1
EXHIBIT 2.4
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"), and TRIMAC CORPORATION, an Alberta
Corporation, and GENDIS INC., a Canadian federal corporation (collectively, the
"Shareholders").
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 dated September 3, 1997
(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 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) "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, is
controlled by, or is under common control with, such first
Person.
2
- 2 -
(c) "Person" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association,
trust or unincorporated organization.
(d) "Shares" shall mean Chauvco Common Shares.
(e) "Shareholders' Shares" shall mean:
(i) in respect of Trimac Corporation, the 6,873,392
Shares beneficially owned by and registered in the
name of Trimac Corporation;
(ii) in respect of Gendis Inc., the 14,688,610 Shares
indirectly held through its indirectly wholly-owned
subsidiary, 3106829 Canada Inc. ("3106829");
(iii) any Shares acquired by Trimac Corporation or its
Affiliates or Gendis Corporation or its Affiliates
after the date of this Agreement; and
(iv) any Shares transferred to Affiliates as contemplated
by 3(iv) hereof.
(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, (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 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 director
3
- 3 -
or officer of the Shareholders 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 SHAREHOLDERS
Each Shareholder hereby severally represents, warrants and covenants
to US Co as follows:
(i) Ownership. Such Shareholder (and in the case of
3106829, 3106829) is either (A) the record holder
and beneficial owner of, or (B) the beneficial owner
but not the record holder of, the number of issued
and outstanding Shares attributed thereto herein. As
of the date of this Agreement, the Shares attributed
to each Shareholder pursuant to the definition of
Shareholders' Shares in 1(e) herein constitute all
of the issued and outstanding Shares owned of record
or beneficially owned by such Persons. Except as
otherwise attributed to each Shareholder pursuant to
the definition of Shareholders' Shares in 1(e)
herein, each such Person has sole power of
disposition, sole power of conversion, sole power to
demand appraisal rights and, in the case of the
Shareholders, the sole power to agree to all of the
matters set forth in this Agreement, in each case
with respect to all of the Shares attributed to each
Shareholder pursuant to the definition of
Shareholder Shares in 1(e) herein, 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. Such 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.
(iii) No Conflicts. Other than filings that may be
required under the Exchange Act and such other
consents as are described in the Combinatin
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 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) conflict with or result in any breach of
any applicable organizational documents applicable
to such Shareholder, (B) result in a violation or
breach
4
- 4 -
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 (C) 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 its
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 (to
whom, not withstanding anything else herein
contained, transfers shall be permitted as long as
such Shareholder remains bound by this Agreement
with respect to its portion of the Shareholders'
Shares), 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 would limit or impair such
Shareholder's ability to perform its obligations
under this Agreement. For greater certainty, it is
acknowledged that the Shares of 3106829 are pledged
to Bank of Montreal, as security agent. Gendis
confirms that such pledge is pursuant to terms that
would not provide such limitation or impairment. It
is acknowledged that the Shares of Trimac
Corporation are or will be pledged to Royal Bank of
Canada. Trimac confirms that any such pledge is or
will be pursuant to terms that would not provide
such limitation or impairment.
(v) No Solicitation. Each Shareholder shall comply with
the terms of Section 4.2(n) of the Combination
Agreement.
(vi) Restriction on Transfer, Proxies and
Non-Interference. Except as contemplated in Section
3(iv), 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 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 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
5
- 5 -
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 the
effect of preventing or disabling any such
Shareholder from performing such Shareholder's
obligations under this Agreement.
(vii) Waiver of Appraisal Rights. Each Shareholder hereby
waives and agrees not to assert, and shall cause any
of its Affiliates who hold of record any of such
Shareholder's Shares to waive and agree not to
assert, any rights of appraisal or rights to dissent
in respect of the Arrangement that such Shareholder
or such Affiliate may have.
(viii) Further Assurances. From time to time, at US Co'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.
4. STOP TRANSFER
Subject to Section 3(iv) or (vi) or except as otherwise contemplated
hereby, 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 Chauvco register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Shareholders'
Shares of such Shareholder.
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 constitutes 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
6
- 6 -
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
Trimac Corporation: Trimac Corporation
0000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xx. Xxxxx Xxxx
Telecopy: (000) 000-0000
If to Gendis: Gendis Inc.
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxx
X0X 0X0
Attn: Mr. N. Xxxx Xxxxxxxx
Telecopy: (000) 000-0000
and
copy to: Burnet, Xxxxxxxxx & Xxxxxx
0000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xx. Xxxxx X. Twa
Telecopy: (000) 000-0000
If to US Co: Pioneer Natural Resources Company
0000 Xxxxxxxx Xxxxxx
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
7
- 7 -
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 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.
(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
8
- 8 -
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.
7. TERMINATION
This Agreement shall terminate without any further action on the part
of any party hereto upon the earlier of the Termination Date and the Effective
Time except for Section 8 which will continue in full force and effect for each
Shareholder as long as such Shareholder or any Affiliate is the beneficial
owner of any Exchangeable Shares and except for Section 9 which will remain in
full force and effect for each Shareholder for a period of 6 months after the
Effective 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.
8. EXCHANGEABLE SHARES
(a) Each Shareholder agrees that such Shareholder will not
exchange or permit the exchange of any Exchangeable Shares
(as defined in the Combination Agreement) beneficially owned
by such Shareholder unless either (i) such Shareholder has
obtained the prior consent of US Co, which consent will be
given if no Blackout Period (hereafter defined) is in effect
as of the date the consent is requested, or (ii) pursuant to
the following procedure:
(A) such Shareholder will tender the Exchangeable Shares
for exchange and notify US Co that it has completed
an order for the sale of the underlying shares of US
Co Common Stock (as defined in the Combination
Agreement) or that it will complete such order for
the sale of such underlying shares of US Co Common
Stock on the same business day as the tender of the
Exchangeable Shares for exchange; and
(B) such Shareholder will notify US Co on the same
business day when it has completed an order for the
sale of a number of underlying shares of US Co
Common Stock that is equal to or greater than the
number of Exchangeable Shares to be exchanged.
9
- 9 -
US Co agrees to have any exchange consented to by US Co under
subparagraph (i) or the subject of a notice from a Shareholder under
subparagraph (ii)(B) effected within two business days after the
request for exchange has been received. For purposes hereof, "Blackout
Period" shall mean any period during which US Co has not disclosed
information about the business and affairs of US Co, which information
would otherwise be required to be disclosed in the Form S-3 (as
defined in the Combination Agreement).
(b) US Co covenants and agrees to minimize the length of any
Blackout Periods to the extent reasonably practicable and
disclose the information contemplated in Section 8(a) as soon
as reasonably practicable and in any event within the time
limits prescribed by applicable law and that during any
period when US Co is in breach of this Section 8(b), Section
8(a) will not apply.
(c) US Co covenants and agrees that in the event US Co refuses to
consent to any exchange of any Exchangeable Shares as
requested by any Shareholder because a Blackout Period is in
effect, US Co will forthwith notify such Shareholder on the
termination of such Blackout Period.
(d) This Section 8 shall not apply to any Shares which have been,
or are in the future, pledged or encumbered to an
arm's-length party in accordance with this Agreement.
10
9. RULE 144
If the Shareholder is not subject to the volume limitations set forth
in paragraph (e)(i) in rule 144 under the Exchange Act during the first 6
months after the Effective Time (whether by application of rule 145 under the
Exchange Act, or otherwise), Shareholder will nevertheless comply with such
volume limitations during the first 6 months after the Effective Time as if
such Shareholder were subject to paragraph (e)(i) of rule 144 unless it obtains
the consent of Pioneer.
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
------------------------------
Per: /s/ Xxxx X. Xxxxxxx
------------------------------
TRIMAC CORPORATION
Per: /s/ Xxxx XxXxxx
------------------------------
Per: /s/ Xxxxx Xxxx
------------------------------
GENDIS INC.
Per: /s/ G. Xxxxx XxXxxxxx
------------------------------
Per: /s/ N. Xxxx Xxxxxxxx
------------------------------
