EXHIBIT 99.2
FORM OF XXXXX XXXXXX SUPPORT AGREEMENT
This XXXXX XXXXXX'X SUPPORT AGREEMENT (this "Agreement"), dated as of
March 30, 2003, is by and between Frontier Oil Corporation, a Wyoming
corporation ("Frontier"), and the undersigned holder (the "Holder") of shares or
options to acquire shares of common stock of Xxxxx Corporation, a Delaware
corporation (the "Xxxxx"). Capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Merger Agreement referenced
below.
RECITALS
A. Frontier, Xxxxx and other parties have entered into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement") pursuant to
which Merger Sub Two will merge (the "Merger") with and into Xxxxx, with Xxxxx
surviving the Merger, on the terms and subject to the conditions set forth in
the Merger Agreement;
B. As of the date hereof, Holder "beneficially owns" (as such term is
defined in Rule 13d-3 under the Exchange Act) and Holder is entitled to dispose
of (or to direct the disposition of) and to vote (or to direct the voting of)
the number of shares of Common Stock, par value $0.01 per share, of Xxxxx (the
"Common Stock") set forth beneath the Holder's name on the signature page
hereto, as such shares may be adjusted by stock dividend, stock split,
recapitalization, combination, merger, consolidation, reorganization or other
change in the capital structure of Xxxxx affecting the Common Stock (such shares
of Common Stock, together with any other shares of Common Stock the voting power
over which is acquired by Holder during the period from and including the date
hereof through and including the date on which this Agreement is terminated in
accordance with its terms, are collectively referred to herein as Holder's
"Subject Shares");
C. As a condition to the willingness of Frontier to enter into the
Merger Agreement, and as an inducement and in consideration therefor, Frontier
has required that Holder agree, and Holder has agreed, to enter into this
Agreement.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. VOTING AGREEMENT AND IRREVOCABLE PROXY.
(a) AGREEMENT TO VOTE THE SUBJECT SHARES. Holder, solely in Holder's
capacity as a stockholder of Xxxxx, hereby agrees that during the period
commencing on the date hereof and continuing until the termination of this
Agreement (such period, the "Voting Period"), at any meeting (or any adjournment
or postponement thereof) of the holders of any class or classes of the capital
stock of Xxxxx, however called, or in connection with any written consent of the
holders of any class or classes of the capital stock of Xxxxx, Holder shall vote
(or cause to be voted) Holder's Subject Shares (i) in favor of the approval and
adoption of the terms of the Merger Agreement and each of the other transactions
contemplated by the Merger Agreement (and any actions required in furtherance
thereof) at every meeting of the stockholders of Xxxxx (or in connection with
any written consent) at which such matters are considered and at every
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adjournment thereof, (ii) against any action, proposal, transaction or agreement
that would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of Xxxxx or any of its
subsidiaries under the Merger Agreement or of Holder under this Agreement, and
(iii) except as otherwise agreed to in writing in advance by Frontier, against
the following actions or proposals (other than the transactions contemplated by
the Merger Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving Xxxxx or any of
its subsidiaries and any Xxxxx Acquisition Proposal; (B) any sale, lease or
transfer of a significant part of the assets (other than sales of current assets
in the ordinary course of business) of Xxxxx or any of its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of Xxxxx or any of
its subsidiaries (each of the actions in clauses (A) or (B), a "Business
Combination"); and (C)(1) any change in the persons who constitute the board of
directors of Xxxxx that is not approved in advance by at least a majority of the
persons who were directors of Xxxxx as of the date of this Agreement (or their
successors who were so approved); (2) any change in the present capitalization
of Xxxxx or any amendment of Holly's certificate of incorporation or bylaws; (3)
any other material change in Holly's corporate structure or business; or (4) any
other action or proposal involving Xxxxx or any of its subsidiaries that is
intended, or could reasonably be expected, to prevent, impede, interfere with,
delay, postpone, or adversely affect the transactions contemplated by the Merger
Agreement. Any such vote shall be cast or consent shall be given in accordance
with such procedures relating thereto as shall ensure that it is duly counted
for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Holder agrees not to enter into
any agreement, letter of intent, agreement in principle or understanding with
any person that violates or conflicts with or could reasonably be expected to
violate or conflict with the provisions and agreements contained in this
Agreement or the Merger Agreement. For the avoidance of doubt, this Agreement is
intended to constitute a voting agreement entered into under Section 218(a) of
the Delaware General Corporation Law for the duration of the Voting Period.
(b) GRANT OF IRREVOCABLE PROXY. Holder hereby appoints Frontier and any
designee of Frontier, and each of them individually, such Holder's proxy and
attorney-in-fact, with full power of substitution and resubstitution, to vote or
act by written consent during the Voting Period with respect to Holder's Subject
Shares in accordance with Section 1(a). This proxy is given to secure the
performance of the duties of Holder under this Agreement. Holder shall promptly
cause a copy of this Agreement to be deposited with Xxxxx at its principal place
of business. Holder shall execute such other instruments as may be necessary to
effectuate the intent of this proxy.
(c) NATURE OF IRREVOCABLE PROXY. The proxy and power of attorney
granted pursuant to Section 1(b) by Holder shall be irrevocable during the term
of this Agreement, shall be deemed to be coupled with an interest sufficient in
law to support an irrevocable proxy and shall revoke all prior proxies granted
by Holder. The power of attorney granted herein is a durable power of attorney
and shall survive the dissolution, bankruptcy, death or incapacity of Holder.
For the avoidance of doubt, the proxy and power of attorney is granted pursuant
to Section 212(b) of the Delaware General Corporation Law, is coupled with an
interest and is granted to Frontier a party to this voting agreement which is
created under Section 218(a) of the Delaware General Corporation Law and is
intended to be valid during the Voting Period, which the parties understand and
agree may be more than eleven months from the date hereof.
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2. COVENANTS. Except for pledges in existence as of the date hereof,
Holder agrees that, except as contemplated by the terms of this Agreement,
Holder shall not (a) sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other agreement with
respect to, or consent to, the sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of Holder's Subject Shares; (b)
grant any proxies or powers of attorney in respect of the Subject Shares,
deposit any of Holder's Subject Shares into a voting trust or enter into a
voting agreement with respect to any of Holder's Subject Shares; (c) exercise
any Xxxxx Stock Options or fail to give any requested or required consent to the
conversion of any Xxxxx Stock Options into Parent Stock Options as provided for
in and pursuant to the Merger Agreement; or (d) take any action that would have
the effect of preventing, impeding, interfering with or adversely affecting
Holder's ability to perform Holder's respective obligations under this
Agreement. Notwithstanding the foregoing, nothing herein shall prevent Holder
from assigning or transferring any Subject Shares beneficially owned by Holder
to any spouse, parent, child, trust, trust beneficiary, estate, family
partnership, partner, foundation (whether family, private or public) or other
charitable organization (a "Permitted Transferee") if such Permitted Transferee
agrees in writing to hold any Subject Shares subject to all of the provisions of
this Agreement as Holder hereunder. Holder further agrees to timely execute and
deliver a Xxxxx Rule 145 Agreement as contemplated by the Merger Agreement.
3. REPRESENTATIONS AND WARRANTIES OF HOLDERS. Holder hereby represents
and warrants to Frontier as follows:
(a) DUE AUTHORITY. Holder has the capacity to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. If Holder is
an entity, Holder is duly organized and validly existing under the laws of the
jurisdiction of its organization, and Holder has all necessary 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 hereby by Holder have, if
Holder is an entity, been duly authorized by all necessary action on the part of
Holder, and, assuming its due authorization, execution and delivery by Frontier,
constitutes a valid and binding obligation of Holder, enforceable against Holder
in accordance with its terms, except to the extent that its enforceability may
be subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally and by
equitable principles.
(b) OWNERSHIP OF SHARES. Holder legally or beneficially owns (within
the definition of Rule 13d-3 under the Exchange Act) the number of shares of
Common Stock set forth beneath Holder's name on the signature page hereto. The
number of shares of Common Stock set forth beneath Holder's name on the
signature page hereto are all of the shares of Common Stock legally or
beneficially owned by Holder. Holder has sole voting power and sole power of
disposition, in each case with respect to all of shares of Common Stock set
forth beneath Holder's name on the signature page hereto, with no limitations,
qualifications or restrictions on such rights, subject only to applicable
securities laws and the terms of this Agreement and as otherwise noted on the
signature page hereto. Also set forth on the signature page hereto is the number
of shares of Common stock issuable pursuant to stock options held by Holder.
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(c) NO CONFLICTS. (i) No filing with any governmental authority, and no
authorization, consent or approval of any other person is necessary for the
execution of this Agreement by Holder and the consummation by Holder of the
transactions contemplated hereby (it being understood that nothing herein shall
prevent Holder's compliance with Section 13(d) of the Exchange Act) and (ii)
none of the execution and delivery of this Agreement by Holder, the consummation
by Holder of the transactions contemplated hereby or compliance by Holder with
any of the provisions hereof shall (A) result in, or give rise to, a violation
or breach of or a default under any of the terms of any material contract,
understanding, agreement or other instrument or obligation to which Holder is a
party or by which Holder or any of Holder's Subject Shares or assets may be
bound, or (B) violate any applicable order, writ, injunction, decree, judgment,
statute, rule or regulation which could reasonably be expected to adversely
affect Holder's ability to perform Holder's obligations under this Agreement.
(d) RELIANCE BY FRONTIER. Holder understands and acknowledges that
Frontier is entering into the Merger Agreement in reliance upon the execution
and delivery of this Agreement by Holder.
4. REPRESENTATIONS AND WARRANTIES OF FRONTIER. Frontier hereby
represents and warrants to Holder as follows:
(a) DUE ORGANIZATION, ETC. Frontier is a corporation duly organized and
validly existing under the laws of the jurisdiction of its incorporation.
Frontier has all necessary corporate 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 hereby by Frontier has been duly authorized by all
necessary action on the part of Frontier and, assuming its due authorization,
execution and delivery by Holder, constitutes a valid and binding obligation of
Frontier, enforceable against Frontier in accordance with its terms, except to
the extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
(b) CONFLICTS. (i) No filing with any governmental authority, and no
authorization, consent or approval of any other person is necessary for the
execution of this Agreement by Frontier and the consummation by Frontier of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Frontier, the consummation by Frontier of the transactions
contemplated hereby shall (A) conflict with or result in any breach of the
organizational documents of Frontier, (B) result in a violation or breach of or
a default under any of the terms of any material contract, understanding,
agreement or other instrument or obligation to which Frontier is a party or by
which Frontier or any of its assets may be bound, or (C) violate any applicable
order, writ, injunction, decree, judgment, statute, rule or regulation which
could reasonably be expected to adversely affect Frontier's ability to perform
its obligations under this Agreement.
(c) RELIANCE BY HOLDER. Frontier understands and acknowledges that
Holder is entering into this Agreement in reliance upon the execution and
delivery of the Merger Agreement by Frontier.
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5. MISCELLANEOUS.
(a) HOLDER CAPACITY. If Holder is or becomes during the term hereof a
director or officer of Xxxxx, Holder does not make any agreement or
understanding herein in Holder's capacity as such director or officer. Holder
executes this Agreement solely in Holder's capacity as the record holder or
beneficial owner of Holder's Subject Shares and nothing herein shall limit or
affect any actions previously or hereafter taken by Holder in Holder's capacity
as an officer or director of Xxxxx. Without limiting the foregoing, nothing in
this Agreement shall limit or affect the ability of a director or officer of
Xxxxx to take any action as may be advisable or necessary in the discharge of
his or her fiduciary duties as such director or officer, and without regard to
whether he or she is, without limitation, (i) a trustee or co-trustee of one or
more Holders, (ii) an officer, consultant or other representative of a trustee
or co-trustee of one or more Holders, or (iii) a beneficiary of one or more
Holders.
(b) PUBLICATION. Holder hereby permits Frontier to publish and disclose
in the Proxy Statement/Prospectus (including all documents and schedules filed
with the Securities and Exchange Commission) Holder's identity and ownership of
shares of Common Stock and the nature of Holder's commitments, arrangements, and
understandings pursuant to this Agreement.
(c) FURTHER ACTIONS. Each of the parties hereto agrees that it will use
its reasonable best efforts to do all things necessary to effectuate this
Agreement.
(d) ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties hereto with respect to the subject matter contained herein and
supersedes all prior agreements and understandings, oral and written, with
respect thereto.
(e) BINDING EFFECT; BENEFIT; ASSIGNMENT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their Permitted
Transferees, heirs, estates and successors. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, except by will or by the laws of descent and distribution,
without the prior written consent of each of the other parties, except that
Frontier may assign and transfer its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of Frontier. Nothing in this
Agreement, expressed or implied, is intended to confer on any person, other than
the parties hereto, any rights or remedies.
(f) 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 all of the
relevant parties hereto.
(g) SPECIFIC ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to
which they are entitled at law or in equity.
(h) 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
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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.
(i) 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.
(j) GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(k) HEADINGS. The descriptive headings of this Agreement are inserted
for convenience only, do not constitute a part of this Agreement and shall not
affect in any way the meaning or interpretation of this Agreement.
(l) COUNTERPARTS; FACSIMILES. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument. A signature
transmitted by facsimile shall be treated for all purposes by the parties hereto
as an original, shall be binding upon the party transmitting such signature
without limitation.
(m) TERMINATION. This Agreement shall terminate, and neither Frontier
nor Holder shall have any rights or obligations hereunder, and this Agreement
shall become null and void and have no effect upon the earliest to occur of (i)
the mutual consent of Frontier and Holder, (ii) the Effective Time, (iii) the
termination of the Merger Agreement pursuant to its terms or (iv) October 31,
2003; provided, further, that termination of this Agreement shall not prevent
any party hereunder from seeking any remedies (at law or in equity) against any
other party hereto for such party's breach of any of the terms of this
Agreement. Notwithstanding the foregoing, the provisions of Section 2(a) shall
survive the termination of this Agreement by reason of clause (ii) of the
preceding sentence until 90 days after the Effective Time and Sections 5(d),
5(e), 5(h) and 5(j) shall survive the termination of this Agreement for any
reason.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement is executed as of the date first
stated above.
FRONTIER OIL CORPORATION, a Wyoming
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
HOLDER
Printed Name:
-------------------------------
Number of Shares of Common Stock owned:
--------------------------------------------
Number of Shares of Common Stock issuable
upon exercise of Stock Options held:
--------------------------------------------
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SCHEDULE A
The following table identifies the officers, directors and stockholders
of Xxxxx who have executed Xxxxx Xxxxxx Support Agreements in favor of Frontier
Oil Corporation:
NUMBER OF OPTIONS TO
NUMBER OF SHARES OF PURCHASE XXXXX
NAME TITLE XXXXX COMMON STOCK COMMON STOCK
-------------------------------------- ---------------------------------- --------------------- ----------------------
C. Xxxxx Xxxxxxxxxx, III Chairman of the Board and Chief 636,209 320,000
Executive Officer
Xxxxxxx X. Xxxxxxx President and Director 36,705 276,000
W. Xxxx Xxxxxx Senior Vice President,
Secretary, General Counsel and
Director 400 106,000
Xxxx Xxxxxxx Stockholder 605,644 0
Xxxxxxx X. Xxxx Director 30,098 0
Xxxxxx X. Xxxxxxxxx Director 9,112 0
Xxxxxx X. Xxxxxxxx, XX Director 800 0
Xxxxxx X. XxXxxxxx Director 2,000 0
Xxxx X. Xxxx Director 108,719 100,000
Xxxx X. Xxxxxxx Director 572,400 0
Xxxxx Brothers Xxxxxxxx Trust Stockholder
Company of Texas, as trustee for
various trusts 3,022,272 0
NBN Capital Limited Partnership Stockholder
571,712 0
NBN Asset Management Company, L.L.C. Stockholder
4 0
TOTAL 5,596,075 802,000
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