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EXHIBIT 9-B
VOTING AND EXCHANGE TRUST AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 30th day of September, 1999.
B E T W E E N:
VERITAS DGC INC.,
a corporation existing under the laws of the State of Delaware
(hereinafter referred to as "Veritas")
OF THE FIRST PART,
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VERITAS ENERGY SERVICES INC.,
a corporation existing under the laws of the Province of
Alberta (hereinafter referred to as "VESI")
OF THE SECOND PART,
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CIBC MELLON TRUST COMPANY,
a trust company existing under the laws of Canada
(hereinafter referred to as the "Trustee")
OF THE THIRD PART.
WHEREAS pursuant to a combination agreement dated as of March 30, 1999,
by and among Veritas, VESI and Enertec Resource Services Inc. ("Enertec") (such
agreement as it may be amended or restated is hereinafter referred to as the
"Combination Agreement") the parties agreed that on the Effective Date (as
defined in the Combination Agreement), Veritas and VESI would execute and
deliver a Voting and Exchange Trust Agreement containing the terms and
conditions set forth in Exhibit D to the Combination Agreement together with
such other terms and conditions as may be agreed to by the parties to the
Combination Agreement acting reasonably;
AND WHEREAS pursuant to an arrangement (the "Arrangement") effected by
Articles of Arrangement dated September 30, 1999 filed pursuant to the Business
Corporations Act (Alberta), each issued and outstanding common share of Enertec
(an "Enertec Common Share") was transferred to VESI in consideration for 0.345
issued and outstanding Class A Exchangeable Shares Series 1 of VESI (the "Series
1 Exchangeable Shares");
AND WHEREAS Appendix A of the above-mentioned Articles of Arrangement
sets forth the rights, privileges, restrictions and conditions attaching to the
Series 1 Exchangeable Shares (collectively, the "Exchangeable Share
Provisions"), a copy of which is attached hereto as Schedule "A";
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AND WHEREAS Veritas is to provide voting rights in Veritas to each
holder (other than Veritas and its Subsidiaries) from time to time of Series 1
Exchangeable Shares, such voting rights per Series 1 Exchangeable Share to be
equivalent to the voting rights per share of Veritas Common Stock (the "Veritas
Common Stock");
AND WHEREAS Veritas is to grant to and in favour of the holders (other
than Veritas and its Subsidiaries) from time to time of Series 1 Exchangeable
Shares the right, in the circumstances set forth herein, to require Veritas to
purchase from each such holder all or any part of the Series 1 Exchangeable
Shares held by the holder;
AND WHEREAS the parties desire to make appropriate provision and to
establish a procedure whereby voting rights in Veritas shall be exercisable by
holders (other than Veritas and its Subsidiaries) from time to time of Series 1
Exchangeable Shares by and through the Trustee, which will hold legal title to
one share of Veritas ERS Special Voting Stock (the "Veritas ERS Special Voting
Stock") to which voting rights attach for the benefit of such holders and
whereby the rights to require Veritas to purchase Series 1 Exchangeable Shares
from the holders thereof (other than Veritas and its Subsidiaries) shall be
exercisable by such holders from time to time of Series 1 Exchangeable Shares by
and through the Trustee, which will hold legal title to such rights for the
benefit of such holders;
AND WHEREAS these recitals and any statements of fact in this agreement
are made by Veritas and VESI and not by 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 agree as follows:
1. DEFINITIONS AND INTERPRETATION
(a) DEFINITIONS. In this agreement, the following terms shall have
the following meanings:
"Aggregate Equivalent Vote Amount" means, with respect to any matter,
proposition or question on which holders of Veritas Common Stock are entitled to
vote, consent or otherwise act, the product of (i) the number of shares of
Series 1 Exchangeable Shares issued and outstanding and held by Holders
multiplied by (ii) the Equivalent Vote Amount.
"Applicable Laws" has the meaning set out in Section 5(j).
"Arrangement" has the meaning set out in the recitals hereto.
"Authorized Investments" means short term interest bearing or discount debt
obligations issued or guaranteed by the Government of Canada or a Province of
Canada or a Canadian chartered bank (which may include an affiliate or related
party of the Trustee, including without limitation Mellon Bank Canada and
Canadian Imperial Bank of Commerce) provided that each such obligation is rated
at least RI (middle) by DBRS Inc. or an equivalent rating by Canadian Bond
Rating Service.
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"Automatic Exchange Rights" means the benefit of the obligation of Veritas to
effect the automatic exchange of shares of Veritas Common Stock for Series 1
Exchangeable Shares pursuant to Section 5(l) hereof.
"Board of Directors" means the Board of Directors of VESI.
"Business Day" has the meaning set out in the Exchangeable Share Provisions.
"Combination Agreement" has the meaning set out in the recitals hereto.
"Equivalent Vote Amount" means, with respect any matter, proposition or question
on which holders of Veritas Common Stock are entitled to vote, consent or
otherwise act, the number of votes to which a holder of one share of Veritas
Common Stock is entitled with respect to such matter, proposition or question.
"Exchange Right" has the meaning set out in Section 5(a)(i) hereof.
"Exchangeable Share Provisions" has the meaning set out in the recitals hereto.
"Holder Votes" has the meaning set out in Section 4(b) hereof.
"Holders" means the registered holders from time to time of Series 1
Exchangeable Shares, other than Veritas and its Subsidiaries.
"Indemnified Parties" has the meaning set out in Section 9(a) hereof.
"Insolvency Event" means the institution by VESI of any proceeding to be
adjudicated a bankrupt or insolvent or to be dissolved or wound-up, or the
consent of VESI to the institution of bankruptcy, insolvency, dissolution or
winding-up proceedings against it, or the filing of a petition, answer or
consent seeking dissolution or winding-up under any bankruptcy, insolvency or
analogous laws, including without limitation the Companies' Creditors
Arrangement Act (Canada) and the Bankruptcy and Insolvency Act (Canada), and the
failure by VESI to contest in good faith any such proceedings commenced in
respect of VESI within 15 days of becoming aware thereof, or the consent by VESI
to the filing of any such petition or to the appointment of a receiver, or the
making by VESI of a general assignment for the benefit of creditors, or the
admission in writing by VESI of its inability to pay its debts generally as they
become due, or VESI not being permitted, pursuant to liquidity or solvency
requirements of applicable law, to redeem any Series 1 Exchangeable Shares in
accordance with the terms thereof, to redeem any shares of any other series of
Class A Exchangeable Shares of VESI in accordance with the terms thereof or to
redeem any Exchangeable Shares of VESI in accordance with the terms thereof.
"Liquidation Call Right" has the meaning set out in the Exchangeable Share
Provisions.
"Liquidation Event" has the meaning set out in Section 5(l)(ii) hereof.
"Liquidation Event Effective Time" has the meaning set out in Section 5(l)(iii)
hereof.
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"List" has the meaning set out in Section 4(f) hereof.
"Officer's Certificate" means, with respect to Veritas or VESI, as the case may
be, a certificate signed by any one of the Chairman of the Board, the
Vice-Chairman of the Board, the President, any Vice-President or any other
senior officer of Veritas or VESI, as the case may be.
"Person" includes an individual, partnership, corporation, company,
unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative.
"Redemption Call Right" has the meaning set out in the Exchangeable Share
Provisions.
"Retracted Shares" has the meaning set out in Section 5(g) hereof.
"Retraction Call Right" has the meaning set out in the Exchangeable Share
Provisions.
"Series 1 Exchangeable Share Consideration" has the meaning set out in the
Exchangeable Share Provisions.
"Series 1 Exchangeable Share Price" has the meaning set out in the Exchangeable
Share Provisions.
"Series 1 Exchangeable Shares" has the meaning set out in the recitals hereto.
"Subsidiary" has the meaning set out in the Exchangeable Share Provisions.
"Support Agreement" means that certain support agreement made as of even date
hereof between VESI and Veritas.
"Trust" means the trust created by this agreement.
"Trust Estate" means the Voting Share, any other securities, the Exchange Right,
the Automatic Exchange Rights and any money or other property which may be held
by the Trustee from time to time pursuant to this agreement.
"Trustee" means CIBC Mellon Trust Company and, subject to the provisions of
Article 10 hereof, includes any successor trustee or permitted assigns.
"VESI Common Shares" means common shares in the capital stock of VESI.
"Veritas Common Stock" has the meaning set out in the recitals hereto.
"Veritas Consent" has the meaning set out in Section 4(b) hereof.
"Veritas Meeting" has the meaning set out in Section 4(b) hereof.
"Veritas Special ERS Voting Stock" has the meaning set out in the recitals
hereto.
"Veritas Successor" has the meaning set out in Section 11(a)(i) hereof.
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"Voting Rights" means the voting rights attached to the Voting Share.
"Voting Share" means the one share of Veritas ERS Special Voting Stock, U.S.
$0.01 par value, issued by Veritas to and deposited with the Trustee, which
entitles the holder of record to a number of votes at meetings of holders of
Veritas Common Stock equal to the Aggregate Equivalent Vote Amount.
(b) INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of
this agreement into articles, sections and paragraphs and the
insertion of headings are for convenience of reference only
and shall not affect the construction or interpretation of
this agreement.
(c) NUMBER, GENDER, ETC. Words importing the singular number only
shall include the plural and vice versa. Words importing the
use of any gender shall include all genders.
(d) 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.
2. PURPOSE OF AGREEMENT
The purpose of this agreement is to create the Trust for the benefit of
the Holders, as herein provided. The Trustee will hold the Voting Share
in order to enable the Trustee to exercise the Voting Rights and will
hold the Exchange Right and the Automatic Exchange Rights in order to
enable the Trustee to exercise such rights, in each case as trustee for
and on behalf of the Holders as provided in this agreement.
3. VOTING SHARE
(a) ISSUANCE AND OWNERSHIP OF THE VOTING SHARE. Veritas hereby
issues to and deposits with the Trustee the Voting Share to be
hereafter held of record by the Trustee as trustee for and on
behalf of, and for the use and benefit of, the Holders and in
accordance with the provisions of this agreement. Veritas
hereby acknowledges receipt from the Trustee as trustee for
and on behalf of the Holders of good and valuable
consideration (and the adequacy thereof) for the issuance of
the Voting Share by Veritas to the Trustee. During the term of
the Trust and subject to the terms and conditions of this
agreement, the Trustee shall possess and be vested with full
legal ownership of the Voting Share and shall be entitled to
exercise all of the rights and powers of an owner with respect
to the Voting Share, provided that the Trustee shall:
(i) hold the Voting Share and the legal title thereto as
trustee solely for the use and benefit of the Holders
in accordance with the provisions of this agreement;
and
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(ii) except as specifically authorized by this agreement,
have no power or authority to sell, transfer, vote or
otherwise deal in or with the Voting Share and the
Voting Share shall not be used or disposed of by the
Trustee for any purpose other than the purposes for
which this Trust is created pursuant to this
agreement.
(b) LEGENDED SHARE CERTIFICATES. VESI will cause each certificate
representing Series 1 Exchangeable Shares to bear an
appropriate legend notifying the Holders of their right to
instruct the Trustee with respect to the exercise of the
Voting Rights with respect to the Series 1 Exchangeable Shares
held by a Holder.
(c) SAFE KEEPING OF CERTIFICATE. The certificate representing the
Voting Share shall at all times be held in safe keeping by the
Trustee or its agent.
4. EXERCISE OF VOTING RIGHTS
(a) VOTING RIGHTS. The Trustee, as the holder of record of the
Voting Share, shall be entitled to all of the Voting Rights,
including the right to consent to or to vote in person or by
proxy the Voting Share, on any matter, question or proposition
whatsoever that may properly come before the stockholders of
Veritas at a Veritas Meeting or in connection with a Veritas
Consent (in each case, as hereinafter defined). The Voting
Rights shall be and remain vested in and exercised by the
Trustee. Subject to Section 7(o) hereof, the Trustee shall
exercise the Voting Rights only on the basis of instructions
received pursuant to this Article 4 from Holders entitled to
instruct the Trustee as to the voting thereof at the time at
which a Veritas Consent is sought or a Veritas Meeting is
held. To the extent that no instructions are received from a
Holder with respect to the Voting Rights to which such Holder
is entitled, the Trustee shall not exercise or permit the
exercise of such Holder's Voting Rights.
(b) NUMBER OF VOTES. With respect to all meetings of stockholders
of Veritas at which holders of shares of Veritas Common Stock
are entitled to vote (a "Veritas Meeting") and with respect to
all written consents sought by Veritas from its stockholders
including the holders of shares of Veritas Common Stock (a
"Veritas Consent"), each Holder shall be entitled to instruct
the Trustee to cast and exercise, in the manner instructed, a
number of votes equal to the Equivalent Vote Amount for each
Series 1 Exchangeable Share owned of record by such Holder on
the record date established by Veritas or by applicable law
for such Veritas Meeting or Veritas Consent, as the case may
be (the "Holder Votes") in respect of each matter, question or
proposition to be voted on at such Veritas Meeting or to be
consented to in connection with such Veritas Consent.
(c) MAILINGS TO SHAREHOLDERS. With respect to each Veritas Meeting
and Veritas Consent, the Trustee will mail or cause to be
mailed (or otherwise communicate in the same manner as Veritas
utilizes in communications to holders of Veritas Common Stock,
subject to the Trustee's ability to provide this method of
communication and upon being advised in writing of such
method) to each of the
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Holders named in the List on the same day as the initial
mailing or notice (or other communication) with respect
thereto is given by Veritas to its stockholders:
(i) a copy of such notice, together with any proxy or
information statement and related materials to be
provided to stockholders of Veritas;
(ii) a statement that such Holder is entitled to instruct
the Trustee as to the exercise of the Holder Votes
with respect to such Veritas Meeting or Veritas
Consent, as the case may be, or, pursuant to Section
4(g) hereof, to attend such Veritas Meeting and to
exercise personally as the proxy of the Trustee, the
Holder Votes thereat;
(iii) a statement as to the manner in which such
instructions may be given to the Trustee, including
an express indication that instructions may be given
to the Trustee to give:
(A) a proxy to such Holder or his designee to
exercise personally the Holder Votes; or
(B) a proxy to a designated agent or other
representative of the management of Veritas
to exercise such Holder Votes;
(iv) a statement that if no such instructions are received
from the Holder, the Holder Votes to which such
Holder is entitled will not be exercised;
(v) a form of direction whereby the Holder may so direct
and instruct the Trustee as contemplated herein; and
(vi) a statement of (A) the time and date by which such
instructions must be received by the Trustee in order
to be binding upon it, which in the case of a Veritas
Meeting shall not be earlier than the close of
business on the Business Day prior to such meeting,
and (B) the method for revoking or amending such
instructions.
The materials referred to above are to be provided by Veritas
to the Trustee, but shall be subject to review and comment by
the Trustee.
For the purpose of determining Holder Votes to which a Holder
is entitled in respect of any such Veritas Meeting or Veritas
Consent, the number of Series 1 Exchangeable Shares owned of
record by the Holder shall be determined at the close of
business on the record date established by Veritas or by
applicable law for purposes of determining stockholders
entitled to vote at such Veritas Meeting or to give written
consent in connection with such Veritas Consent. Veritas will
notify the Trustee in writing of any decision of the board of
directors of Veritas with respect to the calling of any such
Veritas Meeting or the seeking of any such Veritas Consent and
shall provide all necessary information and materials to the
Trustee in each case
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promptly and in any event in sufficient time to enable the
Trustee to perform its obligations contemplated by this
Section 4(c).
(d) COPIES OF STOCKHOLDER INFORMATION. Veritas will deliver to the
Trustee copies of all proxy materials, (including notices of
Veritas Meetings but excluding proxies to vote shares of
Veritas Common Stock), information statements, reports
(including without limitation all interim and annual financial
statements) and other written communications that are to be
distributed from time to time to holders of Veritas Common
Stock in sufficient quantities and in sufficient time so as to
enable the Trustee to send those materials to each Holder at
the same time as such materials are first sent to holders of
Veritas Common Stock. The Trustee will mail or otherwise send
to each Holder, at the expense of Veritas, copies of all such
materials (and all materials specifically directed to the
Holders or to the Trustee for the benefit of the Holders by
Veritas) received by the Trustee from Veritas at the same time
as such materials are first sent to holders of Veritas Common
Stock. The Trustee will make copies of all such materials
available for inspection by any Holder at the Trustee's
principal office in the cities of Calgary and Toronto.
(e) OTHER MATERIALS. Immediately after receipt by Veritas or any
stockholder of Veritas of any material sent or given generally
to the holders of Veritas Common Stock by or on behalf of a
third party, including without limitation dissident proxy and
information circulars (and related information and material)
and tender and exchange offer circulars (and related
information and material), Veritas shall use its best efforts
to obtain and deliver to the Trustee copies thereof in
sufficient quantities so as to enable the Trustee to forward
such material (unless the same has been provided directly to
Holders by such third party) to each Holder as soon as
possible thereafter. As soon as practicable after receipt
thereof, the Trustee will mail or otherwise send to each
Holder, at the expense of Veritas, copies of all such
materials received by the Trustee from Veritas. The Trustee
will also make copies of all such materials available for
inspection by any Holder at the Trustee's principal office in
the cities of Toronto and Calgary.
(f) LIST OF PERSONS ENTITLED TO VOTE. VESI shall, (i) prior to
each annual, general and special Veritas Meeting or the
seeking of any Veritas Consent and (ii) forthwith upon each
request made at any time by the Trustee in writing, prepare or
cause to be prepared a list (a "List") of the names and
addresses of the Holders arranged in alphabetical order and
showing the number of Series 1 Exchangeable Shares held of
record by each such Holder, in each case at the close of
business on the date specified by the Trustee in such request
or, in the case of a List prepared in connection with a
Veritas Meeting or a Veritas Consent, at the close of business
on the record date established by Veritas or pursuant to
applicable law for determining the holders of Veritas Common
Stock entitled to receive notice of and/or to vote at such
Veritas Meeting or to give consent in connection with such
Veritas Consent. Each such List shall be delivered to the
Trustee promptly after receipt by VESI of such request or the
record date for such meeting or seeking of consent, as the
case may be, and in any event within sufficient time as to
enable the Trustee to perform its obligations under this
agreement. Veritas agrees to give VESI written notice (with
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a copy to the Trustee) of the calling of any Veritas Meeting
or the seeking of any Veritas Consent, together with the
record dates therefor, sufficiently prior to the date of the
calling of such meeting or seeking of such consent so as to
enable VESI to perform its obligations under this Section
4(f).
(g) ENTITLEMENT TO DIRECT VOTES. Any Holder named in a List
prepared in connection with any Veritas Meeting or any Veritas
Consent will be entitled (i) to instruct the Trustee in the
manner described in Section 4(c) hereof with respect to the
exercise of the Holder Votes to which such Holder is entitled
or (ii) to attend such meeting and personally to exercise
thereat (or to exercise with respect to any written consent),
as the proxy of the Trustee, the Holder Votes to which such
Holder is entitled.
(h) VOTING BY TRUSTEE, AND ATTENDANCE OF TRUSTEE REPRESENTATIVE,
AT MEETING.
(i) In connection with each Veritas Meeting and Veritas
Consent, the Trustee shall exercise, either in person
or by proxy, in accordance with the instructions
received from a Holder pursuant to Section 4(c)
hereof, the Holder Votes as to which such Holder is
entitled to direct the vote (or any lesser number
thereof as may be set forth in the instructions);
provided, however, that such written instructions are
received by the Trustee from the Holder prior to the
time and date fixed by it for receipt of such
instructions in the notice given by the Trustee to
the Holder pursuant to Section 4(c) hereof.
(ii) The Trustee shall cause such representatives as are
empowered by it to sign and deliver, on behalf of the
Trustee, proxies for Voting Rights to attend each
Veritas Meeting. Upon submission by a Holder (or its
designee) of identification satisfactory to the
Trustee's representatives, and at the Holder's
request, such representatives shall sign and deliver
to such Holder (or its designee) a proxy to exercise
personally the Holder Votes as to which such Holder
is otherwise entitled hereunder to direct the vote,
if such Holder either (A) has not previously given
the Trustee instructions pursuant to Section 4(c)
hereof in respect of such meeting, or (B) submits to
the Trustee's representatives written revocation of
any such previous instructions. At such meeting, the
Holder exercising such Holder Votes shall have the
same rights as the Trustee to speak at the meeting in
respect of any matter, question or proposition, to
vote by way of ballot at the meeting in respect of
any matter, question or proposition and to vote at
such meeting by way of a show of hands in respect of
any matter, question or proposition.
(i) DISTRIBUTION OF WRITTEN MATERIALS. Any written materials to be
distributed by the Trustee to the Holders pursuant to this
agreement shall be delivered or sent by mail (or otherwise
communicated in the same manner as Veritas utilizes in
communications to holders of Veritas Common Stock, subject to
the Trustee's ability to provide this method of communication
and upon being advised in writing
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of such method) to each Holder at its address as shown on the
books of VESI. VESI shall provide, or cause to be provided to
the Trustee for this purpose, on a timely basis and without
charge or other expense:
(A) a current List; and
(B) upon the request of the Trustee, mailing
labels to enable the Trustee to carry out
its duties under this agreement.
The materials referred to above are to be provided by Veritas
to the Trustee, but shall be subject to review and comment by
the Trustee.
(j) TERMINATION OF VOTING RIGHTS. Except as otherwise provided
herein or in the Exchangeable Share Provisions, all of the
rights of a Holder with respect to the Holder Votes
exercisable in respect of the Series 1 Exchangeable Shares
held by such Holder, including the right to instruct the
Trustee as to the voting of or to vote personally such Holder
Votes, shall be deemed to be surrendered by the Holder to
Veritas and such Holder Votes and the Voting Rights
represented thereby shall cease immediately upon the delivery
by such Holder to the Trustee of the certificates representing
such Series 1 Exchangeable Shares in connection with the
exercise by the Holder of the Exchange Right or the occurrence
of the automatic exchange of Series 1 Exchangeable Shares for
shares of Veritas Common Stock, as specified in Article 5
hereof (unless in either case Veritas shall not have delivered
the Series 1 Exchangeable Share Consideration deliverable in
exchange therefor to the Trustee for delivery to the Holders),
or upon the redemption of Series 1 Exchangeable Shares
pursuant to Article 6 or Article 7 of the Exchangeable Share
Provisions, or upon the effective date of the liquidation,
dissolution or winding-up of VESI pursuant to Article 5 of the
Exchangeable Share Provisions, or upon the purchase of Series
1 Exchangeable Shares from the holder thereof by Veritas
pursuant to the exercise by Veritas of the Retraction Call
Right, the Redemption Call Right or the Liquidation Call
Right.
5. EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
(a) GRANT AND OWNERSHIP OF THE EXCHANGE RIGHT. Veritas hereby
grants to the Trustee as trustee for and on behalf of, and for
the use and benefit of, the Holders (i) the right (the
"Exchange Right"), upon the occurrence and during the
continuance of an Insolvency Event, to require Veritas to
purchase from each or any Holder all or any part of the Series
1 Exchangeable Shares held by the Holders, and (ii) the
Automatic Exchange Rights, all in accordance with the
provisions of this agreement. Veritas hereby acknowledges
receipt from the Trustee as trustee for and on behalf of the
Holders of good and valuable consideration (and the adequacy
thereof) for the grant of the Exchange Right and the Automatic
Exchange Rights by Veritas to the Trustee. During the term of
the Trust and subject to the terms and conditions of this
agreement, the Trustee shall possess and be vested with full
legal ownership of the Exchange Right and the Automatic
Exchange Rights and shall be
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entitled to exercise all of the rights and powers of an owner
with respect to the Exchange Right and the Automatic Exchange
Rights, provided that the Trustee shall:
(iii) hold the Exchange Right and the Automatic Exchange
Rights and the legal title thereto as trustee solely
for the use and benefit of the Holders in accordance
with the provisions of this agreement; and
(iv) except as specifically authorized by this agreement,
have no power or authority to exercise or otherwise
deal in or with the Exchange Right or the Automatic
Exchange Rights, and the Trustee shall not exercise
any such rights for any purpose other than the
purposes for which this Trust is created pursuant to
this agreement.
(b) LEGENDED SHARE CERTIFICATES. VESI will cause each certificate
representing Series 1 Exchangeable Shares to bear an
appropriate legend notifying the Holders of:
(i) their right to instruct the Trustee with respect to
the exercise of the Exchange Right in respect of the
Series 1 Exchangeable Shares held by a Holder; and
(ii) the Automatic Exchange Rights.
(c) GENERAL EXERCISE OF EXCHANGE RIGHT. The Exchange Right shall
be and remain vested in and exercised by the Trustee. Subject
to Section 7(o) hereof, the Trustee shall exercise the
Exchange Right only on the basis of instructions received
pursuant to this Article 5 from Holders entitled to instruct
the Trustee as to the exercise thereof. To the extent that no
instructions are received from a Holder with respect to the
Exchange Right, the Trustee shall not exercise or permit the
exercise of the Exchange Right.
(d) PURCHASE PRICE. The purchase price payable by Veritas for each
Series 1 Exchangeable Share to be purchased by Veritas under
the Exchange Right shall be an amount equal to the Series 1
Exchangeable Share Price on the last Business Day prior to the
day of closing of the purchase and sale of such Series 1
Exchangeable Share under the Exchange Right. In connection
with each exercise of the Exchange Right, Veritas will provide
to the Trustee an Officer's Certificate setting forth the
calculation of the Series 1 Exchangeable Share Price for each
Series 1 Exchangeable Share. The Series 1 Exchangeable Share
Price for each such Series 1 Exchangeable Share so purchased
may be satisfied only by Veritas issuing and delivering or
causing to be delivered to the Trustee, on behalf of the
relevant Holder, the Series 1 Exchangeable Share Consideration
representing the total Series 1 Exchangeable Share Price.
(e) EXERCISE INSTRUCTIONS. Subject to the terms and conditions
herein set forth, a Holder shall be entitled, upon the
occurrence and during the continuance of an Insolvency Event,
to instruct the Trustee to exercise the Exchange Right with
respect to all or any part of the Series 1 Exchangeable Shares
registered in the name of such Holder on the books of VESI. To
cause the exercise of the Exchange Right by the
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Trustee, the Holder shall deliver to the Trustee, in person or
by certified or registered mail, at its principal office in
Calgary, Alberta, Toronto, Ontario or at such other places in
Canada as the Trustee may from time to time designate by
written notice to the Holders, the certificates representing
the Series 1 Exchangeable Shares which such Holder desires
Veritas to purchase, duly endorsed in blank, and accompanied
by such other documents and instruments as may be required to
effect a transfer of Series 1 Exchangeable Shares under the
Business Corporations Act (Alberta), other applicable laws, if
any, and the by-laws of VESI and such additional documents and
instruments as the Trustee, VESI and Veritas may reasonably
require together with (i) a duly completed form of notice of
exercise of the Exchange Right, contained on the reverse of or
attached to the Series 1 Exchangeable Share certificates,
stating (A) that the Holder thereby instructs the Trustee to
exercise the Exchange Right so as to require Veritas to
purchase from the Holder the number of Series 1 Exchangeable
Shares specified therein, (B) that such Holder has good title
to and owns all such Series 1 Exchangeable Shares to be
acquired by Veritas free and clear of all liens, claims and
encumbrances, (C) the names in which the certificates
representing Veritas Common Stock issuable in connection with
the exercise of the Exchange Right are to be issued and (D)
the names and addresses of the persons to whom the Series 1
Exchangeable Share Consideration should be delivered and (ii)
payment (or evidence satisfactory to the Trustee, VESI and
Veritas of payment) of the taxes (if any) payable as
contemplated by Section 5(h) of this agreement. If only a part
of the Series 1 Exchangeable Shares represented by any
certificate or certificates delivered to the Trustee are to be
purchased by Veritas under the Exchange Right, a new
certificate for the balance of such Series 1 Exchangeable
Shares shall be issued to the Holder at the expense of VESI.
(f) DELIVERY OF SERIES 1 EXCHANGEABLE SHARE CONSIDERATION; EFFECT
OF EXERCISE. Promptly after receipt of the certificates
representing the Series 1 Exchangeable Shares which the Holder
desires Veritas to purchase under the Exchange Right (together
with such documents and instruments of transfer and a duly
completed form of notice of exercise of the Exchange Right),
duly endorsed for transfer to Veritas, the Trustee shall
notify Veritas and VESI of its receipt of the same, which
notice to Veritas and VESI shall constitute exercise of the
Exchange Right by the Trustee on behalf of the Holder of such
Series 1 Exchangeable Shares, and Veritas shall immediately
thereafter deliver or cause to be delivered to the Trustee,
for delivery to the Holder of such Series 1 Exchangeable
Shares (or to such other persons, if any, properly designated
by such Holder), the Series 1 Exchangeable Share
Consideration, deliverable in connection with the exercise of
the Exchange Right; provided, however, that no such delivery
shall be made unless and until the Holder requesting the same
shall have paid (or provided evidence satisfactory to the
Trustee, VESI and Veritas of the payment of) the taxes (if
any) payable as contemplated by Section 5(h) of this
agreement. In connection with payment of the Series 1
Exchangeable Share Consideration, Veritas shall be entitled to
liquidate some of the Veritas Common Stock that would
otherwise be deliverable to the particular holder of Series 1
Exchangeable Shares in order to fund any statutory withholding
tax obligation. Immediately upon the giving of notice by the
Trustee to Veritas and VESI of the exercise of the Exchange
Right, as provided in this Section
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5(f), the closing of the transaction of purchase and sale
contemplated by the Exchange Right shall be deemed to have
occurred, and the Holder of such Series 1 Exchangeable Shares
shall be deemed to have transferred to Veritas all of its
right, title and interest in and to such Series 1 Exchangeable
Shares and in the related interest in the Trust Estate and
shall cease to be a holder of such Series 1 Exchangeable
Shares and shall not be entitled to exercise any of the rights
of a holder in respect thereof, other than the right to
receive his proportionate part of the total purchase price
therefor, unless such Series 1 Exchangeable Share
Consideration is not delivered by Veritas to the Trustee, for
delivery to such Holder (or to such other persons, if any,
properly designated by such Holder), within five Business Days
of the date of the giving of such notice by the Trustee, in
which case the rights of the Holder shall remain unaffected
until such Series 1 Exchangeable Share Consideration is
delivered by Veritas and any cheque included therein is paid.
Concurrently with such Holder ceasing to be a holder of Series
1 Exchangeable Shares, the Holder shall be considered and
deemed for all purposes to be the holder of the shares of
Veritas Common Stock delivered to it pursuant to the Exchange
Right. Notwithstanding the foregoing until the Series 1
Exchangeable Share Consideration is delivered to the Holder,
the Holder shall be deemed to still be a holder of the sold
Series 1 Exchangeable Shares for purposes of voting rights
with respect thereto under this agreement.
(g) EXERCISE OF EXCHANGE RIGHT SUBSEQUENT TO RETRACTION. In the
event that a Holder has exercised its right under Article 6 of
the Exchangeable Share Provisions to require VESI to redeem
any or all of the Series 1 Exchangeable Shares held by the
Holder (the "Retracted Shares") and is notified by VESI
pursuant to Section 6.6 of the Exchangeable Share Provisions
that VESI will not be permitted as a result of liquidity or
solvency requirements of applicable law to redeem all such
Retracted Shares, subject to receipt by the Trustee of written
notice to that effect from VESI and provided that Veritas
shall not have exercised the Retraction Call Right with
respect to the Retracted Shares and that the Holder has not
revoked the retraction request delivered by the Holder to VESI
pursuant to Section 6.1 of the Exchangeable Share Provisions,
the retraction request will constitute and will be deemed to
constitute notice from the Holder to the Trustee instructing
the Trustee to exercise the Exchange Right with respect to
those Retracted Shares which VESI is unable to redeem. In any
such event, VESI hereby agrees with the Trustee and in favour
of the Holder immediately to notify the Trustee of such
prohibition against VESI redeeming all of the Retracted Shares
and immediately to forward or cause to be forwarded to the
Trustee all relevant materials delivered by the Holder to VESI
or to the transfer agent of the Series 1 Exchangeable Shares
(including without limitation a copy of the retraction request
delivered pursuant to Section 6.1 of the Exchangeable Share
Provisions) in connection with such proposed redemption of the
Retracted Shares and the Trustee will thereupon exercise the
Exchange Right with respect to the Retracted Shares that VESI
is not permitted to redeem and will require Veritas to
purchase such shares in accordance with the provisions of this
Article 5.
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(h) STAMP OR OTHER TRANSFER TAXES. Upon any sale of Series 1
Exchangeable Shares to Veritas pursuant to the Exchange Right
or the Automatic Exchange Rights, the share certificate or
certificates representing Veritas Common Stock to be delivered
in connection with the payment of the total purchase price
therefor shall be issued in the name of the Holder of the
Series 1 Exchangeable Shares so sold or in such names as such
Holder may otherwise direct in writing without charge to the
holder of the Series 1 Exchangeable Shares so sold, provided,
however, that such Holder (i) shall pay (and neither Veritas,
VESI nor the Trustee shall be required to pay) any
documentary, stamp, transfer or other similar taxes that may
be payable in respect of any transfer involved in the issuance
or delivery of such shares to a person other than such Holder
or (ii) shall have established to the satisfaction of the
Trustee, Veritas and VESI that such taxes, if any, have been
paid.
(i) NOTICE OF INSOLVENCY EVENT. Immediately upon the occurrence of
an Insolvency Event or any event which with the giving of
notice or the passage of time or both would be an Insolvency
Event, VESI and Veritas shall give written notice thereof to
the Trustee. As soon as practicable after receiving notice
from VESI and Veritas or from any other Person of the
occurrence of an Insolvency Event, the Trustee will mail to
each Holder, at the expense of Veritas, a notice of such
Insolvency Event in the form provided by Veritas, which notice
shall contain a brief statement of the right of the Holders
with respect to the Exchange Right.
(j) QUALIFICATION OF VERITAS COMMON STOCK. Veritas covenants that
if any shares of Veritas Common Stock to be issued and
delivered pursuant to the Exchange Right or the Automatic
Exchange Rights 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 law or regulation
or pursuant to the rules and regulations of any regulatory
authority or the fulfillment of any other legal requirement
(collectively, the "Applicable Laws") before such shares may
be issued and delivered by Veritas to the initial holder
thereof (other than VESI) or in order that such shares may be
freely traded thereafter (other than any restrictions on
transfer by reason of a holder being a "control person" of
Veritas for purposes of Canadian federal or provincial
securities law or an "affiliate" of Veritas or, prior to the
Effective Date, of Enertec for purposes of United States
federal or state securities law), Veritas will in good faith
expeditiously take all such actions and do all such things as
are necessary to cause such shares of Veritas Common Stock to
be and remain duly registered, qualified or approved. Veritas
represents and warrants that it has in good faith taken all
actions and done all things as are necessary under Applicable
Laws as they exist on the date hereof to cause the shares of
Veritas Common Stock to be issued and delivered pursuant to
the Exchange Right and the Automatic Exchange Rights and to be
freely tradeable thereafter (other than restrictions on
transfer by reason of a holder being a "control person" of
Veritas for the purposes of Canadian federal and provincial
securities law or an "affiliate" of Veritas or, prior to the
Effective Date, of Enertec for the purposes of United States
federal or state securities law). Veritas will in good faith
expeditiously take all such
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actions and do all such things as are necessary to cause all
shares of Veritas Common Stock to be delivered pursuant to the
Exchange Right or the Automatic Exchange Rights to be and to
continue to be listed, quoted or posted for trading on all
stock exchanges and quotation systems on which such shares are
listed, quoted or posted for trading at such time.
(k) RESERVATION OF SHARES OF VERITAS COMMON STOCK.
Veritas hereby represents, warrants and covenants that it has
irrevocably reserved for issuance and will at all times keep
available, free from pre-emptive and other rights, out of its
authorized and unissued capital stock such number of shares of
Veritas Common Stock (i) as is equal to the sum of (A) the
number of Series 1 Exchangeable Shares issued and outstanding
from time to time and (B) the number of Series 1 Exchangeable
Shares issuable upon the exercise of all rights to acquire
Series 1 Exchangeable Shares outstanding from time to time and
(ii) as are now and may hereafter be required to enable and
permit Veritas and VESI to meet their respective obligations
hereunder, under the Restated Certificate of Incorporation of
Veritas, under the Support Agreement, under the Exchangeable
Share Provisions and under any other security or commitment
pursuant to the Arrangement with respect to which Veritas may
now or hereafter be required to issue shares of Veritas Common
Stock.
(l) AUTOMATIC EXCHANGE ON LIQUIDATION OF VERITAS.
(i) Veritas will give the Trustee written notice 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 the Veritas to
institute voluntary liquidation, dissolution
or winding-up proceedings with respect to
Veritas or to effect any other distribution
of assets of Veritas among its stockholders
for the purpose of winding-up its affairs,
at least 60 days prior to the proposed
effective date of such liquidation,
dissolution, winding-up or other
distribution; and
(B) immediately, upon the earlier of (I) receipt
by Veritas of notice of, and (II) Veritas
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
Veritas or to effect any other distribution
of assets of Veritas among its stockholders
for the purpose of winding-up its affairs.
(ii) Immediately following receipt by the Trustee from
Veritas of notice of any event (a "Liquidation
Event") contemplated by Section 5(l)(i) above, the
Trustee will give notice thereof to the Holders. Such
notice will be provided by Veritas to the Trustee and
shall include a brief description of the automatic
exchange of Series 1 Exchangeable Shares for shares
of Veritas Common Stock provided for in Section
5(l)(iii) below.
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(iii) In order that the Holders will be able to participate
on a PRO RATA basis with the holders of Veritas
Common Stock in the distribution of assets of Veritas
in connection with a Liquidation Event, immediately
prior to the effective time (the "Liquidation Event
Effective Time") of a Liquidation Event all of the
then outstanding Series 1 Exchangeable Shares shall
be automatically exchanged for shares of Veritas
Common Stock. To effect such automatic exchange,
Veritas shall be deemed to have purchased each Series
1 Exchangeable Share outstanding immediately prior to
the Liquidation Event Effective Time and held by
Holders, and each Holder shall be deemed to have sold
the Series 1 Exchangeable Shares held by it at such
time, for a purchase price per share equal to the
Series 1 Exchangeable Share Price applicable at such
time. In connection with such automatic exchange,
Veritas will provide to the Trustee an Officer's
Certificate setting forth the calculation of the
purchase price for each Series 1 Exchangeable Share.
(iv) The closing of the transaction of purchase and sale
contemplated by Section 5(l)(iii) above shall be
deemed to have occurred immediately prior to the
Liquidation Event Effective Time, and each Holder of
Series 1 Exchangeable Shares shall be deemed to have
transferred to Veritas all of the Holder's right,
title and interest in and to such Series 1
Exchangeable Shares and the related interest in the
Trust Estate and shall cease to be a holder of such
Series 1 Exchangeable Shares and Veritas shall
deliver to the Holder the Series 1 Exchangeable Share
Consideration deliverable upon the automatic exchange
of Series 1 Exchangeable Shares. In connection with
payment of the Series 1 Exchangeable Share
Consideration, Veritas shall be entitled to liquidate
some of the Veritas Common Stock that would otherwise
be deliverable to the particular holder of Series 1
Exchangeable Shares in order to fund any statutory
withholding tax obligation. Concurrently with such
Holder ceasing to be a holder of Series 1
Exchangeable Shares, the Holder shall be considered
and deemed for all purposes to be the holder of the
shares of Veritas Common Stock issued to it pursuant
to the automatic exchange of Series 1 Exchangeable
Shares for Veritas Common Stock and the certificates
held by the Holder previously representing the Series
1 Exchangeable Shares exchanged by the Holder with
Veritas pursuant to such automatic exchange shall
thereafter be deemed to represent the shares of
Veritas Common Stock issued to the Holder by Veritas
pursuant to such automatic exchange. Upon the request
of a Holder and the surrender by the Holder of Series
1 Exchangeable Share certificates deemed to represent
shares of Veritas Common Stock, duly endorsed in
blank and accompanied by such instruments of transfer
as Veritas may reasonably require, Veritas shall
deliver or cause to be delivered to the Holder
certificates representing the shares of Veritas
Common Stock of which the Holder is the holder.
Notwithstanding the foregoing until each Holder is
actually entered on the register of holders of
Veritas Common Stock, such Holder shall be deemed to
still be a holder of the transferred Series 1
Exchangeable Shares for purposes of all voting rights
with respect thereto under this agreement.
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6. RESTRICTIONS ON ISSUANCE OF VERITAS ERS SPECIAL VOTING STOCK
During the term of this agreement, Veritas will not issue any shares of
Veritas ERS Special Voting Stock in addition to the Voting Share.
7. CONCERNING THE TRUSTEE
(a) POWERS AND DUTIES OF THE TRUSTEE. The rights, powers and
authorities of the Trustee under this agreement, in its
capacity as trustee of the Trust, shall include:
(i) receipt and deposit of the Voting Share from Veritas
as trustee for and on behalf of the Holders in
accordance with the provisions of this agreement;
(ii) granting proxies and distributing materials to
Holders as provided in this agreement;
(iii) voting the Holder Votes in accordance with the
provisions of this agreement;
(iv) receiving the grant of the Exchange Right and the
Automatic Exchange Rights from Veritas as trustee for
and on behalf of the Holders in accordance with the
provisions of this agreement;
(v) exercising the Exchange Right and enforcing the
benefit of the Automatic Exchange Rights, in each
case in accordance with the provisions of this
agreement, and in connection therewith receiving from
Holders Series 1 Exchangeable Shares and other
requisite documents and distributing to such Holders
the shares of Veritas Common Stock and cheques and
property, if any, to which such Holders are entitled
upon the exercise of the Exchange Right or pursuant
to the Automatic Exchange Rights, as the case may be;
(vi) holding title to the Trust Estate;
(vii) investing any moneys forming, from time to time, a
part of the Trust Estate as provided in this
agreement;
(viii) taking action at the direction of a Holder or Holders
to enforce the obligations of Veritas under this
agreement; and
(ix) taking such other actions and doing such other things
as are specifically provided in this agreement.
In the exercise of such rights, powers and authorities the
Trustee shall have (and is granted) such incidental and
additional rights, powers and authority not in conflict with
any of the provisions of this agreement as the Trustee, acting
in good faith and in the reasonable exercise of its
discretion, may deem necessary, appropriate or desirable to
effect the purpose of the Trust. Any exercise of such
discretionary rights,
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powers and authorities by the Trustee shall be final,
conclusive and binding upon all persons. For greater
certainty, the Trustee shall have only those duties as are set
out specifically in this agreement.
The Trustee in exercising its rights, powers, duties and
authorities hereunder shall act honestly and in good faith
with a view to the best interests of the Holders and shall
exercise the care, diligence and skill that a reasonably
prudent trustee would exercise in comparable circumstances.
The Trustee shall not be bound to give any notice or do or
take any act, action or proceeding by virtue of the powers
conferred on it hereby unless and until it shall be
specifically required to do so under the terms hereof; nor
shall the Trustee be required to take any notice of, or to do
or to take any act, action or proceeding as a result of any
default or breach of any provision hereunder, unless and until
notified in writing of such default or breach, which notices
shall distinctly specify the default or breach desired to be
brought to the attention of the Trustee and in the absence of
such notice the Trustee may for all purposes of this agreement
conclusively assume that no default or breach has been made in
the observance or performance of any of the representations,
warranties, covenants, agreements or conditions contained
herein.
(b) NO CONFLICT OF INTEREST. The Trustee represents to VESI and
Veritas that at the date of execution and delivery of this
agreement there exists no material conflict of interest in the
role of the Trustee as a fiduciary hereunder and the role of
the Trustee in any other capacity. The Trustee shall, within
90 days after it becomes aware that such a material conflict
of interest exists, either eliminate such material conflict of
interest or resign in the manner and with the effect specified
in Article 10 hereof. If, notwithstanding the foregoing
provisions of this Section 7(b), the Trustee has such a
material conflict of interest, the validity and enforceability
of this agreement shall not be affected in any manner
whatsoever by reason only of the existence of such material
conflict of interest. If the Trustee contravenes the foregoing
provisions of this Section 7(b), any interested party may
apply to the Alberta Court of Queen's Bench an order that the
Trustee be replaced as trustee hereunder.
(c) DEALINGS WITH TRANSFER AGENTS, REGISTRARS, ETC. VESI and
Veritas irrevocably authorize the Trustee, from time to time,
to:
(i) consult, communicate and otherwise deal with the
respective registrars and transfer agents, and with
any such subsequent registrar or transfer agent, of
the Series 1 Exchangeable Shares and Veritas Common
Stock; and
(ii) requisition, from time to time, (A) from any such
registrar or transfer agent any information readily
available from the records maintained by it which the
Trustee may reasonably require for the discharge of
its duties and responsibilities under this agreement
and (B) from the transfer agent of Veritas Common
Stock, and any subsequent transfer agent of such
shares, the share certificates issuable upon the
exercise from time to time of the
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Exchange Right and pursuant to the Automatic Exchange
Rights in the manner specified in Article 5 hereof.
VESI and Veritas irrevocably authorize their respective
registrars and transfer agents to comply with all such
requests. Veritas covenants that it will supply its transfer
agent with duly executed share certificates for the purpose of
completing the exercise from time to time of the Exchange
Right and the Automatic Exchange Rights, in each case pursuant
to Article 5 hereof.
(d) BOOKS AND RECORDS. The Trustee shall keep available for
inspection by Veritas and VESI, at the Trustee's principal
office in Calgary, Alberta, correct and complete books and
records of account relating to the Trustee's actions under
this agreement, including without limitation all information
relating to mailings and instructions to and from Holders and
all transactions pursuant to the Voting Rights, the Exchange
Right and the Automatic Exchange Rights for the term of this
agreement. On or before June 30, 2000, and on or before June
30 in every year thereafter, so long as the Voting Share is on
deposit with the Trustee, the Trustee shall transmit to
Veritas and VESI a brief report, dated as of the preceding
March 31, with respect to:
(i) the property and funds comprising the Trust Estate as
of that date;
(ii) the number of exercises of the Exchange Right, if
any, and the aggregate number of Series 1
Exchangeable Shares received by the Trustee on behalf
of Holders in consideration of the issue and delivery
by Veritas of shares of Veritas Common Stock in
connection with the Exchange Right, during the
calendar year ended on such date; and
(iii) all other actions taken by the Trustee in the
performance of its duties under this agreement which
it had not previously reported.
(e) INCOME TAX RETURNS AND REPORTS. The Trustee shall, to the
extent necessary, prepare and file on behalf of the Trust
appropriate Canadian income tax returns and any other returns
or reports as may be required by applicable law or pursuant to
the rules and regulations of any securities exchange or other
trading system through which the Series 1 Exchangeable Shares
are traded and, in connection therewith, may obtain the advice
and assistance of such experts as the Trustee may consider
necessary or advisable. If requested by the Trustee, Veritas
shall retain such experts for purposes of providing such
advice and assistance.
(f) INDEMNIFICATION PRIOR TO CERTAIN ACTIONS BY TRUSTEE. The
Trustee shall exercise any or all of the rights, duties,
powers or authorities vested in it by this agreement at the
request, order or direction of any Holder upon such Holder
furnishing to the Trustee reasonable funding, security and
indemnity against the costs, expenses and liabilities which
may be incurred by the Trustee therein or thereby, provided
that no Holder shall be obligated to furnish to the Trustee
any such funding, security or indemnity in connection with the
exercise by the Trustee of any of its rights, duties, powers
and authorities with respect to the Voting Share pursuant
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to Article 4 hereof, subject to Section 7(o) hereof, and with
respect to the Exchange Right pursuant to Article 5 hereof,
subject to Section 7(o) hereof, and with respect to the
Automatic Exchange Rights pursuant to Article 5 hereof.
None of the provisions contained in this agreement shall
require the Trustee to expend or risk its own funds or
otherwise incur financial liability in the exercise of any of
its rights, powers, duties or authorities unless funded, given
funds, security and indemnified as aforesaid.
(g) ACTIONS BY HOLDERS. No Holder shall have the right to
institute any action, suit or proceeding or to exercise any
other remedy authorized by this agreement for the purpose of
enforcing any of its rights or for the execution of any trust
or power hereunder unless the Holder has requested the Trustee
to take or institute such action, suit or proceeding and
furnished the Trustee with the funding, security and indemnity
referred to in Section 7(f) hereof and the Trustee shall have
failed to act within a reasonable time thereafter. In such
case, but not otherwise, the Holder shall be entitled to take
proceedings in any court of competent jurisdiction such as the
Trustee might have taken; it being understood and intended
that no one or more Holders shall have any right in any manner
whatsoever to affect, disturb or prejudice the rights hereby
created by any such action, or to enforce any right hereunder
or under the Voting Rights, the Exchange Right or the
Automatic Exchange Rights, except subject to the conditions
and in the manner herein provided, and that all powers and
trusts hereunder shall be exercised and all proceedings at law
shall be instituted, had and maintained by the Trustee, except
only as herein provided, and in any event for the equal
benefit of all Holders.
(h) RELIANCE UPON DECLARATIONS. The Trustee shall not be
considered to be in contravention of any of its rights,
powers, duties and authorities hereunder if, when required, it
acts and relies in good faith upon lists, mailing labels,
notices, statutory declarations, certificates, opinions,
reports or other papers or documents furnished pursuant to the
provisions hereof or required by the Trustee to be furnished
to it in the exercise of its rights, powers, duties and
authorities hereunder and such lists, mailing labels, notices,
statutory declarations, certificates, opinions, reports or
other papers or documents comply with the provisions of
Section 7(i) hereof, if applicable, and with any other
applicable provisions of this agreement.
(i) EVIDENCE AND AUTHORITY TO TRUSTEE. VESI and/or Veritas shall
furnish to the Trustee evidence of compliance with the
conditions provided for in this agreement relating to any
action or step required or permitted to be taken by VESI
and/or Veritas or the Trustee under this agreement or as a
result of any obligation imposed under this agreement,
including, without limitation, in respect of the Voting Rights
or the Exchange Right or the Automatic Exchange Rights and the
taking of any other action to be taken by the Trustee at the
request of or on the application of VESI and/or Veritas
forthwith if and when:
(i) such evidence is required by any other section of
this agreement to be furnished to the Trustee in
accordance with the terms of this Section 7(i); or
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(ii) the Trustee, in the exercise of its rights, powers,
duties and authorities under this agreement, gives
VESI and/or Veritas written notice requiring it to
furnish such evidence in relation to any particular
action or obligation specified in such notice.
Such evidence shall consist of an Officer's Certificate of
VESI and/or Veritas or a statutory declaration or a
certificate made by persons entitled to sign an Officer's
Certificate stating that any such condition has been complied
with in accordance with the terms of this agreement.
Whenever such evidence relates to a matter other than the
Voting Rights or the Exchange Right or the Automatic Exchange
Rights, and except as otherwise specifically provided herein,
such evidence may consist of a report or opinion of any
solicitor, auditor, accountant, appraiser, valuer, engineer or
other expert or any other person whose qualifications give
authority to a statement made by him, provided that if such
report or opinion is furnished by a director, officer or
employee of VESI and/or Veritas it shall be in the form of an
Officer's Certificate or a statutory declaration.
Each statutory declaration, certificate, statement, opinion or
report furnished to the Trustee as evidence of compliance with
a condition provided for in this agreement shall include a
statement by the person giving the evidence:
(iii) declaring that he has read and understands the
provisions of this agreement relating to the
condition in question:
(iv) describing the nature and scope of the examination or
investigation upon which he based the statutory
declaration, certificate, statement, opinion or
report; and
(v) declaring that he has made such examination or
investigation as he believes is necessary to enable
him to make the statements or give the opinions
contained or expressed therein.
(j) EXPERTS, ADVISERS AND AGENTS. The Trustee may:
(i) in relation to these presents act and rely on the
opinion or advice of or information obtained from or
prepared by any solicitor, auditor, accountant,
appraiser, valuer, engineer or other expert, whether
retained by the Trustee or by VESI and/or Veritas or
otherwise, and may retain and employ such assistants
as may be necessary to the proper determination and
discharge of its powers and duties and determination
of its rights hereunder and may pay proper and
reasonable compensation for all such legal and other
advice or assistance as aforesaid; and
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(ii) retain and employ such agents and other assistants as
it may reasonably require for the proper
determination and discharge of its powers and duties
hereunder, and may pay reasonable remuneration for
all services performed for it (and shall be entitled
to receive reasonable remuneration for all services
performed by it) in the discharge of the trusts
hereof and compensation for all disbursements, costs
and expenses made or incurred by it in the
determination and discharge of its duties hereunder
and in the management of the Trust.
(k) INVESTMENT OF MONEYS HELD BY TRUSTEE. Unless otherwise
provided in this agreement, any moneys held by or on behalf of
the Trustee which under the terms of this agreement may or
ought to be invested or which may be on deposit with the
Trustee or which may be in the hands of the Trustee may be
invested and reinvested in the name or under the control of
the Trustee in Authorized Investments, and the Trustee shall
so invest such moneys on the written direction of VESI.
Pending the investment of any moneys as hereinbefore provided,
such moneys may be deposited in the name of the Trustee in any
chartered bank in Canada or, with the consent of VESI, in the
deposit department of the Trustee or any other loan or trust
company authorized to accept deposits under the laws of Canada
or any province thereof at the rate of interest then current
on similar deposits.
(l) TRUSTEE NOT REQUIRED TO GIVE SECURITY. The Trustee shall not
be required to give any bond or security in respect of the
execution of the trusts, rights, duties, powers and
authorities of this agreement or otherwise in respect of the
premises.
(m) TRUSTEE NOT BOUND TO ACT ON REQUEST. Except as in this
agreement otherwise specifically provided, the Trustee shall
not be bound to act in accordance with any direction or
request of VESI and/or Veritas or of the directors thereof
until a duly authenticated copy of the instrument or
resolution containing such direction or request shall have
been delivered to the Trustee, and the Trustee shall be
empowered to act and rely upon any such copy purporting to be
authenticated and believed by the Trustee to be genuine.
(n) AUTHORITY TO CARRY ON BUSINESS. The Trustee represents to VESI
and Veritas that at the date of execution and delivery by it
of this agreement it is authorized to carry on the business of
a trust company in the Province of Alberta but if,
notwithstanding the provisions of this Section 7(n), it ceases
to be so authorized to carry on business, the validity and
enforceability of this agreement and the Voting Rights, the
Exchange Right and the Automatic Exchange Rights shall not be
affected in any manner whatsoever by reason only of such event
but the Trustee shall, within 90 days after ceasing to be
authorized to carry on the business of a trust company in the
Province of Alberta, either become so authorized or resign in
the manner and with the effect specified in Article 10 hereof.
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(o) CONFLICTING CLAIMS. If conflicting claims or demands are made
or asserted with respect to any interest of any Holder in any
Series 1 Exchangeable Shares, including any disagreement
between the heirs, representatives, successors or assigns
succeeding to all or any part of the interest of any Holder in
any Series 1 Exchangeable Shares resulting in conflicting
claims or demands being made in connection with such interest,
then the Trustee shall be entitled, at its sole discretion, to
refuse to recognize or to comply with any such claim or
demand. In so refusing, the Trustee may elect not to exercise
any Voting Rights, Exchange Right or Automatic Exchange Rights
subject to such conflicting claims or demands and, in so
doing, the Trustee shall not be or become liable to any person
on account of such election or its failure or refusal to
comply with any such conflicting claims or demands. The
Trustee shall be entitled to continue to refrain from acting
and to refuse to act until:
(i) the rights of all adverse claimants with respect to
the Voting Rights, Exchange Right or Automatic
Exchange Rights subject to such conflicting claims or
demands have been adjudicated by a final judgment of
a court of competent jurisdiction; or
(ii) all differences with respect to the Voting Rights,
Exchange Right or Automatic Exchange Rights subject
to such conflicting claims or demands have been
conclusively settled by a valid written agreement
binding on all such adverse claimants, and the
Trustee shall have been furnished with an executed
copy of such agreement.
If the Trustee elects to recognize any claim or comply with
any demand made by any such adverse claimant, it may in its
discretion require such claimant to furnish such surety bond
or other security satisfactory to the Trustee as it shall deem
appropriate fully to indemnify it as between all conflicting
claims or demands.
(p) ACCEPTANCE OF TRUST. The Trustee hereby accepts the Trust
created and provided for by and in this agreement and agrees
to perform the same upon the terms and conditions herein set
forth and to hold all rights, privileges and benefits
conferred hereby and by law in trust for the various persons
who shall from time to time be Holders, subject to all the
terms and conditions herein set forth.
8. COMPENSATION
(a) Veritas and VESI jointly and severally agree to pay to the
Trustee reasonable compensation for all of the services
rendered by it under this agreement and will reimburse the
Trustee for all reasonable expenses (including but not limited
to taxes, compensation paid to experts, agents and advisors
and travel expenses) and disbursements, including the cost and
expense of any suit or litigation of any character and any
proceedings before any governmental agency reasonably incurred
by the Trustee in connection with its rights and duties under
this agreement; provided that Veritas and VESI shall have no
obligation to reimburse the Trustee for any expenses or
disbursements paid, incurred or suffered by the Trustee in any
suit or
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litigation in which the Trustee is determined to have acted in
bad faith or with negligence or willful misconduct.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY
(a) INDEMNIFICATION OF THE TRUSTEE. Veritas and VESI jointly and
severally agree to indemnify and hold harmless the Trustee and
each of its directors, officers, employees and agents
appointed and acting in accordance with this agreement
(collectively, the "Indemnified Parties") against all claims,
losses, damages, costs, penalties, fines and reasonable
expenses (including reasonable expenses of the Trustee's legal
counsel on a solicitor and his own client basis) which,
without fraud, negligence, willful misconduct or bad faith on
the part of such Indemnified Party, may be paid, incurred or
suffered by the Indemnified Party by reason of or as a result
of the Trustee's acceptance or administration of the Trust,
its compliance with its duties set forth in this agreement, or
any written or oral instructions delivered to the Trustee by
Veritas or VESI pursuant hereto. In no case shall Veritas or
VESI be liable under this indemnity for any claim against any
of the Indemnified Parties unless Veritas and VESI shall be
notified by the Trustee of the written assertion of a claim or
of any action commenced against the Indemnified Parties,
promptly after any of the Indemnified Parties shall have
received any such written assertion of a claim or shall have
been served with a summons or other first legal process giving
information as to the nature and basis of the claim. Subject
to (ii), below, Veritas and VESI shall be entitled to
participate at their own expense in the defense and, if
Veritas or VESI so elect at any time after receipt of such
notice, either of them may assume the defense of any suit
brought to enforce any such claim. The Trustee shall have the
right to employ separate counsel in any such suit and
participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of the Trustee unless:
(i) the employment of such counsel has been authorized by
Veritas or VESI, such authorization not to be unreasonably
withheld; or (ii) the named parties to any such suit include
both the Trustee and Veritas or VESI and the Trustee shall
have been advised by counsel acceptable to Veritas or VESI
that there may be one or more legal defenses available to the
Trustee that are different from or in addition to those
available to Veritas or VESI and that an actual or potential
conflict of interest exists (in which case Veritas and VESI
shall not have the right to assume the defense of such suit on
behalf of the Trustee but shall be liable to pay the
reasonable fees and expenses of counsel for the Trustee). This
indemnity shall survive the resignation or removal of the
Trustee and the termination of this agreement.
(b) LIMITATION OF LIABILITY. The Trustee shall not be held liable
for any loss which may occur by reason of depreciation of the
value of any part of the Trust Estate or any loss incurred on
any investment of funds pursuant to this agreement, except to
the extent that such loss is attributable to the fraud,
negligence, willful misconduct or bad faith on the part of the
Trustee.
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10. CHANGE OF TRUSTEE
(a) RESIGNATION. The Trustee, or any trustee hereafter appointed,
may at any time resign by giving written notice of such
resignation to Veritas and VESI specifying the date on which
it desires to resign, provided that such notice shall never be
given less than 60 days before such desired resignation date
unless Veritas and VESI otherwise agree and provided further
that such resignation shall not take effect until the date of
the appointment of a successor trustee and the acceptance of
such appointment by the successor trustee. Upon receiving such
notice of resignation, Veritas and VESI shall promptly appoint
a successor trustee by written instrument in duplicate, one
copy of which shall be delivered to the resigning trustee and
one copy to the successor trustee. Failing acceptance by a
successor trustee, a successor trustee may be appointed by an
order of the Alberta Court of Queen's Bench upon application
of one or more of the parties hereto. Should the retiring
Trustee apply for the appointment of a successor trustee by an
order of the Alberta Court of Queen's Bench it shall be at the
joint and several expense of Veritas and VESI.
(b) REMOVAL. The Trustee, or any trustee hereafter appointed, may
be removed with or without cause, at any time on 60 days'
prior notice by written instrument executed by Veritas and
VESI, in duplicate, one copy of which shall be delivered to
the trustee so removed and one copy to the successor trustee,
provided that, in connection with such removal, provision is
made for a replacement trustee similar to that contemplated in
Section 10(a).
(c) SUCCESSOR TRUSTEE. Any successor trustee appointed as provided
under this agreement shall execute, acknowledge and deliver to
Veritas and VESI and to its predecessor trustee an instrument
accepting such appointment. Thereupon the resignation or
removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
duties and obligations of its predecessor under this
agreement, with like effect as if originally named as trustee
in this agreement. However, on the written request of Veritas
and VESI or of the successor trustee, the trustee ceasing to
act shall, upon payment of any amounts then due it pursuant to
the provisions of this agreement, execute and deliver an
instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act. Upon the
request of any such successor trustee, Veritas, VESI and such
predecessor trustee shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers.
(d) NOTICE OF SUCCESSOR TRUSTEE. Upon acceptance of appointment by
a successor trustee as provided herein, Veritas and VESI shall
cause to be mailed notice of the succession of such trustee
hereunder to each Holder specified in a List. If Veritas or
VESI shall fail to cause such notice to be mailed within 10
days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at
the expense of Veritas and VESI.
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11. VERITAS SUCCESSORS
(a) CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC. Veritas
shall not enter into any transaction (whether by way of
reconstruction, reorganization, consolidation, merger,
amalgamation, 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 or amalgamation, of the continuing corporation
resulting therefrom unless, but may do so if:
(i) such other Person or continuing corporation (the
"Veritas Successor"), by operation of law, becomes,
without further action, 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 satisfactory to the Trustee and in the
opinion of legal counsel to the Trustee are necessary
or advisable to evidence the assumption by the
Veritas Successor of liability for all moneys payable
and property deliverable hereunder and the covenant
of such Veritas 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
Veritas under this agreement; and
(ii) such transaction shall, to the satisfaction of the
Trustee and in the opinion of legal counsel to the
Trustee, be upon such terms as substantially to
preserve and not to impair in any material respect
any of the rights, duties, powers and authorities of
the Trustee or of the Holders hereunder.
(b) VESTING OF POWERS IN SUCCESSOR. Whenever the conditions of
Section 11(a) hereof have been duly observed and performed,
the Trustee, if required, by Section 11(a) hereof, the Veritas
Successor and VESI shall execute and deliver the supplemental
agreement provided for in Article 12 hereof and thereupon the
Veritas Successor shall possess and from time to time may
exercise each and every right and power of Veritas under this
agreement in the name of Veritas 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 Veritas or any
officers of Veritas may be done and performed with like force
and effect by the directors or officers of such Veritas
Successor.
(c) WHOLLY-OWNED SUBSIDIARIES. Nothing herein shall be construed
as preventing the amalgamation or merger of any wholly-owned
subsidiary of Veritas with or into Veritas or the winding-up,
liquidation or dissolution of any wholly-owned subsidiary of
Veritas provided that all of the assets of such subsidiary are
transferred to Veritas or another wholly-owned subsidiary of
Veritas, and any such transactions are expressly permitted by
this Article 11.
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12. AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
(a) AMENDMENTS, MODIFICATIONS, ETC. This agreement may not be
amended or modified except by an agreement in writing executed
by VESI, Veritas and the Trustee and approved by the Holders
in accordance with Section 9.2 of the Exchangeable Share
Provisions.
(b) MINISTERIAL AMENDMENTS. Notwithstanding the provisions of
Section 12(a) hereof, the parties to this agreement may in
writing, at any time and from time to time, without the
approval of the Holders, amend or modify this agreement for
the purposes of:
(i) adding to the covenants of any or all of the parties
hereto for the protection of the Holders hereunder;
(ii) 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 opinion of the board of directors of
each of Veritas and VESI and in the opinion of the
Trustee and its counsel, having in mind the best
interests of the Holders as a whole, it may be
expedient to make, provided that such boards of
directors and the Trustee and its counsel shall be of
the opinion that such amendments and modifications
will not be prejudicial to the interests of the
Holders as a whole; or
(iii) making such changes or corrections which, on the
advice of counsel to VESI, Veritas and the Trustee,
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 Trustee and its counsel and the
board of directors of each of VESI and Veritas shall
be of the opinion that such changes or corrections
will not be prejudicial to the interests of the
Holders as a whole.
(c) MEETING TO CONSIDER AMENDMENTS. VESI, at the request of
Veritas, shall call a meeting or meetings of the Holders for
the purpose of considering any proposed amendment or
modification requiring approval pursuant hereto. Any such
meeting or meetings shall be called and held in accordance
with the by-laws of VESI, the Exchangeable Share Provisions
and all applicable laws.
(d) CHANGES IN CAPITAL OF VERITAS AND VESI. At all times after the
occurrence of any event effected pursuant to Section 2(g) or
Section 2(h) of the Support Agreement, as a result of which
either Veritas Common Stock or the Series 1 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, mutatis mutandis,
to all new securities into which Veritas Common Stock or the
Series 1 Exchangeable Shares or both are so changed and the
parties hereto shall execute and deliver a supplemental
agreement giving effect to and evidencing such necessary
amendments and modifications.
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(e) EXECUTION OF SUPPLEMENTAL AGREEMENTS. No amendment to or
modification or waiver of any of the provisions of this
agreement otherwise permitted hereunder shall be effective
unless made in writing and signed by all of the parties
hereto. From time to time VESI (when authorized by a
resolution of its Board of Directors), Veritas (when
authorized by a resolution of its board of directors) and the
Trustee may, subject to the provisions of these presents, and
they shall, when so directed by these presents, execute and
deliver by their proper officers, agreements or other
instruments supplemental hereto, which thereafter shall form
part hereof, for any one or more of the following purposes:
(i) evidencing the succession of any Veritas Successors
to Veritas and the covenants of and obligations
assumed by each such Veritas Successors in accordance
with the provisions of Article 11 and the successor
of any successor trustee in accordance with the
provisions of Article 10;
(ii) making any additions to, deletions from or
alterations of the provisions of this agreement or
the Voting Rights, the Exchange Right or the
Automatic Exchange Rights which, in the opinion of
the Trustee and its counsel, will not be prejudicial
to the interests of the Holders as a whole or are in
the opinion of counsel to the Trustee necessary or
advisable in order to incorporate, reflect or comply
with any legislation the provisions of which apply to
Veritas, VESI, the Trustee or this agreement; and
(iii) for any other purposes not inconsistent with the
provisions of this agreement, including without
limitation to make or evidence any amendment or
modification to this agreement as contemplated
hereby, provided that, in the opinion of the Trustee
and its counsel, the rights of the Trustee and the
Holders as a whole will not be prejudiced thereby.
13. TERMINATION
(a) TERM. The Trust created by this agreement shall continue until
the earliest to occur of the following events:
(i) no outstanding Series 1 Exchangeable Shares are held
by a Holder;
(ii) each of VESI and Veritas elects in writing to
terminate the Trust and such termination is approved
by the Holders of the Series 1 Exchangeable Shares in
accordance with Section 9.2 of the Exchangeable Share
Provisions; and
(iii) 21 years after the death of the last survivor of the
descendants of His Majesty King Xxxxxx VI of the
United Kingdom of Great Britain and Northern Ireland
living on the date of the creation of the Trust.
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(b) SURVIVAL OF AGREEMENT. This agreement shall survive any
termination of the Trust and shall continue until there are no
Series 1 Exchangeable Shares outstanding held by a Holder;
provided, however, that the provisions of Articles 8 and 9
hereof shall survive any such termination of this agreement.
14. GENERAL
(a) 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 the agreement
shall be carried out as nearly as possible in accordance with
its original terms and conditions.
(b) INUREMENT. This agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
successors and permitted assigns and to the benefit of the
Holders.
(c) NOTICES TO PARTIES. All notices and other communications
between the parties hereunder shall be in writing and shall be
deemed to have been given if delivered personally or by
confirmed telecopy to the parties at the following addresses
(or at such other address for such party as shall be specified
in like notice):
(i) if to Veritas at:
Veritas DGC Inc.
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chairman
Telecopy: (000) 000-0000
(ii) if to VESI at:
Veritas Energy Services Inc.
Xxxxx 000, 000 - Xxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: President
Telecopy: (000) 000-0000
(iii) if to the Trustee at:
if by mail or delivery:
CIBC Mellon Trust Company
000 Xxx Xxxx Xxxxx
000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Telecopy: (000) 000-0000
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Any notice or other communication given personally shall be
deemed to have been given and received upon delivery thereof
and if given by telecopy shall be deemed to have been given
and received on the date of receipt thereof unless such day is
not a Business Day in which case it shall be deemed to have
been given and received upon the immediately following
Business Day.
(d) NOTICE OF HOLDERS. Any and all notices to be given and any
documents to be sent to any Holders may be given or sent to
the address of such Holder shown on the register of Holders of
Series 1 Exchangeable Shares in any manner permitted by the
Exchangeable Share Provisions and shall be deemed to be
received (if given or sent in such manner) at the time
specified in such Exchangeable Share Provisions, the
provisions of which the Exchangeable Share Provisions shall
apply mutatis mutandis to notices or documents as aforesaid
sent to such Holders.
(e) RISK OF PAYMENTS BY POST. Whenever payments are to be made or
documents are to be sent to any Holder by the Trustee, by VESI
or by Veritas or by such Holder to the Trustee or to Veritas
or VESI, the making of such payment or sending of such
document sent through the post shall be at the risk of VESI or
Veritas, in the case of payments made or documents sent by the
Trustee or VESI or Veritas, and the Holder, in the case of
payments made or documents sent by the Holder.
(f) COUNTERPARTS. This agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. A
counterpart delivered by facsimile is hereby deemed to be as
effective as a counterpart delivered in original form.
(g) JURISDICTION. This agreement shall be construed and enforced
in accordance with the laws of the Province of Alberta and the
laws of Canada applicable therein.
(h) ATTORNMENT. Veritas agrees that any action or proceeding
arising out of or relating to this agreement may be instituted
in the courts of Alberta, waives any objection which it may
have now or hereafter to the venue of any such action or
proceeding, irrevocably submits to the jurisdiction of the
said courts in any such action or proceeding, agrees to be
bound by any judgment of the said courts and agrees not to
seek, and hereby waives, any review of the merits of any such
judgment by the courts of any other jurisdiction and hereby
appoints VESI at its registered office in the Province of
Alberta as Veritas' attorney for service of process.
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IN WITNESS WHEREOF, the parties hereby have caused this agreement to be
duly executed as of the date first above written.
VERITAS DGC INC.
Per: /s/ XXXXX XXXXXX
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VERITAS ENERGY SERVICES INC.
Per: /s/ XXXXX XXXXXX
-----------------------------------
-----------------------------------
CIBC MELLON TRUST COMPANY
Per: /s/ DANEAL MC GEEIN
-----------------------------------
/s/ X. XXXXXX
-----------------------------------
