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EXHIBIT 2.2
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"), 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.
(c) "Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of
such securities (as determined pursuant to
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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) "Person" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association,
trust or unincorporated organization.
(e) "Shares" shall mean Chauvco Common Shares.
(f) "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.
(g) "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, the Shareholder
shall vote (or cause to be voted) the Shareholder's issued and outstanding
Shareholders Shares, (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 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
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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 set forth 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 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 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 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.
(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)
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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 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 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 of the Shareholder, or any interest therein,
(B) grant any proxies or powers of attorney, deposit
any Shareholder's Shares of the Shareholder into a
voting trust or enter into a voting agreement with
respect to any Shareholder's Shares 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
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Shareholder's Shares 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.
(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:
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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.
(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.
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(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.
(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.
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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 on this 3rd day of September, 1997.
PIONEER NATURAL
RESOURCES COMPANY
Per: /s/ Xxxxx X. Xxxxxxxxx
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Per: /s/ Xxxx X. Xxxxxxx
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/s/ X.X. Xxxxxxx /s/ Xxx X. Xxxxxxxx
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WITNESS XXX X. XXXXXXXX
