July ____, 2008 CONFIDENTIAL
July
____, 2008
CONFIDENTIAL
(Please
print full name)
(Please
print full address, including postal code)
(Facsimile
number)
Dear
Sirs:
|
Re:
|
Shareholder
Support Agreement Respecting the Arrangement Involving Solana Resources
Limited, Gran Tierra Energy Inc. and Gran Tierra ExchangeCo
Inc.
|
We
understand that you (the "Shareholder")
are
the beneficial owner of, or exercise control or direction over, the number
of
common shares ("Solana
Shares")
of
Solana Resources Limited ("Solana")
and
hold options ("Solana
Options")
and/or
warrants ("Solana
Warrants")
to
purchase Solana Shares, each as set forth on the signature page
hereof.
Pursuant
to an arrangement agreement to be dated on or about July ____, 2008 (the
"Arrangement
Agreement")
among
Solana, Gran Tierra Energy Inc. ("Gran
Tierra")
and
Gran Tierra ExchangeCo Inc. ("ExchangeCo"),
Gran
Tierra and ExchangeCo propose to acquire all of the issued and outstanding
Xxxxxx Xxxxxx on a diluted basis by way of a statutory plan of arrangement
pursuant to the provisions of the Business
Corporations Act
(Alberta) (the "Arrangement").
Capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Arrangement Agreement.
In
consideration for each of Gran Tierra and ExchangeCo entering into the
Arrangement Agreement and other good and valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged, the parties covenant and
agree
as
follows:
ARTICLE
1
THE
ARRANGEMENT
| 1.1 |
Subject
to the applicable terms and conditions set out in the Arrangement
Agreement:
|
| (a) |
ExchangeCo
will acquire the Solana Shares held by Eligible Shareholders pursuant
to
the Arrangement in exchange for such number of exchangeable shares
in the
capital of ExchangeCo (the "Exchangeable
Shares")
as is equal to the number of Solana Shares so exchanged, multiplied
by the
Exchange Ratio (as defined in the Arrangement);
or
|
| (b) |
Gran
Tierra will acquire the Solana Shares held by Ineligible Shareholders
pursuant to the Arrangement in exchange for such number of shares of
common stock in the capital of Gran Tierra (the "Gran
Tierra Shares")
as is equal to the number of Solana Shares so exchanged, multiplied
by the
Exchange Ratio (as defined in the
Arrangement).
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2 -
| 1.2 |
Notwithstanding
the foregoing, the completion of the Arrangement is subject to various
conditions as set forth in the Arrangement Agreement, which conditions
are
for the benefit of Gran Tierra, ExchangeCo or Solana (or all of them),
which Gran Tierra, ExchangeCo or Solana (or all of them) has the right
to
waive, in whole or in part, or to rely on in connection with the
termination of the Arrangement Agreement and their respective obligations
in relation to the Arrangement.
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ARTICLE
2
AGREEMENT
TO VOTE
| 2.1 |
Subject
to Article
5,
the Shareholder agrees to support the Arrangement and to vote or cause
to
be voted the Subject Securities (as defined below) in favour of the
Arrangement at the meeting of the holders of Xxxxxx Xxxxxx to be called
to
approve the Arrangement (the "Meeting")
and, in the case of Subject Securities voted by proxy, to submit the
proxy
for such Subject Securities in favour of the Arrangement and provide
a
copy thereof to Gran Tierra at least ten days prior to the date of
the
Meeting. For the purposes hereof, "Subject
Securities"
means all of the Solana Shares that the Shareholder beneficially owns
or
over which it exercises control or direction (the "Presently
Held Securities")
and any additional Solana Shares that the Shareholder may hereafter
become
the beneficial owner of or exercise control or direction over (including
any such Solana Shares issued on exercise of any Solana Options and
Solana
Warrants) (the "After
Acquired Securities").
|
ARTICLE
3
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SHAREHOLDER
| 3.1 |
The
Shareholder represents and warrants to each of Gran Tierra and ExchangeCo,
and acknowledges that each of Gran Tierra and ExchangeCo is relying
upon
such representations and warranties in entering into this Shareholder
Support Agreement that:
|
| (a) |
the
Shareholder has good and sufficient power, authority and right to enter
into this Shareholder Support Agreement and to perform the Shareholder's
obligations hereunder;
|
| (b) |
assuming
the due execution and delivery of this Shareholder Support Agreement
by
Gran Tierra and ExchangeCo, this Shareholder Support Agreement is a
legal,
valid and binding obligation of the Shareholder enforceable by each
of
Gran Tierra and ExchangeCo against the Shareholder in accordance with
its
terms (subject to the limitation that the enforceability of any waiver
of
statutory rights may be limited by applicable law), and the performance
by
the Shareholder of its obligations hereunder will not constitute a
violation of or default under, or conflict with, any contract, commitment,
agreement, arrangement, understanding or restriction of any kind to
which
the Shareholder is a party or by which the Shareholder is
bound;
|
| (c) |
the
Shareholder is the beneficial owner of, or exercises control or direction
over, the Presently Held Securities and the Shareholder has, or in
the
case of the After Acquired Securities will have, good and sufficient
power, authority and right to transfer or cause to be transferred the
legal and beneficial title to the Subject Securities to Gran Tierra
or
ExchangeCo, as applicable, with good and marketable title thereto free
and
clear of all liens, charges, encumbrances, security interests and other
rights of others whatsoever; and
|
| (d) |
the
Presently Held Securities represent all of the Solana Shares beneficially
owned or over which the Shareholder exercises control or direction
and the
Shareholder does not hold any other rights to acquire any Xxxxxx Xxxxxx,
other than the Solana Options and Solana Warrants set forth on the
signature page hereof.
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-
3 -
The
foregoing representations and warranties will be true and correct on the date
hereof and on the date of completion of the Arrangement.
| 3.2 |
The
Shareholder covenants and agrees with each of Gran Tierra and ExchangeCo
that the Shareholder will not, and will use its reasonable commercial
efforts to cause its representatives and advisors not to, directly
or
indirectly:
|
| (a) |
solicit,
facilitate, initiate or encourage or take any action to solicit,
facilitate or encourage any Solana Acquisition
Proposal;
|
| (b) |
enter
into or participate in any negotiations or initiate any discussion
regarding an Solana Acquisition Proposal, or furnish to any other person
any information with respect to Xxxxxx's business, properties, operations,
prospects or conditions (financial or otherwise) in connection with
an
Solana Acquisition Proposal or otherwise cooperate in any way with,
or
assist or participate in, facilitate or encourage, any effort or attempt
of any other person to do or seek to do any of the foregoing;
or
|
| (c) |
take
any action that might reasonably be expected to reduce the likelihood
of
success of the Arrangement,
|
provided
that, if the Shareholder is a director or officer of Xxxxxx, the foregoing
provisions of this Section 3.2
shall
not restrict the Shareholder from discharging his or her fiduciary duties to
Xxxxxx as a director or officer (or both).
| 3.3 |
The
Shareholder covenants and agrees with each of Gran Tierra and ExchangeCo
that so long as the Shareholder is required to vote the Subject Securities
in favour of the Arrangement hereunder,
that:
|
| (a) |
it
will notify Gran Tierra promptly if any discussions or negotiations
of the
nature contemplated by Section 3.2
are sought or if any proposal in respect of an Solana Acquisition Proposal
is received, being considered or indicated to be forthcoming, unless
Gran
Tierra has been so notified by or on behalf of
Xxxxxx;
|
| (b) |
except
as contemplated herein, it shall not sell, assign, convey, otherwise
dispose of or pledge, charge, encumber or grant a security interest
in or
grant to any other person any interest in any of the Subject
Securities;
|
| (c) |
it
shall not exercise any shareholder rights or remedies available at
common
law or pursuant to applicable securities or corporate laws to delay,
hinder, upset or challenge the
Arrangement;
|
| (d) |
it
shall exercise all voting rights attached to the Subject Securities
to
vote against any resolution to be considered by the securityholders
of
Solana that, if approved, could reasonably be considered to reduce
the
likelihood of success of the Arrangement;
|
| (e) |
it
shall exercise all voting rights attached to the Subject Securities
owned
or controlled by the Shareholder to cause Solana and its subsidiaries
to
carry on their respective businesses in the regular and ordinary course
consistent with past practice;
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4 -
| (f) |
in
connection with the completion of the Arrangement, if the Shareholder
is a
director or officer of Solana, it will, if requested by Gran Tierra,
resign his or her position as a director and/or officer of Xxxxxx (and
Xxxxxx's subsidiaries) effective at such time as may be requested by
Gran
Tierra (provided such time is not prior to the effective time of the
Arrangement) and will use its reasonable commercial efforts to enable
Gran
Tierra and ExchangeCo to elect or appoint all of the directors of Solana
(and Xxxxxx's subsidiaries) and to effect an orderly transition of
management and control of Solana (and Xxxxxx's subsidiaries) at the
time
and in the manner requested by Gran Tierra;
and
|
| (g) |
it
shall use its reasonable commercial efforts to cause Xxxxxx to perform
its
obligations under the Arrangement Agreement, to the extent such is
within
its power (subject to any fiduciary duties to which the Shareholder
may be
subject).
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ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF GRAN TIERRA AND EXCHANGECO
| 4.1 |
Each
of Gran Tierra and ExchangeCo represents and warrants to the Shareholder,
and acknowledges that the Shareholder is relying upon such representations
and warranties in entering into this Shareholder Support Agreement,
that:
|
| (a) |
it
has good and sufficient power, authority and right to enter into this
Shareholder Support Agreement, and the Arrangement Agreement, and to
complete the transactions contemplated hereby and
thereby;
|
| (b) |
upon
the due execution and delivery of this Shareholder Support Agreement
by
the Shareholder, this Shareholder Support Agreement is a legal, valid
and
binding obligation of each of Gran Tierra and ExchangeCo enforceable
by
the Shareholder against each of Gran Tierra and ExchangeCo in accordance
with its terms, and the consummation by each of Gran Tierra and ExchangeCo
of the transactions contemplated hereby will not constitute a violation
of
or default under, or conflict with, any contract, commitment, agreement,
arrangement, understanding or restriction of any kind to which it is
a
party or by which it is bound; and
|
| (c) |
the
execution and delivery by each of Gran Tierra and ExchangeCo of this
Shareholder Support Agreement and the performance by each of Gran Tierra
and ExchangeCo of its obligations hereunder will not result in a violation
or breach of any provision of:
|
| (i) |
Gran
Tierra's or ExchangeCo's articles or by-laws;
or
|
| (ii) |
any
law, regulation, order, judgment or decrees applicable to either of
Gran
Tierra or ExchangeCo,
|
and,
other than as set out in or contemplated by the Arrangement Agreement, no
authorization, consent or approval of, or filing with, any public body or court
of authority is necessary for the fulfillment by ExchangeCo of its obligations
in respect of the Arrangement.
The
foregoing representations and warranties will be true and correct on the date
hereof and on the date of completion of the transactions contemplated by the
Arrangement.
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5 -
ARTICLE
5
TERMINATION
| 5.1 |
The
obligations hereunder of the Shareholder and this Shareholder Support
Agreement shall terminate at the option of the Shareholder (without
entitlement to compensation of any nature whatsoever payable to Gran
Tierra or ExchangeCo) upon written notice given by the Shareholder
to each
of Gran Tierra and ExchangeCo:
|
| (a) |
if
the Arrangement Agreement is terminated in accordance with its terms,
other than as a result of a breach of this Shareholder Support Agreement
by the Shareholder; or
|
| (b) |
if
either of Gran Tierra or ExchangeCo decreases or changes the form of
the
consideration offered pursuant to the Arrangement or otherwise modifies
or
amends the Arrangement in a manner materially adverse to holders of
Solana
Shares; provided that, an adjournment or rescheduling of the Meeting
as
agreed by Gran
Tierra
and Solana shall not constitute an adverse modification or amendment
to
the Arrangement.
|
| 5.2 |
The
obligations hereunder of Gran Tierra and ExchangeCo and this Shareholder
Support Agreement shall terminate at the option of either of Gran Tierra
or ExchangeCo (without entitlement to compensation of any nature
whatsoever payable to the Shareholder) upon written notice given by
Gran
Tierra to the Shareholder:
|
| (a) |
if
the Shareholder has breached or failed to perform and satisfy any of
its
covenants or agreements herein contained in a material respect or any
of
the representations and warranties of the Shareholder contained herein
are
not true and correct in a material respect;
or
|
| (b) |
if
the Arrangement Agreement is terminated in accordance with its
terms.
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| 5.3 |
In
the event of the termination of this Shareholder Support Agreement
as
provided in Sections 5.1
and 5.2
above, this Shareholder Support Agreement shall forthwith become void
and
shall be of no further force or effect and there shall be no liability
on
the part of any party hereto, provided that the foregoing shall not
relieve any party from any liability for any breach of this Shareholder
Support Agreement that occurs prior to such
termination.
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ARTICLE
6
REGULATORY
APPROVALS
| 6.1 |
The
Shareholder covenants that the Shareholder shall, acting reasonably,
at
Gran Tierra's or Xxxxxx's cost, co-operate with Gran Tierra and ExchangeCo
in obtaining all governmental and regulatory approvals as may reasonably
be required to permit Gran Tierra and ExchangeCo to complete the
Arrangement in accordance with its terms and to acquire Solana Shares
thereunder, as contemplated in the Arrangement
Agreement.
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ARTICLE
7
PUBLIC
DISCLOSURE
| 7.1 |
The
Shareholder agrees not to make any public disclosure or announcement
of or
pertaining to this Shareholder Support Agreement or the Arrangement
Agreement or the Arrangement nor to disclose that any discussions or
negotiations are taking place in connection therewith, without the
prior
written consent of Gran Tierra or except as required by
law.
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6 -
ARTICLE
8
NOTICE
| 8.1 |
Any
notice or other communication required or permitted to be given hereunder
shall be sufficiently given if delivered:
|
| (a) |
in
the case of the Shareholder, to the address appearing on the first
page of
this Shareholder Support Agreement; and
|
| (b) |
in
the case of Gran Tierra and ExchangeCo,
to:
|
c/o
Gran
Tierra Energy Inc.
000,
000
00xx
Xxxxxx
X.X.
Calgary,
Alberta T2R 0B2
Attention: Chief
Executive Officer
Facsimile
No.: 000-000-0000
or
to
such other address as the party to which such notice or other communication
is
to be given has last notified the party giving the same in the manner provided
in this paragraph. Any notice or other communication given or made shall be
deemed to have been duly given or made as at the date delivered or sent if
delivered personally or sent by facsimile transmission at the address for
service provided herein.
ARTICLE
9
GENERAL
| 9.1 |
All
references to Solana Shares, Exchangeable Shares and Gran Tierra Shares
herein shall include any shares into which the Solana Shares, Exchangeable
Shares or Gran Tierra Shares, respectively, may be reclassified,
subdivided, redivided, consolidated or converted by amendment to the
articles of Solana, ExchangeCo or Gran Tierra, respectively, or otherwise
and the price per share referred to herein shall be amended
accordingly.
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| 9.2 |
Words
signifying the singular number shall include, whenever appropriate,
the
plural and vice versa; and words signifying the masculine gender shall
include, whenever appropriate, the feminine
gender.
|
| 9.3 |
This
Shareholder Support Agreement and the rights and obligations of the
parties hereto shall be governed by and construed in accordance with
the
laws of the Province of Alberta and the federal laws of Canada applicable
therein.
|
| 9.4 |
This
Shareholder Support Agreement may not be modified, amended, altered
or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto. No party to this Shareholder Support
Agreement may assign any of its rights or obligations under this
Shareholder Support Agreement without the prior written consent of
the
other party.
|
| 9.5 |
Time
shall be of the essence of this Shareholder Support
Agreement.
|
| 9.6 |
This
Shareholder Support Agreement shall be binding upon, enure to the benefit
of and be enforceable by the Shareholder, Gran Tierra and ExchangeCo
and
their respective heirs, executors, legal personal representatives,
successors and permitted assigns, as the case may
be.
|
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7 -
| 9.7 |
The
representations, warranties and covenants of the Shareholder and of
Gran
Tierra and ExchangeCo herein shall survive the consummation of the
Arrangement and the acquisition of the Subject Securities by Gran Tierra
and ExchangeCo.
|
| 9.8 |
Gran
Tierra, ExchangeCo and the Shareholder agree to pay their own respective
expenses incurred in connection with this Shareholder Support Agreement
and the transactions contemplated hereby.
|
If
you
are in agreement with the foregoing, kindly signify your acceptance by signing
the second copy of this Shareholder Support Agreement and delivering it to
Gran
Tierra in the manner provided below. This Shareholder Support Agreement may
be
signed in two or more counterparts that together shall be deemed to constitute
one valid and binding agreement and delivery of counterparts may be effected
by
means of facsimile transmission.
Yours
very truly,
|
GRAN
TIERRA ENERGY INC.
Per:
_________________________
|
GRAN
TIERRA EXCHANGECO INC.
Per:
_________________________
|
|
Name:
Xxxx Xxxxxxxx
Title:
Chief Executive Officer
|
Name:
Title:
|
In
consideration of your entering into of the Arrangement Agreement and other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Shareholder hereby irrevocably accepts the foregoing as of
this _______
day
of _______________,,
2008.
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(Signature
of Shareholder)
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||
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(Name
of Shareholder - please print)
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(Number
of Solana Shares owned or controlled)
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||
|
(Number
of Solana Options owned or controlled)
|
||
|
(Number
of Solana Warrants owned or
controlled)
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