or other communication given
by any party to any other party hereto, with reference to this Agreement, shall
be given at the same time to the other parties to this Agreement.
4.4 GOVERNING LAW. THE PARTIES TO AGREE THAT THIS AGREEMENT, AND THE
RESPECTIVE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES
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HEREUNDER, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE.
4.5 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 under applicable law. If any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
4.6 No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its rights to exercise any such or other right, power or remedy or to
demand such compliance.
4.7 No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any Person (whether or
not listed on Exhibit A hereto) who or which is not a party hereto. Any Person
(whether or not listed on Exhibit A hereto) who or which is not a party hereto
shall not be entitled to any benefit hereunder except, in the case of any Person
listed on Schedule A hereto, such Person shall be entitled to become a party
hereto by executing a counterpart of this Agreement.
4.8 Headings. The Section headings in this Agreement are for
convenience of reference only and are not intended to be a part of this
Agreement or to affect the meaning or interpretation of this Agreement.
4.9 Warranty of Authority. Each Stockholder represents, covenants
and warrants that it, he or she is the record and beneficial owner of the Shares
and has the authority and power to execute this Agreement and that it, he or she
is bound by the terms and conditions hereof.
4.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one agreement.
4.11 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to its subject matter, and
supersedes and replaces all prior agreements conversations, negotiations,
writings or understandings of the parties in connection with such subject
matter.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first above written.
POGO PRODUCING COMPANY
By: /s/ James P. Ulm, II
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Name: James P. Ulm, II
Title: Vice President and Chief
Financial Officer
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THE SHAREHOLDERS LISTED ON SCHEDULE A
BY GOELET, LLC, AS
SHAREHOLDER REPRESENTATIVE
By: /s/ Robert W. Kiley
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Name: Robert W. Kiley
Title: President and Chief
Operating Officer
By: /s/ Mark Rosenbaum
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Name: Mark Rosenbaum
Title: Vice President, Chief
Financial Officer and
Treasurer
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SCHEDULE A
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NUMBER OF SHARES OF
COMMON STOCK OF POGO
PRODUCING COMPANY, PAR
VALUE $1.00 PER SHARE,
BENEFICIALLY OWNED
NAME OF SHAREHOLDER BY SUCH SHAREHOLDER
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Robert G. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees under Agreement dated August 26, 1930 for the benefit
of Beatrice G. Manice 1,778,554
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Robert G. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees under Agreement dated July 27, 1935 for the benefit
of Beatrice G. Manice 571,678
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Robert G. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees under the Will of Robert Walton Goelet for the benefit
of Beatrice G. Manice 381,119
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Alexandra C. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees under Agreement dated August 26, 1930 for the benefit
of Robert G. Goelet 1,778,554
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Alexandra C. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees under Agreement dated July 27, 1935 for the benefit
of Robert G. Goelet 571,678
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Robert G. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees under the Will of Robert Walton Goelet for the benefit
of Robert G. Goelet 571,678
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Robert G. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees of the Trust under Agreement dated July 27, 1935 for
the benefit of Francis Goelet 571,678
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Robert G. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees of the Trust under Agreement dated December 18, 1931
for the benefit of John Goelet 1,333,915
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Henrietta Goelet and Robert S. Rich, as Trustees of the Trust under
Agreement dated December 17, 1976 for the benefit of
grandchildren of John Goelet 444,638
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NUMBER OF SHARES OF
COMMON STOCK OF POGO
PRODUCING COMPANY, PAR
VALUE $1.00 PER SHARE,
BENEFICIALLY OWNED
NAME OF SHAREHOLDER BY SUCH SHAREHOLDER
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Robert G. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees of the Trust under Agreement dated July 27, 1935 for
the benefit of John Goelet 571,678
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Robert G. Goelet, Philip Goelet and Edmond de La Haye Jousselin,
as Trustees under the Will of Robert Walton Goelet for the benefit
of John Goelet 476,398
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Robert G. Goelet 682,281
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John H. Manice 70,697
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Robert G. Goelet, Philip Goelet and Edmond de La Haye Jousselin, as
Trustees of the Trust dated September 4, 1980, as amended, for the
benefit of Anne de La Haye Jousselin 82,755
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Robert G. Manice 29,499
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Robert G. Manice, as custodian for Henry W. Manice under the New York
Uniform Transfers to Minors Act 2,871
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Robert G. Manice, as custodian for Emily P. Manice under the New York
Uniform Transfers to Minors Act 2,871
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Robert G. Manice, as custodian for Harriet W. Manice under the New York
Uniform Transfers to Minors Act 2,871
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Amelia M. Berkowitz 70,697
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Pamela Manice 80,602
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Alexandra Gardiner Goelet 47,640
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Robert Gardiner Goelet 47,640
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Philip Goelet 175,379
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Christopher Goelet 170,642
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Gilbert Kerlin 1,492,750
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Windward Oil & Gas Corporation 590,698
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Arthur N. Field 14,355
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[COUNTERPART SIGNATURE PAGE TO THE
STANDSTILL AND VOTING AGREEMENT DATED _________, 2001]
THE UNDERSIGNED SHAREHOLDER, listed on Exhibit A to the
Standstill Agreement dated as of __________, 2000 between Pogo Producing
Company, and [LIST SIGNING STOCKHOLDERS] (the "Standstill Agreement"), a copy of
which is attached hereto, hereby agrees to become a party to the attached
Standstill and Voting Agreement and be bound by the provisions thereof as if the
undersigned was an original party thereto.
IN WITNESS THEREOF, the undersigned has executed this
counterpart to the Standstill and Voting Agreement on this _____ day of
____________, _______.
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Name:
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