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EXHIBIT 10.4
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT, dated as of September 3, 1997 (this
"Agreement"), is made and entered into by and among PIONEER NATURAL RESOURCES
COMPANY, a Delaware corporation ("US Co"), Chauvco Resources Ltd., an Alberta
Corporation ("Chauvco") and DNR - MESA Holdings, L.P., XXXXX X. XXXXXXXXX and
I. XXX XXXXXXX (collectively, the "Shareholders").
WITNESSETH
WHEREAS, concurrently herewith, US Co and Chauvco are entering into a
Combination Agreement (as such agreement may hereafter be amended from time to
time, the "Combination Agreement"), providing for the arrangement (the
"Arrangement") as contemplated by the Combination Agreement, capitalized terms
used and not defined herein have the respective meanings ascribed to them in
the Combination Agreement; and
WHEREAS, as an inducement and a condition to entering into the
Combination Agreement, Chauvco has required that each Shareholder agrees, and
each Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein and the
benefits to be received by the parties under the terms of the Combination
Agreement, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. DEFINITIONS
For purposes of this Agreement:
(a) "Affiliate" of any Person means another Person that directly
or indirectly, through one or more intermediaries, controls,
is controlled by, or is under common control with, such first
Person.
(b) "Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of
such securities (as determined pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934 (the "Exchange Act"))
including pursuant to any agreement, arrangement or
understanding, whether or not in writing and Beneficial Owner
has a corresponding meaning. Without duplicative counting of
the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons (who are Affiliates of
such Person excluding officers and directors of US Co) who
together with such Person would constitute a "group" within
the meaning of Section 13(d)(3) of the Exchange Act and in any
event with respect to the Shareholders shall include Shares
held of record by any of the Shareholders'
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spouses and children.
(c) "Person" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association,
trust or unincorporated organization.
(d) "Shares" shall mean shares of US Co Common Stock.
(e) "Shareholder's Shares" shall mean all Shares held of record or
Beneficially Owned by such Shareholder, whether currently
issued or hereafter acquired except by way of option exercise
where such Shares are sold within 10 days of exercise.
(f) "Termination Date" shall mean the date that the Combination
Agreement has been terminated.
2. PROVISIONS CONCERNING COMMON STOCK
From and after the date of this Agreement and ending as of the first
to occur of the Effective Time or the Termination Date, at any meeting of the
holders of Shares, however called, or in any other circumstance upon which the
vote, consent or other approval of holders of Shares is sought, each
Shareholder shall vote (or cause to be voted) such Shareholder's issued and
outstanding Shareholders' Shares (and each class thereof), (i) in favor of the
Arrangement and the other transactions contemplated thereby, the execution and
delivery by US Co of the Combination Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Combination Agreement
and this Agreement and any actions required in furtherance thereof and hereof;
(ii) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
material obligation or agreement of US Co under the Combination Agreement or
this Agreement; and (iii) against the following actions (other than the
Arrangement and the transactions contemplated by the Combination Agreement): to
the extent that such are intended to, or could reasonably be expected to,
impede, interfere with, delay, postpone, or materially adversely affect the
Arrangement or the transactions contemplated by the Combination Agreement or
this Agreement (A) any change in a majority of the persons who constitute the
board of directors of US Co; (B) any change in the present capitalization of US
Co or any amendment of US Co's Articles or Bylaws; or (C) any other a material
change in US Co's corporate structure or business. In addition to the other
covenants and agreements of the Shareholders provided for elsewhere in this
Agreement, during the above-described period no Shareholder shall enter into
any agreement or understanding with any Person the effect of which would be
inconsistent with or violate the provisions and agreements contained in this
Section 2. Nothing herein shall in any way restrict or limit any Shareholder
from taking any action in his capacity as a director or officer of US Co to
fulfill his duties and fiduciary obligations as a director or officer of US Co.
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3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
(a) Each Shareholder hereby severally represents, warrants and
covenants to Chauvco, with respect to himself and his
Shareholder Shares only, as follows:
(i) Ownership. Each Shareholder is either (A) the record
and Beneficial Owner of, or (B) the Beneficial Owner
but not the record holder of, the number of issued
and outstanding Shares set forth with respect to such
Shareholder on Schedule A hereto. As of the date of
this Agreement, the Shares set forth on Schedule A
hereto constitute all of the issued and outstanding
Shares owned of record or Beneficially Owned by such
Shareholder. Except as otherwise set forth in
Schedule A, such Shareholder has sole power of
disposition, sole power of conversion, sole power to
demand appraisal rights and sole power to agree to
all of the matters set forth in this Agreement, in
each case with respect to all of the Shares
attributable to such Shareholder set forth on
Schedule A hereto, with no material limitations,
qualifications or restrictions on such rights,
subject to applicable securities laws and the terms
of this Agreement.
(ii) Power Binding Agreement. Each Shareholder has the
legal capacity, power and authority to enter into and
perform all of such Shareholder's obligations under
this Agreement. This Agreement has been duly and
validly executed and delivered by such Shareholder
and constitutes a valid and binding agreement of such
Shareholder, enforceable against such Shareholder in
accordance with its terms. There are no
beneficiaries or holders of a voting trust
certificate or other interest of any trust of which
such Shareholder is a trustee whose consent is
required for the execution and delivery of this
Agreement or the consummation by such Shareholder of
the transactions contemplated hereby. If such
Shareholder is married and such Shareholder's Shares
constitute community property, this Agreement has
been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, such
Shareholder's spouse, enforceable against such person
in accordance with its terms.
(iii) No Conflicts. Other than filings that may be
required under the Exchange Act and such other
consents as are described in the Combination
Agreement no filing with, and no permit,
authorization, consent or approval of, any state or
federal public body or authority is necessary for the
execution of this Agreement by such Shareholder and
the consummation by such Shareholder of the
transactions contemplated hereby, except where the
failure to obtain such consent, permit,
authorization, approval or filing would not interfere
with such Shareholder's ability to perform its
obligations hereunder, and none of the execution and
delivery of this
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Agreement by such Shareholder, the consummation by
such Shareholder of the transactions contemplated
hereby or compliance by such Shareholder with any of
the provisions hereof shall (A) result in a violation
or breach of, or constitute (with or without notice
or lapse of time or both) a default (or give rise to
any third party right of termination, cancellation,
material modification or acceleration) under any of
the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which
such Shareholder is a party or by which such
Shareholder or any of its properties or assets may be
bound, or (B) violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation
applicable to such Shareholder or any of its
properties or assets, in each such case except to the
extent that any conflict, breach, default or
violation would not interfere with the ability of
such Shareholder to perform, the obligations
hereunder.
(iv) No Encumbrances. Except as required by Section 2, at
all times during the term hereof, all of such
Shareholder's Shares will be held by such
Shareholder, Affiliates of such Shareholder, or by
nominees or custodians for the benefit of such
Shareholder, free and clear of all liens, claims,
security interests, proxies, voting trusts or
agreement, understandings or arrangements or any
other liens, claims, understanding or arrangements
that do not limit or impair such Shareholder's
ability to perform its obligations under this
Agreement.
(v) Restriction on Transfer, Proxies and
Non-Interference. From and after the date of this
Agreement and ending as of the first to occur of the
Effective Time or the Termination Date, no
Shareholders shall, and each Shareholder shall cause
each of its Affiliates who Beneficially Owns any of
the Shareholder's Shares of such Shareholder not to,
directly or indirectly without the consent of
Chauvco: (A) offer for sale, sell, transfer, 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
or all of the Shareholders' Shares of such
Shareholder, or any interest therein, (B) grant any
proxies or powers of attorney, deposit any
Shareholders' Shares of such Shareholder into a
voting trust or enter into a voting agreement with
respect to any Shareholders' Shares of such
Shareholder, (C) enter into any agreement or
arrangement providing for any of the actions
described in clause (A) or (B) above or (D) take any
action that could reasonably be expected to have
effect of preventing or disabling any Shareholder
from performing such Shareholder's obligations under
this Agreement.
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(vi) Further Assurance. From time to time, at Chauvco's
reasonable request and without further consideration,
each Shareholder shall execute and deliver such
additional documents as may be necessary or desirable
to consummate and make effective, in the most
expeditious manner practicable, the transactions
contemplated by this Agreement.
(b) US Co hereby represents and warrants to Chauvco that the Board
of Directors of US Co has approved the terms of this Agreement
and the transactions contemplated herein in such a manner as
to satisfy the corporate laws of Delaware applicable to US Co.
4. STOP TRANSFER
From and after the date of this Agreement and ending as of the first
to occur of the Effective Time or the Termination Date, no Shareholder will
request that US Co register (and US Co agrees not to register) the transfer
(book- entry or otherwise) of any certificate or uncertificated interest
representing any of the Shareholders' Shares of such Shareholder, except as
contemplated by Section 3(a)(v) hereof or as otherwise contemplated hereby.
5. RECAPITALIZATION
In the event of a stock dividend or distribution, or any change in the
Shares (or any class thereof) by reason of any split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall include,
without limitation, all such stock dividends and distributions and any shares
or other securities into which or for which any or all of the Shares (or any
class thereof) may be changed or exchanged as may be appropriate to reflect
such event.
6. MISCELLANEOUS
(a) Entire Agreement. This Agreement and the Combination
Agreement constitute the entire agreement between the parties
with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter
hereof.
(b) Amendments, Waivers, Etc. 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 parties hereto; provided
that all of the provisions of this Agreement other than
Sections 3(b), 4 and this Section 6(b) may be amended without
the consent of US Co.
(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly received if so
given) by hand delivery or telecopy, or by mail (registered or
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certified mail, postage prepaid, return receipt requested) or
by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses
or the addresses set forth on the signature pages hereto:
If to
US Co or the
Shareholders c/o Pioneer Natural Resources Company
0000 Xxxxxxxx Xxxxxx Xxxx
0000 X. X'Xxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
Attn.: General Counsel
Telecopy: (000) 000-0000
and
copy to: Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
and
DNR - MESA Holdings L.P.
000 Xxxx Xxxxxx
0000 Xxxx Xxxxx, Xxxxx 00000
Attn.: Xxx Xxxxx
Telecopy: (000) 000-0000
If to Chauvco: Chauvco Resources Ltd.
0000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn.: President
Telecopy: (000) 000-0000
and
copy to: Xxxxxxx Xxxxx Verchere
0000, 000-0 Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attn.: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) 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 but
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.
(e) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by any Shareholder of any
covenants or agreements contained in this Agreement will cause
Chauvco to sustain damages for which it would not have an
adequate remedy at law for money damages, and therefore each
of the parties hereto agrees that in the event of any such
breach Chauvco 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 it may be entitled, at law or in equity.
(f) 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.
(g) 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 right to exercise any
such or other right, power or remedy or to demand such
compliance.
(h) No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any
person or entity who or which is not a party hereto; provided
that, in the event of any of the Shareholder's deaths, the
benefits and obligations of such Shareholder hereunder shall
inure to his successors and heirs.
(i) Governing Law. This Agreement shall be governed and construed
in accordance
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with the laws of Delaware.
(i) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of Alberta in any action, suit or
proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be
brought only in such court (and waives any objection based on
forum non conveniens or any other objection to venue therein);
provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this paragraph and shall not be
deemed to be a general submission to the jurisdiction of
Alberta other than for such purposes.
(k) Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or
interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same
Agreement. This Agreement shall not be effective as to any
party hereto until such time as this Agreement or a
counterpart thereof has been executed and delivered by such
party hereto.
7. TERMINATION
This Agreement shall terminate without any further action on the part
of any party hereto upon the earlier to occur of the Effective Time or the
Termination Date. Upon such termination, this Agreement shall forthwith become
void and of no further force or effect.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on this 3rd day of September, 1997.
PIONEER NATURAL
RESOURCES COMPANY
Per:
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Per:
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CHAUVCO RESOURCES, LTD.
Per:
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Per:
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DNR - MESA HOLDINGS L.P. BY ITS
SOLE GENERAL PARTNER RAINWATER INC.
Per:
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Xxx Xxxxx, Vice-President
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WITNESS XXXXX X. XXXXXXXXX
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WITNESS I. XXX XXXXXXX
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