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EXHIBIT 2.6
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
THIS AMENDED AND RESTATED 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"), and XXX X.
XXXXXXXX, an individual, (the "Shareholder").
W I T N E S S E T H
WHEREAS, concurrently herewith, US Co and Chauvco Resources Ltd.
("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, US Co has required that the Shareholder agrees, and the
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) "Acquisition Proposal" shall mean any agreement, letter of
intent, proposal or offer (other than the transactions
contemplated in the Combination Agreement) involving Chauvco
or any of the Chauvco Subsidiaries for, or an inquiry or
indication of interest that reasonably could be expected to
lead to: (i) any arrangement, merger, consolidation, share
exchange, recapitalization, reorganization, dissolution,
liquidation, business combination, or other similar
transaction with Chauvco or any of the Chauvco Subsidiaries,
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition of a material portion of the assets of
Chauvco and the Chauvco Subsidiaries, taken as a whole, in a
single transaction or series of transactions, or (iii) any
tender offer or exchange offer for all or any portion of the
outstanding shares of capital stock of Chauvco or any of the
Chauvco Subsidiaries or the filing of documentation under
applicable Canadian securities legislation in connection
therewith, but shall not include the transactions
contemplated in the Combination Agreement.
(b) "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.
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(c) "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) 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
Shareholder shall include Shares held of record by any of the
Shareholder's spouses and children.
(d) "Options" means options to purchase Shares.
(e) "Person" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association,
trust or unincorporated organization.
(f) "Shares" shall mean Chauvco Common Shares.
(g) "Shareholder's Options" shall mean all Options issued to the
Shareholder, whether issued before or after the date hereof,
that are validly outstanding at the relevant time hereunder,
excluding any Options that are no longer outstanding as a
result of the exercise of such Options by the Shareholder at
any time.
(h) "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.
(i) "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, Options, or both, however called, or in any other
circumstance upon which the vote, consent or other approval of holders of
Shares, Options, or both, is sought, the Shareholder shall vote (or cause to be
voted) the Shareholder's issued and outstanding Shareholder's Shares and
Shareholder's Options, (i) in favour of the Arrangement and the other
transactions contemplated thereby, the execution and delivery by Chauvco 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 Chauvco under the Combination Agreement; and (iii) against the
following actions (other than the Arrangement and the transactions contemplated
by the Combination Agreement): (A) any Acquisition Proposal other than an
Acquisition Proposal with US Co or any Affiliate thereof and (B) to the extent
that such (1) are intended to, or could reasonably be expected to, impede,
interfere
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with, delay, postpone, or materially adversely affect the Arrangement or the
transactions contemplated by the Combination Agreement or this Agreement or (2)
are intended to, or could reasonably be expected to, implement or lead to any
Acquisition Proposal (other than an Acquisition Proposal with US Co or any
Affiliate thereof): (x) any change in a majority of the persons who constitute
the board of directors of Chauvco; (y) any change in the present capitalization
of Chauvco or any amendment of Chauvco's Articles or Bylaws; or (z) any other a
material change in Chauvco's corporate structure or business. In addition to
the other covenants and agreements of the Shareholder provided for elsewhere in
this Agreement, during the above-described period the Shareholder shall not
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 the
Shareholder from taking any action in his capacity as a director or officer of
Chauvco to fulfill his duties and fiduciary obligations as a director or
officer of Chauvco.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
(a) The Shareholder hereby severally represents, warrants and
covenants to US Co as follows:
(i) Ownership. The 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 and Options set forth on
Schedule A hereto. As of the date of this Agreement,
the Shares and Options set forth on Schedule A hereto
constitute all of the issued and outstanding Shares
and Options owned of record or Beneficially Owned by
the Shareholder. Except as otherwise set forth in
Schedule A, the 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 and
Options attributable to the 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. The Shareholder has the
legal capacity, power and authority to enter into and
perform all of the Shareholder's obligations under
this Agreement. This Agreement has been duly and
validly executed and delivered by the Shareholder and
constitutes a valid and binding agreement of the
Shareholder, enforceable against the 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 the Shareholder is a
trustee whose consent is required for the execution
and delivery of this Agreement or the consummation by
the Shareholder of the transactions contemplated
hereby. If the Shareholder's Shares or Shareholder's
Options constitute community property, this Agreement
has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the
Shareholder's spouse, enforceable against such person
in accordance with its terms.
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(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 the Shareholder and the consummation by
the Shareholder of the transactions contemplated
hereby, except where the failure to obtain the
consent, permit, authorization, approval or filing
would not interfere with the Shareholder's ability to
perform his obligations hereunder, and none of the
execution and delivery of this Agreement by the
Shareholder, the consummation by the Shareholder of
the transactions contemplated hereby or compliance by
the 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 the
Shareholder is a party or by which the Shareholder or
any of his properties or assets may be bound, or (B)
violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation
applicable to the 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 the
Shareholder to perform the obligations hereunder.
(iv) No Encumbrances. Except as required by Section 2, at
all times during the term hereof, all of the
Shareholder's Shares and Shareholder's Options will
be held by the Shareholder, Affiliates of the
Shareholder, or by nominees or custodians for the
benefit of the 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 the
Shareholder's ability to perform his obligations
under this Agreement.
(v) No Solicitation. The Shareholder shall comply with
the terms of Section 4.2(n) of the Combination
Agreement.
(vi) 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, the
Shareholder shall not, and the Shareholder shall
cause each of his Affiliates who Beneficially Own
any of the Shareholder's Shares or Shareholder's
Options of such Shareholder not to, directly or
indirectly without the consent of US Co in respect
of any Acquisition Proposal or otherwise: (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 Shareholder's Shares or Shareholder's
Options
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of the Shareholder, or any interest therein, (B)
grant any proxies or powers of attorney, deposit any
Shareholder's Shares or Shareholder's Options of the
Shareholder into a voting trust or enter into a
voting agreement with respect to any Shareholder's
Shares or Shareholder's Options of the 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 the Shareholder from performing the
Shareholder's obligations under this Agreement,
provided however that the Shareholder shall be
entitled to dispose of the Shares currently held in
the Shareholder's RRSP which holds approximately
36,000 Shares.
(vii) Waiver of Appraisal Rights. The Shareholder hereby
waives and agrees not to assert, and shall cause any
of his Affiliates who hold of record any of the
Shareholder's Shares or Shareholder's Options to
waive and agree not to assert, any rights of
appraisal or rights to dissent in respect of the
Arrangement that the Shareholder or such Affiliate
may have.
(viii) Further Assurances. From time to time, at US Co's
reasonable request and without further
consideration, the 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.
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, the Shareholder will
not request that Chauvco register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Shareholder's
Shares, except as contemplated by Section 3(a)(vi) 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.
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(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.
(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 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 the Shareholder: Chauvco Resources Ltd.
2900, 000 0xx Xxx X.X.
Xxxxxxx, XX, X0X 0X0
Attn: Xxx X. Xxxxxxxx - PRIVATE AND CONFIDENTIAL
Telecopy: (000) 000-0000
and
copy to: Xxxxxxx Xxxxx Verchere
0000 Xxxxxxx Xxxx Xxxx
000 - 0xx Xxxxxx X.X.
Xxxxxxx, XX, X0X 0X0
Attn: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
If to US Co: 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
Attn: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
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.
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(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 the Shareholder of any
covenants or agreements contained in this Agreement will
cause US Co 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 US Co 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 the Shareholder's death, 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 with the laws of Alberta.
(j) 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.
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(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 each
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; provided that a party shall be liable
for any breaches of the Agreement that occurred prior to such termination.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed effective the 3rd day of September, 1997.
PIONEER NATURAL
RESOURCES COMPANY
Per: /s/ Xxxxx X. Xxxxxxxxx
------------------------
Per: /s/ Xxxx X. Xxxxxxx
------------------------
/s/ Xxxx Xxxxxx
----------------------- /s/ Xxx X. Xxxxxxxx
WITNESS ------------------------
XXX X. XXXXXXXX
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SCHEDULE A TO SHAREHOLDERS AGREEMENT
SHARES AND OPTIONS HELD BY THE SHAREHOLDER
o The Shareholder holds 1,212,972 common shares of Chauvco Resources Ltd.
o The Shareholder holds 625,000 options to acquire common shares of
Chauvco Resources Ltd.
