EXHIBIT 99.3
FORM OF FRONTIER AFFILIATE'S SUPPORT AGREEMENT
This FRONTIER AFFILIATE'S SUPPORT AGREEMENT (this "Agreement"), dated
as of March 30, 2003, is by and between Xxxxx Corporation, a Delaware
corporation (the "Xxxxx"), and the undersigned holder (the "Affiliate") of
shares or options to acquire shares of common stock of Frontier Oil Corporation,
a Wyoming corporation ("Frontier"). 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 March 30, 2003 (the "Merger Agreement") pursuant to
which Merger Sub One will merge (the "Merger") with and into Frontier, with
Frontier surviving the Merger, on the terms and subject to the conditions set
forth in the Merger Agreement;
B. As of the date hereof, Affiliate "beneficially owns" (as such term
is defined in Rule 13d-3 under the Exchange Act) and Affiliate 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, without par value per share, of
Frontier (the "Common Stock") set forth beneath the Affiliate'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 Frontier 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 Affiliate 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 Affiliate's "Subject Shares");
C. As a condition to the willingness of Xxxxx to enter into the Merger
Agreement, and as an inducement and in consideration therefor, Xxxxx has
required that Affiliate agree, and Affiliate 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. Affiliate, solely in
Affiliate's capacity as a stockholder of Frontier, 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 Frontier, however called, or in connection with any written
consent of the holders of any class or classes of the capital stock of Frontier,
Affiliate shall vote (or cause to be voted) Affiliate'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
Frontier (or in connection with any written consent) at which such matters are
considered and at every
1
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 Frontier or any of its
subsidiaries under the Merger Agreement or of Affiliate under this Agreement,
and (iii) except as otherwise agreed to in writing in advance by Xxxxx, 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 Frontier 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 Frontier or any of its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of Frontier 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 Frontier that is not approved in advance by at least a majority of
the persons who were directors of Frontier as of the date of this Agreement (or
their successors who were so approved); (2) any change in the present
capitalization of Frontier or any amendment of Frontier's certificate of
incorporation or bylaws; (3) any other material change in Frontier's corporate
structure or business; or (4) any other action or proposal involving Frontier 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.
Affiliate 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 W.S. 00-00-000 of the Wyoming Business Corporation Act for
the duration of the Voting Period.
(b) GRANT OF IRREVOCABLE PROXY. Affiliate hereby appoints Xxxxx and any
designee of Xxxxx, and each of them individually, such Affiliate'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 Affiliate's
Subject Shares in accordance with Section 1(a). This proxy is given to secure
the performance of the duties of Affiliate under this Agreement. Affiliate shall
promptly cause a copy of this Agreement to be deposited with Frontier at its
principal place of business. Affiliate shall take such further action or 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 Affiliate 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 Affiliate. The power of attorney granted herein is a durable
power of attorney and shall survive the dissolution, bankruptcy, death or
incapacity of Affiliate. For the avoidance of doubt, the proxy and power of
attorney is granted pursuant to W.S. 00-00-000 of the Wyoming Business
Corporation Act, is coupled with an interest and is granted to Xxxxx as a
stockholder of Frontier and a party to this voting agreement which is created
under W.S. 00-00-000 of the Wyoming Business Corporation Act and is intended to
be valid during the
2
Voting Period, which the parties understand and agree may be more than eleven
months from the date hereof.
2. COVENANTS. Except for pledges in existence as of the date hereof,
Affiliate agrees that, except as contemplated by the terms of this Agreement,
Affiliate 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 Affiliate's Subject Shares;
(b) grant any proxies or powers of attorney in respect of the Subject Shares,
deposit any of Affiliate's Subject Shares into a voting trust or enter into a
voting agreement with respect to any of Affiliate's Subject Shares; or (c) take
any action that would have the effect of preventing, impeding, interfering with
or adversely affecting Affiliate's ability to perform Affiliate's respective
obligations under this Agreement. Notwithstanding the foregoing, nothing herein
shall prevent Affiliate from assigning or transferring any Subject Shares
beneficially owned by Affiliate to any trust, estate, family partnership,
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
Affiliate hereunder.
3. REPRESENTATIONS AND WARRANTIES OF AFFILIATES. Affiliate hereby
represents and warrants to Xxxxx as follows:
(a) DUE AUTHORITY. Affiliate has the capacity to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. Affiliate
hereby represents and warrants to Xxxxx as follows: If Affiliate is an entity,
Affiliate is duly organized and validly existing under the laws of the
jurisdiction of its organization, and Affiliate 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 Affiliate have,
if Affiliate is an entity, been duly authorized by all necessary action on the
part of Affiliate, and, assuming its due authorization, execution and delivery
by Xxxxx, constitutes a valid and binding obligation of Affiliate, enforceable
against Affiliate 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. Affiliate legally or beneficially owns the
number of shares of Common Stock set forth beneath Affiliate's name on the
signature page hereto. The number of shares of Common Stock set forth beneath
Affiliate's name on the signature page hereto are all of the shares of Common
Stock legally or beneficially owned by Affiliate. Affiliate has sole voting
power and sole power of disposition, in each case with respect to all of shares
of Common Stock set forth beneath Affiliate'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 Affiliate.
3
(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 Affiliate and the consummation by Affiliate of
the transactions contemplated hereby (it being understood that nothing herein
shall prevent Affiliate's compliance with Section 13(d) of the Exchange Act) and
(ii) none of the execution and delivery of this Agreement by Affiliate, the
consummation by Affiliate of the transactions contemplated hereby or compliance
by Affiliate 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
Affiliate is a party or by which Affiliate or any of Affiliate'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 Affiliate's ability to perform Affiliate's obligations under
this Agreement.
(d) RELIANCE BY XXXXX. Affiliate understands and acknowledges that
Xxxxx is entering into the Merger Agreement in reliance upon the execution and
delivery of this Agreement by Affiliate.
4. REPRESENTATIONS AND WARRANTIES OF XXXXX. Xxxxx hereby represents and
warrants to Affiliate as follows:
(a) DUE ORGANIZATION, ETC. Xxxxx is a corporation duly organized and
validly existing under the laws of the jurisdiction of its incorporation. Xxxxx
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 Xxxxx has been duly authorized by all necessary action on
the part of Xxxxx and, assuming its due authorization, execution and delivery by
Affiliate, constitutes a valid and binding obligation of Xxxxx, enforceable
against Xxxxx 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 Xxxxx and the consummation by Xxxxx of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Xxxxx, the consummation by Xxxxx of the transactions
contemplated hereby shall (A) conflict with or result in any breach of the
organizational documents of Xxxxx, (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 Xxxxx is a party or by
which Xxxxx 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 Holly's ability to perform its
obligations under this Agreement.
(c) RELIANCE BY AFFILIATE. Xxxxx understands and acknowledges that
Affiliate is entering into this Agreement in reliance upon the execution and
delivery of the Merger Agreement by Xxxxx.
4
5. MISCELLANEOUS.
(a) AFFILIATE CAPACITY. If Affiliate is or becomes during the term
hereof a director or officer of Frontier, Affiliate does not make any agreement
or understanding herein in Affiliate's capacity as such director or officer.
Affiliate executes this Agreement solely in Affiliate's capacity as the record
holder or beneficial owner of Affiliate's Subject Shares and nothing herein
shall limit or affect any actions taken by Affiliate in Affiliate's capacity as
an officer or director of Frontier.
(b) PUBLICATION. Affiliate hereby permits Xxxxx to publish and disclose
in the Proxy Statement/Prospectus (including all documents and schedules filed
with the Securities and Exchange Commission) Affiliate's identity and ownership
of shares of Common Stock and the nature of Affiliate's commitments,
arrangements, and understandings pursuant to this Agreement.
(c) FURTHER ACTIONS. Each of the parties hereto agrees that it will use
its 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
Xxxxx may assign and transfer its rights and obligations hereunder to any direct
or indirect wholly owned subsidiary of Xxxxx. 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 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.
5
(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 Xxxxx nor
Affiliate 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 Xxxxx and Affiliate, (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]
6
IN WITNESS WHEREOF, this Agreement is executed as of the date first
stated above.
XXXXX CORPORATION, a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
AFFILIATE
Printed Name:
-------------------------------
Number of Shares of Common Stock owned:
--------------------------------------------
Number of Shares of Common Stock issuable
upon exercise of Stock Options held:
--------------------------------------------
7
SCHEDULE A
The following table identifies the officers, and directors of Frontier
who have executed Frontier Holder Support Agreements in favor of Xxxxx
Corporation:
Number of Options to
Number of Shares of Purchase Frontier
Name Title Frontier Common Stock Common Stock
---------------- ----------------------------------------- --------------------- --------------------
Xxxxx X. Xxxxx Chairman of the Board, President and 315,848 915,000
Chief Executive Officer
Xxxxx X. Xxxxxxx Executive Vice President-Finance and 135,054 315,500
Administration, Chief Financial Officer
W. Xxxx Xxxxxxxx Executive Vice President- 27,706 198,750
Refining and Marketing Operations
Xxxxxxx X. Xxxx Director 13,500 23,125
G. Xxxxx Xxxx Director 3,500 23,125
T. Xxxxxxx Xxxxxx Director 1,000 15,000
Xxxxx X. Xxx Director 1,000 23,125
Xxxx X. Xxxx, Xx. Director 3,500 23,125
Xxxxx X. Xxxxxx Director Emeritus 15,442 0
Xxxx X. Xxxxxxx Director 8,500 23,125
TOTAL 521,550 1,536,750
8
