Amendment No. 4 to Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K2UPfkWfE00LDSSBA1Q77a1rangbwXLkUH20Q6Qm7sPRdNWm2tErBGxYLLmWB5AC lXVFoht11kWmM6VUCbhriQ== 0001193125-04-117071.txt : 20040713 0001193125-04-117071.hdr.sgml : 20040713 20040713063858 ACCESSION NUMBER: 0001193125-04-117071 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20040713 GROUP MEMBERS: JOHN T. RAYMOND GROUP MEMBERS: PAUL G. ALLEN GROUP MEMBERS: VULCAN ENERGY CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PLAINS RESOURCES INC CENTRAL INDEX KEY: 0000350426 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-PETROLEUM & PETROLEUM PRODUCTS (NO BULK STATIONS) [5172] IRS NUMBER: 132898764 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-33092 FILM NUMBER: 04911104 BUSINESS ADDRESS: STREET 1: 700 MILAM STREET 2: SUITE 3100 CITY: HOUSTON STATE: TX ZIP: 77002 BUSINESS PHONE: 8322396000 MAIL ADDRESS: STREET 1: 700 MILAM STREET 2: SUITE 3100 CITY: HOUSTON STATE: TX ZIP: 77002 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FLORES JAMES C CENTRAL INDEX KEY: 0000939485 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1001 FANNIN STREET 2: SUITE 1600 CITY: HOUSTON STATE: TX ZIP: 77002 BUSINESS PHONE: 7132656000 MAIL ADDRESS: STREET 1: 1001 FANNIN STREET 2: SUITE 1600 CITY: HOUSTON STATE: TX ZIP: 77002 SC 13D/A 1 dsc13da.htm AMENDMENT NO. 4 TO SCHEDULE 13D Amendment No. 4 to Schedule 13D

CUSIP NO. 726540503

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

RULE 13d-2(a)

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Under the Securities Exchange Act of 1934*

(Amendment No. 4)

Plains Resources Inc.

(Name of Issuer)

Common Stock, par value $0.10 per share

(Title of Class of Securities)

726540503

(CUSIP Number)

Paul G. Allen

Vulcan Energy Corporation

505 Fifth Avenue S, Suite 900

Seattle, Washington 98104

(206) 342-2000

James C. Flores

Plains Resources Inc.

700 Milam, Suite 3100

Houston, Texas 77002

(832) 239-6000

John T. Raymond

Plains Resources Inc.

700 Milam, Suite 3100

Houston, Texas 77002

(832) 239-6000

(Name, Address and Telephone Number of Person(s) Authorized to Receive Notices and Communications)

July 12, 2004

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ¨.

CUSIP NO. 726540503

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

Continued on following page(s)

CUSIP NO. 726540503


1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Vulcan Energy Corporation
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS* N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)	¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7 SOLE VOTING POWER:

0 shares (1)

8 SHARED VOTING POWER:

2,839,519 shares (1)(2)

9 SOLE DISPOSITIVE POWER:

0 shares (1)

10 SHARED DISPOSITIVE POWER:

0 shares (1)


11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 shares (2)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*	x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0%
14	TYPE OF REPORTING PERSON* CO

⁽¹⁾

Vulcan Energy Corporation and Paul G. Allen have entered into an Amended and Restated Subscription Agreement with James C. Flores and John T. Raymond (please see Item 6) and may be deemed members of a “group” with respect to the shares of Issuer owned by Messrs. Flores and Raymond. Vulcan Energy Corporation and Paul G. Allen disclaim membership in a group with, and beneficial ownership of the shares of Issuer owned by, Messrs. Flores and Raymond.

⁽²⁾

Vulcan Energy Corporation has entered into a Voting Agreement with Kayne Anderson Capital Advisors, L.P. (“KACA”) and EnCap Investments, L.L.C. (“EnCap”) (please see Item 6) and may be deemed a member of a “group” with respect to the shares of Issuer owned by KACA and EnCap. Paul G. Allen is the sole shareholder of Vulcan Energy Corporation. Vulcan Energy Corporation and Mr. Allen disclaim membership in a group with, and beneficial ownership of the shares of Issuer owned by, KACA and EnCap.

*SEE INSTRUCTIONS BEFORE FILLING OUT!

CUSIP NO. 726540503


1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Paul G. Allen
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS* N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)	¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7 SOLE VOTING POWER:

0 shares (1)

8 SHARED VOTING POWER:

2,839,519 shares (1)(2)

9 SOLE DISPOSITIVE POWER:

0 shares (1)

10 SHARED DISPOSITIVE POWER:

0 shares (1)


11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 shares (2)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*	x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0%
14	TYPE OF REPORTING PERSON* IN

⁽¹⁾

⁽²⁾

*SEE INSTRUCTIONS BEFORE FILLING OUT!

CUSIP NO. 726540503


1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON James C. Flores
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) x (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS* N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)	¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7 SOLE VOTING POWER:

1,226,428 shares

8 SHARED VOTING POWER:

0 shares

9 SOLE DISPOSITIVE POWER:

1,226,428 shares

10 SHARED DISPOSITIVE POWER:

0 shares


11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,226,428 shares
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*	¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.00%
14	TYPE OF REPORTING PERSON* IN

*SEE INSTRUCTIONS BEFORE FILLING OUT!

CUSIP NO. 726540503


1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON John T. Raymond
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS* N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)	¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7 SOLE VOTING POWER:

421,223 shares

8 SHARED VOTING POWER:

0 shares

9 SOLE DISPOSITIVE POWER:

421,223 shares

10 SHARED DISPOSITIVE POWER:

0 shares


11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 421,223 shares
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*	¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.72%
14	TYPE OF REPORTING PERSON* IN

*SEE INSTRUCTIONS BEFORE FILLING OUT!

CUSIP NO. 726540503

This fourth amendment to the Schedule 13D amends the Schedule 13D originally filed with the Securities and Exchange Commission (the “SEC”) on December 1, 2003, as amended on February 26, 2004, as amended on March 25, 2004 and as amended on April 15, 2004. Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Schedule 13D.

Item 5. Interest in Securities of Issuer

Item 5 is amended and restated in its entirety as follows:

Based upon information set forth in the definitive proxy statement filed by Issuer with the Securities and Exchange Commission on June 23, 2004, as of June 14, 2004, there were 24,520,183 shares of Common Stock issued and outstanding. As of July 12, 2004, the aggregate number and percentage of outstanding shares of Common Stock beneficially owned by Messrs. Flores and Raymond is 1,647,651 or approximately 6.72%. In addition, Vulcan has entered into a Voting Agreement, dated as of July 12, 2004 (the “Voting Agreement”), by and among Vulcan, EnCap Investments, L.L.C., a Delaware limited liability company (“EnCap”) and Kayne Anderson Capital Advisors, L.P. (“KACA”), a California limited partnership. Based upon information set forth in the Voting Agreement, as of July 12, 2004, the aggregate number and percentage of outstanding shares of Common Stock beneficially owned by KACA and Encap is 2,839,519 or approximately 11.6%. Pursuant to the Voting Agreement, KACA and Encap have granted Vulcan an irrevocable proxy to direct the vote of these shares. Thus, the aggregate number and percentage of outstanding shares of Common Stock beneficially owned by the Reporting Persons, KACA, and EnCap is 4,487,170 or approximately 18.3%, although each Reporting Person disclaims beneficial ownership of the shares beneficially owned by each other reporting person and by KACA and EnCap. This number of shares includes the following:

(a) KACA represents in the Voting Agreement that it beneficially owns a total of 1,665,300 shares of Common Stock, representing approximately 6.8% of the total outstanding shares of Common Stock. Pursuant to the Voting Agreement, KACA has granted voting power to Vulcan over all of the 1,665,300 shares it beneficially owns.

(b) EnCap represents in the Voting Agreement that it beneficially owns a total of 1,174,219 shares of Common Stock, representing approximately 4.79% of the total outstanding shares of Common Stock. Pursuant to the Voting Agreement, EnCap has granted voting power to Vulcan over all of the 1,174,219 shares it beneficially owns.

(c) None of Vulcan nor, to Vulcan’s knowledge, any of its directors or executive officers own any shares of Common Stock. By virtue of the Voting Agreement, Vulcan has shared voting power (with Mr. Allen) over 2,839,519 shares, together representing 11.6% of the outstanding shares of Common Stock.

(d) Mr. Allen does not own any shares of Common Stock. By virtue of the Voting Agreement and of being the controlling person of Vulcan, Mr. Allen has shared voting power (with Vulcan) over 2,839,519 shares, together representing 11.6% of the total outstanding shares of Common Stock.

(e) Mr. Flores owns a total of 1,226,428 shares of Common Stock (representing 5.00% of the total outstanding shares of Common Stock), which shares consist of the following:

•

1,055,305 shares of Common Stock held by Mr. Flores;

•

40,000 shares of Restricted Common Stock;

•

Options held by Mr. Flores which are exercisable either currently or within the next 60 days for an aggregate of 130,802 shares of Common Stock; and

•

321 shares held in his 401(k) plan.

CUSIP NO. 726540503

(f) Mr. Raymond owns a total of 421,223 shares of Common Stock (representing 1.72% of the total outstanding shares of Common Stock), which shares consist of the following:

•

35,000 shares of Common Stock held by Mr. Raymond;

•

50,000 shares of Restricted Common Stock;

•

Options held by Mr. Raymond which are exercisable either currently or within the next 60 days for an aggregate of 335,902 shares of Common Stock; and

•

321 shares held in his 401(k) plan.

Except for the transactions reported in this Statement, each Reporting Person and, to such Reporting Person’s knowledge, the other persons identified pursuant to Item 2, have not effected any other transactions in Common Stock during the past 60 days.

Each Reporting Person does not know of any other person that has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock of the Issuer beneficially owned by the persons identified in Item 2.

As a result of executing the Voting Agreement, Vulcan and Mr. Allen may be deemed to have formed a “group” with KACA and EnCap for purposes of Section 13(d) of the Act and the rules promulgated thereunder, and such “group” may be deemed to be the beneficial owner of the shares of Common Stock beneficially owned by KACA and EnCap. Vulcan and Mr. Allen expressly disclaim any assertion or presumption that they and KACA and EnCap constitute a “group.”

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to the Securities of the Issuer

Item 6 is hereby amended and restated in its entirety as follows:

On February 19, 2004 (i) Vulcan, Mr. Allen, Mr. Flores and Mr. Raymond entered into an Amended and Restated Subscription Agreement, dated as of February 19, 2004 (the “Subscription Agreement”), as amended on July 12, 2004, and (ii) the Issuer, Vulcan and Prime Time Acquisition Corporation, a Delaware corporation (“Prime Time”), entered into an Agreement and Plan of Merger, dated as of February 19, 2004 (the “Original Merger Agreement”), which the parties amended by executing and delivering Amendment No. 1 to the Agreement and Plan of Merger, dated as of July 12, 2004 (the “Amendment”). The Original Merger Agreement, as amended by the Amendment, is referred to herein as the “Merger Agreement”). In connection with the execution and delivery of the Amendment by the Issuer, Vulcan and Prime Time, Vulcan, KACA and EnCap entered into the Voting Agreement.

The Subscription Agreement provides that, immediately prior to the effective time of the proposed merger, Mr. Flores and Mr. Raymond would contribute all of their shares of Common Stock (together with shares of restricted Common Stock, restricted stock units, and the cancellation of certain stock options) to Vulcan in exchange for shares of common and restricted stock of Vulcan, and options to purchase shares of common stock of Vulcan. Upon such merger, Vulcan would beneficially own all of the outstanding shares of common stock of the entity surviving the merger, and the Common Stock would cease to be authorized to be quoted and traded on the New York Stock Exchange. Pursuant to the Voting Agreement, KACA and EnCap have given Vulcan the power to vote their shares of Common Stock in favor of the merger. The Amended and Restated Merger Agreement remains subject to approval by the stockholders of the Issuer, and as a result, if such approval is not obtained or conditions in the Merger Agreement are not met, Vulcan may determine not to consummate the proposed merger or the transactions contemplated by the Subscription Agreement.

CUSIP NO. 726540503

Amended and Restated Subscription Agreement

Pursuant to the Subscription Agreement, the parties agreed that, among other things, Mr. Flores and Mr. Raymond will each vote (or cause to be voted) all of their respective shares of Common Stock at any annual, special or other meeting of the stockholders of Issuer, and at any adjournment(s) thereof, or pursuant to any consent in lieu of a meeting or in any other circumstance upon which any vote or consent or other approval of the stockholders of the Issuer is sought, (i) in favor of the Merger Agreement and any actions required in furtherance thereof; (ii) against any proposal to the Issuer’s stockholders that would be reasonably likely to prevent the consummation of the transactions contemplated by the Merger Agreement or result in the breach by the Issuer of the Merger Agreement; (iii) against (A) any significant corporate transaction, including any merger, consolidation, share exchange, rights offering, reorganization, recapitalization, reclassification or liquidation involving the Issuer or any of its subsidiaries, other than the proposed merger, (B) any Acquisition Proposal (as such term is defined in the Subscription Agreement) other than the proposed merger, or (C) any action that could materially impede, interfere with, delay, postpone or adversely affect the consummation of the proposed merger or the transactions contemplated by the Subscription Agreement; (iv) against any change in the composition of the board of directors of the Issuer, other than as contemplated by the Merger Agreement; and (v) against any amendment to the Second Restated Certificate of Incorporation or the Bylaws of the Issuer.

Also, during the period commencing on the date of the Subscription Agreement and continuing until the consummation of the proposed merger, (a) each of Mr. Flores and Mr. Raymond agreed that, with respect to their respective shares of Common Stock, he would not, except as provided in the Subscription Agreement (i) directly or indirectly offer for sale, sell, sell short, cash out, exercise, transfer (including gift), tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition of, any such Issuer Common Stock, such individual’s stock options, restricted stock units, or any options, rights, or any interest therein; (ii) grant any proxies or power of attorney, deposit any such Common Stock, stock options or restricted stock units into a voting trust, or enter into a voting agreement or other arrangement with respect to any such Issuer Common Stock, such individual’s stock options, restricted stock units or any options, rights, or any interest therein; (b) each of Mr. Flores and Mr. Raymond agreed (i) to cause Sable Investments, L.P. (“Sable”) and Sable Investments, LLC (“Sable GP”) not to directly or indirectly offer for sale, sell, sell short, transfer (including by gift), tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition of any membership interest in Plains All American GP LLC or partnership interest in Plains All American Pipeline, L.P. or any options, rights, or any interest therein, (ii) not to directly or indirectly offer for sale, sell, sell short, cash out, exercise, transfer (including gift), tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition of, any interest in Sable or Sable GP; and (c) without limiting the generality of (a) above, each of Mr. Flores and Mr. Raymond agrees with and covenants to, Vulcan that he shall not (i) except with respect to the exchange of shares pursuant to the Subscription Agreement, request that the Issuer register the transfer of any certificate or uncertificated interest representing any of the shares (as described above) held by Mr. Flores and/or Mr. Raymond, unless such transfer is made in accordance with the Subscription Agreement. Notwithstanding the above, if the Issuer should enter into a definitive agreement with any Person (as defined in the Subscription Agreement) other than Vulcan or any of Vulcan’s affiliates providing for an Acquisition Proposal (as defined in the Subscription Agreement), at the closing of the transaction contemplated by such agreement Mr. Flores and Mr. Raymond may deliver their Issuer Common Stock for treatment in accordance with the terms of such agreement, and their stock options and restricted stock units will be treated as contemplated by such agreement.

As a result of executing the Subscription Agreement, each Reporting Person may be deemed to have formed a “group” with one or more of the other Reporting Persons for purposes of Section 13(d) of the Act and the rules promulgated thereunder, and such “group” may be deemed to be the beneficial owner of the shares of Common Stock beneficially owned by each Reporting Persons constituting such “group” as reported on this Schedule 13D. Each Reporting Persons expressly disclaims any assertion or presumption that he and any other Reporting Person or Reporting Persons constitute a “group.”

CUSIP NO. 726540503

The summary description contained in this Item 6 of the Subscription Agreement is qualified in its entirety by reference to the full text of such document which is incorporated by reference herein.

Merger Agreement, as Amended by the Amendment

The Merger Agreement provides that, subject to the satisfaction or waiver (where permissible) of the conditions set forth therein, at the effective time of the proposed merger, Prime Time Acquisition Corporation will be merged with and into the Issuer, which will survive the merger, and each outstanding share of Common Stock (other than shares held by Flores, Raymond or Vulcan or any of its subsidiaries, and other than shares held by any holder perfecting dissenters’ rights under the Delaware General Corporation Law) will be converted into the right to receive $17.25 per share in cash. Following consummation of the merger, Vulcan would beneficially own all of the outstanding shares of common stock of the Issuer, and the Common Stock would cease to be authorized to be quoted and traded on the New York Stock Exchange. Consummation of the merger is subject to several conditions, including approval and adoption of the Merger Agreement by the stockholders of the Issuer and the receipt of financing to consummate the merger. There can be no assurance that such conditions will be satisfied or waived.

Any reference to the terms or conditions of the Merger Agreement and the Amendment is qualified in its entirety by reference to the full text of such document, which is incorporated herein by reference to the proxy statement supplement filed by the Issuer on July 13, 2004.

Voting Agreement

Encap and KACA entered into the Voting Agreement as a condition to the execution by Vulcan of the Amendment, and beyond that no party received consideration with the execution and delivery of the Voting Agreement. Pursuant to the Voting Agreement, EnCap and KACA have a contractual obligation to vote all of their respective shares of Common Stock (i) in favor of the approval and adoption of the Merger Agreement (as defined in the Voting Agreement) and any actions required in furtherance thereof, (ii) against any proposal to the stockholders of the Issuer that would be reasonably likely to prevent the consummation of the Proposed Merger or to result in the breach by the Issuer of the Merger Agreement, (iii) against (A) any significant corporate transaction, such as a merger, consolidation, share exchange, rights offering, reorganization, recapitalization, reclassification or liquidation involving the Company or any of its subsidiaries, other than the Proposed Merger, (B) any Acquisition Proposal (as defined in the Merger Agreement), other than the Proposed Merger, or (C) any action that could materially impede, interfere with, delay, postpone or adversely affect the consummation of the Proposed Merger or the transactions contemplated by the Voting Agreement, (iv) against any change in the composition of the Board of Directors of the Issuer, other than as contemplated by the Merger Agreement, and (v) against any amendment to the Second Restated Certificate of Incorporation of the Issuer or the Bylaws of the Issuer, as amended. EnCap and KACA granted Vulcan an irrevocable proxy under the Voting Agreement and are further restricted from transferring or agreeing to transfer any of their shares of Common Stock or from granting any proxy or power-of-attorney with respect to any shares of Common Stock beneficially owned by them.

The summary description contained in this Item 6 of the Voting Agreement is qualified in its entirety by reference to the full text of such document which is incorporated by reference herein.

No Other Contracts

Other than as described in this Item 6, to each Reporting Person’s knowledge, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

CUSIP NO. 726540503

Item 7. Material to be Filed as Exhibits


99	(a)	Voting Agreement, dated as of July 12, 2004, by and among Vulcan Energy Corporation, Kayne Anderson Capital Advisors, L.P. and EnCap Investments L.L.C.

99	(b)	Joint Filing Agreement (incorporated by reference to Exhibit 99(b) of the Schedule 13D filed jointly by Vulcan Energy Corporation, Paul G. Allen, James C. Flores and John T. Raymond on December 1, 2003).

SIGNATURES

After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct.

Date: July 13, 2004


VULCAN ENERGY CORPORATION

By:		/s/ David N. Capobianco
		Name: David N. Capobianco
		Title: Vice President

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct.

Date: July 13, 2004

/s/ Paul G. Allen

Paul G. Allen

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct.

Date: July 13, 2004

/s/ James C. Flores

James C. Flores

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct.

Date: July 13, 2004

/s/ John T. Raymond

John T. Raymond

Exhibit Index

Name of Exhibit


99	(a)	Voting Agreement, dated as of July 12, 2004, by and among Vulcan Energy Corporation, Kayne Anderson Capital Advisors, L.P. and EnCap Investments L.L.C.

99	(b)	Joint Filing Agreement (incorporated by reference to Exhibit 99(b) of the Schedule 13D filed jointly by Vulcan Energy Corporation, Paul G. Allen, James C. Flores and John T. Raymond on December 1, 2003).

EX-99.(A) 2 dex99a.htm VOTING AGREEMENT Voting Agreement

Exhibit 99(a)

VOTING AGREEMENT

This VOTING AGREEMENT (the “Agreement”), dated as of July 12, 2004, is entered into by and among Vulcan Energy Corporation, a Delaware corporation (“Vulcan”), Kayne Anderson Capital Advisors, L.P., a California limited partnership (“Kayne Anderson”) and EnCap Investments L.L.C., a Delaware limited liability company (“EnCap”). Each of Kayne Anderson and EnCap is sometimes referred to herein as a “Supporting Stockholder” and collectively, as the “Supporting Stockholders,” and each of Vulcan, Kayne Anderson and EnCap is sometimes referred to herein as a “Party” and collectively, as the “Parties.”

WHEREAS, Vulcan, Prime Time Acquisition Corporation, a Delaware corporation and wholly owned subsidiary of Vulcan (“Purchaser”), and Plains Resources Inc., a Delaware corporation (the “Company”), have entered into an Agreement and Plan of Merger, dated as of February 19, 2004 (the “Original Merger Agreement”), which, in conjunction with the execution and delivery of this Agreement, is being amended for the principal purpose of increasing the per share cash price to be paid in the Merger (as defined below) to $17.25 by Amendment No. 1 to the Agreement and Plan of Merger, dated as of the date of this Agreement (the “Amendment” and together with the Original Merger Agreement, as such may be amended from time to time, the “Merger Agreement”), pursuant to which Vulcan, Purchaser and the Company have agreed, upon the terms and subject to the conditions set forth therein, to merge Purchaser with and into the Company, with the Company continuing as the surviving corporation (the “Merger”), and upon consummation of the Merger, among other things, each outstanding share of common stock, par value $0.10 per share, of the Company (the “Common Stock”), other than shares held by Vulcan, Purchaser, James C. Flores, an individual, and John T. Raymond, an individual, will be converted into the right to receive a specified amount of cash;

WHEREAS, as of the date hereof, (a) Kayne Anderson is the record and beneficial owner of, and has the sole right to vote and dispose of, 1,665,300 shares of Common Stock (the “Kayne Anderson Shares”) and (b) EnCap is the record and beneficial owner of, and has the sole right to vote and dispose of, 1,174,219 shares of the Common Stock (the “EnCap Shares,” and together with the Kayne Anderson Shares, the “Shares”); and

WHEREAS, as a condition to its willingness to enter into the Amendment, Vulcan has required that each of the Supporting Stockholders agree, and each of the Supporting Stockholders is willing to agree, to the matters set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the agreements set forth below, the Parties agree as follows:

ARTICLE I

VOTING OF SHARES

1.1 Voting Agreement.

Each of the Supporting Stockholders hereby agrees to vote, or to cause to be voted, all of its respective Shares at any annual, special or other meeting of the stockholders of the Company, and at any adjournment or adjournments thereof, or pursuant to any consent in lieu of a meeting or in any other circumstances upon which any vote or consent or other approval of the stockholders of the Company is sought, which such Supporting Stockholder has the right to so vote:

(a) in favor of the approval and adoption of the Merger Agreement, the Merger and any actions required in furtherance thereof;

(b) against any proposal to the stockholders of the Company that would be reasonably likely to prevent the consummation of the Merger or to result in the breach by the Company of the Merger Agreement;

(c) against (i) any significant corporate transaction, such as a merger, consolidation, share exchange, rights offering, reorganization, recapitalization, reclassification or liquidation involving the Company or any of its subsidiaries, other than the Merger, (ii) any Acquisition Proposal (as defined in the Merger Agreement), other than the Merger, or (iii) any action that could materially impede, interfere with, delay, postpone or adversely affect the consummation of the Merger or the transactions contemplated by the Merger Agreement or this Agreement;

(d) against any change in the composition of the Board of Directors of the Company, other than as contemplated by the Merger Agreement; and

(e) against any amendment to the Second Restated Certificate of Incorporation of the Company or the Bylaws of the Company, as amended.

1.2 Irrevocable Proxy.

Each Supporting Stockholder hereby irrevocably appoints Vulcan and each of its executive officers from and after the date hereof until the earlier to occur of the Effective Time (as defined in the Merger Agreement) and the termination of this Agreement pursuant to Section 7.3 (at which point such appointment shall automatically terminate) as such Supporting Stockholder’s sole and exclusive attorneys, agents and proxies (such constitution and appointment, the “Irrevocable Proxy”), with full power of substitution and resubstitution, to vote and otherwise act with respect to all of such Supporting Stockholder’s Shares at any meeting of the stockholders of the Company (whether annual or special and whether or not an adjourned or postponed meeting), and in any action by written consent of the stockholders of the Company, on the matters and in the manner specified in Section 1.1. THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE

EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM A SUPPORTING STOCKHOLDER MAY TRANSFER ANY OF ITS SHARES IN BREACH OF THIS AGREEMENT. Upon the execution of this Agreement, all prior proxies and powers of attorney given by each Supporting Stockholder with respect to all of such Supporting Stockholder’s Shares issued or issuable in respect thereof on or after the date of this Agreement are hereby revoked, and no subsequent proxy or power of attorney shall be given (and if given, shall not be effective) by such Supporting Stockholder. Any obligation of a Supporting Stockholder shall be binding on the successors and assigns of such Supporting Stockholder.

1.3 Prohibition.

Each Supporting Stockholder hereby agrees not to enter into any agreement or understanding with any Person the effect of which would be inconsistent with, or violative of, the provisions of this Agreement.

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF KAYNE ANDERSON

Kayne Anderson represents and warrants to Vulcan and EnCap as follows:

2.1 Binding Agreement.

Kayne Anderson is a limited partnership, duly organized, validly existing and in good standing under the Laws of the State of California and has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly and validly approved, and no other actions on the part of Kayne Anderson are necessary to approve this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Kayne Anderson and (assuming due authorization, execution and delivery by Vulcan and EnCap) this Agreement constitutes a valid and binding obligation of Kayne Anderson, enforceable against Kayne Anderson in accordance with its terms.

2.2 No Conflict.

Neither the execution and delivery of this Agreement by Kayne Anderson, nor the consummation by Kayne Anderson of the transactions contemplated hereby, nor compliance by Kayne Anderson with any of the terms or provisions hereof, will (a) violate any provision of its certificate of formation and limited partnership agreement or other organizational documents, or (b) violate any Law, judgment, order, writ, decree or injunction applicable to Kayne Anderson, or any of its or his properties or assets, or (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or

cancellation under, accelerate the performance required by, or result in the creation of any security interests, liens, charges, security interests, options, claims, mortgages, pledges, proxies, voting trusts or agreements, obligations, understandings or arrangements or other restrictions on title or transfer of any nature whatsoever (“Encumbrances”) (other than Encumbrances created by this Agreement) upon any of the properties or assets of Kayne Anderson under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which Kayne Anderson is a party, or by which it or any of its properties or assets may be bound or affected.

2.3 Ownership of Shares.

(a) Kayne Anderson is the record and beneficial owner (as defined Section 5.3 hereof) of the number of Kayne Anderson Shares set forth in the recitals hereto, free and clear of any Encumbrances and free from any other limitation or restriction (including, but not limited to, any restriction on the right to vote, sell or otherwise dispose of the Kayne Anderson Shares). There are no outstanding options or other rights to acquire from Kayne Anderson, or obligations of Kayne Anderson to sell or to dispose of, any of the Kayne Anderson Shares. Kayne Anderson holds exclusive power to vote the number of Kayne Anderson Shares set forth in the recitals hereto, subject to the limitations set forth in Article 1 hereof. As of the date of this Agreement, the number of Kayne Anderson Shares set forth in the recitals hereto represents all of the shares of capital stock of the Company owned by Kayne Anderson, and Kayne Anderson does not own any options or other rights to acquire shares of capital stock of the Company. Kayne Anderson has sole voting power and sole power to issue instructions with respect to the matters set forth in Section 1.1 hereof, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Kayne Anderson Shares, with no limitations, qualifications or restrictions on such rights (subject to applicable securities laws).

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF ENCAP

EnCap represents and warrants to Vulcan and Kayne Anderson as follows:

3.1 Binding Agreement.

EnCap is a limited liability company, duly organized, validly existing and in good standing under the Laws of the State of Delaware and has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly and validly approved by its managers, and no other actions on the part of EnCap are necessary to approve this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by EnCap and (assuming due authorization, execution and delivery by Vulcan and Kayne Anderson) this Agreement constitutes a valid and binding obligation of EnCap, enforceable against EnCap in accordance with its terms.

3.2 No Conflict.

Neither the execution and delivery of this Agreement by EnCap, nor the consummation by EnCap of the transactions contemplated hereby, nor compliance by EnCap with any of the terms or provisions hereof, will (a) violate any provision of its certificate of formation and limited partnership agreement or other organizational documents, or (b) violate any Law, judgment, order, writ, decree or injunction applicable to EnCap, or any of its properties or assets, or (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Encumbrance (other than Encumbrances created by this Agreement) upon any of the properties or assets of EnCap under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which EnCap is a party, or by which it or any of its properties or assets may be bound or affected.

3.3 Ownership of Shares.

EnCap is the record and beneficial owner of the number of EnCap Shares set forth in the recitals hereto, free and clear of any Encumbrances and free from any other limitation or restriction (including, but not limited to, any restriction on the right to vote, sell or otherwise dispose of the EnCap Shares). There are no outstanding options or other rights to acquire from EnCap, or obligations of EnCap to sell or to dispose of, any EnCap Shares. EnCap holds exclusive power to vote the number of EnCap Shares set forth in the recitals hereto, subject to the limitations set forth in Article 1 hereof. As of the date of this Agreement, the number of EnCap Shares set forth in the recitals hereto represents all of the shares of capital stock of the Company owned by EnCap, and EnCap does not own any options or other rights to acquire shares of capital stock of the Company. EnCap has sole voting power and sole power to issue instructions with respect to the matters set forth in Section 1.1 hereof, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the EnCap Shares, with no limitations, qualifications or restrictions on such rights (subject to applicable securities laws).

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF VULCAN

Vulcan represents and warrants to each of the Supporting Stockholders as follows:

4.1 Binding Agreement.

Vulcan is a corporation, duly organized, validly existing and in good standing under the Laws of the State of Delaware and has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly and validly approved by its board of directors, and no other corporate actions on the part of Vulcan are necessary to approve this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Vulcan and (assuming due authorization, execution and delivery by the other Parties) this Agreement constitutes a valid and binding obligation of Vulcan, enforceable against Vulcan in accordance with its terms.

4.2 No Conflict.

Neither the execution and delivery of this Agreement by Vulcan, nor the consummation by Vulcan of the transactions contemplated hereby, nor compliance by Vulcan with any of the terms or provisions hereof, will (a) violate any provision of its certificate of incorporation or bylaws or (b) violate any Law, judgment, order, writ, decree or injunction applicable to Vulcan, or any of its properties or assets, or (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Encumbrance (other than Encumbrances created by this Agreement) upon any of the properties or assets of Vulcan under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which Vulcan is a party, or by which it or any of its properties or assets may be bound or affected.

ARTICLE V

TRANSFER AND OTHER RESTRICTIONS

5.1 Certain Prohibited Transfers. During the period commencing on the date hereof and continuing until this Agreement terminates:

(a) Each Supporting Stockholder agrees, with respect to its respective Shares, not to:

(i) directly or indirectly offer for sale, sell, sell short, transfer (including gift), tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition of, any such Shares or any interest therein, except as provided in this Agreement or pursuant to the Merger; or

(ii) grant any proxy or power of attorney, deposit any such Shares into a voting trust, or enter into a voting agreement or other arrangement with respect to any Shares, except as provided in this Agreement; and

(b) Without limiting the generality of Section 5.1(a) above, each Supporting Stockholder agrees with, and covenants to, Vulcan that it shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing the Shares, unless the such transfer is made in compliance with this Agreement.

5.2 Additional Shares.

Without limiting the provisions of the Merger Agreement, in the event (a) of any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of capital stock of the Company on, of or affecting a Supporting Stockholder’s respective Shares or (b) such Supporting Stockholder shall become the beneficial owner or record owner of any additional shares of capital stock of the Company, including pursuant to the exercise of options, or other securities entitling the holder thereof to vote or give consent with respect to the matters set forth in Article 1 hereof, in each case, then the terms of this Agreement shall apply to the shares of capital stock or other securities of the Company held by such Supporting Stockholder immediately following the effectiveness of the events described in clause (a), or such Supporting Stockholder becoming the beneficial or record owner thereof, as described in clause (b), as though they were Shares of such Supporting Stockholder hereunder. Each Supporting Stockholder hereby agrees, while this Agreement is in effect, to notify Vulcan of the number of any new Shares or options to acquire capital stock in the Company acquired by such Supporting Stockholder, if any, after the date hereof.

5.3 Beneficial Ownership.

For purposes of this Agreement, the phrase “beneficial ownership” and words of similar import shall have the meaning ascribed to it in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); without duplicative counting of the same, securities beneficially owned by a Person shall include securities beneficially owned by all other Persons with whom such Person would constitute a “group” within the meaning of Rule 13d-3 of the Exchange Act.

ARTICLE VI

NO SOLICITATION

During the period commencing on the date hereof and continuing until this Agreement terminates, each Supporting Stockholder shall not (whether directly or indirectly through its affiliates, investment bankers, attorneys, accountants, financial advisors, agents or other representatives), engage in any conduct described in Section 5.2(a)(x)-(z) of the Merger Agreement. Notwithstanding the foregoing, nothing in this Article VI shall restrict D. Martin Phillips or Robert V. Sinott from acting in accordance with their fiduciary duties solely in their capacity as directors of the Company.

ARTICLE VII

MISCELLANEOUS

7.1 Brokerage.

Each Supporting Stockholder represents and warrants that there are no claims for finder’s fees or brokerage commissions or other like payments in connection with this Agreement or the transactions contemplated hereby. Each Supporting Stockholder shall indemnify and hold harmless Vulcan from and against any and all claims or liabilities for finder’s fees or brokerage commissions or other like payments incurred by such Supporting Stockholder by reason of any action taken by such Supporting Stockholder.

7.2 Specific Enforcement.

Each Supporting Stockholder recognizes and acknowledges that a breach by it of any covenants or agreements contained in this Agreement will cause Vulcan to sustain damages for which it would not have an adequate remedy at law for money damages, and therefore each Supporting Stockholder agrees that in the event of any such breach Vulcan shall be entitled to the remedy of specific performance of such covenants and agreements and injunctive and other equitable relief in addition to any other remedy to which Vulcan may be entitled, at law or in equity.

7.3 Termination.

This Agreement shall terminate on the earliest of (a) the termination of the Merger Agreement in accordance with its terms, including any termination thereof by the Company to concurrently enter into an agreement providing for a Superior Proposal (as defined in the Merger Agreement) in accordance with the terms thereof, (b) the agreement of each of the Parties to terminate this Agreement, and (c) the consummation of the Merger. Termination shall not relieve any party from liability for any intentional breach of its obligations hereunder committed prior to such termination.

7.4 Survival.

The representations and warranties of the Parties contained in this Agreement shall terminate upon the consummation of the Merger.

7.5 Notices.

Unless otherwise specified herein, any notice to be given or to be served upon any Party in connection with this Agreement must be in writing (which may include facsimile) and will be deemed to have been given and received when (a) delivered to the address specified by the Party to receive the notice, if delivered Personally, (b) five days after deposited with the U.S. postal service for delivery by first class mail, (c) immediately upon delivery by facsimile if a confirmation is retained and (d) one day after deposit with a nationally recognized overnight carrier for next-day delivery. Such notices shall be given to the Parties at their respective addresses set forth below. Any Party may, at any time by giving five business days’ prior written notice to the other Parties, designate any other address in substitution of the foregoing address to which such notice will be given.

(a) if Vulcan, to

Vulcan Energy Corporation

505 Fifth Ave S Suite 900

Seattle, WA 98104

Attn: David Capobianco

Facsimile: (206) 342-3000

with a copy to:

Skadden, Arps, Slate, Meagher

& Flom LLP

1600 Smith Street, Suite 4400

Houston, TX 77002

Facsimile: (713) 655-5200

Attn: Frank Ed Bayouth II

(b) if to Kayne Anderson, to:

Kayne Anderson Capital Advisors, L.P.

1800 Avenue of the Stars, Second Floor

Los Angeles, CA 90067

Attn: Richard Kayne

with a copy to:

Thompson & Knight LLP

333 Clay Street, Suite 3300

Houston, TX 77002

Attn: Dallas Parker

(d) if to EnCap, to:

EnCap Investments L.L.C.

1100 Louisiana, Suite 3150

Houston, TX 77002

Attn: D. Martin Phillips

with a copy to:

Thompson & Knight LLP

333 Clay Street, Suite 3300

Houston, TX 77002

Attn: Dallas Parker

7.6 Certain Events.

Each Supporting Stockholder agrees that this Agreement and the obligations hereunder shall attach to such Supporting Stockholder’s respective Shares and shall be binding upon any Person to which legal or beneficial ownership of such Shares shall pass, whether by operation of law or otherwise.

7.7 Entire Agreement.

This Agreement (including the documents and instruments referred to herein) constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof.

7.8 Consideration.

This Agreement is granted in consideration of the execution and delivery of the Amendment by Vulcan and the Company.

7.9 Amendment; Release.

This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by each of the Parties.

7.10 Successors and Assigns.

This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other Parties, except that Vulcan may assign its

rights under this Agreement to the same extent that it may assign its rights under the Merger Agreement. This Agreement will be binding upon, inure to the benefit of and be enforceable by each Party and such Party’s respective heirs, beneficiaries, executors, representatives and permitted assigns.

7.11 Counterparts.

This Agreement may be executed by facsimile and in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

7.12 Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any of the conflict of law rules thereof. The Parties agree that the courts of Delaware (either State or Federal) are to have exclusive jurisdiction to settle any dispute arising in connection with the creation, validity, effect, interpretation or performance of, or the legal relationships established by this Agreement or otherwise arising in connection with this Agreement, and by execution of this Agreement, each Parties hereby irrevocably submits to the jurisdiction of such courts and further irrevocably consents to the service of process outside of the territorial jurisdiction of such courts by mailing copies thereof by registered United States mail, postage prepaid, to its address specified herein.

7.13 Severability.

Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.

7.14 Headings; Capitalized Terms.

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. Capitalized terms used in this Agreement without definition shall have the meanings assigned to them in the Merger Agreement.

7.15 Further Assurances.

Each Supporting Stockholder shall, upon request of Vulcan or the Company, execute and deliver any additional documents and take such actions as may reasonably be deemed by Vulcan or the Company to be necessary or desirable to carry out the provisions hereof.

7.16 Remedies Cumulative.

All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party.

7.17 No Waiver.

The failure of any Party 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 the other Parties with its respective obligations hereunder, shall not constitute a waiver by such Party of its right to exercise any such right or other right, power or remedy or to be demand such compliance.

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Each of the Parties has executed this Agreement effective as of the date written above.


VULCAN ENERGY CORPORATION

By:		/s/ David N. Capobianco
Name: David N. Capobianco Title: Vice President


KAYNE ANDERSON CAPITAL ADVISORS, L.P.

By:		Kayne Anderson Investment Management, Inc.

By:		/s/ Robert V. Sinnott
Name: Robert V. Sinnott Title: Managing Director


ENCAP INVESTMENTS L.L.C.

By:		D. Martin Phillips
Name: D. Martin Phillips Title: Managing Director

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