EXHIBIT 10.3
SUPPORT AGREEMENT AMONG PATCH INTERNATIONAL INC.,
PATCH ENERGY INC., AND 1286664 ALBERTA LTD.
DATED JANUARY 17, 2007
SUPPORT AGREEMENT
THIS AGREEMENT is made effective the 16th day of January, 2007.
BETWEEN:
PATCH INTERNATIONAL INC., a corporation incorporated under
the laws of Nevada and having its corporate office at 000,
000 - 0xx Xxxxxx XX, Xxxxxxx, Xxxxxxx X0X 0X0
("PATCH")
- and -
PATCH ENERGY INC., a corporation incorporated under the
CANADA BUSINESS CORPORATIONS Act and having its principal
office at 000, 000 - 0XX Xxxxxx XX, Xxxxxxx, Xxxxxxx
X0X 0X0
("EXCHANGECO")
- and -
1286664 ALBERTA LTD., a corporation incorporated under
the laws of the Province of Alberta and having its
registered office at 0000, 000 - 0xx Xxxxxx XX, Xxxxxxx,
Xxxxxxx X0X 0X0
(the "TRUSTEE")
WHEREAS pursuant to a share exchange agreement dated as of January 16, 2007 (the
"SHARE EXCHANGE AGREEMENT"), Exchangeco has agreed to acquire all of the common
shares (the "COMMON SHARES") of 1289307 Alberta Ltd. (the "COMPANY") held by
those persons defined as Vendors in the Share Exchange Agreement (the "VENDORS")
in exchange for the issuance to the Vendors of Series A Preferred Series A
Special Shares in the capital of Exchangeco (the "EXCHANGEABLE SHARES");
AND WHEREAS in accordance with the Share Exchange Agreement, Patch and
Exchangeco have agreed to enter into this Support Agreement (the "AGREEMENT");
AND WHEREAS in accordance with the Share Exchange Agreement, Patch and
Exchangeco have agreed to enter into an Exchange and Voting Trust Agreement (the
"EXCHANGE AND VOTING TRUST AGREEMENT") with the Trustee;
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this Agreement and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged) the Parties hereto
covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms
Each term denoted herein by initial capital letters and not otherwise defined
herein shall have the meaning ascribed thereto in the share provisions of the
Exchangeable Shares (the "SHARE PROVISIONS"), a copy of which are attached
hereto as Schedule "A".
1.2 Interpretation Not Affected by Headings
The division of this Agreement into Articles, sections and other portions and
the insertion of headings are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement. Unless otherwise
indicated, all references to an "ARTICLE" or "SECTION" followed by a number
and/or a letter refer to the specified Article or section of this Agreement. The
terms "THIS AGREEMENT", "HEREOF", "HEREIN" and "hereunder" and similar
expressions refer to this Agreement and not to any particular Article, section
or other portion hereof and include any agreement or instrument supplementary or
ancillary hereto.
1.3 Number, Gender
Words in the singular number only shall include the plural and vice versa. Words
in one gender shall include all genders.
1.4 Date for any Action
If any date on which any action is required to be taken under this Agreement is
not a Business Day, such action shall be required to be taken on the next
succeeding Business Day.
ARTICLE 2
COVENANTS OF PATCH AND EXCHANGECO
2.1 Covenants Regarding Exchangeable Shares
So long as any Exchangeable Shares not owned by Patch or its Affiliates are
outstanding, Patch shall:
(a) not declare or pay any dividend on Patch Shares unless (i)
Exchangeco shall simultaneously declare or pay, as the case
may be, an equivalent dividend (as provided for in the Share
Provisions) on the Exchangeable Shares, and (ii) Exchangeco
shall have sufficient money or other assets or authorized but
unissued securities available to enable the due declaration
and the due and punctual payment, in accordance with the
applicable law, of any such dividend on the Exchangeable
Shares:
(b) advise Exchangeco sufficiently in advance of the declaration
by Patch of any dividend on Patch Shares and take all such
other actions, including payment or transfer of monies, as are
necessary, in co-operation with Exchangeco, to ensure that the
respective declaration date, record date and payment date for
a dividend on the Exchangeable Shares shall be the same as the
declaration date, record date and payment date for the
corresponding dividend on Patch Shares;
(c) ensure that the record date for any dividend declared on Patch
Shares is not less than ten (10) Business Days after the
declaration date of such dividend;
(d) take all such actions, including payment or transfer of
monies, and do all such things as are reasonably necessary or
desirable to enable and permit Exchangeco, in accordance with
applicable law, to pay and otherwise perform its obligations
with respect to the satisfaction of the Liquidation Amount,
the Retraction Price or the Redemption Price in respect of
each issued and outstanding Exchangeable Share upon a
Liquidation Distribution, the delivery of a Retraction Request
by a holder of Exchangeable Shares or a redemption of
Exchangeable Shares by Exchangeco, as the case may be,
including, without limitation, all such actions and all such
things as are necessary or desirable to enable and permit
Exchangeco to instruct the Trustee to cause the Patch Shares
to be
delivered directly to the holders of Exchangeable Shares by
the Trustee in accordance with the provisions of Section 5, 6
or 7, as the case may be, of the Share Provisions;
(e) take all such actions and do all such things as are necessary
or desirable to enable and permit it, in accordance with
applicable law, to perform its obligations arising upon the
exercise by it of the Liquidation Call Right, the Retraction
Call Right or the Redemption Call Right including, without
limitation, all such actions and all such things as are
necessary or desirable to enable, permit and instruct
Exchangeco to cause the Patch Shares to be delivered to the
holders of Exchangeable Shares in accordance with the
provisions of Section 8 of the Share Provisions; and
(f) not exercise its vote as a direct or indirect shareholder to
initiate the voluntary liquidation, dissolution or winding-up
of Exchangeco nor take any action or omit to take any action
that is designed to result in the liquidation, dissolution or
winding-up of Exchangeco.
2.2 Segregation of Funds
Patch will cause Exchangeco (and shall fund Exchangeco to the extent necessary)
to deposit a sufficient amount of funds in a separate account of Exchangeco and
segregate a sufficient amount of such other assets and property as is necessary
to enable Exchangeco to pay dividends when due and to pay or otherwise satisfy
its respective obligations under Sections 5, 6 or 7 of the Share Provisions, as
applicable, and Exchangeco will use such funds or other assets exclusively to
pay such dividends or satisfy its obligations under Sections 3, 5, 6 or 7 of the
Share Provisions.
2.3 Notification of Certain Events
In order to assist and permit Patch to exercise the Liquidation Call Right,
Retraction Call Right and Redemption Call Right, Exchangeco will notify Patch of
each of the following events at the time set forth below:
(a) in the event of any determination by the Board of Directors of
Exchangeco to institute voluntary liquidation, dissolution or
winding-up proceedings with respect to Exchangeco or to effect
any other distribution of the assets of Exchangeco among its
shareholders for the purpose of winding up its affairs, at
least sixty (60) days prior to the proposed effective date of
such liquidation, dissolution, winding-up or other
distribution;
(b) promptly, upon the earlier of receipt by Exchangeco of notice
of and Exchangeco otherwise becoming aware of any threatened
or instituted claim, suit, petition or other proceedings with
respect to the involuntary liquidation, dissolution or
winding-up of Exchangeco or to effect any other distribution
of the assets of Exchangeco among its shareholders for the
purpose of winding up its affairs;
(c) immediately, upon receipt by Exchangeco of a Retraction
Request;
(d) on the same date on which notice of redemption is given to
holders of Exchangeable Shares, upon the determination of a
Redemption Date in accordance with the Share Provisions; and
(e) as soon as practicable upon the issuance by Exchangeco of any
Exchangeable Shares or rights to acquire Exchangeable Shares.
2.4 Delivery of Patch Shares
Upon any event that requires Exchangeco to deliver Patch Shares to any holder of
Exchangeable Shares, and subject to Patch's exercise of the Liquidation Call
Right, the Retraction Call Right or the Redemption Call Right, Exchangeco shall
forthwith cause to be delivered the requisite number of Patch Shares to be
received by, and transferred to or to the order of, the former holder of the
surrendered Exchangeable Shares, as the respective Vendors shall direct. All
such Patch Shares shall have been duly authorized and validly issued as fully
paid and non-assessable and shall be free and clear of any lien, claim or
encumbrance except with respect to restrictions and legends required for
purposes of compliance with U.S. federal securities laws.
2.5 Qualification of Patch Shares
If any Patch Shares (or other shares or securities into which Patch Shares may
be reclassified or changed as contemplated by section 2.7 hereof) to be issued
or transferred and delivered hereunder require registration or qualification
with or approval of or the filing of any document, including any prospectus or
similar document or the taking of any proceeding with or the obtaining of any
order, ruling or consent from any governmental or regulatory authority under any
Canadian or United States federal, provincial or state securities or other law
or regulation or pursuant to the rules and regulations of any securities or
other regulatory authority or the fulfillment of any other United States or
Canadian legal requirement before such shares (or such other shares or
securities) may be issued by Patch or delivered by the Trustee at the direction
of Patch or Exchangeco to the holder of surrendered Exchangeable Shares, Patch
will in good faith expeditiously take all such actions and do all such things as
are necessary or desirable to cause such Patch Shares (or such other shares or
securities) to be and remain duly registered, qualified or approved under United
States and/or Canadian law, as the case may be. Patch will in good faith
expeditiously take all such actions and do all such things as are reasonably
necessary or desirable to cause all Patch Shares (or such other shares or
securities) to be delivered hereunder to be listed, quoted or posted for trading
on all stock exchanges and quotation systems on which outstanding Patch Shares
(or such other shares or securities) have been listed by Patch and remain listed
and are quoted or posted for trading at such time. For clarity, this Section 2.6
shall not operate to require Patch or Exchangeco to prepare and file any
prospectus or similar document or take any proceeding or obtain any order,
ruling or consent from any governmental or regulatory authority in order to
permit the subsequent resale of the Exchangeable Shares or the Trust Shares.
2.6 Economic Equivalence
(a) Patch will not without the prior approval of Exchangeco
and the prior approval of the holders of the Exchangeable
Shares given in accordance with Section 11 of the Share
Provisions:
(i) issue or distribute Patch Shares (or securities
exchangeable for or convertible into or carrying
rights to acquire Patch Shares) to the holders of all
or substantially all of the then outstanding Patch
Shares by way of stock dividend or other
distribution, other than an issue of Patch Shares (or
securities exchangeable for or convertible into or
carrying rights to acquire Patch Shares) to holders
of Patch Shares who exercise an option to receive
dividends in Patch Shares (or securities exchangeable
for or convertible into or carrying rights to acquire
Patch Shares) in lieu of receiving cash dividends; or
(ii) issue or distribute rights, options or warrants to
the holders of all or substantially all of the then
outstanding Patch Shares entitling them to subscribe
for or to purchase Patch Shares (or securities
exchangeable for or convertible into or carrying
rights to acquire Patch Shares); or
(iii) issue or distribute to the holders of all or
substantially all of the then outstanding Patch
Shares (A) shares or securities of Patch of any class
other than Patch
Shares (other than shares convertible into or
exchangeable for or carrying rights to acquire Patch
Shares), (B) rights, options or warrants other than
those referred to in section 2.7(a) (ii) above, (C)
evidences of indebtedness of Patch, or (D) assets of
Patch;
unless (a) Patch is permitted under applicable law to
undertake an action described in items (i), (ii) or (iii)
above; and (b) the same or an economic equivalent change on a
per share basis shall simultaneously be made to or in the
rights of the holders of the Exchangeable Shares; provided
that, for greater certainty, the above restrictions shall not
apply to any securities issued or distributed by Patch in
order to give effect to and to consummate the transactions
contemplated by, and in accordance with, the Share Exchange
Agreement, or as otherwise permitted by the parties to the
Share Exchange Agreement.
(b) Patch will not without the prior approval of Exchangeco and
the prior approval of the holders of the Exchangeable Shares
given in accordance with Section 11 of the Share Provisions:
(i) subdivide, redivide or change the then outstanding
Patch Shares into a greater number of Patch Shares;
(ii) reduce, combine, consolidate or change the then
outstanding Patch Shares into a lesser number of
Patch Shares; or
(iii) reclassify or otherwise change Patch Shares or effect
an amalgamation, merger, reorganization or other
transaction affecting Patch Shares,
unless (a) Patch is permitted under applicable law to
undertake an action described in items (i), (ii) or (iii)
above; and (b) the same or an economically equivalent change
shall simultaneously be made to, or in the rights of the
holders of, the Exchangeable Shares.
(c) Patch will ensure that the record date for any event referred
to in section 2.7(a) or 2.7 (b) above, (or, if no record date
is applicable for such event), the effective date for any such
event, is not less than ten (10) Business Days after the date
on which such event is declared or announced by Patch (with
contemporaneous notification thereof by Patch to Exchangeco)
(d) The Board of Directors of Exchangeco shall determine, in good
faith and in its sole discretion acting reasonably (with the
assistance of such reputable and qualified independent
financial advisors and/or other experts as the Board of
Directors may determine necessary or desirable), economic
equivalence for the purposes of any event referred to in
section 2.7(a) or 2.7(b) above and each such determination
shall be conclusive and binding on Patch. In making each such
determination, the following factors shall, without excluding
other factors determined by the Board of Directors to be
relevant, be considered by the Board of Directors:
(i) in the case of any stock dividend or other
distribution payable in Patch Shares, the number of
such shares issued in proportion to the number of
Patch Shares previously outstanding;
(ii) in the case of the issuance or distribution of any
rights, options or warrants to subscribe for or
purchase Patch Shares (or securities exchangeable for
or convertible into or carrying rights to acquire
Patch Shares), the relationship
between the exercise price of each such right, option
or warrant and the Current Market Price;
(iii) in the case of the issuance or distribution of any
other form of property (including, without
limitation, any shares or securities of Patch of any
class other than Patch Shares), any rights, options
or warrants other than those referred to in section
2.7(d) (ii) above, any evidences of indebtedness of
Patch or any assets of Patch, the relationship
between the fair market value (as determined by the
Board of Directors in good faith acting reasonably)
of such property to be issued or distributed with
respect to each outstanding Patch Share and the
Current Market Price;
(iv) in the case of any subdivision, redivision or change
of the then outstanding Patch Shares into a greater
number of Patch Shares or the reduction, combination,
consolidation or change of the then outstanding Patch
Shares into a lesser number of Patch Shares or any
amalgamation, merger, reorganization or other
transaction affecting Patch Shares, the effect
thereof upon the then outstanding Patch Shares; and
(v) in all such cases, the general taxation consequences
of the relevant event to holders of Exchangeable
Shares to the extent that such consequences may
differ from the taxation consequences to holders of
Patch Shares as a result of differences between
taxation laws of Canada and the United States (except
for any differing consequences arising as a result of
differing marginal taxation rates and without regard
to the individual circumstances of holders of
Exchangeable Shares).
(e) Exchangeco agrees that, to the extent required, upon due
notice from Patch, Exchangeco will use its best efforts to
take or cause to be taken such steps as may be necessary for
the purposes of ensuring that appropriate dividends are paid
or other distributions are made by Exchangeco, or
subdivisions, redivisions or changes are made to the
Exchangeable Shares, in order to implement the required
economic equivalent with respect to Patch Shares and the
Exchangeable Shares as provided for in this section 2.7.
2.7 Tender Offers
In the event that a tender offer, share exchange offer, issuer bid, take-over
bid or similar transaction with respect to Patch Shares (an "OFFER") is proposed
by Patch or is proposed to Patch or its shareholders and is recommended by the
Board of Directors of Patch, or is otherwise effected or to be effected with the
consent or approval of the Board of Directors of Patch, and the Exchangeable
Shares are not redeemed by Exchangeco or purchased by Patch as contemplated by
and in compliance with the Share Provisions, then Patch will use its reasonable
efforts expeditiously and in good faith to take all such actions and do all such
things as are necessary or desirable to enable and permit holders of the
Exchangeable Shares to participate in such Offer to the same extent and on an
economically equivalent basis as the holders of Patch Shares, without
discrimination. Without limiting the generality of the foregoing, Patch will use
its reasonable efforts expeditiously and in good faith (in the case of a
transaction by Patch or where Patch is a participant in the negotiation thereof)
to ensure that holders of the Exchangeable Shares may participate in all such
Offers without being required to retract the Exchangeable Shares as against
Exchangeco (or, if so required, to ensure that any such retraction, shall be
effective only upon, and shall be conditional upon, the closing of the Offer and
only to the extent necessary to tender or deposit to the Offer). Nothing herein
shall affect the rights of Exchangeco under the Share Provisions to redeem (or
Patch to purchase pursuant to the Redemption Call Right) the Exchangeable
Shares, in the event of a Patch Control Transaction.
2.8 Ownership of Voting Outstanding Shares of Exchangeco
Unless otherwise agreed to by Exchangeco and unless the holders of the
Exchangeable Shares have given their consent in accordance with Section 11 of
the Share Provisions, Patch covenants and agrees in favour of Exchangeco that,
as long as any of the Exchangeable Shares outstanding are owned by any person or
entity other than Patch or any of its Affiliates, Patch will be and shall remain
the direct or indirect beneficial owner of all issued and outstanding voting
shares in the capital of Exchangeco.
2.9 Patch and Affiliates Not to Vote Exchangeable Shares
Patch covenants and agrees that it will appoint and cause to be appointed proxy
holders with respect to all of the Exchangeable Shares held by it and its
Affiliates for the sole purpose of attending each meeting of holders of the
Exchangeable Shares in order to be counted as part of the quorum for each such
meeting. Patch further covenants and agrees that it will not, and will cause its
Affiliates not to, exercise any voting rights which may be exercisable by
holders of the Exchangeable Shares from time to time pursuant to the Share
Provisions or pursuant to the provisions of the Act (or any successor or other
statute by which Exchangeco may in the future be governed) with respect to any
of the Exchangeable Shares held by it or by its Affiliates in respect of any
matter considered at any meeting of the holders of the Exchangeable Shares.
2.10 Rule 10b-18 Purchases
For certainty, nothing contained in this Agreement, including without limitation
the obligations of Patch contained in section 2.8 hereof, shall limit the
ability of Patch or Exchangeco to make a "Rule x0x-00 Xxxxxxxx" of Common Shares
pursuant to Rule 10b-18 of the U.S. SECURITIES EXCHANGE ACT OF 1934, as amended,
or any successor provisions thereof.
2.11 Special Patch Representations and Covenants
(a) Each of Patch and Exchangeco, jointly and severally, represent
to the other such party and all other third party
beneficiaries of this Agreement, that (i) the authorized
capital of Exchangeco as of the date hereof is as set forth on
Annex A attached hereto and no change has been made or
occurred with respect to such authorized capital prior to
closing of this Agreement; (ii) immediately prior to issuance
of the Exchangeable Shares, Exchangeco has no issued or
outstanding capital stock other than the Common Shares, all of
which are owned by Patch; (iii) there are no Claims pending or
threatened against Patch or Exchangeco in regard to any prior
transaction or any other matters; and (iv) there are no
continuing, residual or future obligations required to be
maintained or performed by Exchangeco with respect to any
prior shareholders of Exchangeco or any prior transaction
other than in regard to Patch in its capacity as the sole
holder of all Common Shares of Exchangeco.
(b) Patch undertakes, covenants and agrees that unless and until
the first business day immediately following exchange of all
of the Exchangeable Shares: (i) Patch shall be and remain the
sole holder of record and beneficial owner of the Common
Shares of Exchangeco; and (ii) Patch shall be and remain in
sole control of Exchangeco.
(c) Each of Patch and Exchangeco covenant and agree that
Exchangeco will not be used for any future transaction, or
carry on any business, unless and until all Exchangeable
Shares have been exchanged and/or the rights of the holders of
the Exchangeable Shares have otherwise terminated in
accordance with the Share Provisions.
ARTICLE 3
PATCH SUCCESSORS
3.1 Certain Requirements in Respect of Combination, etc.
Except as contemplated in the Share Exchange Agreement, Patch shall not
consummate any transaction (whether by way of reconstruction, reorganization,
consolidation, merger, transfer, sale, lease or otherwise) whereby all or
substantially all of its undertaking, property and assets would become the
property of any other person or, in the case of a merger, of the continuing
corporation resulting therefrom, unless:
(a) such other person or continuing corporation (the "PATCH
SUCCESSOR") by operation of law, becomes, without more, bound
by the terms and provisions of this Agreement or, if not so
bound, executes, prior to or contemporaneously with the
consummation of such transaction, an agreement supplemental
hereto and such other instruments (if any) as are reasonably
necessary or advisable to evidence the assumption by the Patch
Successor of liability for all moneys payable and property
deliverable hereunder and the covenant of such Patch Successor
to pay and deliver or cause to be delivered the same and its
agreement to observe and perform all the covenants and
obligations of Patch under this Agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material
respect any of the rights, duties, powers and authorities of
the other Parties hereunder.
3.2 Vesting of Powers in Successor
Whenever the conditions of section 3.1 have been duly observed and performed,
the Parties, if required by section 3.1, shall execute and deliver a
supplemental agreement hereto and thereupon the Patch Successor shall possess
and from time to time may exercise each and every right and power of Patch under
this Agreement in the name of Patch or otherwise and any act or proceeding by
any provision of this Agreement required to be done or performed by the Board of
Directors of Patch or any officers of Patch may be done and performed with like
force and effect by the directors or officers of such Patch Successor.
3.3 Wholly-Owned Subsidiaries
Nothing herein shall be construed as preventing the amalgamation or merger of
any direct or indirect subsidiary of Patch, except for Exchangeco, with or into
Patch or the winding-up, liquidation or dissolution of any direct or indirect
subsidiary of Patch, except for Exchangeco, provided that all of the assets of
such subsidiary are transferred to Patch or another wholly-owned direct or
indirect subsidiary of Patch and any such transactions are expressly permitted
by this Article 3.
ARTICLE 4
GENERAL
4.1 Term
This Agreement shall come into force and be effective as of the date hereof and
shall terminate and be of no further force and effect at such time as no
Exchangeable Shares (or securities or rights convertible into or exchangeable
for or carrying rights to acquire Exchangeable Shares) are held by any person or
entity other than Patch and any of its Affiliates.
4.2 Changes in Capital of Patch and Exchangeco
Notwithstanding the provisions of section 4.4, at all times after the occurrence
of any event contemplated pursuant to sections 2.7 and 2.8 hereof or otherwise,
as a result of which either Patch Shares or the Exchangeable Shares or both are
in any way changed, this Agreement shall forthwith be amended and modified as
necessary in order that it shall apply with full force and effect, with the
appropriate changes,
to all new securities into which Patch Shares or the Exchangeable Shares or both
are so changed and the Parties hereto shall execute and deliver an agreement in
writing giving effect to and evidencing such necessary amendments and
modifications.
4.3 Severability
If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder of this
Agreement shall not in any way be affected or impaired thereby and this
Agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
4.4 Amendments and Modifications
This Agreement may not be amended or modified except by an agreement in writing
executed by Patch and Exchangeco and, subject to section 4.5 hereof, with the
approval of the holders of Exchangeable Shares (or their duly appointed attorney
or agent) obtained in accordance with section 11 of the Share Provisions.
4.5 Administrative Amendments
Notwithstanding the provisions of section 4.4 hereof, the Parties to this
Agreement may in writing at any time and from time to time, without the approval
of the holders of the Exchangeable Shares, amend or modify this Agreement for
the purposes of:
(a) adding to the covenants of Patch and Exchangeco, provided that
the board of directors of each of Patch and Exchangeco shall
be of the good faith and reasonable opinion that such
additions will not be prejudicial to the rights or interests
of the holders of the Exchangeable Shares;
(b) making such amendments or modifications not inconsistent with
this Agreement as may be necessary or desirable with respect
to matters or questions which, in the good faith opinion of
the board of directors of each of Patch and Exchangeco, it may
be expedient to make, provided that each such board of
directors shall be of the good faith and reasonable opinion
that such amendments or modifications will not be prejudicial
to the rights or interests of the holders of the Exchangeable
Shares; or
(c) making such changes or corrections which, on the advice of
counsel to Patch and Exchangeco are required for the purpose
of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or
manifest error, provided that the board of directors of each
of Patch and Exchangeco shall be of the good faith and
reasonable opinion that such changes or corrections will not
be prejudicial to the rights or interests of the holders of
the Exchangeable Shares.
4.6 Meeting to Consider Amendments
Exchangeco, at the request of Patch, shall call a meeting or meetings of the
holders of the Exchangeable Shares for the purpose of considering any proposed
amendment or modification requiring approval pursuant to section 4.4 hereof. Any
such meeting or meetings shall be called and held in accordance with the bylaws
of Exchangeco, the Share Provisions and all applicable laws.
4.7 Enforceability and Enurement
This Agreement shall be binding upon and enure to the benefit of the Parties
hereto and their respective successors and assigns. This Agreement has been
incorporated by reference into the Share Exchange
Agreement and the Vendors, jointly and severally, are each an express third
party beneficiary of this Agreement and as such have any and all rights of
direct enforcement of this Agreement to the same and full extent as if a
signatory party hereto.
4.8 Notices to Parties
All notices, requests, demands and other communications hereunder must be made
in writing and will be deemed to have been duly given if delivered personally or
by courier to the addressee at the address appearing on the first page hereof or
to such other address as may be given in writing by the Party. Any notice given
by personal delivery shall be deemed to be received on the date of delivery. Any
notice sent by courier shall be deemed to be received on the next Business Day
following the deposit of the communication with the courier service.
4.9 Counterparts and Facsimile
This Agreement may be executed in counterparts by original or facsimile
signature, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
4.10 Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Alberta without giving effect to provisions of conflicts of
law thereto. Each Party irrevocably submits to the non-exclusive jurisdiction of
the courts of the Province of Alberta with respect to any matter arising
hereunder or related hereto.
[Signature Page Follows]
IN WITNESS WHEREOF the Parties have caused this Agreement to be duly executed as
of the date first above written.
PATCH INTERNATIONAL INC.
Per: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxx, President
PATCH ENERGY INC.
Per: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxx, President
1286664 ALBERTA LTD.
Per: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxx, President
