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EXHIBIT 10.2
COMBINATION AGREEMENT
THIS COMBINATION AGREEMENT (this "Agreement") is entered into as of
June 16, 2000 by and among Xxxxxxxxxxx International, Inc., a Delaware
corporation ("Weatherford"), Weatherford Oil Services, Inc., an Alberta
corporation and indirect wholly owned subsidiary of Weatherford ("Services"),
Weatherford Canada Ltd., an Alberta corporation and indirect wholly owned
subsidiary of Weatherford ("WCL"), and Alpine Oil Services Corporation, an
Alberta corporation ("Alpine").
RECITALS
WHEREAS, the respective boards of directors of Weatherford, Services,
WCL and Alpine have approved the transactions contemplated by this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
GENERAL
1.1 PLAN OF ARRANGEMENT.
As promptly as practicable after the execution of this Agreement,
Alpine, on a joint basis with Services and WCL, will apply to the Court of
Queen's Bench of Alberta (the "Court") pursuant to Part 15 of the Business
Corporations Act (Alberta) (the "ABCA") for an interim order in form and
substance satisfactory to Weatherford (such approval not to be unreasonably
withheld or delayed) (the "Interim Order") providing for, among other things,
the calling and holding of the Alpine Meeting (as defined herein) for the
purposes of considering and, if deemed advisable, approving an arrangement (the
"Arrangement") under Part 15 of the ABCA and pursuant to this Agreement and the
Plan of Arrangement substantially in the form of Exhibit A hereto (the "Plan of
Arrangement"). If the Alpine shareholders and optionholders approve the
Arrangement, thereafter Alpine, on a joint basis with Services and WCL, will
take the necessary steps to submit the Arrangement to the Court and apply for a
final order of the Court approving the Arrangement in such fashion as the Court
may direct (the "Final Order"). In this Agreement and all other agreements
referred to herein, references to approval by Alpine Shareholders shall include
the approval by the Alpine optionholders as if they had exercised their Alpine
Options. At 12:01 a.m. (the "Effective Time") on the date (the "Effective Date")
shown on the certificate of arrangement issued by the Registrar under the ABCA
giving effect to the Arrangement, the following steps shall occur and shall be
deemed to occur in the following order without any further act or formality:
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(a) The articles of Alpine shall be amended to delete Preferred Shares
from the authorized share capital.
(b) The articles of Services shall be amended to designate the first
series of exchangeable shares provided for by its articles ("Exchangeable
Shares") as "Series 1 Exchangeable Shares" limited in number to 1,500,000 shares
and having the terms and conditions set forth in the Plan of Arrangement (the
"Series 1 Exchangeable Shares").
(c) Each of the common shares of Alpine (the "Alpine Common Shares")
(other than Alpine Common Shares held by holders who have exercised their rights
of dissent in accordance with the Plan of Arrangement and who are ultimately
entitled to be paid the fair value for such shares, such shares being herein
referred to as "Dissenters' Shares") will be transferred to Services in
consideration for a number of Series 1 Exchangeable Shares, all as determined in
accordance with the following procedure:
(i) There shall first be determined the average per share
market price in U.S. dollars ("US$) (the "Average Closing Price") for
shares of Weatherford Common Stock, $1.00 par value ("Weatherford
Common Stock"), by calculating the arithmetic mean average of the
closing prices for Weatherford Common Stock on The New York Stock
Exchange ("NYSE") Composite Tape for each of the ten trading days
ending on the trading day prior to the Effective Date and rounding the
number so derived to the second decimal point.
(ii) The "Exchange Rate" for purposes of this Agreement shall
be the exchange rate existing for US$ and Canadian Dollars ("CAN$") on
the last day of the ten-day period set in clause (c)(i) above as stated
as the New York foreign exchange mid-range rates for trading among
banks in amounts of $1,000,000 and more in the U.S. Southwest Edition
of the Wall Street Journal next published after such date, rounded to
four decimal places.
(iii) The aggregate number of Series 1 Exchangeable Shares to
be issued pursuant to the Plan of Arrangement to the holders of Alpine
Common Shares shall be equal to (x) that aggregate number of shares of
Weatherford Common Stock which has an aggregate market value (converted
to CAN$) of CAN $71,275,652 (based on the Average Closing Price
converted to CAN$ at the Exchange Rate), plus (y) a number of Series 1
Exchangeable Shares equal to that aggregate number of shares of
Weatherford Common Stock which has an aggregate market value (based on
the Average Closing Price converted to CAN$ at the Exchange Rate) equal
to CAN$2.50 multiplied by the number of Alpine Common Shares issued
after March 31, 2000, and prior to the Effective Time, (A) pursuant to
the exercise of any Alpine Option (as hereinafter defined) granted
under the Alpine Option Plan (as hereinafter defined) and outstanding
on the date of this Agreement plus (B) the number of Alpine Common
Shares, if any, issued after March 31, 2000, upon conversion of that
certain Unsecured 9% Convertible Debenture due January 31, 2005 (the
"Alpine Convertible Debt"), plus (C) 80,000 shares in the aggregate
(the "80,000 employment agreement shares") issuable under an employment
agreement between Alpine and Xxxx Xxxxx dated
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November 2, 1998, and an employment agreement between Alpine and Xxxxxx
X. Xxxxxxx dated January 21, 1999, less (z) that number of Series 1
Exchangeable Shares that would otherwise be issued in accordance with
the foregoing calculations provided in this clause (iii) but for the
existence of Dissenters' Shares in respect of which no Series 1
Exchangeable Shares will be issued.
(iv) At and as of the Effective Time, the outstanding Alpine
Common Shares shall be exchanged for an aggregate number of Series 1
Exchangeable Shares as determined above with the number of such
Exchangeable Shares to be issued in respect of each Alpine Common Share
to be determined by dividing such aggregate number of Series 1
Exchangeable Shares by the aggregate number of Alpine Common Shares
outstanding at the Effective Time and rounding the quotient so obtained
to four decimal places. The quotient so determined is the number of
Series 1 Exchangeable Shares to be issued in respect of each Alpine
Common Share and is herein referred to as the "Exchange Ratio".
(v) No certificate or scrip representing a fractional share of
a Series 1 Exchangeable Share shall be issued pursuant to this clause
(c), and no dividend or other distribution shall relate to any
fractional security. In lieu of a fractional share, Services shall pay
to any holder of Alpine Common Shares who would otherwise be entitled
to a fractional share an amount of cash equal to such fraction
multiplied by the closing price of Weatherford Common Stock in US$ on
the last trading day prior to the Effective Date on the NYSE Composite
Tape and rounded to two decimal places and converted to CAN$ at the
Exchange Rate, and the aggregate number of Series 1 Exchangeable Shares
otherwise issuable pursuant to this clause (c) shall be appropriately
adjusted.
(d) Upon the transfer of shares referred to above
(i) each holder of Alpine Common Shares shall cease to be such
a holder, shall have his name removed from the register of holders of
Alpine Common Shares and shall become a holder of the number of fully
paid Series 1 Exchangeable Shares to which he is entitled as a result
of the transfer referred to in clause (c) above and such holder's name
shall be added to the register of holders of Series 1 Exchangeable
Shares accordingly;
(ii) Services shall become the legal and beneficial owner of
all of the Alpine Common Shares so transferred ; and
(iii) the Shareholder Rights Plan Agreement between Alpine and
Montreal Trust Company of Canada, as Rights Agent, dated as of June 1,
1999 shall be terminated, void and of no further force or effect, and
all outstanding Rights (as defined in such Agreement) shall be
terminated, rescinded, void and of no force or effect.
(e) Holders of Alpine Common Shares shall be entitled to make an income
tax election pursuant to Section 85 of the Income Tax Act (Canada) (the "ITA")
with respect to the transfer of
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their Alpine Common Shares to Services as provided in clause (c) above by
providing two signed copies of the necessary election forms to Services within
90 days following the Effective Date, duly completed with the details of the
number of shares transferred and the applicable agreed amounts for the purposes
of such elections. Thereafter, subject to the election forms complying with the
provisions of the ITA, the forms will be signed by Services and returned to such
holders of Alpine Common Shares for filing with Canada Customs and Revenue
Agency.
(f) Weatherford shall issue to, and deposit with the Depositary (as
defined in a Voting and Exchange Trust Agreement as defined herein), the Voting
Share (as defined in the Voting and Exchange Trust Agreement) in consideration
of the payment to Weatherford of US$1, to be thereafter held by the Depositary
as trustee for and on behalf of, and for the use and benefit of, the holders of
the Exchangeable Shares, in accordance with the Voting and Exchange Trust
Agreement.
(g) Each of the then remaining outstanding and unexercised options to
purchase Alpine Common Shares (collectively, the "Alpine Options") (which
includes all outstanding options granted under Alpine's employee stock option
plan (the "Alpine Option Plan") will, without any further action on the part of
any holder thereof (herein, an "optionholder"), be disposed of to Services in
exchange for that number of Series 1 Exchangeable Shares equal in value (where
one Series 1 Exchangeable Share is deemed to have the value of one share of
Weatherford Common Stock based on the Average Closing Price) to the Option Value
(as hereinafter defined) of such Alpine Option. The "Option Value" for any
Alpine Option to be exchanged under this provision shall be the amount
determined by (i) subtracting the per share exercise price therefor in CAN$ in
effect on the Effective Date from (ii) the product determined by multiplying the
Average Closing Price (converted to CAN$ at the Exchange Rate) by the Exchange
Ratio and rounding such amount to two decimal places and then (iii) multiplying
the amount so determined by such subtraction by the number of Alpine Common
Shares covered by such Alpine Option.
(h) The Alpine Common Shares other than Dissenters' Shares will be
transferred by Services to WCL in consideration for the issuance by WCL to
Services of one redeemable retractable preferred share in the capital of WCL for
each Alpine Common Share.
1.2 ADJUSTMENTS FOR CAPITAL CHANGES.
If, prior to the Effective Time, Weatherford or Alpine recapitalizes
through a subdivision of its outstanding shares into a greater number of shares,
or a combination of its outstanding shares into a lesser number of shares, or
reorganizes, reclassifies or otherwise changes its outstanding shares into the
same or a different number of shares of other classes, or declares a dividend on
its outstanding shares payable in shares of its capital stock or securities
convertible or exchangeable into shares of its capital stock, then the Exchange
Ratio will be adjusted appropriately. No such changes shall be made by either
Weatherford or Alpine other than those made in accordance with this Agreement.
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1.3 DISSENTING SHARES.
Holders of Alpine Common Shares and optionholders may exercise rights
of dissent with respect to such shares in connection with the Arrangement
pursuant to and in the manner set forth in Section 184 of the ABCA and Article 3
of the Plan of Arrangement (such holders and optionholders referred to as
"Dissenters" or as "Dissenting Shareholders"). Alpine shall give Weatherford (a)
prompt notice of any written demands of a right of dissent, any withdrawals of
such demands, and any other instruments served pursuant to the ABCA and received
by Alpine and (b) the opportunity to participate in all negotiations and
proceedings with respect to such rights. Without the prior written consent of
Weatherford, acting reasonably, except as required by applicable law, Alpine
shall not make any payment with respect to any such rights or offer to settle or
settle any such rights. All payments to Dissenters shall be the sole
responsibility of Alpine, and Weatherford will not directly or indirectly
provide any funds for the purposes of making payments to Dissenters. In the
event that Alpine does not have sufficient funds to make payments to Dissenters,
Alpine will undertake to borrow the funds necessary to make such payments from
sources other than Weatherford or any Weatherford subsidiary (as defined below).
1.4 OTHER EFFECTS OF THE ARRANGEMENT.
At the Effective Time (a) the bylaws of Alpine immediately prior to the
Effective Time will continue as the bylaws of Alpine, subject to later
amendment; (b) the directors of Alpine will be those appointed by Services; (c)
the officers of Alpine will be as designated by the board of directors of Alpine
prior to the Effective Time, subject to later removal and appointment of other
officers; (d) each Alpine Common Share and each Alpine Option outstanding
immediately prior to the Effective Time will be transferred or exchanged, as
applicable, as provided in Section 1.1; and (e) the Arrangement will, from and
after the Effective Time, have all of the effects provided by applicable law,
including, without limitation, the ABCA.
1.5 MANAGEMENT INFORMATION CIRCULAR; U.S. SECURITIES REGISTRATION MATTERS.
(a) As promptly as practicable after execution of this Agreement,
Alpine shall prepare the management information circular of Alpine, which
Weatherford shall be given the opportunity to review and which shall be in form
and substance satisfactory to Weatherford (herein "the management information
circular" or the "Alpine management information circular") with respect to the
meeting of shareholders and optionholders of Alpine with respect to the
Arrangement and the approval of certain matters in connection therewith (the
"Alpine Meeting"). As promptly thereafter as practicable Alpine shall cause it
to be mailed to the shareholders and optionholders of Alpine. Weatherford and
Services, jointly with Alpine, shall prepare and file with the U.S. Securities
and Exchange Commission (the "SEC") a request for no action seeking to confirm
the availability of an exemption pursuant to Section 3(a)(10) of the United
States Securities Act of 1933 (the "Securities Act") with respect to the
issuance of the Series 1 Exchangeable Shares pursuant to the Arrangement, and if
such exemption is not available, Weatherford and Services will file a
registration statement on Form F-4 or other applicable form (the "Form F-4")
with the SEC and use their best efforts to
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cause it to be declared effective. If Weatherford determines, on the advice of
its counsel, that it is necessary to file a registration statement on Form S-3
(the "Form S-3") in order to register the Weatherford Common Stock to be issued
from time to time after the Effective Time upon exchange of the Series 1
Exchangeable Shares, then Weatherford shall file a Form S-3 with the SEC and use
its best efforts to cause such Form S-3 to become effective and to maintain the
effectiveness of such registration for the period that such Series 1
Exchangeable Shares remain outstanding. Notwithstanding anything herein to the
contrary, Weatherford shall be under no obligation to file a Form S-3 if it
shall have determined, on the advice of its counsel, that the issuance of shares
of Weatherford Common Stock upon exchange of the Series 1 Exchangeable Shares
after the Effective Time is exempt from the registration requirements of Section
5 of the Securities Act by virtue of Section 3(a)(9) and/or 3(a)(10) thereof. In
connection with such determination, Weatherford and Services shall prepare and
file with the SEC a request for no action seeking to confirm the availability of
such an exemption.
(b) Each party shall promptly furnish to the other parties all
information concerning such party and its shareholders as may be reasonably
required in connection with any action contemplated by this Section 1.5. The
management information circular of Alpine and, if required, the Form F-4 and the
Form S-3, shall comply in all material respects with all applicable requirements
of law. Each of Weatherford and Services will notify Alpine promptly of the
receipt of any comments from the SEC and of any request by the SEC for
amendments or supplements to any Form F-4 or Form S-3, if either is required, or
for additional information, and will supply Alpine with copies of all
correspondence with the SEC with respect to any such Form F-4 or Form S-3.
Whenever any event occurs which should be set forth in an amendment or
supplement to any Form F-4 or Form X-0, Xxxxxxxxxxx and Services shall promptly
inform Alpine of such occurrence and cooperate in filing with the SEC, and/or
mailing to shareholders of Alpine such amendment or supplement.
(c) Weatherford, Services and Alpine shall take any action required to
be taken under any applicable provincial or state securities laws (including
"blue sky" laws) in connection with the issuance of the Weatherford Common Stock
and the Arrangement; provided, however, that with respect to the blue sky and
Canadian provincial qualifications, neither Weatherford, nor Alpine nor Services
shall be required to register or qualify as a foreign corporation or reporting
issuer (other than in Alberta and Ontario, Canada, in the case of Alpine and
Services, and in Delaware in the case of Weatherford) where any such entity is
not now so registered or qualified except as to matters and transactions arising
solely from the offer and sale of the Weatherford Common Stock or the issuance
of the Series 1 Exchangeable Shares. Subject to the terms and conditions of
Section 4.2(p), Alpine's board of directors shall (i) recommend at the Alpine
Meeting that the holders of Alpine Common Shares vote to adopt and approve the
Arrangement and this Agreement, (ii) use its best efforts to solicit from the
holders of Alpine Common Shares proxies in favor of such adoption and approval
and (iii) take all other action necessary to secure a vote of the holders of
Alpine Common Shares in favor of the adoption and approval of the Arrangement
and this Agreement.
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1.6 MATERIAL ADVERSE EFFECT.
In this Agreement, any reference to any event, change or effect being
"material" with respect to any entity or group of entities means any material
event, change or effect related to the condition (financial or otherwise),
properties, business or prospects of such entity or group of entities. In this
Agreement, the term "Material Adverse Effect" used with respect to any party
means any event, change or effect that is materially adverse to the condition
(financial or otherwise), properties, business or prospects of such party and
its subsidiaries, taken as a whole; provided that, a Material Adverse Effect
shall not include any adverse effect resulting from changes in general economic
conditions or conditions generally affecting the industries in which
Weatherford, Services or Alpine operate, including without limitation,
fluctuations in the prices of petroleum, natural gas and related hydrocarbons
and fluctuations in the demand for the parties' products and services that
result from fluctuations in such prices.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ALPINE
Except as set forth in a letter dated the date of this Agreement and
delivered by Alpine to Weatherford concurrently herewith (the "Alpine Disclosure
Letter"), Alpine hereby represents and warrants to Weatherford and Services as
follows.
2.1 ORGANIZATION AND STANDING.
Alpine and each partnership, joint venture, corporation, association or
other business entity of which more than 50% of the total voting power of shares
of stock or units of ownership or beneficial interest ("other equity interests")
entitled to vote in the election of directors (or members of a comparable
governing body) is owned or controlled, directly or indirectly, by Alpine (the
"Alpine Subsidiaries"), is an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, has full requisite power and authority, and all necessary
governmental authorizations, to carry on its business as it is currently
conducted, and to own, lease and operate the properties currently owned, leased
and operated by it, and is duly qualified or licensed to do business and is in
good standing as a foreign corporation or organization authorized to do business
in all jurisdictions in which the character of the properties owned or leased or
the nature of the business conducted by it would make such qualification or
licensing necessary, except where the failure to be so qualified or licensed
would not have a Material Adverse Effect on Alpine. The Alpine Disclosure Letter
sets forth a complete list of the Alpine Subsidiaries, the percentage of each
subsidiary's outstanding capital stock or other equity interest owned by Alpine
or another Alpine Subsidiary (and a description of any lien, claim, charge,
mortgage, security interest, option, "put" right, preferential purchase right or
other right or interest of any nature whatsoever of any other person
(collectively, an "Encumbrance") on such stock or other equity interest) and a
complete list of each jurisdiction in which each of Alpine and each Alpine
Subsidiary is duly qualified and in good standing to do business. Alpine is a
taxable Canadian corporation (within the meaning of the ITA). Alpine has
heretofore delivered to Weatherford true and complete
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copies of its articles and bylaws as in effect on the date hereof and true and
complete copies of all articles, certificates of incorporation or other
organizational documents of the Alpine Subsidiaries, as well as the bylaws (or
other comparable documents) thereof, all as in effect on the date hereof. Except
for shares of stock or other equity interests of Alpine, or an Alpine
Subsidiary, in an Alpine Subsidiary, neither Alpine nor any Alpine Subsidiary
owns or controls, directly or indirectly, any shares of stock or other equity
interest in any partnership, joint venture, corporation, association or other
business entity.
2.2 AGREEMENT AUTHORIZED AND ITS EFFECT ON OTHER OBLIGATIONS.
(a) Alpine has all requisite corporate power and authority to enter
into this Agreement and, subject to approval of this Agreement and the
Arrangement by the shareholders and optionholders of Alpine and approval by the
Court, to perform its obligations hereunder and to consummate the Arrangement
and the other transactions contemplated by this Agreement. The execution and
delivery of this Agreement by Alpine and, subject only to approval of this
Agreement and the Arrangement by the shareholders and optionholders of Alpine
and approval by the Court, the consummation by Alpine of the Arrangement and the
other transactions contemplated hereby have been duly authorized by all
necessary corporate and other action on the part of Alpine. The board of
directors of Alpine has determined to recommend the Arrangement to the holders
of Alpine Common Shares, and such recommendation is in effect on the date
hereof. This Agreement has been duly executed and delivered by Alpine and is the
valid and binding obligation of Alpine, enforceable in accordance with its
terms, except that such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization or other similar laws affecting or relating to
enforcement of creditors' rights generally and (ii) general equitable
principles. All other agreements contemplated hereby and by the Plan of
Arrangement will, when executed and delivered by Alpine, as applicable,
constitute valid and binding obligations of Alpine, enforceable against it in
accordance with their terms, except that such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization or other similar laws affecting or
relating to enforcement of creditors' rights generally and (ii) general
equitable principles.
(b) Neither the execution, delivery and performance of this Agreement
or the Arrangement by Alpine, nor the consummation of the transactions
contemplated hereby or thereby by Alpine nor compliance with the provisions
hereof or thereof by Alpine will (i) conflict with, or result in any violations
of, the articles or bylaws of Alpine or any comparable document of any of the
Alpine Subsidiaries or (ii) result in any breach of or cause a default (with or
without notice or lapse of time, or both) under, or give rise to or result in
any Encumbrance or a right of termination, amendment, cancellation or
acceleration of any obligation contained in, or the loss of any material benefit
under, or otherwise result in the creation of any Encumbrance upon, any of the
material properties or assets of Alpine or any of the Alpine Subsidiaries under
any term, condition or provision of any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Alpine or any of the Alpine
Subsidiaries or their respective properties or assets.
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2.3 GOVERNMENTAL CONSENTS.
No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign (each a
"Governmental Entity"), is required to be obtained by Alpine or any of the
Alpine Subsidiaries in connection with the execution and delivery of this
Agreement or the Plan of Arrangement or the consummation of the transactions
contemplated hereby or thereby, except for (a) the filing with the applicable
Canadian provincial securities commissions or regulatory authorities (the
"Commissions") and the Court and the mailing to shareholders and optionholders
of Alpine of the management information circular of Alpine relating to the
Alpine Meeting to be held with respect to the approval of this Agreement and the
Arrangement; (b) the approval by the Court of the Arrangement and the filings of
the articles of arrangement and other arrangement or other documents as required
by the ABCA; (c) such filings, authorizations, orders and approvals as may be
required under provincial securities laws and the rules of The Toronto Stock
Exchange ("TSE"); (d) such filings and notifications as may be necessary under
the U.S. Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"); (e) such notices and filings as may be necessary under the
Investment Canada Act (Canada) and under the Competition Act (Canada); and (f)
where the failure to do so would not prevent or delay the consummation of the
Arrangement or otherwise prevent Alpine from performing its obligations under
this Agreement and would not reasonably be expected to have a Material Adverse
Effect on Alpine.
2.4 CAPITALIZATION OF ALPINE AND THE ALPINE SUBSIDIARIES.
The authorized capital of Alpine consists of an unlimited number of
Alpine Common Shares and an unlimited number of Preferred Shares. At the close
of business on March 31, 2000, 28,510,261 Alpine Common Shares were issued and
outstanding, no Preferred Shares were issued and outstanding and no Alpine
Common Shares were held by Alpine in its treasury. As of March 31, 2000, an
aggregate of 973,500 Alpine Common Shares were reserved for issuance pursuant to
outstanding Alpine Options granted under the Alpine Option Plan and in respect
of the 80,000 employment agreement shares and 3,000,000 Alpine Common Shares
were reserved for issuance pursuant to the Alpine Convertible Debt. All issued
and outstanding Alpine Common Shares have been duly authorized, validly issued
and are fully paid and non-assessable, were not issued in violation of any
preemptive rights or other preferential rights of purchase of any person, and no
holder thereof is entitled to any preemptive right, or preferential right of
purchase, to subscribe for any additional shares that may be issued. The Alpine
Common Shares are now (and will immediately prior to the Effective Time be)
listed and posted for trading on the TSE. Alpine is not a party to, and is not
aware of, any voting agreement, voting trust or other voting or similar
agreement or arrangement relating to any Alpine Common Shares or any agreement
or arrangement providing for registration rights with respect to any such shares
or any other securities of Alpine except those agreements reflected in the
Shareholders Agreement dated as of May 12, 2000, among certain holders of Alpine
Common Shares and Weatherford.
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Other than described above, there are not now, and at the Effective
Time there will not be, any (a) shares of capital stock or other equity
securities of Alpine outstanding or (b) outstanding options, warrants, scrip,
rights to subscribe for, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or exchangeable for,
shares of any class of capital stock of Alpine, or contracts, understandings or
arrangements to which Alpine is a party, or by which it may be bound, to issue
additional shares of its capital stock or options, warrants, scrip or rights to
subscribe for, or securities or rights convertible into or exchangeable for, any
additional shares of its capital stock.
All of the outstanding shares of capital stock of, or other equity
interests in, the Alpine Subsidiaries have been duly authorized and validly
issued and all such shares or other equity interests are fully paid,
non-assessable, were not issued in violation of any preemptive rights or other
preferential rights of subscription or purchase of any person, and are owned of
record and beneficially by Alpine or the Alpine Subsidiary identified in the
Alpine Disclosure Letter as owning such interest free and clear of all
Encumbrances. There are no outstanding options, warrants, convertible
securities, calls, rights, commitments, preemptive rights, preferential rights
to purchase, agreements, arrangements or understandings of any character
obligating any Alpine Subsidiary (a) to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of its capital stock or other
equity interests therein or any securities or obligations convertible into or
exchangeable for such shares or other equity interest or (b) to grant, extend or
enter into any such option, warrant, convertible security, call, right,
commitment, preemptive right, preferential right agreement, arrangement or
understanding.
2.5 SECURITIES REPORTS AND FINANCIAL STATEMENTS.
Alpine has filed all forms, reports and documents required to be filed
by it with the Commissions and the TSE or pursuant to relevant Canadian
securities statutes, regulations, policies and rules (collectively, the "Alpine
Securities Reports"), all of which have complied at their respective dates of
filing in all material respects with all applicable requirements of such
statutes, regulations, policies and rules, and is not in default of any
requirement thereof. Alpine has heretofore delivered to Xxxxxxxxxxx copies of
all Alpine Securities Reports filed since January 1, 1995. None of the Alpine
Securities Reports, at the time filed or as subsequently amended, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading. All
Alpine Securities Reports heretofore filed and the financial statements of
Alpine contained in the Alpine Securities Reports complied in all material
respects with the applicable securities laws, the rules and regulations of the
Commissions thereunder and all requirements of the TSE, and with the then
applicable accounting requirements and the published rules and regulations of
the relevant Canadian securities statutes and the Commissions with respect to
accounting matters, and were, in the case of all such financial statements,
prepared in accordance with Canadian generally accepted accounting principles
applied on a consistent basis during the periods involved (except as may have
been indicated in the notes thereto or, in the case of unaudited statements, as
permitted by applicable laws, rules or regulations) and fairly presented
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(subject, in the case of the unaudited statements, to normal, year-end audit
adjustments) the consolidated financial position of Alpine and its consolidated
Alpine Subsidiaries as at the respective dates thereof and the consolidated
results of their operations and cash flows for the respective periods then
ended. There has been no change in Alpine's accounting policies or the methods
of making accounting estimates or changes in estimates that are material to its
financial statements, except as described in the notes thereto.
2.6 LIABILITIES.
Alpine and the Alpine Subsidiaries do not have any material liabilities
or obligations, either accrued, absolute, contingent, or otherwise, or have any
knowledge of any potential liabilities or obligations, other than those (a)
disclosed in the Alpine Securities Reports, (b) set forth in the Alpine
Disclosure Letter or (c) incurred in the ordinary course of business consistent
with past operations (and not relating to the borrowing of money) since March
31, 2000.
2.7 INFORMATION SUPPLIED.
None of the information supplied or to be supplied by Alpine for
inclusion or incorporation by reference in the management information circular
or the Form F-4 or Form S-3, if either is filed, will, at the time the
management information circular is mailed to the shareholders of Alpine and at
the time of the Alpine Meeting (and, if filed, at the time the Form F-4 or Form
S-3 is declared effective), contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they are
made, not misleading. The management information circular will comply as to form
in all material respects with the provisions of the ABCA and applicable Canadian
securities laws and the rules and regulations of the Commissions and the TSE.
2.8 NO DEFAULTS.
Neither Alpine nor any Alpine Subsidiary is, or has received notice
that it would be with the passage of time, in default or violation of any term,
condition or provision of (a) its charter or organizational documents or bylaws
(or comparable documents); (b) any judgment, decree or order applicable to it;
or (c) any loan or credit agreement, note, bond, mortgage, indenture, material
contract, agreement, lease, license or other instrument to which Alpine or any
Alpine Subsidiary is now a party or by which it or any of its properties or
assets may be bound, except in the case of item (c) for defaults and violations
which, individually or in the aggregate, would not have a Material Adverse
Effect on Alpine.
2.9 LITIGATION; INVESTIGATIONS.
There is no claim, action, suit or proceeding pending or, to the
knowledge of Alpine, threatened, which would, if adversely determined,
individually or in the aggregate, have a Material Adverse Effect on Alpine or
upon any Alpine Subsidiary or upon any employee benefit plan of
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Alpine or on any fiduciary of any such plan, nor is there any judgment, writ,
decree, injunction, rule or order of any Governmental Entity or arbitrator
outstanding against Alpine or any of the Alpine Subsidiaries having, or which,
insofar as reasonably can be foreseen, in the future could have, any such effect
or could affect the consummation of the transactions contemplated hereby. There
is no investigation, subpoena or investigative request or demand pending or, to
the knowledge of Alpine, threatened, against Alpine or any of the Alpine
Subsidiaries before or by any Governmental Entity.
2.10 ABSENCE OF CERTAIN CHANGES AND EVENTS.
Other than as a result of the transactions contemplated by this
Agreement, since December 31, 1999, Alpine and the Alpine Subsidiaries have
conducted their businesses only in the ordinary and usual course in accordance
with past practice, and without limiting such representation, there has not been
(a) Financial Change. Any material adverse change in the financial
condition, operations, assets, liabilities, business or prospects of Alpine or
any Alpine Subsidiary or in any method of accounting therefor;
(b) Property Damage. Any material damage, destruction, or loss to the
business or properties of Alpine or any Alpine Subsidiary (whether or not
covered by insurance);
(c) Dividends or Redemptions. Any declaration, setting aside, or
payment of any dividend or other distribution in respect of the capital stock of
Alpine or of any Alpine Subsidiary, except in favor of Alpine only in the case
of such by any Alpine Subsidiary, or any direct or indirect redemption, purchase
or any other acquisition by Alpine or any Alpine Subsidiary of any such stock;
(d) Capitalization Change. Any change in the capital stock or in the
number of shares or classes of Alpine's or any Alpine Subsidiary's authorized or
outstanding capital stock as described in Section 2.4 (other than as a result of
exercises of currently outstanding Alpine Options or the conversion of the
Alpine Convertible Debt);
(e) Labor Matters. Any labor dispute or charge of unfair labor practice
(other than routine individual grievances) involving Alpine or any Alpine
Subsidiary, any activity or proceeding by a labor union or representative
thereof to organize any employees of Alpine or any Alpine Subsidiary or, to the
knowledge of Alpine, any campaign being conducted to solicit authorization from
employees to be represented by such labor union;
(f) Compensation Matters. Any change in the compensation of, or any
compensation plan relating to, any officer, director or key employee of Alpine
or any Alpine Subsidiary or the establishment of any new form of compensation or
a new compensation plan relating to any such person;
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(g) Other Contracts. Any entry by Alpine or any Alpine Subsidiary into
any contract, commitment or transaction not in the ordinary course of business;
or
(h) Other Material Changes. Any other event or condition known to
Alpine pertaining to and adversely affecting the operations, assets, business or
prospects of Alpine or any Alpine Subsidiary (other than events or conditions
which are of a general or industry-wide nature and of general public knowledge)
which would constitute a Material Adverse Effect on Alpine.
2.11 ADDITIONAL ALPINE INFORMATION.
The Alpine Disclosure Letter contains true, complete and correct lists
of the following items with respect to Alpine and the Alpine Subsidiaries, and
Alpine agrees that upon the request of Xxxxxxxxxxx, it will furnish to
Xxxxxxxxxxx true, complete and correct copies of any documents referred to in
such lists:
(a) Real Estate. All real property and structures thereon owned, leased
or subject to a contract of purchase and sale, or lease commitment, with a
description of the nature and amount of any Encumbrance thereon and all related
lease documentation in the case of any leased property;
(b) Material Contracts. All contracts which involve, or may involve,
aggregate payments by any party thereto of $150,000 or more, which are to be, or
may be, performed in whole or in part after the Effective Time, or involving any
amount, which have a term of more than one year after the Effective Time;
(c) Employee Compensation Plans. All bonus, incentive compensation,
deferred compensation, profit-sharing, retirement, pension, welfare, group
insurance, death benefit, or other fringe benefit plans, arrangements or trust
agreements together with the most recent reports with respect to such plans,
arrangements, or trust agreements filed with any Governmental Entity and all tax
determination letters that have been received with respect to such plans;
(d) Employee Agreements. Any collective bargaining agreements with any
labor union or other representative of employees, including amendments and
supplements, and all employment, consulting and severance agreements with any
person and all officer, director or employee indemnification agreements;
(e) Patents. All patents, trademarks, copyrights and other material
intellectual property rights owned, licensed or used;
(f) Trade Names. All trade names and fictitious names used or held,
whether and where such names are registered and where used;
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(g) Promissory Notes. All long-term and short-term promissory notes,
installment contracts, loan agreements, credit agreements and indentures, and
any other agreements relating thereto or with respect to collateral securing the
same;
(h) Guaranties. All indebtedness, liabilities and commitments of others
and as to which it is a guarantor, endorser, co-maker, surety, or accommodation
maker, or is contingently liable therefor (excluding liabilities as an endorser
of cheques and the like in the ordinary course of business) and all letters of
credit, whether stand-by or documentary, issued by any third party;
(i) Permits. Material permits, licenses, variances, exemptions, orders,
franchises and approvals in respect of their businesses; and
(j) Entity Agreements. Partnership agreements, limited liability
company documents, joint venture agreements or other business entity agreements
to which Alpine or any Alpine Subsidiary is a party;
(k) Non-compete. Any non-compete agreements or other agreement
restricting any business that may be conducted of any nature whatsoever; and
(l) Other Contracts. Any other material contracts or agreements entered
into outside the ordinary course of business.
2.12 CERTAIN AGREEMENTS.
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (a) result in any
payment (including without limitation, severance, unemployment compensation,
parachute payment, bonus or otherwise) becoming due to any director, officer,
employee, consultant or independent contractor of Alpine or any Alpine
Subsidiary under any Alpine Plan (as hereinafter defined) or otherwise, (b)
materially increase any benefits otherwise payable to any such person under any
Alpine Plan or otherwise or (c) result in the acceleration of the time of
payment or vesting of any such benefits.
2.13 EMPLOYEE BENEFIT PLANS.
Except for health insurance, vacation, severance and similar plans
which are set forth in the Alpine Disclosure Letter ("Alpine Plans") and as to
which all documentation relating thereto has been furnished to Xxxxxxxxxxx,
there are no employee benefits plans covering active, former or retired
employees of Alpine and the Alpine Subsidiaries. Each Alpine Plan has been
maintained and administered in compliance with its terms and with the
requirements prescribed by any and all applicable statutes, orders, rules and
regulations. No Alpine Plan is subject to the requirements of the U.S. Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and no Alpine Plan
is intended to be qualified under Section 401 (a) of the U.S. Internal Revenue
Code of 1986, as amended (the "Code"). There are no actions, suits or claims
pending (other than routine claims
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for benefits) or, to the knowledge of Alpine, threatened against, or with
respect to, any of the Alpine Plans or the assets thereof. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby will not require Alpine or any Alpine Subsidiary to make a larger
contribution to, or pay greater benefits under, any Alpine Plan than it
otherwise would or create or give rise to any additional vested rights or
service credits under any Alpine Plan or cause Alpine or any Alpine Subsidiary
to make accelerated payments. Termination of employment of any employee of
Alpine or any Alpine Subsidiary immediately after consummation of the
transactions contemplated by this Agreement will not result in payments under
any Alpine Plan. Each of the Alpine Plans may be unilaterally amended or
terminated in its entirety without liability except as to benefits accrued
thereunder prior to such amendment or termination. None of the employees of
Alpine or any Alpine Subsidiary are subject to union or collective bargaining
agreements. None of Alpine or any Alpine Subsidiary has agreed or is obligated
to provide retiree medical coverage. To the knowledge of Alpine, none of Alpine
or any of the Alpine Subsidiaries, any officer or director of Alpine or any of
the Alpine Subsidiaries or any of the Alpine Plans, or any trusts created
thereunder, or any trustee or administrator thereof, has engaged in any
prohibited transaction or act or any other breach of fiduciary or other
responsibility that could subject Alpine or any Alpine Subsidiary, or Services
or Xxxxxxxxxxx or WCL as a successor to the business of Alpine, to any tax or
penalty or to any liability under any applicable law or regulation.
2.14 INTELLECTUAL PROPERTY.
Each of Alpine or the Alpine Subsidiaries owns or possesses licenses to
use all patents, patent applications, trademarks and service marks (including
registrations and applications therefor), trade names, copyrights and written
know-how, trade secrets and all other similar proprietary data and the goodwill
associated therewith (collectively, the "Alpine Intellectual Property") that are
either material to the business of Alpine or any Alpine Subsidiary or that are
necessary for the manufacture, use, license or sale of any services or products
manufactured, used, licensed or sold by Alpine or the Alpine Subsidiaries,
including all such intellectual property listed in the Alpine Disclosure Letter.
The Alpine Intellectual Property is owned or licensed by Alpine or the Alpine
Subsidiaries free and clear of any Encumbrance other than such Encumbrances as
are listed in the Alpine Disclosure Letter. Except as otherwise indicated in
such letter or in the ordinary course of business, neither Alpine nor the Alpine
Subsidiaries has granted to any other person any license to use any Alpine
Intellectual Property. Neither Alpine nor the Alpine Subsidiaries has received
any notice of infringement or misappropriation, or conflict with, the
intellectual property rights of others in connection with the use by Alpine or
the Alpine Subsidiaries of the Alpine Intellectual Property.
2.15 TITLE TO PROPERTIES.
Except for goods and other property sold, used or otherwise disposed of
in the ordinary course of business for fair value, Alpine has good and
indefeasible title to all its properties, interests in properties and assets,
real and personal, reflected in its December 31, 1999 and March 31, 2000
financial statements previously furnished to Xxxxxxxxxxx, free and clear of any
Encumbrance, except (a) Encumbrances reflected in the balance sheet of Alpine
dated December 31, 1999, (b) liens for
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current taxes not yet due and payable, and (c) such imperfections of title,
easements and Encumbrances, if any, as are not substantial in character, amount,
or extent and do not and will not materially detract from the value, or
interfere with the present use, of the property subject thereto or affected
thereby, or otherwise materially impair business operations. All leases pursuant
to which Alpine or any Alpine Subsidiary leases (whether as lessee or lessor)
any real or personal property are in good standing, valid, and effective; and
there is not, under any such leases, any existing or prospective default or
event of default or event which with notice or lapse of time, or both, would
constitute a default by Alpine or any Alpine Subsidiary and in respect to which
Alpine or a Alpine Subsidiary has not taken adequate steps to prevent a default
from occurring. The buildings and premises of Alpine and the Alpine Subsidiaries
that are necessary for the operation of its business are in good operating
condition and repair, subject only to ordinary wear and tear. All major items of
operating equipment of Alpine and the Alpine Subsidiaries necessary for the
operation of their businesses are in good operating condition and in a state of
reasonable maintenance and repair, ordinary wear and tear excepted, and are free
from any known defects except as may be repaired by routine maintenance and such
minor defects as do not substantially interfere with the continued use thereof
in the conduct of normal operations.
2.16 ENVIRONMENTAL MATTERS.
(a) Environmental Conditions. There are no environmental conditions or
circumstances, such as the presence or release of any hazardous substance, on
any property presently or previously owned or leased by Alpine or the Alpine
Subsidiaries that could result in a Material Adverse Effect on Alpine;
(b) Permits, etc. Alpine and the Alpine Subsidiaries have in full force
and effect all material environmental permits, licenses, approvals and other
authorizations required to conduct their operations and are operating in
material compliance thereunder;
(c) Compliance. Alpine's and the Alpine Subsidiaries' operations and
use of their assets do not violate any applicable United States or Canadian or
other federal, provincial, state or local law, statute, ordinance, rule,
regulation, order or notice requirement pertaining to (a) the condition or
protection of air, groundwater, surface water, soil, or other environmental
media, (c) the environment, including natural resources or any activity which
affects the environment, or (d) the regulation of any pollutants, contaminants,
waste, substances (whether or not hazardous or toxic), including, without
limitation, the U.S. Comprehensive Environmental Response Compensation and
Liability Act (42 U. S.C. Section 9601 et seq.), the U.S. Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et seq.), the U.S. Resource
Conservation and Recovery Act (42 U.S.C. Section 1609 et seq.) the U.S. Clean
Water Act (33 U.S.C. 1251 et seq.), the U.S. Clean Air Act (42 U.S.C. Section
7401 et seq.), the U.S. Toxic Substances Control Act (17 U. S.C. Section 2601 et
seq.), the U.S. Safe Drinking Water Act (42 U. S.C. Section 201 and Section 300f
et seq.), the U.S. Rivers and Harbors Act (33 U.S.C. Section 401 et seq.), the
U.S. Oil Pollution Act (33 U. S.C. Section 2701 et seq.) and analogous,
Canadian, foreign, provincial, state and local provisions, as any of the
foregoing may have been amended or supplemented from time to time (collectively
the "Applicable Environmental Laws"), except for
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violations which, either singly or in the aggregate, would not result in a
Material Adverse Effect on Alpine;
(d) Past Compliance. None of the operations or assets of Alpine or the
Alpine Subsidiaries has ever been conducted or used by Alpine or the Alpine
Subsidiaries in such a manner as to constitute a violation of any of the
Applicable Environmental Laws, except for violations which, either singly or in
the aggregate, would not result in a Material Adverse Effect on Alpine;
(e) Environmental Claims. No notice has been served on Alpine or any
Alpine Subsidiaries from any entity, Governmental Entity or individual regarding
any existing, pending or threatened investigation or inquiry related to alleged
violations under any Applicable Environmental Laws, or regarding any claims for
remedial obligations or contribution under any Applicable Environmental Laws,
other than any of the foregoing which, either singly or in the aggregate, would
not result in a Material Adverse Effect on Alpine; and
(f) Renewals. Alpine does not know of any reason why it or Xxxxxxxxxxx
or Services or WCL would not be able to renew any of the permits, licenses, or
other authorizations required pursuant to any Applicable Environmental Laws to
operate and use any of Alpine's or the Alpine Subsidiaries' assets for their
current purposes and uses.
2.17 COMPLIANCE WITH OTHER LAWS.
Neither Alpine nor any Alpine Subsidiary is in violation of or in
default with respect to, or in alleged violation of or alleged default with
respect to, any applicable law or any applicable rule, regulation, or any writ
or decree of any court or any Governmental Entity, or delinquent with respect to
any report required to be filed with any Governmental Entity, except for
violations which, either singly or in the aggregate, do not and are not expected
to result in a Material Adverse Effect on Alpine.
2.18 TAXES.
Except with respect to failures which, in the aggregate, would not
result in a Material Adverse Effect on Alpine: (a) proper, complete and accurate
federal, provincial, state, local and foreign returns of income (including net
income, gross income, income as specially defined, earnings, profits or selected
items of income, earnings or profits), capital, withholding, environmental,
commodity, ad valorem, value added, sales, use, license, goods and services,
franchise, gross revenue or gross receipt, gains, turnover, transfer, excise,
payroll, unemployment, disability, social security (or similar), property,
occupation, employment, stamp, customs duties, workers' compensation,
unemployment insurance or compensation, premium, windfall profits taxes,
alternative or add-on minimum taxes, fees, imposts, assessments or charges of
any kind whatsoever, together with any interest and any penalties or additional
amounts imposed by any taxing authority (the "Tax" or "Taxes"), and any and all
other tax returns, declarations, reports, information returns, statements and
estimates have been filed with appropriate Governmental Entities, domestic and
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foreign, by Alpine and each of the Alpine Subsidiaries, as applicable, for each
period for which any returns, declarations, reports, information returns,
statements or estimates were due (taking into account any extensions of time to
file before the date hereof); (b) all Taxes shown by such returns, declarations,
reports, information returns, or statements to be payable and any other Taxes
due and payable have been paid other than those being contested in good faith by
Alpine or an Alpine Subsidiary and indicated in the Alpine Disclosure Letter;
and (c) the tax provision reflected in Alpine's financial statements as of
December 31, 1999, and March 31, 2000 is adequate, in accordance with Canadian
or United States (as the case may be) generally accepted accounting principles,
to cover liabilities of Alpine and the Alpine Subsidiaries for all unpaid Taxes
applicable to Alpine and the Alpine Subsidiaries or their assets or businesses.
Other than as reflected in Alpine's financial statements, Alpine and the Alpine
Subsidiaries have not received any written notice of reassessment or any other
notification of imposition of Taxes from any Governmental Entity and no material
Tax liability has been assessed, proposed to be assessed, incurred or accrued,
and no deficiencies or adjustments in respect of Taxes payable by Alpine or the
Alpine Subsidiaries have been claimed, proposed, assessed, or, to the best of
Alpine's knowledge, threatened. There is no material difference between the
amounts of the book basis and the tax basis of any assets or liabilities of
Alpine and the Alpine Subsidiaries that is not reflected in an appropriate
accrual of deferred tax asset or liability on the books of Alpine and the Alpine
Subsidiaries. The Alpine Disclosure Letter accurately sets forth the last year
for which Alpine's and the Alpine Subsidiaries' federal, provincial, state and
foreign income tax returns, respectively, have been assessed, reassessed or
audited and any years which are the subject of a pending audit by any
Governmental Entity. No waiver of any statute of limitations executed by Alpine
or an Alpine Subsidiary with respect to any Tax is in effect for any period.
There are no Tax liens on any assets of Alpine or the Alpine Subsidiaries except
for Taxes not yet currently due and those which could not reasonably be expected
to result in a Material Adverse Effect on Alpine. Alpine and the Alpine
Subsidiaries withheld all Taxes required to be withheld in the course of their
businesses, in respect of wages, salaries and other payments to all employees,
officers and directors, and in respect of payments to any person who is not a
resident of the country of the payor and timely paid all such amounts withheld
to the proper taxing authority, except where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect on Alpine. Alpine
is not a "specified financial institution" as defined in the ITA. Neither Alpine
nor any Alpine Subsidiary is or was, at any time during its taxable year that
ends on the Effective Date or the preceding taxable year, a controlled foreign
corporation, a passive foreign investment company or a foreign personal holding
company, for purposes of United States Treasury Regulations section
1.338-2T(e)(4).
2.19 VOTE REQUIRED.
Except as may be provided in the Interim Order, at the Alpine Meeting
at which a quorum is present, the affirmative vote of the holders of two-thirds
of the Alpine Common Shares present is required to approve this Agreement, the
Arrangement and the consummation of the transactions contemplated hereby.
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2.20 BROKERS AND FINDERS.
Neither Alpine nor any of the Alpine Subsidiaries nor any of their
respective directors, officers or employees has employed any broker or finder or
incurred any liability for any financial advisory fees, brokerage fees,
commissions or similar payments in connection with the transactions contemplated
by this Agreement.
2.21 DISCLOSURE.
No representation or warranty made by Alpine in this Agreement, nor any
document, written information, statement, disclosure letter, financial
statement, certificate or Exhibit prepared and furnished or to be prepared and
furnished by Alpine or its representatives pursuant hereto or in connection with
the transactions contemplated hereby, when taken together, contained any untrue
statement of a material fact when made, or omitted to state a material fact
necessary to make the statements or facts contained herein or therein not
misleading in light of the circumstances under which they were furnished. Alpine
has made full disclosure to Xxxxxxxxxxx and Services and WCL of all material
facts relating to its business, affairs, properties and prospects so as to
enable Xxxxxxxxxxx and Services and WCL, in reliance on such disclosure, to
proceed with the transactions contemplated hereby.
2.22 FAIRNESS OPINION.
Alpine's board of directors has received an opinion from Goeppel
XxXxxxxx, a copy of which will promptly be provided to Xxxxxxxxxxx, that the
Exchange Ratio is fair to Alpine's shareholders from a financial point of view.
2.23 RESTRICTIONS ON BUSINESS ACTIVITIES.
There is no agreement, judgment, injunction, order or decree binding
upon Alpine or any Alpine Subsidiary that has or could reasonably be expected to
have the effect of prohibiting or impairing any business practice of Alpine or
any Alpine Subsidiary, any acquisition of property by Alpine or any Alpine
Subsidiary or the conduct of business by Alpine or any Alpine Subsidiary as
currently conducted.
2.24 BOOKS AND RECORDS.
The books, records and accounts of Alpine and the Alpine Subsidiaries
(a) have been maintained in accordance with good business practices on a basis
consistent with prior years, (b) are stated in reasonable detail and accurately
and fairly reflect the transactions and dispositions of the assets of Alpine and
the Alpine Subsidiaries and (c) accurately and fairly reflect the basis for the
Alpine financial statements. Alpine has devised and maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(a) transactions are executed in accordance with management's general or
specific authorization; and (b) transactions are recorded as necessary
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(i) to permit preparation of financial statements in conformity with Canadian
generally accepted accounting principles or any other criteria applicable to
such statements and (ii) to maintain accountability for assets.
2.25 INSURANCE.
The Alpine Disclosure Letter contains a correct and complete
description of all insurance policies held by Alpine and each Alpine Subsidiary,
covering Alpine, any Alpine Subsidiary, any employee or other agent of Alpine or
of any Alpine Subsidiary or any assets of Alpine or any Alpine Subsidiary,
together with an itemization of all premiums paid or payable on such policies.
Each such policy is in full force and effect, is with responsible insurance
carriers and is substantially equivalent in coverage and amount to policies
covering companies of the size of Alpine and in the business in which Alpine and
the Alpine Subsidiaries are engaged, in light of the risk to which Alpine and
the Alpine Subsidiaries and their employees, businesses, properties and other
assets may be exposed. All retroactive premium or audit adjustments under any
worker's compensation insurance policies (or any other insurance policies, if
applicable) of Alpine or any Alpine Subsidiary have been recorded in Alpine's
financial statements in accordance with Canadian generally accepted accounting
principles and are reflected in the financial statements referred to in Section
2.5 above.
2.26 INVENTORY
All inventory of Alpine, whether or not reflected in the latest balance
sheet of Alpine contained in an Alpine Securities Report referred to in Section
2.5, consists of a quality and quantity usable and salable in the ordinary
course of business, except for obsolete items and items of below-standard
quality, all of which have been written off or written down to net realizable
value in the latest balance sheet of Alpine contained in an Alpine Securities
Report referred to in Section 2.5. Inventories now on hand that were purchased
subsequent to the date of such latest balance sheet were purchased in the
ordinary course of business at a cost not exceeding market prices prevailing at
the time of purchase. All inventories not written off have been priced at the
lower of cost or net realizable value. The quantities of each item of inventory
(whether raw materials, work-in-process or finished goods) are not excessive,
but are reasonable in the present circumstances of Alpine.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF WEATHERFORD, SERVICES AND
WCL
Weatherford as to itself and the Weatherford Subsidiaries and each of
Services and WCL as to itself hereby represent and warrant to Alpine that:
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3.1 ORGANIZATION AND STANDING.
Each of Weatherford, Services and WCL is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, has full requisite power and authority to carry
on its business as it is currently conducted, and to own, lease and operate the
properties currently owned, leased and operated by it. Each of Services and WCL
is a taxable Canadian corporation (within the meaning of the ITA).
3.2 AGREEMENT AUTHORIZED AND ITS EFFECT ON OTHER OBLIGATIONS.
(a) Each of Weatherford, Services and WCL have all requisite corporate
power and authority to enter into this Agreement and to perform their respective
obligations hereunder and to consummate the Arrangement and the other
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by each of Weatherford, Services and WCL and the consummation by
Weatherford, Services and WCL of the Arrangement and the other transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the parts of Weatherford, Services and WCL. This Agreement has been duly
executed and delivered by each of Weatherford, Services and WCL and is the valid
and binding obligation of each of Weatherford, Services and WCL, enforceable in
accordance with its terms, except that such enforceability may be subject to (i)
bankruptcy, insolvency, reorganization or other similar laws affecting or
relating to enforcement of creditors' rights generally and (ii) general
equitable principles.
(b) Neither the execution, delivery and performance of this Agreement
or the Arrangement by Weatherford, Services and WCL, nor the consummation of the
transactions contemplated hereby or thereby by Weatherford, Services and WCL nor
compliance with the provisions hereof or thereof by Weatherford, Services and
WCL will (i) conflict with, or result in any violations of, the certificate of
incorporation (or comparable document) or bylaws of Weatherford, Services or
WCL, or (ii) result in any breach of or cause a default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
amendment, cancellation or acceleration of any obligation contained in, or the
loss of any material benefit under, or result in the creation of any Encumbrance
upon any of the material properties or assets of Weatherford, Services or WCL
under any term, condition or provision of any loan or credit agreement, note,
bond, mortgage, indenture, lease or other material agreement, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Weatherford,
Services or WCL or their respective properties or assets, other than any such
breaches, defaults, losses, or Encumbrances which, individually or in the
aggregate, would not have a Material Adverse Effect on Weatherford.
3.3 GOVERNMENTAL CONSENTS.
No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity, is required to be obtained
by Weatherford, Services or WCL in connection with the execution and delivery of
this Agreement or the Plan of Arrangement or the consummation of the
transactions contemplated hereby or thereby, except for (a) the furnishing to
the SEC of Form
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F-4 or Form S-3 filings, if required; (b) approval by the Court of the
Arrangement and the filings of the articles of arrangement and other required
arrangement or other documents as required by the ABCA; (c) such filings,
authorizations, orders and approvals as may be required under applicable
federal, provincial or state securities laws and the rules of the NYSE or the
TSE; (d) such filings and notifications as may be necessary under the HSR Act;
(e) such notices and filings as may be necessary under the Investment Canada Act
(Canada) and under the Competition Act (Canada); and (f) where the failure to
obtain such consents, approvals, etc., would not prevent or delay the
consummation of the Arrangement or otherwise prevent Weatherford, Services or
WCL from performing its obligations under this Agreement and would not
reasonably be expected to have a Material Adverse Effect on Weatherford.
3.4 CAPITALIZATION.
The authorized capital stock of Services consists of an unlimited
number of common shares and an unlimited number of exchangeable shares issuable
in series. One thousand Services common shares have been issued and are held (as
registered and beneficial owner) by Weatherford/Xxxx, Inc. (an indirect wholly
owned subsidiary of Weatherford) and/or another Weatherford subsidiary.
3.5 SECURITIES REPORTS AND FINANCIAL STATEMENTS.
Except as would not have a Material Adverse Effect on Weatherford, each
of Weatherford, Services and WCL has filed all forms, reports and documents
required to be filed by it by the SEC, the Commissions, the TSE, the NYSE, or
pursuant to relevant United States and Canadian securities statutes,
regulations, policies and rules (collectively, the "Weatherford Securities
Reports"), all of which have complied at their respective dates of filing in all
material respects with all applicable requirements of such statutes,
regulations, policies and rules. None of the Weatherford Securities Reports, at
the time filed or as subsequently amended, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of Weatherford contained in the Weatherford Securities Reports
complied in all material respects with the then applicable accounting
requirements and the published rules and regulations of the relevant United
States and Canadian securities statutes with respect thereto, were prepared in
accordance with United States generally accepted accounting principles applied
on a consistent basis during the periods involved (except as may have been
indicated in the notes thereto or, in the case of unaudited statements, as
permitted by applicable laws, rules or regulations) and fairly present (subject,
in the case of the unaudited statements, to normal year-end audit adjustments)
the consolidated financial position of Weatherford and its consolidated
Weatherford Subsidiaries as at the respective dates thereof and the consolidated
results of their operations and cash flows for the respective periods then
ended. There has been no change in Xxxxxxxxxxx'x accounting policies or the
methods of making accounting estimates or changes in estimates that are material
to such financial statements, except as described in the notes thereto.
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3.6 INFORMATION SUPPLIED.
None of the information supplied or to be supplied by Weatherford,
Services or WCL for inclusion or incorporation by reference in the Alpine
management information circular (and, if filed, the Form F-4 and Form S-3) will,
at the time the Alpine management information circular is mailed to the
shareholders of Alpine and at the time of the Alpine Meeting (and, if filed, at
the time the Form F-4 and Form S-3 are declared effective), contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
ARTICLE IV
OBLIGATIONS PENDING EFFECTIVE DATE
4.1 AGREEMENTS OF WEATHERFORD, SERVICES, WCL AND ALPINE.
Weatherford, Services, WCL and Alpine agree to take the following
actions after the date hereof:
(a) Regulatory Approvals. Each party will promptly execute and file or
join in the execution and filing of any application or other document that may
be necessary in order to obtain the authorization, approval or consent of any
Governmental Entity which may be reasonably required, or which the other party
may reasonably request, in connection with the consummation of the transactions
contemplated by this Agreement. Each party will use its commercially reasonable
efforts to promptly obtain such authorizations, approvals and consents. Without
limiting the generality of the foregoing, as promptly as practicable after the
execution of this Agreement, each party shall make all required filings with the
Court, the Commissions and the U.S. Federal Trade Commission and the Antitrust
Division of the U.S. Department of Justice (a pre-merger notification report
under the HSR Act) and shall make such filings as are necessary under the
Investment Canada Act (Canada) and the Competition Act (Canada);
(b) Access to Information. Each party will allow the other and its
agents reasonable access to the files, books, records and offices of the other
and the other's subsidiaries, including, without limitation, any and all
information relating to such party's tax matters, contracts, leases, licenses
and real, personal and intangible property and financial condition. Each party
will cause its accountants to cooperate with the other in making available to
the other party all financial information reasonably requested, including,
without limitation, the right to examine all working papers pertaining to tax
matters and financial statements prepared or audited by such accountants;
(c) Disclosure Documents. Weatherford, Services, WCL and Alpine shall
cooperate in the preparation and prompt filing of the Alpine management
information circular (and, if required, any Form F-4 or Form S-3) with the SEC,
the Commissions, the TSE and the NYSE;
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(d) Notice of Material Developments. Each of Weatherford, Services, WCL
and Alpine will promptly notify the other in writing (i) of any event occurring
subsequent to the date of this Agreement which would render any representation
and warranty of such party contained in this Agreement untrue or inaccurate in
any material respect, (ii) of any Material Adverse Effect on such party and
(iii) of any breach by such party of any covenant or agreement contained in this
Agreement; and
(e) Satisfaction of Conditions Precedent. During the term of this
Agreement, each of Weatherford, Services, WCL and Alpine will use its
commercially reasonable efforts to satisfy or cause to be satisfied all the
conditions precedent that are set forth in Article V hereof, including without
limitation but in particular, the conditions to Xxxxxxxxxxx'x obligations
contemplated by Section 5.2(i), and each of Weatherford, Services, WCL and
Alpine will use its commercially reasonable efforts to cause the Arrangement and
the other transactions contemplated by this Agreement to be consummated.
4.2 ADDITIONAL AGREEMENTS OF ALPINE.
Except as to any of the following matters described with specificity in
the Alpine Disclosure Letter and specifically identified as exceptions to the
following agreements of this Section 4.2 by reference to a particular paragraph
thereof, Alpine agrees that from the date hereof to the Effective Time, it will,
and will cause each of the Alpine Subsidiaries to
(a) Operate in Ordinary Course. Other than as contemplated by this
Agreement, operate its business only in the usual, regular, and ordinary manner
so as to maintain the goodwill it now enjoys and, to the extent consistent with
such operation, use all commercially reasonable efforts to preserve intact its
present business organization, keep available the services of its present
officers and employees, and preserve its relationships with customers,
suppliers, distributors, and others having business dealings with it;
(b) Maintenance of Properties and Permits. Maintain all of its property
and assets in customary repair, order, and condition, reasonable wear and use
and damage by fire or unavoidable casualty excepted, and preserve its material
licenses, authorizations, permits and the like;
(c) Maintenance of Books and Records. Maintain its books of account and
records in the usual, regular, and ordinary manner, in accordance with Canadian
generally accepted accounting principles applied on a consistent basis;
(d) Compliance with Law and Contracts. Duly comply in all material
respects with all laws applicable to it and to the conduct of its business and
with all material contracts to which it is a party or to which its assets are
subject;
(e) Employment Matters. Not (i) enter into any contracts of employment
or consulting agreements (oral or written) which (1) cannot be terminated on
notice of 14 days or less or (2)
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provide for any severance payments or benefits, (ii) amend any employee benefit
plan or stock option plan, except as may be required for compliance with
applicable law or as contemplated by this Agreement or (iii) increase the
compensation of any director or officer or key employee or of any consultant;
(f) Prohibition of Certain Loans. Not incur any borrowings except (i)
the prepayment by customers of amounts due or to become due for goods sold or
services rendered or to be rendered in the future, (ii) trade payables incurred
in the ordinary course of business, or (iii) as is otherwise agreed to in
writing by Weatherford or enter into any pledge or security agreement in respect
of any borrowing;
(g) Prohibition of Certain Commitments. Not enter into commitments of a
capital expenditure nature or otherwise or incur any contingent liability which
would exceed $50,000, in the aggregate, except (i) as may be necessary for the
maintenance of existing facilities, machinery and equipment in good operating
condition and repair in the ordinary course of business, (ii) as may be required
by law or (iii) as is otherwise agreed to in writing by Weatherford;
(h) Disposal of Assets. Not sell, dispose of, or encumber, any property
or assets, except (i) in the ordinary course of business or (ii) as is otherwise
agreed to in writing by Weatherford;
(i) Maintenance of Insurance. Maintain insurance upon all its
properties and with respect to the conduct of its business of such kinds and in
such amounts as is customary in the type of business in which it is engaged, but
not less in amount or scope than that presently carried by it;
(j) No Amendment to Charter Documents, etc. Except as otherwise
provided in this Agreement, not amend its charter documents or bylaws or other
organizational documents or amalgamate, combine, merge or consolidate, or enter
into any arrangement, with or into any other corporation or change in any manner
the rights of its capital stock or the character of its business;
(k) No Issuance, Sale, or Purchase of Securities. Except as otherwise
provided in this Agreement, not issue or sell (except upon the exercise of
Alpine Options or conversion of the Alpine Convertible Debt or on account of the
80,000 employment agreement shares), or issue options or rights to subscribe to,
or enter into any contract or commitment to issue or sell, any shares of its
capital stock or subdivide or in any way reclassify any shares of its capital
stock, or acquire, or agree to acquire, any shares of its capital stock or any
securities of any other person;
(l) Prohibition on Dividends. Not declare or pay any dividend on shares
of its capital stock or make any other distribution of assets to the holders
thereof;
(m) Prohibition on Other Contracts. Not enter into any other contracts
or agreements or transactions of the kind required to be disclosed in the Alpine
Disclosure Letter pursuant to Section 2.11 hereof;
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(n) Supplemental Financial Statements. Deliver to Weatherford, within
30 days after the end of each fiscal month of Alpine beginning April 30, 2000,
and through the Effective Time, unaudited consolidated balance sheets and
related unaudited statements of income, retained earnings and cash flows as of
the end of each fiscal month of Alpine, and as of the corresponding fiscal month
of the previous fiscal year. Alpine hereby represents and warrants that such
unaudited consolidated financial statements shall (i) be complete in all
material respects except for the omission of notes and schedules contained in
audited financial statements, (ii) present fairly the financial condition of
Alpine as at the dates indicated and the results of operations for the
respective periods indicated, (iii) shall have been prepared in accordance with
Canadian generally accepted accounting principles applied on a consistent basis,
except as noted therein, and (iv) shall contain all adjustments which Alpine
considers necessary for a fair presentation of its results for each respective
fiscal period;
(o) Tax Elections and Accounting Principles. Not make any new election
as to taxes and not make any change in any accounting principle or method used
by it;
(p) Exclusivity; Acquisition Proposals. Unless and until this Agreement
shall have been terminated by either party pursuant to Article VI hereof, not
(and it shall use its best efforts to ensure that none of its officers,
directors, employees, agents, representatives or affiliates) take or cause to
take (or cause any of the Alpine Subsidiaries to take), directly or indirectly,
any of the following actions with any party other than Weatherford and its
designees: (i) solicit, encourage, initiate or participate in any negotiations,
inquiries or discussions with respect to any offer or proposal (an "Acquisition
Proposal") to acquire all or any significant part of its business, assets or
capital shares whether by arrangement, amalgamation, merger, consolidation,
other business combination, purchase of assets, tender or exchange offer or
otherwise (each of the foregoing, an "Acquisition Transaction"), (ii) disclose
any information not customarily disclosed to any person concerning its business
or properties or afford to any person or entity access to its properties, books
or records, except in the ordinary course of business and as required by law or
pursuant to a governmental request for information, (iii) enter into or execute
any agreement relating to an Acquisition Transaction or any plan of
reorganization or recapitalization or (iv), make or authorize any public
statement, recommendation or solicitation with respect to any Acquisition
Proposal other than with respect to the Arrangement, or change the favorable
recommendation (as contemplated by Section 2.2(a) hereof) as to the Arrangement,
provided nothing contained in this Section 4.2(p) or any other provision of this
Agreement shall prevent the board of directors of Alpine (the "Alpine Board")
from considering, approving and recommending to the Alpine shareholders an
unsolicited bona fide written Acquisition Proposal, for which adequate financial
arrangements have been made, which the Alpine Board determines in good faith
(after consultation with its financial advisors, and after receiving a written
opinion of outside legal counsel to the effect that the Alpine Board is required
to do so in order to discharge properly its fiduciary duties) would be likely of
consummation and would, if consummated in accordance with its terms, result in a
transaction financially superior to the shareholders of Alpine compared to the
transaction contemplated by this Agreement (a "Superior Proposal");
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(q) U.S. Tax Elections and Certain Transfers. At the written request of
Weatherford, to be delivered to Alpine at any time after the execution of this
Agreement but not later than 10 days preceding the Effective Date (i), Alpine
shall, and shall cause the Alpine Subsidiaries to, make and deliver to
Weatherford, on a date before the Effective Date to be specified by Weatherford
in its written request, one or more elections on United States Internal Revenue
Service Forms 8832, properly completed and signed by the appropriate officers of
Alpine and the Alpine Subsidiaries, to cause any one or all of the Alpine
Subsidiaries that are "eligible entities," within the meaning of Section
301.7701-3(a) of the United States Treasury Regulations, to choose its initial
classification or change its classification for United States federal income tax
purposes, with such elections to be effective on the dates specified by
Weatherford in its written request therefor; provided, however, that neither
Alpine nor any Alpine Subsidiary shall be required to make or deliver any such
election if Alpine, in consultation with Weatherford, reasonably determines that
such initial classification or change in classification will generate, before
the Effective Date, adverse United States federal income tax consequences for
Alpine or such Alpine Subsidiary, and (ii) notwithstanding anything to the
contrary contained in section 4.2(h) above, before the Effective Date Alpine
shall convey, assign, transfer and deliver to Alpine Oil Services, Inc., a North
Dakota corporation, in one or more transfers qualifying as nontaxable
transactions for United States tax purposes and as taxable transactions for
Canadian tax purposes (resulting in less than CAN$50,000 in tax liability), all
assets of Alpine the sale of which would generate or could reasonably be expect
to generate (A) income or loss from United States sources, or (B) income or loss
that is effectively connected with a United States trade or business or
attributable to a United States permanent establishment, as the case may be; .
(r) Non-Compete Agreements. Cause Xxxxxx Xxxxxx and Xxxxxxx Xxxx to
enter into non-compete agreements with Weatherford, to the satisfaction of
Weatherford as to both form and substance, for a term of two years covering the
business that Alpine currently engages in;
(s) Prohibition on Other Actions. Not take any action which causes any
representation or warranty contained in Article II hereof to become untrue or
any condition contained in Article VI to not be satisfied;
(t) Convertible Debt to Be Converted. Cause the Alpine Convertible Debt
convertible into Alpine Common Shares to be converted or, alternatively, cause
the terms of the Alpine Convertible Debt to be amended, to the satisfaction of
Weatherford as to both form and substance, so that (i) such Convertible Debt
shall be automatically converted on February 1, 2001, into that number of Series
1 Exchangeable Shares which would have been issued at the Effective Time in
respect of that number of Alpine Common Shares which would have been issued had
such Convertible Debt been converted into Alpine Common Shares immediately
before the Effective Time and (ii) all obligations thereunder (other than the
terms of conversion thereof, as so amended, and the obligation to pay principal
and interest thereon in accordance with the existing terms thereof) shall have
been eliminated; and
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(u) Administration of ITA Elections. Prior to the Effective Time,
establish all necessary administrative procedures, make all necessary or
desirable disclosure (including full disclosure of all applicable procedures and
responsibilities in the Alpine management information circular) and take all
necessary actions to enable Services to comply with its obligations under
section 1.1(e) without (i) any further act or involvement by Weatherford or (ii)
any further significant act or involvement by Services (other than being
available for signing the required election forms), all of such procedures,
disclosure and actions to be acceptable to Weatherford and Services in form and
substance, it being the intention of the parties hereto that Alpine and its
representatives shall, to the greatest extent possible, have the burden of
establishing and carrying out such procedures, disclosure and actions.
4.3 ADDITIONAL AGREEMENTS OF WEATHERFORD.
Weatherford agrees that from the date hereof to the Effective Time, it
will, and will cause each of the Weatherford Subsidiaries to
(a) Supplemental Financial Statements. Deliver to Alpine, within 45
days after the end of each fiscal quarter of Weatherford beginning June 30,
2000, and through the Effective Time, copies of Xxxxxxxxxxx'x quarterly reports
filed with the SEC under the Securities Exchange Act of 1934, which reports will
have complied in all material respects with applicable requirements of, or
under, such Act.
(b) Listings. Use its commercially reasonable efforts to cause (i) the
Weatherford Common Stock to remain listed on the NYSE; (ii) with the cooperation
and assistance of Alpine, the Series 1 Exchangeable Shares to be listed on the
TSE, if possible, or, failing which, on a mutually acceptable Canadian stock
exchange; and (iii) the Weatherford Common Stock to be issued pursuant to the
terms of the Series 1 Exchangeable Shares to be listed on the NYSE
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS
5.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF ALPINE.
The obligations of Alpine to consummate and effect the transactions
contemplated hereunder shall be subject to the satisfaction of the following
conditions, or to the waiver thereof by Alpine in the manner contemplated by
this Agreement before the Effective Time:
(a) Representations and Warranties of Weatherford, Services and WCL
True at Effective Time. (i) The representations and warranties of Weatherford
and Services herein contained to the extent qualified as to materiality shall be
accurate in all respects, and to the extent not so qualified shall be accurate
in all material respects, at the Effective Time, with the same effect as though
made at such time, except as affected by transactions permitted or contemplated
by this Agreement; (ii) Weatherford, Services and WCL shall have performed and
complied with all covenants required
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by this Agreement to be performed or complied with, in all material respects, by
Weatherford, Services and WCL before the Effective Time; and (iii) each of
Weatherford, Services and WCL shall have delivered to Alpine a certificate,
dated the Effective Time and signed by its chief financial officer to both such
effects;
(b) Opinion of Weatherford Counsel. Alpine shall have received
opinions, dated as of the Effective Time, from Fulbright & Xxxxxxxx L.L.P.,
United States counsel for Weatherford, and from Fraser Xxxxxx Casgrain, Canadian
counsel for Weatherford, in form and substance reasonably satisfactory to
Alpine;
(c) Shareholder Approval. This Agreement, the Arrangement and the other
transactions contemplated hereby shall have been approved and adopted by the
Alpine shareholders in accordance with applicable law and Alpine's articles and
bylaws;
(d) No Legal Action. (i) No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the consummation of
the Arrangement shall have been issued by any Canadian or United States federal,
provincial or state court and remain in effect; and (ii) there shall be no
order, decree or ruling by any Governmental Entity or threat thereof, or any
statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the Arrangement, which would prohibit or render illegal the
transactions contemplated by this Agreement;
(e) Tax Opinion. Alpine shall have received an opinion, in form and
substance satisfactory to Alpine, of Xxxxxxx Xxxxx, Canadian tax counsel for
Alpine, to the effect that the Arrangement will generally qualify as a tax
deferred exchange to an Alpine shareholder for Canadian federal income tax
purposes, provided that such shareholder files an election to achieve a tax
deferred exchange under Section 85 of the ITA.
(f) Court Approval. The Court shall have issued its Final Order
approving the Arrangement in form and substance satisfactory to Weatherford and
Alpine (such approvals not to be unreasonably withheld or delayed by Weatherford
or Alpine) and reflecting the terms hereof, and the Registrar of Corporations
under the ABCA shall have accepted the articles of arrangement for filing;
(g) Commissions, etc. (i) All necessary orders shall have been obtained
from the Commissions and other relevant United States and Canadian securities
regulatory authorities in connection with the Arrangement; (ii) all waiting
periods required by HSR shall have expired with respect to the transactions
contemplated by this Agreement, or early termination with respect thereto shall
have been obtained without the imposition of any governmental request or order
requiring the sale or disposition or holding separate (through a trust or
otherwise) of particular assets or businesses of Alpine, Weatherford, Services
or WCL; (iii) Weatherford, Services, WCL and Alpine shall each have filed all
notices and information (if any) required under Part IX of the Competition Act
(Canada) and the applicable waiting periods and any extensions thereof shall
have expired or the parties shall have received an Advance Ruling Certificate
pursuant to Section 102 of the Xxxxxxxxxxx
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Xxx (Xxxxxx) setting out that the Director under such Act is satisfied he would
not have sufficient grounds on which to apply for an order in respect of the
Arrangement; and (iv) the Arrangement shall have received the allowance or
approval or deemed allowance or approval by the responsible Minister under the
Investment Canada Act (Canada) in respect of the Arrangement, to the extent such
allowance or approval is required, on terms and conditions satisfactory to the
parties;
(h) SEC Filings. Each of any Form F-4 or Form S-3, if required to be
filed, shall have been declared effective under the Securities Act and shall not
be the subject of any stop-order or proceedings seeking a stop-order, and the
Alpine management information circular shall at the Effective Time not be
subject to any similar proceedings commenced or threatened by any Governmental
Entity having authority thereon;
(i) Listings. The Series 1 Exchangeable Shares shall be listed on the
TSE, if possible or, failing which, a reasonably acceptable Canadian stock
exchange, subject to notice of issuance and to the filing of required documents
which cannot be filed before the Effective Time.
5.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF WEATHERFORD.
The obligations of Weatherford, Services and WCL to consummate and
effect the transactions contemplated hereunder shall be subject to the
satisfaction of the following conditions, or to the waiver thereof by
Weatherford, Services and WCL in the manner contemplated by this Agreement
before the Effective Time:
(a) Representations and Warranties of Alpine True at Effective Time.
(i) The representations and warranties of Alpine herein contained to the extent
qualified as to materiality shall be accurate in all respects, and to the extent
not so qualified shall be accurate in all material respects at the Effective
Time, with the same effect as though made at such date, except as affected by
transactions permitted or contemplated by this Agreement; (ii) Alpine shall have
performed and complied with all covenants required by this Agreement to be
performed or complied with in all material respects, by Alpine before the
Effective Time; and (iii) Alpine shall have delivered to Weatherford, Services
and WCL a certificate, dated the Effective Time and signed by its president and
by its chief financial officer to both such effects;
(b) Opinion of Alpine Counsel. Weatherford shall have received
opinions, dated as of the Effective Time, from Xxxxxxx Xxxxx, Canadian counsel
to Alpine, in form and substance reasonably satisfactory to Weatherford, and
from Xxxxxxx Xxxxx or other counsel to Alpine reasonably satisfactory to
Weatherford, and in form and substance reasonably satisfactory to Weatherford,
to the effect that the transfers, if any, required under paragraph 4.2(q)(ii) of
this Agreement have been completed no later than the day preceding the Effective
Date.
(c) Consents of Certain Parties in Privity with Alpine. Weatherford
shall have received all written consents, assignments, waivers, authorizations
or other certificates necessary to provide for the continuation in full force
and effect of all material contracts and leases of Alpine and for
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Alpine to consummate the transactions contemplated hereby, except when the
failure to receive such consents or other certificates would not have a Material
Adverse Effect on Alpine;
(d) Alpine Shareholder Approvals. (i) This Agreement and the
Arrangement and the other transactions contemplated hereby shall have been
approved and adopted by the Alpine shareholders in accordance with applicable
law and Alpine's articles and bylaws; and (ii) Alpine shall not have received on
or prior to the Effective Time notice from the holders of more than 5% of the
Alpine Common Shares of their intention to exercise their rights of dissent
under Section 184 of the ABCA as to this Agreement and the Arrangement;
(e) No Legal Action. (i) No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the consummation of
the Arrangement shall have been issued by any Canadian or U.S. federal,
provincial or state court and remain in effect, nor shall any proceeding seeking
any of the foregoing be pending; and (ii) there shall be no order, decree or
ruling by any Governmental Entity or threat thereof, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to the
Arrangement, which would prohibit or render illegal the transactions
contemplated by this Agreement;
(f) Court Approval. The Court shall have issued its Final Order
approving the Arrangement in form and substance satisfactory to Alpine and
Weatherford (such approvals not to be unreasonably withheld or delayed by Alpine
or Weatherford) and reflecting the terms hereof;
(g) Commissions, etc. (i) All necessary orders shall have been obtained
from the Commissions and other relevant United States and Canadian securities
regulatory authorities in connection with the Arrangement; (ii) all waiting
periods required by the HSR Act shall have expired with respect to the
transactions contemplated by this Agreement, or early termination with respect
thereto shall have been obtained without the imposition of any governmental
request or order requiring the sale or disposition or holding separate (through
a trust or otherwise) of particular assets or businesses of Weatherford,
Services, WCL or Alpine; (iii) Alpine, Weatherford, WCL and Services shall each
have filed all notices and information (if any) required under Part IX of the
Competition Act (Canada) and the applicable waiting periods and any extensions
thereof shall have expired or the parties shall have received an Advance Ruling
Certificate pursuant to Section 102 of the Competition Act (Canada) setting out
that the Director under such Act is satisfied he would not have sufficient
grounds on which to apply for an order in respect of the Arrangement; and (iv)
the Arrangement shall have received the allowance or approval or deemed
allowance or approval by the responsible Minister under the Investment Canada
Act (Canada) in respect of the Arrangement, to the extent such allowance or
approval is required, on terms and conditions satisfactory to the parties;
(h) SEC Filings. Each of any Form S-4 and Form S-3 required to be filed
shall have been declared effective under the Securities Act and shall not be the
subject of any stop-order or proceedings seeking a stop-order and the Alpine
management information circular shall at the Effective Time not be subject to
any similar proceedings commenced or threatened by the SEC or the Commissions.
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(i) The Option Agreement dated January 1, 2000 among Alpine, Xxxx
Xxxxxxxxxx, Xxxx Xxxxxx and Xxxx Xxxxxx shall have been terminated pursuant to a
written agreement in form and substance satisfactory to Weatherford and signed
by all of the parties to such Option Agreement.
ARTICLE VI
TERMINATION
6.1 TERMINATION.
This Agreement may be terminated at any time prior to the Effective
Time, whether before or after approval of the transactions contemplated hereby
by the shareholders of Alpine, as follows:
(a) by mutual agreement of Alpine and Weatherford;
(b) by Alpine, if there has been a breach by Weatherford, Services or
WCL of any representation, warranty, covenant or agreement set forth in this
Agreement on the part of Weatherford, Services or WCL, or if any representation
or warranty of Weatherford, Services or WCL shall have become untrue, in either
case which has or can reasonably be expected to have a Material Adverse Effect
on Weatherford, and which Weatherford, Services or WCL fails to cure within 30
business days after written notice thereof from Alpine;
(c) by Weatherford, if there has been a breach by Alpine of any
representation, warranty, covenant or agreement set forth in this Agreement on
the part of Alpine, or if any representation or warranty of Alpine shall have
become untrue, in either case which has or can reasonably be expected to have a
Material Adverse Effect on Alpine, and which Alpine fails to cure within 30
business days after written notice thereof from Weatherford;
(d) by either Weatherford or Alpine if the shareholders of Alpine do
not approve the Arrangement;
(e) by either Weatherford or Alpine, if all the conditions for Closing
the Arrangement expressed to be in its favor shall not have been satisfied or
waived on or before 5:00 p.m., Houston, Texas time on February 28, 2001, other
than as a result of a breach of this Agreement by the terminating party;
(f) by either Weatherford or Alpine if any suit, action, or other
proceeding shall be pending or threatened by any United States or Canadian
federal, provincial or state government before any Governmental Entity or court
of competent jurisdiction, in which it is sought to restrain, prohibit, or
otherwise affect the consummation of the transactions contemplated hereby;
(g) by Alpine, if (i) the Alpine Board determines in good faith (after
consultation with its financial advisors, and after receiving the written
opinion of its outside legal counsel), that it is required by its fiduciary
duties to recommend to the Alpine shareholders that they vote against the
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Arrangement and approve instead a Superior Proposal, (ii) Alpine shall have
given written notice to Weatherford advising Weatherford that Alpine has
received a Superior Proposal from a third party, specifying the terms and
conditions of such Superior Proposal and that Alpine intends to terminate this
Agreement in accordance with this Section 6.1(g), (iii) either (A) Weatherford
shall not have revised its combination proposal within seven business days after
the date on which such notice is deemed to have been given to Weatherford, or
(B) if Weatherford within such period shall have revised its combination
proposal, the Board of Directors of Alpine, after receiving advice from Alpine's
financial advisors, shall have determined in its good faith judgment that the
third party's Acquisition Proposal is superior to Xxxxxxxxxxx'x revised takeover
proposal, and (iv) Alpine shall have paid Weatherford in good funds a
termination fee (the "Termination Fee") of CAN$4,000,000; or
(h) by Weatherford if the board of directors of Alpine shall have
withdrawn or in any way amended, modified or otherwise changed the
recommendation thereof contemplated by Section 2.2(a) hereof, whether
constituting a breach of provisions of this Agreement or not.
6.2 NOTICE OF TERMINATION.
Any termination of this Agreement under Section 6.1 above will be
effective by the delivery of written notice by the terminating party to the
other party hereto and, in the case of a termination by Alpine pursuant to
6.1(g) hereof, the payment of the required Termination Fee.
6.3 EFFECT OF TERMINATION.
In the event of a valid termination of this Agreement by either Alpine
or Weatherford as provided in Section 6.1 (including the payment of the required
Termination Fee), this Agreement shall forthwith become void and have no effect,
and there shall be no liability or obligation on the part of Weatherford or
Alpine or their respective officers or directors, except that (i) the provisions
of the Confidentiality Agreement dated February 15, 2000, shall survive any such
termination and abandonment, and (ii) no party shall be released or relieved
from any liability arising from the willful breach by such party of any of its
representations, warranties, covenants or agreements as set forth in this
Agreement; provided further, however, that in the event any person shall have
made an Acquisition Proposal and thereafter this Agreement is terminated by
Weatherford or Alpine pursuant to Section 6.1(c), 6.1(d), 6.1(e) or 6.1(h) and
within twelve months after any such termination any Acquisition Transaction
shall have been consummated, then Alpine shall promptly, but in any event within
two days after consummation of any such Acquisition Transaction, pay Weatherford
the Termination Fee.
6.4 COLLECTION OF TERMINATION FEE.
Alpine acknowledges that the agreements contained in this Article VI
with respect to Alpine's obligations to pay a Termination Fee under certain
circumstances are an integral part of the transactions contemplated by this
Agreement, and that, without such agreements in respect of the
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Termination Fee, Weatherford, Services and WCL would not enter into this
Agreement. Accordingly, if Alpine fails to promptly pay the amount due in
respect of any Termination Fee owed pursuant to this Article VI, and in order to
obtain such a payment, Weatherford, Services or WCL commences a suit that
results in a judgment against Alpine for the Termination Fee, Alpine shall pay
to Weatherford, Services and WCL their costs and expenses (including attorneys'
fees and legal costs calculated as between a solicitor and his own client) in
connection with such suit, together with interest on the amount of the
Termination Fee recovered at the rate of 12% per annum. Alpine further agrees
that any payment made in respect of a Termination Fee shall be payable under any
circumstance by wire transfer of same day funds.
ARTICLE VII
ADDITIONAL AGREEMENTS
Weatherford, Services, WCL and Alpine each agree to take the following
actions after the execution of this Agreement:
7.1 MEETINGS.
Subject to the Interim Order, Alpine shall promptly and duly call a
meeting of its shareholders of the purpose of voting upon the Plan of
Arrangement and the transactions contemplated hereby and thereby and shall,
through its board of directors, recommend to its shareholders approval of such
matters.
7.2 THE CLOSING.
Subject to the termination of this Agreement as provided in Article VI,
the closing of the transactions contemplated by this Agreement (the "Closing")
will take place at the offices of Fraser Xxxxxx Casgrain, Calgary, Alberta,
Canada on a date (the "Effective Time") and at a time to be mutually agreed upon
by the parties, which date shall be no later than the fifth business day after
all conditions to Closing set forth herein shall have been satisfied or waived,
unless another place, time and date is mutually selected by Alpine and
Weatherford. Concurrently with the Closing, the Plan of Arrangement will be
filed with the Registrar under the ABCA.
7.3 ANCILLARY DOCUMENTS/RESERVATION OF SHARES.
(a) Provided all other conditions of this Agreement have been satisfied
or waived, Alpine, Services and WCL shall, at the Effective Time, file Articles
of Arrangement pursuant to Part 15 of the ABCA to give effect to the Plan of
Arrangement, such Articles of Arrangement to contain share conditions for the
Series 1 Exchangeable Shares substantially in the form of those contained in
Appendix A to the Plan of Arrangement attached hereto as Exhibit A.
(b) On the Effective Time:
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(i) Weatherford and Services shall execute and deliver a
Support Agreement containing the terms and conditions set forth in
Exhibit B hereto, together with such other terms and conditions as may
be agreed to by the parties hereto acting reasonably; and
(ii) Weatherford, Services and a Canadian trust company to be
mutually agreeable to Weatherford and Alpine, acting reasonably, shall
execute and deliver a Voting and Exchange Trust Agreement containing
the terms and conditions set forth in Exhibit C hereto, together with
such other terms and conditions as may be agreed to by the parties
hereto acting reasonably (the "Voting and Exchange Trust Agreement").
(c) On or before the Effective Date, Weatherford will reserve for
issuance such number of shares of Weatherford Common Stock as shall be necessary
to give effect to the transactions contemplated hereby.
7.4 AFFILIATE AGREEMENTS.
To ensure compliance with Rule 145 of the rules and regulations
promulgated by the SEC and the Securities Act, Alpine shall, if requested by
Weatherford, cause the Affiliates of Alpine to execute and deliver to
Weatherford affiliate agreements in customary form before the Effective Time.
For purposes of this Agreement, an "Affiliate" shall have the meaning set out in
Rule 145 under the Securities Act.
7.5 EMPLOYEE MATTERS.
Weatherford shall take all actions necessary or appropriate such that
each individual employed by Alpine or a Alpine Subsidiary immediately prior to
the Effective Time (a "Alpine Employee") shall have the benefit of all of such
employee's accrued benefits under the Alpine Plans from and after the Effective
Time. Weatherford shall, subsequent to the Effective Time, take all actions
necessary to cause all change-in-control agreements between Alpine and any
officers or key employees thereof to be honored.
7.6 INDEMNIFICATION.
Weatherford agrees that all rights to indemnification or exculpation
now existing in favour of the directors or officers of Alpine or any Alpine
Subsidiary as provided in their respective articles or bylaws, or any agreement
with such directors or officers, in effect on the date hereof shall survive the
Arrangement and shall continue in full force and effect for a period of not less
than that provided by the applicable statute of limitations from the Effective
Time.
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ARTICLE VIII
MISCELLANEOUS
8.1 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties of the parties contained in this
Agreement will remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the parties to this Agreement, until the
Effective Time, whereupon such representations and warranties will expire and be
of no further force or effect. All agreements and covenants of the parties shall
survive the Effective Time, except as otherwise set forth in this Agreement.
8.2 NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, by facsimile (receipt confirmed)
or mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Weatherford, Services or WCL to:
Xxxxxxxxxxx International, Inc.
000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Still
Facsimile: (000) 000-0000
and
Fraser Xxxxxx Casgrain
0000 XxxxXxxx Xxxxx
00000-000 Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
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(b) if to Alpine to:
Alpine Oil Services Corporation
0000, 000-0xx Xxxxxx XX
Xxxxxxx, Xxxxxxx 72P 4H4
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
Xxxxxxx Xxxxx LLP
Canterra Tower
0000-000 Xxxxx Xxxxxx XX
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: X. X. Xxxxxx
Facsimile: (000) 000-0000
8.3 INTERPRETATION.
When a reference is made in this Agreement to Sections or Exhibits,
such reference shall be to a Section or Exhibit to this Agreement unless
otherwise indicated. The words "include," "includes" and "including" when used
therein shall be deemed in each case to be followed by the words "without
limitation." The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Any reference herein to "the knowledge" of any of the parties will be
deemed to mean the actual knowledge of the officers of such party and the
knowledge that such officers would have had if such officers had conducted a
diligent inquiry into the relevant subject matter.
8.4 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to each of the other parties, it being understood that all parties
need not sign the same counterpart. A counterpart delivered by facsimile is
hereby deemed to be as effective as a counterpart delivered in original form.
8.5 MISCELLANEOUS.
This Agreement, each of the agreements attached as an Exhibit hereto
and any other documents referred to herein or contemplated hereby and the
Shareholders Agreement dated as of May 12, 2000, between Weatherford and certain
holders of Alpine Common Shares (a) together constitute the entire agreement
among the parties with respect to the subject matter hereof or otherwise
relating to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof,
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(b) are not intended to confer upon any other person any rights or remedies
hereunder; and (c) shall not be assigned by operation of law or otherwise except
as otherwise specifically provided.
8.6 GOVERNING LAW.
This Agreement shall be governed in all respects, including validity,
interpretation and effect, by the laws of the Province of Alberta and the
federal laws of Canada applicable therein. Each of the parties 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. Weatherford hereby appoints Services at its registered
office in the Province of Alberta as Xxxxxxxxxxx'x attorney for service of
process.
8.7 AMENDMENT AND WAIVERS.
Any term or provision of this Agreement may be amended, and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a writing
signed by the party to be bound thereby. The waiver by a party of any breach
hereof or default in the performance hereof will not be deemed to constitute a
waiver of any other default or any succeeding breach or default. This Agreement
may be amended by the parties hereto at any time before or after approval of the
Alpine shareholders, but, after such approval, no amendment will be made which
by applicable law requires the further approval of the Alpine shareholders
without obtaining such further approval.
8.8 EXPENSES.
Each party will bear its respective expenses and legal fees incurred
with respect to this Agreement, and the transactions contemplated hereby.
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IN WITNESS WHEREOF, Weatherford, Services, WCL and Alpine have caused
this Agreement to be signed and delivered by their respective officers
thereunder duly authorized, all as of the date first written above.
XXXXXXXXXXX INTERNATIONAL, INC.
Per: /s/ XXXXXX X. XXXX
--------------------------------
Per: /s/ XXXX X. XXXXXX
--------------------------------
WEATHERFORD OIL SERVICES, INC.
Per: /s/ XXXXXX X. XXXX
--------------------------------
Per: /s/ XXXX X. XXXXXX
--------------------------------
WEATHERFORD CANADA LTD.
Per: /s/ XXXXXX X. XXXX
--------------------------------
Per: /s/ XXXX X. XXXXXX
--------------------------------
ALPINE OIL SERVICES CORPORATION
Per: /s/ XXXXXX XXXXXX
--------------------------------
Per: /s/ XXXXXXX XXXX
--------------------------------
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EXHIBIT A
PLAN OF ARRANGEMENT
SERIES 1 EXCHANGEABLE SHARE PROVISIONS
41
PLAN OF ARRANGEMENT
UNDER SECTION 186
OF THE BUSINESS CORPORATIONS ACT (ALBERTA)
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS. In this Plan of Arrangement unless there is something in the
subject matter or context inconsistent therewith, the following terms shall
have the respective meanings set out below and grammatical variations of such
terms shall have corresponding meanings:
"ABCA" means the Business Corporations Act (Alberta), as amended;
"Alpine" means Alpine Oil Services Corporation, a corporation existing under
the ABCA;
"Alpine Common Shares" means the common shares in the capital of Alpine;
"Alpine Meeting" means the special meeting of the holders of Alpine Common
Shares and Options to be held to consider the Arrangement;
"Alpine Options" and "Alpine Option Plan" have the meanings set out in Section
2.1(g).
"Arrangement" means the arrangement under section 186 of the ABCA on the terms
and subject to the conditions set out in this Plan of Arrangement, subject to
any amendments thereto made in accordance with Section 6.1 hereof or made at
the direction of the Court in the Final Order;
"Automatic Redemption Date" has the meaning set out in the Series 1
Exchangeable Share Provisions;
"Average Closing Price" means the arithmetic mean average closing of the prices
in US$ (computed and rounded to the second decimal point) of shares of
Weatherford Common Stock on the NYSE Composite Tape during the 10 trading days
ending on the last trading day prior to the Effective Date;
"Business Day" has the meaning set out in the Series 1 Exchangeable Share
Provisions;
"CAN$" means currency in Canadian dollars.
"Court" means the Court of Queen's Bench of Alberta;
"Depositary" has the meaning set out in Section 2.1(f);
"Dissent Procedures" has the meaning set out in Section 3.1;
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"Dissenters' Shares" has the meaning set out in Section 2.1(c).
"Effective Date" means the date shown on the certificates of arrangement issued
by the Registrar under the ABCA giving effect to the Arrangement;
"Effective Time" means 12:01 a.m. on the Effective Date;
"Exchange Rate" has the meaning set out in Section 2.1(c)(ii).
"Exchange Ratio" has the meaning set out in Section 2.1(c)(iv);
"Exchangeable Shares" has the meaning set out in the Series 1 Exchangeable
Share Provisions;
"Final Order" means the final order of the Court approving the Arrangement as
such order may be amended by the Court at any time prior to the Effective Time;
"ITA" means the Income Tax Act (Canada);
"Liquidation Call Purchase Price" has the meaning set out in Section 5.1(a);
"Liquidation Call Right" has the meaning set out in Section 5.1(a);
"Liquidation Date" has the meaning set out in the Series 1 Exchangeable Share
Provisions;
"NYSE" means The New York Stock Exchange;
"Redemption Call Purchase Price" has the meaning set out in Section 5.2(a);
"Redemption Call Right" has the meaning set out in Section 5.2(a);
"Retracted Shares" has the meaning set out in the Series 1 Exchangeable Share
Provisions;
"Series 1 Exchangeable Shares" has the meaning set out in Section 2.1(c);
"Series 1 Exchangeable Share Consideration" has the meaning set out in the
Series 1 Exchangeable Share Provisions;
"Series 1 Exchangeable Share Price" has the meaning set out in the Series 1
Exchangeable Share Provisions;
"Series 1 Exchangeable Share Provisions" means the rights, privileges,
restrictions and conditions attaching to the Series 1 Exchangeable Shares,
which are set forth in Appendix A hereto;
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"Services" means Xxxxxxxxxxx Oil Services Inc., a corporation existing under
the ABCA;
"Subsidiary" has the meaning set out in the Series 1 Exchangeable Share
Provisions;
"Transfer Agent" has the meaning set out in Section 4.4;
"US$" means currency in United States dollars;
"Voting and Exchange Trust Agreement" has the meaning set out in the Series 1
Exchangeable Share Provisions.
"Voting Share" has the meaning set out in Section 2.1(f);
"WCL" means Weatherford Canada Ltd., a corporation existing under the ABCA;
"WCL Preferred Shares" means redeemable retractable preferred shares in the
capital of WCL;
"Weatherford" means Xxxxxxxxxxx International, Inc., a corporation existing
under the laws of the State of Delaware;
"Weatherford Common Stock" has the meaning set out in the Series 1 Exchangeable
Share Provisions.
1.2 SECTIONS AND HEADINGS. The division of this Plan of Arrangement into
sections and the insertion of headings are for reference purposes only and
shall not affect the interpretation of this Plan of Arrangement. Unless
otherwise indicated, any reference in this Plan of Arrangement to a section or
an Appendix refers to the specified section of or Appendix to this Plan of
Arrangement.
1.3 NUMBER, GENDER AND PERSONS. In this Plan of Arrangement, unless the context
otherwise requires, words importing the singular number include the plural and
vice versa, words importing any gender include all genders and words importing
persons include individuals, corporations, partnerships, associations, trusts,
unincorporated organizations, governmental bodies and other legal or business
entities of any kind.
ARTICLE 2
GENERAL
2.1 ARRANGEMENT.
At the Effective Time the following steps shall occur and shall be
deemed to occur in the following order without any further act or formality:
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(a) The articles of Alpine shall be amended to delete Preferred
Shares from the authorized share capital.
(b) The articles of Services shall be amended to designate the
first series of exchangeable shares provided for by its
articles ("Exchangeable Shares") as "Series 1 Exchangeable
Shares" limited in number to 1,500,000 shares and having the
terms and conditions set forth in this Plan of Arrangement
(the "Series 1 Exchangeable Shares").
(c) Each of the common shares of Alpine (the "Alpine Common
Shares") (other than Alpine Common Shares held by holders who
have exercised their rights of dissent in accordance with
this Plan of Arrangement and who are ultimately entitled to
be paid the fair value for such shares, such shares being
herein referred to as "Dissenters' Shares") will be
transferred to Services in consideration for a number of
Series 1 Exchangeable Shares of Services ("Series 1
Exchangeable Shares"), all as determined in accordance with
the following procedure:
(i) There shall first be determined the Average Closing
Price.
(ii) The "Exchange Rate" for purposes of this Plan of
Arrangement shall be the exchange rate existing for
US$ and Canadian Dollars ("CAN$") on the last day of
the ten-day period set in the definition of Average
Closing Price as stated as the New York foreign
exchange mid-range rates for trading among banks in
amounts of $1,000,000 and more in the U.S. Southwest
Edition of the Wall Street Journal next published
after such date, rounded to four decimal places.
(iii) The aggregate number of Series 1 Exchangeable Shares
to be issued pursuant to this Plan of Arrangement to
the holders of Alpine Common Shares shall be equal
to (x) that aggregate number of shares of
Xxxxxxxxxxx Common Stock which has an aggregate
market value (converted to CAN$) of CAN $71,275,652
(based on the Average Closing Price converted to
CAN$ at the Exchange Rate), plus (y) a number of
Series 1 Exchangeable Shares equal to that aggregate
number of shares of Xxxxxxxxxxx Common Stock which
has an aggregate market value (based on the Average
Closing Price converted to CAN$ at the Exchange
Rate) equal to CAN$2.50 multiplied by the number of
Alpine Common Shares issued after March 31, 2000,
and prior to the Effective Time, (A) pursuant to the
exercise of any Alpine Option (as hereinafter
defined) granted under the Alpine Option Plan (as
hereinafter defined) and outstanding on the date of
this Plan of Arrangement plus (B) the number of
Alpine Common Shares issued after March 31, 2000,
upon conversion of that certain Unsecured 9%
Convertible Debenture due January 31, 2005, plus (C)
80,000 shares in the aggregate (the "80,000
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employment agreement shares") issuable under an
employment Agreement between Alpine and Xxxx Xxxxx
dated November 2, 1998, and an employment agreement
between Alpine and Xxxxxx X. Xxxxxxx dated January
21, 1999), less (z) that number of Series 1
Exchangeable Shares that would otherwise be issued
in accordance with the foregoing calculations
provided in this clause (iii) but for the existence
of Dissenters' Shares in respect of which no Series
1 Exchangeable Shares will be issued.
(iv) At and as of the Effective Time, the outstanding
Alpine Common Shares shall be exchanged for an
aggregate number of Series 1 Exchangeable Shares as
determined above with the number of such Series 1
Exchangeable Shares to be issued in respect of each
Alpine Common Share to be determined by dividing
such aggregate number of Series 1 Exchangeable
Shares by the aggregate number of Alpine Common
Shares outstanding at the Effective Time and
rounding the quotient so obtained to four decimal
places. The quotient so determined is the number of
Series 1 Exchangeable Shares to be issued in respect
of each Alpine Common Share and is herein referred
to as the "Exchange Ratio".
(v) No certificate or scrip representing a fractional
share of a Series 1 Exchangeable Share shall be
issued pursuant to this clause (c), and no dividend
or other distribution shall relate to any fractional
security. In lieu of a fractional share, Services
shall pay to any holder of Alpine Common Shares who
would otherwise be entitled to a fractional share an
amount of cash equal to such fraction multiplied by
the closing price of Xxxxxxxxxxx Common Stock on the
last trading day prior to the Effective Date on the
NYSE and rounded to two decimal places, and the
aggregate number of Series 1 Exchangeable Shares
otherwise issuable pursuant to this clause (c) shall
be appropriately adjusted.
(d) Upon the transfer of shares referred to above
(i) each holder of Alpine Common Shares shall cease to
be such a holder, shall have his name removed from
the register of holders of Alpine Common Shares and
shall become a holder of the number of fully paid
Series 1 Exchangeable Shares to which he is entitled
as a result of the transfer referred to in clause
(c) above and such holder's name shall be added to
the register of holders of Series 1 Exchangeable
Shares accordingly;
(ii) Services shall become the legal and beneficial owner
of all of the Alpine Common Shares so transferred;
and
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(iii) the Shareholder Rights Plan Agreement between Alpine
and Montreal Trust Company of Canada, as Rights Agent, dated as of
June 1, 1999 shall be terminated, void and of no further force or
effect, and all outstanding Rights (as defined in such Agreement)
shall be terminated, rescinded, void and of no force or effect.
(e) Holders of Alpine Common Shares shall be entitled to make an
income tax election pursuant to Section 85 of the Income Tax
Act (Canada) (the "ITA") with respect to the transfer of
their Alpine Common Shares to Services as provided in clause
(c) above by providing two signed copies of the necessary
election forms to Services within 90 days following the
Effective Date, duly completed with the details of the number
of shares transferred and the applicable agreed amounts for
the purposes of such elections. Thereafter, subject to the
election forms complying with the provisions of the ITA, the
forms will be signed by Services and returned to such holders
of Alpine Common Shares for filing with Canada Customs and
Revenue Agency.
(f) Xxxxxxxxxxx shall issue to, and deposit with the Depositary
(as defined in the Voting and Exchange Trust Agreement, the
Voting Share (as defined in the Voting and Exchange Trust
Agreement) in consideration of the payment to Weatherford of
US$1, to be thereafter held by the Depositary as trustee for
and on behalf of, and for the use and benefit of, the holders
of the Series 1 Exchangeable Shares, in accordance with the
Voting and Exchange Trust Agreement.
(g) Each of the then remaining outstanding and unexercised
options to purchase Alpine Common Shares (collectively, the
"Alpine Options") (which includes all outstanding options
granted under Alpine's employee stock option plan (the
"Alpine Option Plan") will, without any further action on the
part of any holder thereof (herein, an "optionholder"), be
disposed of to Services in exchange for that number of Series
1 Exchangeable Shares equal in value (where one Series 1
Exchangeable Share is deemed to have the value of one share
of Xxxxxxxxxxx Common Stock based on the Average Closing
Price) to the Option Value (as hereinafter defined) of such
Alpine Option. The "Option Value" for any Alpine Option to be
exchanged under this provision shall be the amount determined
by (i) subtracting the per share exercise price therefor in
CAN$ in effect on the Effective Date from (ii) the product
determined by multiplying the Average Closing Price
(converted to CAN$ at the Exchange Rate) by the Exchange
Ratio and rounding such amount to two decimal places and then
(iii) multiplying the amount so determined by such
subtraction by the number of Alpine Common Shares covered by
such Alpine Option.
(h) The Alpine Common Shares other than Dissenters' Shares will
be transferred by Services to WCL in consideration for the
issuance by WCL to Services of one WCL Preferred Share for
each Alpine Common Share.
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ARTICLE 3
RIGHTS OF DISSENT
3.1 RIGHTS OF DISSENT. Holders of Alpine Common Shares or Alpine Options may
exercise rights of dissent with respect to such shares or options pursuant to
and in the manner set forth in section 184 of the ABCA and this Section 3.1
(the "Dissent Procedures") in connection with the Arrangement and holders who
duly exercise such rights of dissent and who:
(a) are ultimately entitled to be paid the fair value for their
Alpine Common Shares or Alpine Options, the case may be,
shall be deemed to have transferred such Alpine Common Shares
or Alpine Options to Alpine for cancellation on the Effective
Date; or
(b) are ultimately not entitled, for any reason, to be paid the
fair value for their Alpine Common Shares or Alpine Options,
as the case may be, shall be deemed to have participated in
the Arrangement on the same basis as any non-dissenting
holder of Alpine Common Shares or Alpine Options, as the case
may be,
but in no case shall Alpine be required to recognize such holders as holders of
Alpine Common Shares or Alpine Options on and after the Effective Date, and the
names of such holders shall be deleted from the applicable register of holders
of Alpine securities on the Effective Date.
ARTICLE 4
CERTIFICATES AND FRACTIONAL SHARES
4.1 ISSUANCE OF CERTIFICATES REPRESENTING SERIES 1 EXCHANGEABLE SHARES. At or
promptly after the Effective Time, Services shall deposit with the Depositary,
for the benefit of the holders of Alpine Common Shares transferred pursuant to
Section 2.1, certificates representing the Series 1 Exchangeable Shares issued
pursuant to Section 2.1 upon the transfer of outstanding Alpine Common Shares.
Upon surrender to the Depositary for cancellation of a certificate which
immediately prior to the Effective Time represented outstanding Alpine Common
Shares that were transferred for Series 1 Exchangeable Shares, together with
such other documents and instruments as would have been required to effect the
transfer of the shares formerly represented by such certificate under the ABCA
and the by-laws of Alpine and such additional documents and instruments as the
Depositary may reasonably require, the holder of such surrendered certificate
shall be entitled to receive in consideration therefor, and the Depositary
shall deliver to such holder, a certificate representing that number (rounded
down to the nearest whole number) of Series 1 Exchangeable Shares which such
holder has the right to receive (together with any dividends or distributions
with respect thereto pursuant to Section 4.2 and any cash in lieu of fractional
Series 1 Exchangeable Shares pursuant to Section 4.3), and the certificate so
surrendered shall forthwith be canceled. In the event of a transfer of
ownership of Alpine Common Shares which is not registered in the transfer
records of Alpine, a certificate representing the proper number of Series 1
Exchangeable Shares may be issued to a transferee if the certificate
representing such Alpine
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Common Shares is presented to the Depositary, accompanied by all documents
required to evidence and effect such transfer. Until surrendered as
contemplated by this Section 4.1, each certificate which immediately prior to
the Effective Time represented outstanding Alpine Common Shares that were
transferred in consideration for Series 1 Exchangeable Shares shall be deemed
at any time after the Effective Time to represent only the right to receive
upon such surrender (a) the certificate representing Series 1 Exchangeable
Shares as contemplated by this Section 4.1, (b) a cash payment in lieu of any
fractional Series 1 Exchangeable Shares as contemplated by Section 4.3 and (c)
any dividends or distributions with a record date after the Effective Time
theretofore paid or payable with respect to Series 1 Exchangeable Shares as
contemplated by Section 4.2.
4.2 DISTRIBUTIONS WITH RESPECT TO UNSURRENDERED CERTIFICATES. No dividends or
other distributions declared or made after the Effective Time with respect to
Series 1 Exchangeable Shares with a record date after the Effective Time shall
be paid to the holder of any unsurrendered certificate which, immediately prior
to the Effective Time, represented outstanding Alpine Common Shares that were
transferred pursuant to Section 2.1, and no cash payment in lieu of fractional
shares shall be paid to any such holder pursuant to Section 4.3, (and no
interest will be earned or payable on these proceeds) unless and until such
certificate shall be surrendered in accordance with Section 4.1. Subject to
applicable law and to Section 4.5, at the time of such surrender of any such
certificate (or, in the case of clause (c) below, at the appropriate payment
date), there shall be paid to the record holder of the certificates
representing whole Series 1 Exchangeable Shares without interest, (a) the
amount of any cash payable in lieu of a fractional Series 1 Exchangeable Share
to which such holder is entitled pursuant to Section 4.3, (b) the amount of
dividends or other distributions with a record date after the Effective Time
theretofore paid with respect to such whole Series 1 Exchangeable Share, and
(c) the amount of dividends or other distributions with a record date after the
Effective Time but prior to surrender and a payment date subsequent to
surrender payable with respect to such whole Series 1 Exchangeable Share.
4.3 NO FRACTIONAL SHARES. No certificates or scrip representing fractional
Series 1 Exchangeable Shares shall be issued upon the surrender for transfer of
certificates pursuant to Section 4.1 and no dividend, stock split or other
change in the capital structure of Services shall relate to any such fractional
security and such fractional interests shall not entitle the owner thereof to
vote or to exercise any rights as a security holder of Services. In lieu of any
such fractional securities, each person entitled to a fractional interest in a
Series 1 Exchangeable Share will receive an amount of cash (rounded to the
nearest whole cent), without interest, equal to the product of (a) such
fraction, multiplied by (b) the Average Closing Price, such amount to be
provided to the Depositary by Services upon request.
4.4 LOST CERTIFICATES. If any certificate which immediately prior to the
Effective Time represented outstanding Alpine Common Shares that were
transferred pursuant to Section 2.1 has been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming such certificate
to be lost, stolen or destroyed, the Depositary will issue in exchange for such
lost, stolen or destroyed certificate, certificates representing Series 1
Exchangeable Shares (and any dividends or distributions with respect thereto
and any cash pursuant to Section 4.3) deliverable in
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respect thereof as determined in accordance with Section 2.1. When authorizing
such issuance or payment in exchange for, or in respect of, any lost, stolen or
destroyed certificate, the person to whom certificates representing Series 1
Exchangeable Shares are to be issued or to whom a payment is to be made shall,
as a condition precedent to the issuance thereof, give a bond satisfactory to
Alpine's, Xxxxxxxxxxx'x or Services' transfer agent (the "Transfer Agent"), as
the case may be, in such sum as Alpine, Xxxxxxxxxxx or Services, as the case
may be, may direct or otherwise indemnify Alpine, Services or Weatherford, in a
manner satisfactory thereto, and the Transfer Agent against any claim that may
be made against Alpine, Xxxxxxxxxxx or Services or the Transfer Agent with
respect to the certificate alleged to have been lost, stolen or destroyed.
4.5 EXTINGUISHMENT OF RIGHTS. Any certificate which immediately prior to the
Effective Time represented outstanding Alpine Common Shares that were
transferred pursuant to Section 2.1 and has not been deposited, with all other
instruments required by Section 4.1, on or prior to the tenth anniversary of
the Effective Date shall cease to represent a claim or interest of any kind or
nature as a shareholder of Alpine or Services. On such date, the Series 1
Exchangeable Shares to which the former registered holder of the certificate
referred to in the preceding sentence was ultimately entitled shall be deemed
to have been surrendered to Services together with all entitlements to
dividends, distributions and interests thereon held for such former registered
holder for no consideration.
ARTICLE 5
CERTAIN RIGHTS OF WEATHERFORD TO
ACQUIRE SERIES 1 EXCHANGEABLE SHARES
5.1 XXXXXXXXXXX LIQUIDATION CALL RIGHT.
(a) Weatherford shall have the overriding right (the "Liquidation
Call Right"), in the event of and notwithstanding the
proposed liquidation, dissolution or winding-up of Services
pursuant to Article 5 of the Series 1 Exchangeable Share
Provisions, to purchase from all but not less than all of the
holders (other than Xxxxxxxxxxx and any Subsidiary thereof)
of Series 1 Exchangeable Shares on the Liquidation Date all
but not less than all of the Series 1 Exchangeable Shares
held by each such holder on payment by Xxxxxxxxxxx to the
holder of the Series 1 Exchangeable Share Price applicable on
the last Business Day prior to the Liquidation Date (the
"Liquidation Call Purchase Price"). In the event of the
exercise of the Liquidation Call Right by Xxxxxxxxxxx, each
holder shall be obligated to sell all the Series 1
Exchangeable Shares held by the holder to Xxxxxxxxxxx on the
Liquidation Date on payment by Xxxxxxxxxxx to the holder of
the Liquidation Call Purchase Price for each such share.
(b) To exercise the Liquidation Call Right, Xxxxxxxxxxx must
notify Services's Transfer Agent in writing, as agent for the
holders of Series 1 Exchangeable Shares, and Services of
Xxxxxxxxxxx'x intention to exercise such right at least 55
days before the Liquidation Date in the case of a voluntary
liquidation, dissolution or winding-up of
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Services and at least five Business Days before the
Liquidation Date in the case of an involuntary liquidation,
dissolution or winding-up of Services. Such Transfer Agent
will notify the holders of Series 1 Exchangeable Shares as to
whether or not Xxxxxxxxxxx has exercised the Liquidation Call
Right forthwith after the expiry of the date by which the
same may be exercised by Xxxxxxxxxxx. If Xxxxxxxxxxx
exercises the Liquidation Call Right, on the Liquidation Date
Xxxxxxxxxxx will purchase and the holders will sell all of
the Series 1 Exchangeable Shares then outstanding for a price
per share equal to the Liquidation Call Purchase Price.
(c) For the purposes of completing the purchase of the Series 1
Exchangeable Shares pursuant to the Liquidation Call Right,
Xxxxxxxxxxx shall deposit with such Transfer Agent, on or
before the Liquidation Date, the Series 1 Exchangeable Share
Consideration representing the total Liquidation Call
Purchase Price. In connection with payment of the Liquidation
Call Purchase Price, Xxxxxxxxxxx shall be entitled to
liquidate some of the Xxxxxxxxxxx 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. Provided that such Series 1
Exchangeable Share Consideration has been so deposited with
such Transfer Agent, on and after the Liquidation Date the
rights of each holder of Series 1 Exchangeable Shares will be
limited to receiving such holder's proportionate part of the
total Liquidation Call Purchase Price payable by Xxxxxxxxxxx
without interest upon presentation and surrender by the
holder of certificates representing the Series 1 Exchangeable
Shares held by such holder and the holder shall on and after
the Liquidation Date be considered and deemed for all
purposes to be the holder of the Xxxxxxxxxxx Common Stock
delivered to it. Upon surrender to such Transfer Agent of a
certificate or certificates representing Series 1
Exchangeable Shares, together with such other documents and
instruments as may be required to effect a transfer of Series
1 Exchangeable Shares under the ABCA and the by-laws of
Services and such additional documents and instruments as
such Transfer Agent may reasonably require, the holder of
such surrendered certificate or certificates shall be
entitled to receive in exchange therefor, and such Transfer
Agent on behalf of Xxxxxxxxxxx shall deliver to such holder,
the Series 1 Exchangeable Share Consideration to which the
holder is entitled. If Xxxxxxxxxxx does not exercise the
Liquidation Call Right in the manner described above, on the
Liquidation Date the holders of the Series 1 Exchangeable
Shares will be entitled to receive in exchange therefor the
liquidation price otherwise payable by Services in connection
with the liquidation, dissolution or winding-up of Services
pursuant to Article 5 of the Series 1 Exchangeable Share
Provisions. Notwithstanding the foregoing, until such Series
1 Exchangeable Share Consideration is delivered to the
holder, the holder shall be deemed to still be a holder of
Series 1 Exchangeable Shares for purposes of all voting
rights with respect thereto under the Voting and Exchange
Trust Agreement.
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5.2 XXXXXXXXXXX REDEMPTION CALL RIGHT.
(a) Xxxxxxxxxxx shall have the overriding right (the "Redemption
Call Right"), notwithstanding the proposed redemption of the
Series 1 Exchangeable Shares by Services pursuant to Article
7 of the Series 1 Exchangeable Share Provisions, to purchase
from all but not less than all of the holders (other than
Xxxxxxxxxxx or any Subsidiary thereof) of Series 1
Exchangeable Shares on the Automatic Redemption Date all but
not less than all of the Series 1 Exchangeable Shares held by
each such holder on payment by Xxxxxxxxxxx to the holder of
the Series 1 Exchangeable Share Price applicable on the last
Business Day prior to the Automatic Redemption Date (the
"Redemption Call Purchase Price"). In the event of the
exercise of the Redemption Call Right by Xxxxxxxxxxx, each
holder shall be obligated to sell all the Series 1
Exchangeable Shares held by the holder to Xxxxxxxxxxx on the
Automatic Redemption Date on payment by Xxxxxxxxxxx to the
holder of the Redemption Call Purchase Price for each such
share.
(b) To exercise the Redemption Call Right, Xxxxxxxxxxx must
notify Services' Transfer Agent in writing, as agent for the
holders of Series 1 Exchangeable Shares, and Services of
Xxxxxxxxxxx'x intention to exercise such right at least 125
days before the Automatic Redemption Date. Such Transfer
Agent will notify the holders of the Series 1 Exchangeable
Shares as to whether or not Xxxxxxxxxxx has exercised the
Redemption Call Right forthwith after the date by which the
same may be exercised by Xxxxxxxxxxx. If Xxxxxxxxxxx
exercises the Redemption Call Right, on the Automatic
Redemption Date Xxxxxxxxxxx will purchase and the holders
will sell all of the Series 1 Exchangeable Shares then
outstanding for a price per share equal to the Redemption
Call Purchase Price.
(c) For the purposes of completing the purchase of the Series 1
Exchangeable Shares pursuant to the Redemption Call Right,
Xxxxxxxxxxx shall deposit with Services' Transfer Agent, on
or before the Automatic Redemption Date, the Series 1
Exchangeable Share Consideration representing the total
Redemption Call Purchase Price. In connection with payment of
the Redemption Call Purchase Price, Xxxxxxxxxxx shall be
entitled to liquidate some of the Xxxxxxxxxxx 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. Provided that such
Series 1 Exchangeable Share Consideration has been so
deposited with such Transfer Agent, on and after the
Automatic Redemption Date the rights of each holder of Series
1 Exchangeable Shares will be limited to receiving such
holder's proportionate part of the total Redemption Call
Purchase Price payable by Xxxxxxxxxxx upon presentation and
surrender by the holder of certificates representing the
Series 1 Exchangeable Shares held by such holder and the
holder shall on and after the Automatic Redemption Date be
considered and deemed for all purposes to be the holder of
the Xxxxxxxxxxx Common Stock delivered to such holder. Upon
surrender
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to such Transfer Agent of a certificate or certificates
representing Series 1 Exchangeable Shares, together with such
other documents and instruments as may be required to effect
a transfer of Series 1 Exchangeable Shares under the ABCA and
the by-laws of Services and such additional documents and
instruments as such Transfer Agent may reasonably require,
the holder of such surrendered certificate or certificates
shall be entitled to receive in exchange therefor, and such
Transfer Agent on behalf of Xxxxxxxxxxx shall deliver to such
holder, the Series 1 Exchangeable Share Consideration to
which the holder is entitled. If Xxxxxxxxxxx does not
exercise the Redemption Call Right in the manner described
above, on the Automatic Redemption Date the holders of the
Series 1 Exchangeable Shares will be entitled to receive in
exchange therefor the redemption price otherwise payable by
Services in connection with the redemption of the Series 1
Exchangeable Shares pursuant to Article 7 of the Series 1
Exchangeable Share Provisions. Notwithstanding the foregoing,
until such Series 1 Exchangeable Share Consideration is
delivered to the holder, the holder shall be deemed to still
be a holder of Series 1 Exchangeable Shares for purposes of
all voting rights with respect thereto under the Voting and
Exchange Trust Agreement.
5.3 XXXXXXXXXXX RETRACTION CALL RIGHT.
(a) Xxxxxxxxxxx shall have the overriding right, notwithstanding
the proposed redemption of Series 1 Exchangeable Shares by
Services pursuant to Article 6 of the Series 1 Exchangeable
Share Provisions, to purchase directly from the holder (other
than Xxxxxxxxxxx or any Subsidiary thereof) of Series 1
Exchangeable Shares all but not less than all of the
Retracted Shares in accordance with Section 6.3 of the Series
1 Exchangeable Share Provisions.
ARTICLE 6
AMENDMENT
6.1 PLAN OF ARRANGEMENT AMENDMENT. Services, WCL and Alpine shall have the
right to amend, modify and/or supplement this Plan of Arrangement at any time
and from time to time provided that any such amendment, modification, or
supplement must be contained in a written document that is (a) agreed to by
Xxxxxxxxxxx, (b) filed with the Court and, if made following the Alpine
Meeting, approved by the Court and (c) communicated to holders of Alpine Common
Shares and Alpine Options in the manner required by the Court (if so required).
Any amendment, modification or supplement to this Plan of Arrangement
may be proposed by Alpine at any time prior to or at the Alpine Meeting
(provided that Weatherford shall have consented thereto) with or without any
other prior notice or communication, and if so proposed and accepted by the
persons voting at the Alpine Meeting (other than as may be required under the
Court's interim order), shall become part of this Plan of Arrangement for all
purposes.
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Any amendment, modification or supplement to this Plan of Arrangement
that is approved by the Court following the Alpine Meeting shall be effective
only (a) if it is consented to by Alpine, (b) if it is consented to by
Weatherford and (c) if required by the Court or applicable law, it is consented
to by the holders of the Alpine Common Shares and Alpine Options.
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APPENDIX A TO PLAN OF ARRANGEMENT
OF ALPINE OIL SERVICES CORPORATION AND
XXXXXXXXXXX OIL SERVICES, INC.
PROVISIONS ATTACHING TO THE SERIES 1 EXCHANGEABLE
SHARES OF THE CORPORATION
The Series 1 Exchangeable Shares in the capital of the Corporation
shall have the following rights, privileges, restrictions and conditions.
ARTICLE 1
INTERPRETATION
For the purposes of these share provisions:
1.1 "Automatic Redemption Date" means the date for the automatic redemption by
the Corporation of Series 1 Exchangeable Shares pursuant to Article 7 of these
share provisions, which date shall be ___________, 2010 unless (a) such date
shall be extended at any time or from time to time to a specified later date by
the Board of Directors but not later than ________, 2015 or (b) such date shall
be accelerated at any time to a specified earlier date by the Board of
Directors if at such time there are less than 250,000 Series 1 Exchangeable
Shares outstanding (other than Series 1 Exchangeable Shares held by Weatherford
and its Subsidiaries) and as such number of shares may be adjusted as deemed
appropriate by the Board of Directors to give effect to any subdivision or
consolidation of or stock dividend on the Series 1 Exchangeable Shares, any
issuance or distribution of rights to acquire Series 1 Exchangeable Shares or
securities exchangeable for or convertible into Series 1 Exchangeable Shares,
any issue or distribution of other securities or rights or evidences of
indebtedness or assets, or any other capital reorganization or other
transaction affecting the Series 1 Exchangeable Shares), in each case upon at
least 60 days' prior written notice of any such extension or acceleration, as
the case may be, to the registered holders of the Series 1 Exchangeable Shares,
in which case the Automatic Redemption Date shall be such later or earlier
date; provided, however, that the accidental failure or omission to give any
such notice of extension or acceleration, as the case may be, to less than 10%
of such holders of Series 1 Exchangeable Shares shall not affect the validity
of such extension or acceleration.
"Board of Directors" means the Board of Directors of the Corporation.
"Business Day" means any day other than a Saturday, a Sunday or a day
when banks are not open for business in either or both of Xxxxxxx, Xxxxx xxx
Xxxxxxx, Xxxxxxx.
"Common Shares" means the common shares in the capital of the
Corporation.
"Corporation" means Xxxxxxxxxxx Oil Services, Inc., a corporation
incorporated under the laws of the Province of Alberta.
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"Current Market Price" means, in respect of a share of Weatherford
Common Stock on any date, the average of the closing bid and asked prices of
Weatherford Common Stock during a period of 20 consecutive trading days ending
not more than five trading days before such date on The New York Stock
Exchange, or, if the Weatherford Common Stock is not then traded on The New
York Stock Exchange, on such other principal U.S. stock exchange or automated
quotation system on which the Weatherford Common Stock is listed or quoted, as
the case may be, as may be selected by the Board of Directors for such purpose;
provided, however, that if in the opinion of the Board of Directors the public
distribution or trading activity of Weatherford Common Stock during such period
does not create a market which reflects the fair market value of a share of
Weatherford Common Stock, then the Current Market Price of a share of
Weatherford Common Stock shall be determined by the Board of Directors based
upon the advice of such qualified independent financial advisors as the Board
of Directors may deem to be appropriate, and provided further that any such
selection, opinion or determination by the Board of Directors shall be
conclusive and binding.
"Exchange Put Right" has the meaning set out in Section 8.1 of these
share provisions.
"Exchangeable Shares" means the exchangeable shares in the capital of
the Corporation.
"Liquidation Amount" has the meaning set out in Section 5.1 of these
share provisions.
"Liquidation Call Right" has the meaning set out in the Plan of
Arrangement.
"Liquidation Date" has the meaning set out in Section 5.1 of these
share provisions.
"Plan of Arrangement" means the joint plan of arrangement relating to
the arrangement of the Corporation and Alpine Oil Services Corporation under
section 186 of the Business Corporations Act (Alberta), to which plan these
share provisions are attached.
"Purchase Price" has the meaning set out in Section 6.3 of these share
provisions.
"Redemption Call Purchase Price" has the meaning set out in the Plan
of Arrangement.
"Redemption Call Right" has the meaning set out in the Plan of
Arrangement.
"Redemption Price" has the meaning set out in Section 7.1 of these
share provisions.
"Retracted Shares" has the meaning set out in Section 6.1(i) of these
share provisions.
"Retraction Call Right" has the meaning set out in Section 6.1(iii) of
these share provisions.
"Retraction Date" has the meaning set out in Section 6.1(ii) of these
share provisions.
"Retraction Price" has the meaning set out in Section 6.1 of these
share provisions.
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"Retraction Request" has the meaning set out in Section 6.1 of these
share provisions.
"Series 1 Exchangeable Share Consideration" means, for any acquisition
of Series 1 Exchangeable Shares pursuant to these share provisions, the Plan of
Arrangement, the Support Agreement or the Voting and Exchange Trust Agreement:
(a) certificates representing the aggregate number of shares of
Weatherford Common Stock deliverable in connection with such
acquisition;
(b) a cheque or cheques payable at par at any branch of the
bankers of the payor in the amount of declared and unpaid
cash dividends deliverable in connection with such
acquisition; and
(c) such stock or property constituting any declared and unpaid
non-cash dividends deliverable in connection with such
acquisition.
provided that any such stock or property shall be duly issued as fully paid and
non-assessable, in the case of stock, and free and clear of any lien, claim or
encumbrance, security interest or adverse claim and provided further that such
consideration shall be paid less any tax required to be deducted and withheld
therefrom and without interest.
"Series 1 Exchangeable Share Price" means, for each Series 1
Exchangeable Share:
(a) the Current Market Price of a share of Weatherford Common
Stock, which shall be satisfied in full by causing to be
delivered one share of Weatherford Common Stock; plus
(b) an additional amount equal to the full amount of all cash
dividends declared and unpaid on such Series 1 Exchangeable
Share; plus
(c) the stock or other non-cash assets, if any, representing
non-cash dividends declared and unpaid on such Series 1
Exchangeable Share.
"Series 1 Exchangeable Shares" mean the Series 1 Exchangeable Shares
of the Corporation having the rights, privileges, restrictions and conditions
set forth herein.
"Subsidiary" of any person means each partnership, joint venture,
corporation, association or other business entity of which more than 50% of the
total voting power of shares of stock or units of ownership or beneficial
interest entitled to vote in the election of directors (or members of a
comparable governing body) which is owned or controlled, directly or
indirectly, by such person.
"Support Agreement" means the Support Agreement between Weatherford
and the Corporation, made as of _________, 2000.
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"Transfer Agent" means Montreal Trust Company of Canada or such other
person as may from time to time be the registrar and transfer agent for the
Series 1 Exchangeable Shares.
"Trustee" means Montreal Trust Company of Canada and any successor
trustee appointed under the Voting and Exchange Trust Agreement.
"Voting and Exchange Trust Agreement" means the Voting and Exchange
Trust Agreement between the Corporation, Weatherford and the Trustee, made as
of _______, 2000.
"Weatherford" means Xxxxxxxxxxx International, Inc., a corporation
organized and existing under the laws of the State of Delaware, and any
successor corporation.
"Weatherford Call Notice" has the meaning set out in Section 6.3 of
these share provisions.
"Weatherford Common Stock" mean the shares of common stock of
Weatherford, with a par value of U.S. $1.00 per share, having voting rights of
one vote per share, and any other securities into which such shares may be
changed.
"Weatherford Dividend Declaration Date" means the date on which the
board of directors of Weatherford declares any dividend on the Weatherford
Common Stock.
ARTICLE 2
RANKING OF SERIES 1 EXCHANGEABLE SHARES
2.1 The Series 1 Exchangeable Shares shall rank on a parity with the
Exchangeable Shares of every other series with respect to (i) the payment of
dividends; and (ii) the distribution of the assets of the Corporation in the
event of the liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary, or any other distribution of the assets of the
Corporation among its shareholders for the purpose of winding up its affairs.
The Series 1 Exchangeable Shares shall be entitled to a preference over the
Common Shares with respect to (i) the payment of dividends; and (ii) the
distribution of the assets of the Corporation in the event of the liquidation,
dissolution or winding-up of the Corporation, whether voluntary or involuntary,
or any other distribution of the assets of the Corporation among its
shareholders for the purpose of winding up its affairs.
ARTICLE 3
DIVIDENDS
3.1 A holder of a Series 1 Exchangeable Share shall be entitled to receive and
the Board of Directors shall, subject to applicable law, on each Weatherford
Dividend Declaration Date, declare a dividend on each Series 1 Exchangeable
Share (a) in the case of a cash dividend declared on the Weatherford Common
Stock, in an amount in cash for each Series 1 Exchangeable Share equal to the
cash dividend declared on each share of Weatherford Common Stock or (b) in the
case of a stock dividend declared on the Weatherford Common Stock to be paid in
Weatherford Common Stock,
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in such number of Series 1 Exchangeable Shares for each Series 1 Exchangeable
Share as is equal to the number of shares of Weatherford Common Stock to be
paid on each share of Weatherford Common Stock or (c) in the case of a dividend
declared on the Weatherford Common Stock in property other than cash or
Weatherford Common Stock, in such type and amount of property for each Series 1
Exchangeable Share as is the same as the type and amount of property declared
as a dividend on each share of Weatherford Common Stock. Such dividends shall
be paid out of money, assets or property of the Corporation properly applicable
to the payment of dividends, or out of authorized but unissued shares of the
Corporation.
3.2 Cheques of the Corporation payable at par at any branch of the bankers of
the Corporation shall be issued in respect of any cash dividends contemplated
by Section 3.1(a) hereof and the sending of such a cheque to each holder of a
Series 1 Exchangeable Share (less any tax required to be deducted and withheld
from such dividends paid or credited by the Corporation) shall satisfy the cash
dividend represented thereby unless the cheque is not paid on presentation.
Certificates registered in the name of the registered holder of Series 1
Exchangeable Shares shall be issued or transferred in respect of any stock
dividends contemplated by Section 3.1(b) hereof and the sending of such a
certificate to each holder of a Series 1 Exchangeable Share shall satisfy the
stock dividend represented thereby (subject to any adjustment for the tax
required to be deducted and withheld from such dividends paid or credited by
the Corporation). Such other type and amount of property in respect of any
dividends contemplated by Section 3.1(c) hereof shall be issued, distributed or
transferred by the Corporation in such manner as it shall determine and the
issuance, distribution or transfer thereof by the Corporation to each holder of
a Series 1 Exchangeable Share shall satisfy the dividend represented thereby
(subject to any adjustment for the tax required to be deducted and withheld
from such dividends paid or credited by the Corporation). No holder of a Series
1 Exchangeable Share shall be entitled to recover by action or other legal
process against the Corporation any dividend that is represented by a cheque
that has not been duly presented to the Corporation's bankers for payment or
that otherwise remains unclaimed for a period of six years from the date on
which such dividend was payable.
3.3 The record date for the determination of the holders of Series 1
Exchangeable Shares entitled to receive payment of, and the payment date for,
any dividend declared on the Series 1 Exchangeable Shares under Section 3.1
hereof shall be the same dates as the record date and payment date,
respectively, for the corresponding dividend declared on the Weatherford Common
Stock.
3.4 If on any payment date for any dividends declared on the Series 1
Exchangeable Shares under Section 3.1 hereof the dividends are not paid in full
on all of the Series 1 Exchangeable Shares then outstanding, any such dividends
that remain unpaid shall be paid on a subsequent date or dates determined by
the Board of Directors on which the Corporation shall have sufficient moneys,
assets or property properly applicable to the payment of such dividends
(subject to any adjustment for the tax required to be deducted and withheld
from such dividends paid or credited by the Corporation).
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3.5 Except as provided in this Article 3, the holders of Series 1 Exchangeable
Shares shall not be entitled to receive dividends in respect thereof.
ARTICLE 4
CERTAIN RESTRICTIONS
4.1 So long as any of the Series 1 Exchangeable Shares are outstanding, the
Corporation shall not at any time without, but may at any time with, the
approval of the holders of the Series 1 Exchangeable Shares given as specified
in Section 10.2 of these share provisions:
(a) pay any dividends on the Common Shares, or any other shares
ranking junior to the Series 1 Exchangeable Shares, other than
stock dividends payable in any such other shares ranking
junior to the Series 1 Exchangeable Shares;
(b) redeem or purchase or make any capital distribution in respect
of Common Shares or any other shares ranking junior to the
Series 1 Exchangeable Shares;
(c) except as provided for in the rights, privileges, restrictions
and conditions attaching to the Exchangeable Shares, or any
series thereof, redeem or purchase any other shares of the
Corporation ranking equally with the Series 1 Exchangeable
Shares with respect to the payment of dividends or on any
liquidation distribution;
(d) issue any Series 1 Exchangeable Shares other than by way of
stock dividends to the holders of such Series 1 Exchangeable
Shares or as contemplated by the Support Agreement; or
(e) except for the designation of one or more further series of
the Exchangeable Shares, amend the articles or by-laws of the
Corporation.
The restrictions in Sections 4.1(a), 4.1(b), and 4.1(c) above shall not apply if
all dividends on the outstanding Series 1 Exchangeable Shares corresponding to
dividends declared to date on the Weatherford Common Stock shall have been
declared on the Series 1 Exchangeable Shares and paid in full.
ARTICLE 5
DISTRIBUTION ON LIQUIDATION
5.1 In the event of the liquidation, dissolution or winding-up of the
Corporation or any other distribution of the assets of the Corporation among its
shareholders for the purpose of winding-up its affairs, a holder of Series 1
Exchangeable Shares shall be entitled, subject to applicable law, to receive
from the assets of the Corporation in respect of each Series 1 Exchangeable
Share held by such holder on the effective date (the "Liquidation Date") of such
liquidation, dissolution or winding-up, before any distribution of any part of
the assets of the Corporation to the holders of the
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Common Shares or any other shares ranking junior to the Series 1 Exchangeable
Shares, an amount equal to the Series 1 Exchangeable Share Price applicable on
the last Business Day prior to the Liquidation Date (the "Liquidation Amount").
In connection with and as part of the payment of the Liquidation Amount, the
Corporation shall be entitled to liquidate some of the Weatherford 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.
5.2 On or promptly after the Liquidation Date, and subject to the exercise by
Weatherford of the Liquidation Call Right, the Corporation shall cause to be
delivered to the holders of the Series 1 Exchangeable Shares the Liquidation
Amount for each such Series 1 Exchangeable Share upon presentation and surrender
of the certificates representing such Series 1 Exchangeable Shares, together
with such other documents and instruments as may be required to effect a
transfer of Series 1 Exchangeable Shares under the Business Corporations Act
(Alberta) and the by-laws of the Corporation and such additional documents and
instruments as the Transfer Agent may reasonably require, at the registered
office of the Corporation or at any office of the Transfer Agent as may be
specified by the Corporation by notice to the holders of the Series 1
Exchangeable Shares. Payment of the total Liquidation Amount for such Series 1
Exchangeable Shares shall be made by delivery to each holder, at the address of
the holder recorded in the securities register of the Corporation for the Series
1 Exchangeable Shares or by holding for pick up by the holder at the registered
office of the Corporation or at any office of the Transfer Agent as may be
specified by the Corporation by notice to the holders of Series 1 Exchangeable
Shares, on behalf of the Corporation of the Series 1 Exchangeable Share
Consideration representing the total Liquidation Amount. On and after the
Liquidation Date, the holders of the Series 1 Exchangeable Shares shall cease to
be holders of such Series 1 Exchangeable Shares and shall not be entitled to
exercise any of the rights of holders in respect thereof, other than the right
to receive their proportionate part of the total Liquidation Amount, unless
payment of the total Liquidation Amount for such Series 1 Exchangeable Shares
shall not be made upon presentation and surrender of share certificates in
accordance with the foregoing provisions, in which case the rights of the
holders shall remain unaffected until the total Liquidation Amount has been paid
in the manner hereinbefore provided. The Corporation shall have the right at any
time on or after the Liquidation Date to deposit or cause to be deposited the
Series 1 Exchangeable Share Consideration in respect of the Series 1
Exchangeable Shares represented by certificates that have not at the Liquidation
Date been surrendered by the holders thereof in a custodial account or for safe
keeping, in the case of non-cash items, with any chartered bank or trust company
in Canada. Upon such deposit being made, the rights of the holders of Series 1
Exchangeable Shares after such deposit shall be limited to receiving their
proportionate part of the total Liquidation Amount for such Series 1
Exchangeable Shares so deposited, against presentation and surrender of the said
certificates held by them, respectively, in accordance with the foregoing
provisions. Upon such payment or deposit of such Series 1 Exchangeable Share
Consideration, the holders of the Series 1 Exchangeable Shares shall thereafter
be considered and deemed for all purposes to be the holders of the Weatherford
Common Stock delivered to them. Notwithstanding the foregoing, until such Series
1 Exchangeable Share Consideration is delivered to the holder, the holder shall
be deemed to still be a holder of Series 1 Exchangeable Shares for purposes of
all voting rights with respect thereto under the Voting and Exchange Trust
Agreement.
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5.3 After the Corporation has satisfied its obligations to pay the holders of
the Series 1 Exchangeable Shares the Liquidation Amount per Series 1
Exchangeable Share pursuant to Section 5.1 of these share provisions, such
holders shall not be entitled to share in any further distribution of the assets
of the Corporation.
ARTICLE 6
RETRACTION OF SERIES 1 EXCHANGEABLE SHARES BY HOLDER
6.1 A holder of Series 1 Exchangeable Shares shall be entitled at any time,
subject to the exercise by Weatherford of the Retraction Call Right and
otherwise upon compliance with the provisions of this Article 6, to require the
Corporation to redeem any or all of the Series 1 Exchangeable Shares registered
in the name of such holder for an amount equal to the Series 1 Exchangeable
Share Price applicable on the last Business Day prior to the Retraction Date
(the "Retraction Price"). In connection with and as part of the payment of the
Retraction Price, the Corporation shall be entitled to liquidate some of the
Weatherford 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. To effect such redemption, the holder shall present
and surrender at the registered office of the Corporation or at any office of
the Transfer Agent as may be specified by the Corporation by notice to the
holders of Series 1 Exchangeable Shares the certificate or certificates
representing the Series 1 Exchangeable Shares which the holder desires to have
the Corporation redeem, together with such other documents and instruments as
may be required to effect a transfer of Series 1 Exchangeable Shares under the
Business Corporations Act (Alberta) and the by-laws of the Corporation and such
additional documents and instruments as the Transfer Agent may reasonably
require, and together with a duly executed statement (the "Retraction Request")
in the form of Schedule A hereto or in such other form as may be acceptable to
the Corporation:
(i) specifying that the holder desires to have all or any number
specified therein of the Series 1 Exchangeable Shares
represented by such certificate or certificates (the
"Retracted Shares") redeemed by the Corporation;
(ii) stating the Business Day on which the holder desires to have
the Corporation redeem the Retracted Shares (the "Retraction
Date"), provided that the Retraction Date shall be not less
than five Business Days nor more than 10 Business Days after
the date on which the Retraction Request is received by the
Corporation and further provided that, in the event that no
such Business Day is specified by the holder in the Retraction
Request, the Retraction Date shall be deemed to be the tenth
Business Day after the date on which the Retraction Request is
received by the Corporation; and
(iii) acknowledging the overriding right (the "Retraction Call
Right") of Weatherford to purchase all but not less than all
the Retracted Shares directly from the holder and that the
Retraction Request shall be deemed to be a
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revocable offer by the holder to sell the Retracted Shares to
Weatherford in accordance with the Retraction Call Right on
the terms and conditions set out in Section 6.3 below.
6.2 Subject to the exercise by Weatherford of the Retraction Call Right, upon
receipt by the Corporation or the Transfer Agent in the manner specified in
Section 6.1 hereof of a certificate or certificates representing the number of
Series 1 Exchangeable Shares which the holder desires to have the Corporation
redeem, together with a Retraction Request, and provided that the Retraction
Request is not revoked by the holder in the manner specified in Section 6.7, the
Corporation shall redeem the Retracted Shares effective at the close of business
on the Retraction Date and shall cause to be delivered to such holder the total
Retraction Price with respect to such shares. If only a part of the Series 1
Exchangeable Shares represented by any certificate are redeemed (or purchased by
Weatherford pursuant to the Retraction Call Right), a new certificate for the
balance of such Series 1 Exchangeable Shares shall be issued to the holder at
the expense of the Corporation.
6.3 Upon receipt by the Corporation of a Retraction Request, the Corporation
shall immediately notify Weatherford thereof. In order to exercise the
Retraction Call Right, Weatherford must notify the Corporation in writing of its
determination to do so (the "Weatherford Call Notice") within two Business Days
of notification to Weatherford by the Corporation of the receipt by the
Corporation of the Retraction Request. If Weatherford does not so notify the
Corporation within such two Business Day period, the Corporation will notify the
holder as soon as possible thereafter that Weatherford will not exercise the
Retraction Call Right. If Weatherford delivers the Weatherford Call Notice
within such two Business Day time period, and provided that the Retraction
Request is not revoked by the holder in the manner specified in Section 6.7, the
Retraction Request shall thereupon be considered only to be an offer by the
holder to sell the Retracted Shares to Weatherford in accordance with the
Retraction Call Right. In such event, the Corporation shall not redeem the
Retracted Shares and Weatherford shall purchase from such holder and such holder
shall sell to Weatherford on the Retraction Date the Retracted Shares for a
purchase price (the "Purchase Price") per share equal to the Retraction Price
per share. For the purposes of completing a purchase pursuant to the Retraction
Call Right, Weatherford shall deposit with the Transfer Agent, on or before the
Retraction Date the Series 1 Exchangeable Share Consideration representing the
total Purchase Price. In connection with and as part of the payment of the
Purchase Price, Weatherford shall be entitled to liquidate some of the
Weatherford 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. Provided that such Series 1 Exchangeable Share
Consideration has been so deposited with the Transfer Agent, the closing of the
purchase and sale of the Retracted Shares pursuant to the Retraction Call Right
shall be deemed to have occurred as at the close of business on the Retraction
Date and, for greater certainty, no redemption by the Corporation of such
Retracted Shares shall take place on the Retraction Date. In the event that
Weatherford does not deliver a Weatherford Call Notice within such two Business
Day period or otherwise comply with these Series 1 Exchangeable Share provisions
in respect thereto, and provided that Retraction Request is not revoked by the
holder in the manner specified in Section 6.7, the Corporation shall redeem the
Retracted Shares on the Retraction Date and in the manner otherwise contemplated
in this Article 6.
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6.4 The Corporation or Weatherford, as the case may be, shall deliver or cause
the Transfer Agent to deliver to the relevant holder, at the address of the
holder recorded in the securities register of the Corporation for the Series 1
Exchangeable Shares or at the address specified in the holder's Retraction
Request or by holding for pick up by the holder at the registered office of the
Corporation or at any office of the Transfer Agent as may be specified by the
Corporation by notice to the holders of Series 1 Exchangeable Shares, the Series
1 Exchangeable Share Consideration representing the total Retraction Price or
the total Purchase Price, as the case may be, and such delivery of such Series 1
Exchangeable Share Consideration to the Transfer Agent shall be deemed to be
payment of and shall satisfy and discharge all liability for the total
Retraction Price or total Purchase Price, as the case may be, unless any cheque
included therein is not paid on due presentation.
6.5 On and after the close of business on the Retraction Date, the holder of the
Retracted Shares shall cease to be a holder of such Retracted 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 Retraction
Price or total Purchase Price, as the case may be, unless upon presentation and
surrender of certificates in accordance with the foregoing provisions, payment
of the total Retraction Price or the total Purchase Price, as the case may be,
shall not be made, in which case the rights of such holder shall remain
unaffected until the total Retraction Price or the total Purchase Price, as the
case may be, has been paid in the manner hereinbefore provided. On and after the
close of business on the Retraction Date, provided that presentation and
surrender of certificates and payment of the total Retraction Price or the total
Purchase Price, as the case may be, has been made in accordance with the
foregoing provisions, the holder of the Retracted Shares so redeemed by the
Corporation or purchased by Weatherford shall thereafter be considered and
deemed for all purposes to be a holder of the Weatherford Common Stock delivered
to it. Notwithstanding the foregoing, until such Series 1 Exchangeable Share
Consideration is delivered to the holder, the holder shall be deemed to still be
a holder of Series 1 Exchangeable Shares for purposes of all voting rights with
respect thereto under the Voting and Exchange Trust Agreement.
6.6 Notwithstanding any other provision of this Article 6, the Corporation shall
not be obligated to redeem Retracted Shares specified by a holder in a
Retraction Request to the extent that such redemption of Retracted Shares would
be contrary to liquidity or solvency requirements or other provisions of
applicable law. If the Corporation believes that on any Retraction Date it would
not be permitted by any of such provisions to redeem the Retracted Shares
tendered for redemption on such date, and provided that Weatherford shall not
have exercised the Retraction Call Right with respect to the Retracted Shares,
the Corporation shall only be obligated to redeem Retracted Shares specified by
a holder in a Retraction Request to the extent of the maximum number that may be
so redeemed (rounded down to a whole number of shares) as would not be contrary
to such provisions and shall notify the holder at least two Business Days prior
to the Retraction Date as to the number of Retracted Shares which will not be
redeemed by the Corporation. In any case in which the redemption by the
Corporation of Retracted Shares or the redemption by the Corporation of any
other Exchangeable Shares would be contrary to liquidity or solvency
requirements or other provisions of applicable law, the Corporation shall redeem
Retracted Shares and the Exchangeable
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Shares on a pro rata basis and shall issue to each holder of Retracted Shares a
new certificate, at the expense of the Corporation, representing the Retracted
Shares not redeemed by the Corporation. Provided that the Retraction Request is
not revoked by the holder in the manner specified in Section 6.7, the holder of
any such Retracted Shares not redeemed by the Corporation pursuant to Section
6.2 of these share provisions as a result of liquidity or solvency requirements
of applicable law shall be deemed by giving the Retraction Request to require
Weatherford to purchase such Retracted Shares from such holder on the Retraction
Date or as soon as practicable thereafter on payment by Weatherford to such
holder of the Purchase Price for each such Retracted Share, all as more
specifically provided in the Voting and Exchange Trust Agreement, and
Weatherford shall make such purchase.
6.7 A holder of Retracted Shares may, by notice in writing given by the holder
to the Corporation before the close of business on the Business Day immediately
preceding the Retraction Date, withdraw its Retraction Request in which event
such Retraction Request shall be null and void and, for greater certainty, the
revocable offer constituted by the Retraction Request to sell the Retracted
Shares to Weatherford shall be deemed to have been revoked.
ARTICLE 7
REDEMPTION OF SERIES 1 EXCHANGEABLE SHARES BY THE CORPORATION
7.1 Subject to applicable law, and if Weatherford does not exercise the
Redemption Call Right, the Corporation shall on the Automatic Redemption Date
redeem the whole of the then outstanding Series 1 Exchangeable Shares for an
amount equal to the Series 1 Exchangeable Share Price applicable on the last
Business Day prior to the Automatic Redemption Date (the "Redemption Price"). In
connection with and as part of the payment of the Redemption Price, the
Corporation shall be entitled to liquidate some of the Weatherford 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.
7.2 In any case of a redemption of Series 1 Exchangeable Shares under this
Article 7, the Corporation shall, at least 120 days before the Automatic
Redemption Date, send or cause to be sent to each holder of Series 1
Exchangeable Shares a notice in writing of the redemption by the Corporation or
the purchase by Weatherford under the Redemption Call Right, as the case may be,
of the Series 1 Exchangeable Shares held by such holder. Such notice shall set
out the formula for determining the Redemption Price or the Redemption Call
Purchase Price, as the case may be, the Automatic Redemption Date and, if
applicable, particulars of the Redemption Call Right.
7.3 On or after the Automatic Redemption Date and subject to the exercise by
Weatherford of the Redemption Call Right, the Corporation shall cause to be
delivered to the holders of the Series 1 Exchangeable Shares to be redeemed the
Redemption Price or the total Redemption Call Price, as the case may be, for
each such Series 1 Exchangeable Share upon presentation and surrender at the
registered office of the Corporation or at any office of the Transfer Agent as
may be specified by the Corporation in such notice of the certificates
representing such Series 1 Exchangeable Shares,
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together with such other documents and instruments as may be required to effect
a transfer of Series 1 Exchangeable Shares under the Business Corporations Act
(Alberta) and the by-laws of the Corporation and such additional documents and
instruments as the Transfer Agent may reasonably require. Payment of the total
Redemption Price or the total Redemption Call Price, as the case may be, for
such Series 1 Exchangeable Shares shall be made by delivery to each holder, at
the address of the holder recorded in the securities register of the Corporation
or by holding for pick up by the holder at the registered office of the
Corporation or at any office of the Transfer Agent as may be specified by the
Corporation in such notice, on behalf of the Corporation of the Series 1
Exchangeable Share Consideration representing the total Redemption Price or the
total Redemption Call Price, as the case may be. On and after the Automatic
Redemption Date, the holders of the Series 1 Exchangeable Shares called for
redemption shall cease to be holders of such Series 1 Exchangeable Shares and
shall not be entitled to exercise any of the rights of holders in respect
thereof, other than the right to receive their proportionate part of the total
Redemption Price or the total Redemption Call Price, as the case may be, unless
payment of the total Redemption Price or the total Redemption Call Price, as the
case may be, for such Series 1 Exchangeable Shares shall not be made upon
presentation and surrender of certificates in accordance with the foregoing
provisions, in which case the rights of the holders shall remain unaffected
until the total Redemption Price or the total Redemption Call Price, as the case
may be, has been paid in the manner hereinbefore provided. The Corporation shall
have the right at any time after the sending of notice of its intention to
redeem the Series 1 Exchangeable Shares as aforesaid to deposit or cause to be
deposited the Series 1 Exchangeable Share Consideration with respect to the
Series 1 Exchangeable Shares so called for redemption, or of such of the said
Series 1 Exchangeable Shares represented by certificates that have not at the
date of such deposit been surrendered by the holders thereof in connection with
such redemption, in a custodial account or for safe keeping, in the case of
non-cash items, with any chartered bank or trust company in Canada named in such
notice. Upon the later of such deposit being made and the Automatic Redemption
Date, the Series 1 Exchangeable Shares in respect whereof such deposit shall
have been made shall be redeemed and the rights of the holders thereof after
such deposit or Automatic Redemption Date, as the case may be, shall be limited
to receiving their proportionate part of the total Redemption Price or the total
Redemption Call Price, as the case may be, for such Series 1 Exchangeable Shares
so deposited, against presentation and surrender of the said certificates held
by them, respectively, in accordance with the foregoing provisions. Upon such
payment or deposit of such Series 1 Exchangeable Share Consideration, the
holders of the Series 1 Exchangeable Shares shall thereafter be considered and
deemed for all purposes to be holders of the Weatherford Common Stock delivered
to them. Notwithstanding the foregoing, until such Series 1 Exchangeable Share
Consideration is delivered to the holder, the holder shall be deemed to still be
a holder of Series 1 Exchangeable Shares for purposes of all voting rights with
respect thereto under the Voting and Exchange Trust Agreement.
7.4 Notwithstanding any other provision of this Article 7, the Corporation shall
not be obligated to redeem Series 1 Exchangeable Shares pursuant to this Article
7 to the extent that such redemption of Series 1 Exchangeable Shares pursuant to
this Article 7 would be contrary to liquidity or solvency requirements or other
provisions of applicable law. If the Corporation believes that on any Automatic
Redemption Date it would not be permitted by any of such provisions to redeem
the
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Series 1 Exchangeable Shares pursuant to this Article 7, the Corporation shall
only be obligated to redeem such shares (rounded down to a whole number of
shares) as would not be contrary to such provisions and shall notify the holders
at least two Business Days prior to the Automatic Redemption Date as to the
number of such shares which will not be redeemed by the Corporation. In any such
case in which the redemption by the Corporation of any Series 1 Exchangeable
Shares would be contrary to liquidity or solvency requirements or other
provisions of applicable law, the Corporation shall redeem such shares on a pro
rata basis and shall issue to each holder of such shares a new certificate, at
the expense of the Corporation, representing the Series 1 Exchangeable Shares
not redeemed by the Corporation. The holder of any such Series 1 Exchangeable
Shares not redeemed by the Corporation pursuant to Section 7.3 of these share
provisions as a result of liquidity or solvency requirements of applicable law
shall be deemed automatically and without any further action thereby to require
Weatherford to purchase such Series 1 Exchangeable Shares from such holder on
the Automatic Redemption Date or as soon as practicable thereafter on payment by
Weatherford to such holder of the Purchase Price for each such Share, all as
more specifically provided in the Voting and Exchange Trust Agreement, and
Weatherford shall make such purchase.
ARTICLE 8
EXCHANGE PUT RIGHT
8.1 Upon and subject to the terms and conditions contained in these share
provisions and the Voting and Exchange Trust Agreement:
(a) a holder of Series 1 Exchangeable Shares shall have the right
(the "Exchange Put Right") at any time to require Weatherford
to purchase all or any part of the Series 1 Exchangeable
Shares of the holder; and
(b) upon the exercise by the holder of the Exchange Put Right, the
holder shall be required to sell to Weatherford, and
Weatherford shall be required to purchase from the holder,
that number of Series 1 Exchangeable Shares in respect of
which the Exchange Put Right is exercised, in consideration of
the payment by Weatherford of the Series 1 Exchangeable Share
Price applicable thereto (which shall be the Series 1
Exchangeable Share Price applicable on the last Business Day
prior to receipt of notice required under Section 8.2) and
delivery by or on behalf of Weatherford of the Series 1
Exchangeable Share Consideration representing the total
applicable Series 1 Exchangeable Share Price. In connection
with and as part of the payment of the Series 1 Exchangeable
Share Consideration, Weatherford shall be entitled to
liquidate some of the Weatherford Common Stock which would
otherwise be deliverable to the particular holder of Series 1
Exchangeable Shares in order to fund any statutory withholding
tax obligation.
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8.2 The Exchange Put Right provided in Section 8.1 hereof and in Article 5 of
the Voting and Exchange Trust Agreement may be exercised at any time by notice
in writing in the form of Schedule B hereto given by the holder to and received
by the Trustee (the date of such receipt, the "Exchange Put Date") and
accompanied by presentation and surrender of the certificates representing such
Series 1 Exchangeable Shares, together with such documents and instruments as
may be required to effect a transfer of Series 1 Exchangeable Shares under the
Business Corporations Act (Alberta) and the by-laws of the Corporation and such
additional documents and instruments as the Trustee may reasonably require, at
the principal transfer offices in Xxxxxxx, Xxxxxxx xxx Xxxxxxx, Xxxxxxx of the
Trustee, or at such other office or offices of the Trustee or of other persons
designated by the Trustee for that purpose as may from time to time be
maintained by the Trustee for that purpose. Such notice may be (i) in the form
of the panel, if any, on the certificates representing Series 1 Exchangeable
Shares, (ii) in the form of the notice and election contained in the any letter
of transmittal distributed or made available by the Corporation for that
purpose, or (iii) in other form satisfactory to the Trustee (or such other
persons aforesaid), shall stipulate the number of Series 1 Exchangeable Shares
in respect of which the right is exercised (which may not exceed the number of
shares represented by certificates surrendered to the Trustee), shall be
irrevocable unless the exchange is not completed in accordance herewith and with
the Voting and Exchange Trust Agreement and shall constitute the holder's
authorization to the Trustee (and such other persons aforesaid) to effect the
exchange on behalf of the holder.
8.3 The completion of the sale and purchase referred to in Section 8.1 shall be
required to occur, and Weatherford shall be required to take all actions on its
part necessary to permit it to occur, not later than the close of business on
the fifth Business Day following the Exchange Put Date.
8.4 The surrender by the holder of Series 1 Exchangeable Shares under Section
8.2 shall constitute the representation, warranty and covenant of the holder to
Weatherford that the Series 1 Exchangeable Shares are sold to Weatherford free
and clear of any lien, encumbrance, security interest or adverse claim or
interest.
8.5 If a part only of the Series 1 Exchangeable Shares represented by any
certificate are to be sold and purchased pursuant to the exercise of the
Exchange Put Right, a new certificate for the balance of such Series 1
Exchangeable Shares shall be issued to the holder at the expense of the
Corporation.
8.6 Upon receipt by the Trustee of the notice, certificates and other documents
or instruments required by section 8.2, the Trustee shall deliver or cause to be
delivered, on behalf of Weatherford and subject to receipt by the Trustee from
Weatherford of the applicable Series 1 Exchangeable Share Consideration, to the
relevant holder at the address of the holder specified in the notice or by
holding for pick-up by the holder at the registered office of the Corporation or
at any office of the Trustee (or other persons aforesaid) maintained for that
purpose, the Series 1 Exchangeable Share Consideration representing the total
applicable Series 1 Exchangeable Share Price, within the time stipulated in
Section 8.3. Delivery by Weatherford to the Trustee of such Series 1
Exchangeable Share Consideration shall be deemed to be payment of and shall
satisfy and discharge all liability
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for the total applicable Series 1 Exchangeable Share Price, except as to any
cheque included therein which is not paid on due presentation.
8.7 On and after the close of business on the Exchange Put Date, the holder of
the Series 1 Exchangeable Shares in respect of which the Exchange Put Right is
exercised shall not be entitled to exercise any of the rights of a holder in
respect thereof, other than the right to receive the total applicable Series 1
Exchangeable Share Price, unless upon presentation and surrender of certificates
in accordance with the foregoing provisions, payment of the Series 1
Exchangeable Share Consideration shall not be made, in which case the rights of
such holder shall remain unaffected until such payment has been made. On and
after the close of business on the Exchange Put Date provided that presentation
and surrender of certificates and payment of the Series 1 Exchangeable Share
Consideration has been made in accordance with the foregoing provisions, the
holder of the Series 1 Exchangeable Shares so purchased by Weatherford shall
thereafter be considered and deemed for all purposes to be the holder of the
Weatherford Common Stock delivered to it. Notwithstanding the foregoing, until
payment of the Series 1 Exchangeable Share Consideration to the holder, the
holder shall be deemed to still be a holder of Series 1 Exchangeable Shares for
purposes of all voting rights with respect thereto under the Voting and Exchange
Trust Agreement.
ARTICLE 9
VOTING RIGHTS
9.1 Except as required by applicable law and the provisions hereof, the holders
of the Series 1 Exchangeable Shares shall not be entitled as such to receive
notice of or to attend any meeting of the shareholders of the Corporation or to
vote at any such meeting.
ARTICLE 10
AMENDMENT AND APPROVAL
10.1 The rights, privileges, restrictions and conditions attaching to the Series
1 Exchangeable Shares may be added to, changed or removed but, except as
hereinafter provided, only with the approval of the holders of the Series 1
Exchangeable Shares given as hereinafter specified.
10.2 Any approval given by the holders of the Series 1 Exchangeable Shares to
add to, change or remove any right, privilege, restriction or condition
attaching to the Series 1 Exchangeable Shares or any other matter requiring the
approval or consent of the holders of the Series 1 Exchangeable Shares shall be
deemed to have been sufficiently given if it shall have been given in accordance
with applicable law subject to a minimum requirement that such approval be
evidenced by resolution passed by not less than two-thirds of the votes cast on
such resolution by persons represented in person or by proxy at a meeting of
holders of Series 1 Exchangeable Shares duly called and held at which the
holders of at least 50% of the outstanding Series 1 Exchangeable Shares at that
time are present or represented by proxy (excluding Series 1 Exchangeable Shares
beneficially owned by Xxxxxxxxxxx or its Subsidiaries). If at any such meeting
the holders of at least 50% of the outstanding Series 1 Exchangeable Shares at
that time are not present or represented by proxy within one-half
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hour after the time appointed for such meeting then the meeting shall be
adjourned to such date not less than 10 days thereafter and to such time and
place as may be designated by the Chairman of such meeting. At such adjourned
meeting the holders of Series 1 Exchangeable Shares present or represented by
proxy thereat may transact the business for which the meeting was originally
called and a resolution passed thereat by the affirmative vote of not less than
two-thirds of the votes cast on such resolution by persons represented in person
or by proxy at such meeting shall constitute the approval or consent of the
holders of the Series 1 Exchangeable Shares.
ARTICLE 11
RECIPROCAL CHANGES, ETC. IN RESPECT OF
WEATHERFORD COMMON STOCK
11.1 (a) Each holder of a Series 1 Exchangeable Share acknowledges that the
Support Agreement provides, in part, that Weatherford will not without the prior
approval of the Corporation and the prior approval of the holders of the Series
1 Exchangeable Shares given in accordance with Section 10.2 of these share
provisions:
(i) issue or distribute Weatherford Common Stock (or
securities exchangeable for or convertible into or
carrying rights to acquire Weatherford Common Stock)
to the holders of all or substantially all of the
then outstanding Weatherford Common Stock by way of
stock dividend or other distribution; or
(ii) issue or distribute rights, options or warrants to
the holders of all or substantially all of the then
outstanding Weatherford Common Stock entitling them
to subscribe for or to purchase shares of Weatherford
Common Stock (or securities exchangeable for or
convertible into or carrying rights to acquire shares
of Weatherford Common Stock); or
(iii) issue or distribute to the holders of all or
substantially all of the then outstanding shares of
Weatherford Common Stock (A) shares or securities of
Weatherford of any class other than Weatherford
Common Stock (other than shares convertible into or
exchangeable for or carrying rights to acquire
Weatherford Common Stock), (B) rights, options or
warrants other than those referred to in Section
11.1(a)(ii) above, (C) evidences of indebtedness of
Xxxxxxxxxxx or (D) assets of Weatherford;
unless Weatherford has taken its reasonable best efforts to permit the
Corporation to issue or distribute the equivalent on a per share basis of such
rights, options, securities, shares, evidences of indebtedness or other assets
to holders of the Series 1 Exchangeable Shares and to issue or distribute such
rights, options, securities, shares, evidences of indebtedness or other assets
simultaneously to holders of the Series 1 Exchangeable Shares.
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(b) Each holder of a Series 1 Exchangeable Share acknowledges that the
Support Agreement further provides, in part, that Weatherford will not without
the prior approval of the Corporation and the prior approval of the holders of
the Series 1 Exchangeable Shares given in accordance with Section 10.2 of these
share provisions:
(i) subdivide, redivide or change the then outstanding shares
of Weatherford Common Stock into a greater number of shares of
Weatherford Common Stock; or
(ii) reduce, combine or consolidate or change the then
outstanding shares of Weatherford Common Stock into a lesser number of
shares of Weatherford Common Stock; or
(iii) reclassify or otherwise change the shares of Weatherford
Common Stock or effect an amalgamation, merger, reorganization or other
transaction affecting the shares of Weatherford Common Stock;
unless Weatherford has taken its reasonable best efforts to permit the
Corporation to simultaneously make the same or an equivalent change to, or in
the rights of holders of, the Series 1 Exchangeable Shares and unless
Weatherford has taken its reasonable best efforts to cause the Corporation to
make the same or an equivalent change to, or in the rights of the holders of,
the Series 1 Exchangeable Shares.
The Support Agreement further provides, in part, that the aforesaid provisions
of the Support Agreement shall not be changed without the approval of the
holders of the Series 1 Exchangeable Shares given in accordance with Section
10.2 of these share provisions.
ARTICLE 12
ACTIONS BY THE CORPORATION UNDER SUPPORT AGREEMENT
12.1 The Corporation will take all such actions and do all such things as shall
be necessary or advisable to perform and comply with and to ensure performance
and compliance by Weatherford with all provisions of the Support Agreement and
the Voting Trust and Exchange Agreement in accordance with the terms thereof
including, without limitation, taking all such actions and doing all such things
as shall be necessary or advisable to enforce to the fullest extent possible for
the direct benefit of the Corporation all rights and benefits in favour of the
Corporation under or pursuant thereto.
12.2 The Corporation shall not propose, agree to or otherwise give effect to any
amendment to, or waiver or forgiveness of its rights or obligations under, the
Support Agreement or the Voting Trust and Exchange Agreement without the
approval of the holders of the Series 1 Exchangeable Shares given in accordance
with Section 10.2 of these share provisions other than such amendments, waivers
and/or forgiveness as may be necessary or advisable for the purposes of:
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(a) adding to the covenants of the other party or parties to such
agreements and certificate for the protection of the
Corporation or the holders of Series 1 Exchangeable Shares; or
(b) making such provisions or modifications not inconsistent with
such agreements and certificate as may be necessary or
desirable with respect to matters or questions arising
thereunder which, in the opinion of the Board of Directors, it
may be expedient to make, provided that the Board of Directors
shall be of the opinion, after consultation with independent
counsel, that such provisions and modifications will not be
prejudicial to the interests of the holders of the Series 1
Exchangeable Shares; or
(c) making such changes in or corrections to such agreements and
certificates which, on the advice of independent counsel to
the Corporation, are required for the purpose of curing or
correcting any ambiguity or defect or inconsistent provision
or clerical omission or mistake or manifest error contained
therein, provided that the Board of Directors shall be of the
opinion, after consultation with independent counsel, that
such changes or corrections will not be prejudicial to the
interests of the holders of the Series 1 Exchangeable Shares.
ARTICLE 13
LEGEND
13.1 The certificates evidencing the Series 1 Exchangeable Shares shall contain
or have affixed thereto a legend, in form and on terms approved by the Board of
Directors, with respect to the Support Agreement, the provisions of the Plan of
Arrangement relating to the Liquidation Call Right and the Redemption Call
Right, and the Voting and Exchange Trust Agreement (including the provisions
with respect to the voting rights, exchange right, exchange put right, and
automatic exchange thereunder).
ARTICLE 14
MISCELLANEOUS
14.1 Any notice, request or other communication to be given to the Corporation
by a holder of Series 1 Exchangeable Shares shall be in writing and shall be
valid and effective if given by mail (postage prepaid) or by telecopy or by
delivery to the registered office of the Corporation and addressed to the
attention of the President. Any such notice, request or other communication, if
given by mail, telecopy or delivery, shall only be deemed to have been given and
received upon actual receipt thereof by the Corporation.
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14.2 Any presentation and surrender by a holder of Series 1 Exchangeable Shares
to the Corporation or the Transfer Agent or the Trustee under the Voting and
Exchange Trust Agreement of certificates representing Series 1 Exchangeable
Shares in connection with the liquidation, dissolution or winding-up of the
Corporation or the retraction or redemption of Series 1 Exchangeable Shares
shall be made by registered mail (postage prepaid) or by delivery to the
registered office of the Corporation or to such office of the Transfer Agent as
may be specified by the Corporation, in each case addressed to the attention of
the President of the Corporation. Any such presentation and surrender of
certificates shall only be deemed to have been made and to be effective upon
actual receipt thereof by the Corporation or the Transfer Agent, as the case may
be. Any such presentation and surrender of certificates made by registered mail
shall be at the sole risk of the holder mailing the same.
14.3 Any notice, request or other communication to be given to a holder of
Series 1 Exchangeable Shares by or on behalf of the Corporation shall be in
writing and shall be valid and effective if given by mail (postage prepaid) or
by delivery to the address of the holder recorded in the securities register of
the Corporation or, in the event of the address of any such holder not being so
recorded, then at the last known address of such holder. Any such notice,
request or other communication, if given by mail, shall be deemed to have been
given and received on the fifth Business Day following the date of mailing and,
if given by delivery, shall be deemed to have been given and received on the
date of delivery. Accidental failure or omission to give any notice, request or
other communication to one or more holders of Series 1 Exchangeable Shares shall
not invalidate or otherwise alter or affect any action or proceeding to be taken
by the Corporation pursuant thereto.
14.4 All Series 1 Exchangeable Shares acquired by the Corporation upon the
redemption or retraction thereof shall be canceled.
14.5 For purposes of determining the tax payable, by reason of subparagraphs
191.1(1)(a)(ii) and (iii) of the Income Tax Act (Canada), with respect to the
Series 1 Exchangeable Shares, the Corporation shall prepare, execute and file
the election prescribed by subsection 191.2(1) of the Income Tax Act (Canada),
within the time limits prescribed in subsection 191.2(1) of the Income Tax Act
(Canada).
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SCHEDULE A
NOTICE OF RETRACTION
To the Corporation and Xxxxxxxxxxx International, Inc.
This notice is given pursuant to Article 6 of the provisions (the
"Share Provisions") attaching to the share(s) represented by this certificate
and all capitalized words and expressions used in this notice which are defined
in the Share Provisions have the meanings attributed to such words and
expressions in such Share Provisions.
The undersigned hereby notifies the parties described above that,
subject to the Retraction Call Right referred to below, the undersigned desires
to have the Corporation redeem in accordance with Article 6 of the Share
Provisions:
[ ] all share(s) represented by this certificate; or
[ ] share(s) only.
----------------------
The undersigned hereby notifies the parties described above that the
Retraction Date shall be ___________________________.
NOTE: The Retraction Date must be a Business Day and must not be less than
five Business Days nor more than 10 Business Days after the date upon
which this notice is received by the Corporation. In the event that no
such Business Day is specified above, the Retraction Date shall be
deemed to be the tenth Business Day after the date on which this notice
is received by the Corporation.
The undersigned acknowledges the Retraction Call Right of Xxxxxxxxxxx
International, Inc. to purchase all but not less than all the Retracted Shares
from the undersigned and that this notice shall be deemed to be a revocable
offer by the undersigned to sell the Retracted Shares to Xxxxxxxxxxx
International, Inc. in accordance with the Retraction Call Right on the
Retraction Date for the Retraction Price and on the other terms and conditions
set out in Section 6.3 of the Share Provisions. If Xxxxxxxxxxx International,
Inc. determines not to exercise the Retraction Call Right, the Corporation will
notify the undersigned of such fact as soon as possible. This notice of
retraction, and offer to sell the Retracted Shares to Xxxxxxxxxxx International,
Inc., may be revoked and withdrawn by the undersigned by notice in writing given
to the Corporation at any time before the close of business on the Business Day
immediately preceding the Retraction Date.
The undersigned acknowledges that if, as a result of liquidity or
solvency provisions of applicable law, the Corporation is unable to redeem all
Retracted Shares, the undersigned will be deemed to have exercised the Exchange
Right (as defined in the Voting and Exchange Trust Agreement) so as to require
Xxxxxxxxxxx International, Inc. to purchase the unredeemed Retracted Shares.
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The undersigned hereby represents and warrants to the Corporation and
Xxxxxxxxxxx International, Inc. that the undersigned has good title to, and
owns, the share(s) represented by this certificate to be acquired by the
Corporation or Xxxxxxxxxxx International, Inc., as the case may be, free and
clear of all liens, claims and encumbrances.
---------------------------- ------------------------------------- ------------------------------------------
(Date) (Signature of Shareholder) (Guarantee of Signature)
[ ] Please check box if the legal or beneficial owner of the Retracted
Shares is a non-resident of Canada.
[ ] Please check box if the securities and any cheque(s) or other non-cash
assets resulting from the retraction or purchase of the Retracted
Shares are to be held for pick-up by the shareholder at the principal
transfer office of _________________________ (the "Transfer Agent") in
Calgary, Alberta or Toronto, Ontario failing which the securities and
any cheque(s) or other non-cash assets will be delivered to the last
address of the shareholder as it appears on the register by such means
as the Corporation deems appropriate.
NOTE: This panel must be completed and this certificate, together with such
additional documents as the Transfer Agent may require, must be
deposited with the Transfer Agent at its principal transfer office in
Calgary, Alberta or Xxxxxxx, Xxxxxxx. The securities and any cheque(s)
or other non-cash assets resulting from the retraction or purchase of
the Retracted Shares will be issued and registered in, and made payable
to, or transferred into, respectively, the name of the shareholder as
it appears on the register of the Corporation and the securities,
cheque(s) and other non-cash assets resulting from such retraction or
purchase will be delivered to such shareholder as indicated above,
unless the form appearing immediately below is duly completed.
----------------------------------------------------- Date
Name of Person in Whose Name Securities or Cheque(s) -------------------------------
or Other Non-cash Assets Are To Be Registered, Issued
or Delivered (please print)
----------------------------------------------------- ----------------------------------
Street Address or P.O. Box Signature of Shareholder
----------------------------------------------------- ----------------------------------
City - Province Signature Guaranteed by
NOTE: If the notice of retraction is for less than all of the share(s)
represented by this certificate, a certificate representing the
remaining shares of the Corporation will be issued and registered in
the name of the shareholder as it appears on the register of the
Corporation, unless the Share Transfer Power on the share certificate
is duly completed in respect of such shares.
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SCHEDULE B
NOTICE OF EXCHANGE PUT
To the Trustee, the Corporation and Xxxxxxxxxxx International, Inc.
This notice is given pursuant to Article 8 of the provisions (the
"Share Provisions") attaching to the share(s) represented by this certificate
and all capitalized words and expressions used in this notice which are defined
in the Share Provisions have the meanings attributed to such words and
expressions in such Share Provisions.
The undersigned hereby notifies the parties described above that the
undersigned desires to have Xxxxxxxxxxx International, Inc. purchase and
exchange in accordance with Article 8 of the Share Provisions:
[ ] all share(s) represented by this certificate; or
[ ] share(s) only.
----------------------
The undersigned hereby notifies the parties described above that the
Exchange Put Date shall be_____________________.
NOTE: The Exchange Put Date must be a Business Day and must not be less than
five Business Days nor more than 10 Business Days after the date upon
which this notice is received by the parties described above. In the
event that no such Business Day is specified above, the Exchange Put
Date shall be deemed to be the tenth Business Day after the date on
which this notice is received by the parties described above.
The undersigned hereby represents and warrants to Xxxxxxxxxxx
International, Inc. that the undersigned has good title to, and owns, the
share(s) represented by this certificate to be acquired by Xxxxxxxxxxx
International, Inc., free and clear of all liens, claims and encumbrances.
---------------------------- ------------------------------------- ------------------------------------------
(Date) (Signature of Shareholder) (Guarantee of Signature)
[ ] Please check box if the legal or beneficial owner of the Exchanged
Shares is a non-resident of Canada.
[ ] Please check box if the securities and any cheque(s) or other non-cash
assets resulting from the purchase and exchange of the Exchanged Shares
are to be held for pick-up by the shareholder at the principal transfer
office of _________________________ (the "Transfer Agent") in Calgary,
Alberta or Toronto, Ontario failing which the securities and any
cheque(s) or other non-cash assets will be delivered to the last
address of the shareholder as it appears on the register by such means
as the Corporation deems appropriate.
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NOTE: This panel must be completed and this certificate, together with such
additional documents as the Transfer Agent may require, must be
deposited with the Transfer Agent at its principal transfer office in
Calgary, Alberta or Xxxxxxx, Xxxxxxx. The securities and any cheque(s)
or other non-cash assets resulting from the purchase and exchange of
the Exchanged Shares will be issued and registered in, and made payable
to, or transferred into, respectively, the name of the shareholder as
it appears on the register of the Corporation and the securities,
cheque(s) and other non-cash assets resulting from such purchase and
exchange will be delivered to such shareholder as indicated above,
unless the form appearing immediately below is duly completed.
----------------------------------------------------- Date
Name of Person in Whose Name Securities or Cheque(s) --------------------------------
or Other Non-cash Assets Are To Be Registered, Issued
or Delivered (please print)
----------------------------------------------------- ----------------------------------
Street Address or P.O. Box Signature of Shareholder
----------------------------------------------------- ----------------------------------
City - Province Signature Guaranteed by
NOTE: If the notice of exchange put is for less than all of the share(s)
represented by this certificate, a certificate representing the
remaining shares of the Corporation will be issued and registered in
the name of the shareholder as it appears on the register of the
Corporation, unless the Share Transfer Power on the share certificate
is duly completed in respect of such shares.
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EXHIBIT B
SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of _____________________, 2000.
BETWEEN:
XXXXXXXXXXX INTERNATIONAL, INC.,
a corporation existing under the laws of the State of Delaware,
(hereinafter referred to as "Weatherford"),
OF THE FIRST PART,
- and -
XXXXXXXXXXX OIL SERVICES, INC.,
a corporation existing under the laws of the Province of Alberta,
(hereinafter referred to as "Services"),
OF THE SECOND PART.
WHEREAS pursuant to a Combination Agreement dated as of June 16, 2000, by
and among Weatherford, Services, Weatherford Canada Ltd. and Alpine Oil Services
Corporation ("Alpine") (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), Weatherford and
Services would execute and deliver a Support Agreement containing the terms and
conditions set forth in Exhibit B 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 _________________, 2000 pursuant to the Business
Corporations Act (Alberta) each issued and outstanding common share of Alpine
(an "Alpine Common Share") was transferred to Services in consideration for
___________ Series 1 Exchangeable Shares of Services (the "Series 1 Exchangeable
Shares") for each Alpine Common Share;
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");
AND WHEREAS the parties hereto desire to make appropriate provision and to
establish a procedure whereby Weatherford will take certain actions and make
certain payments and deliveries necessary to ensure that Services will be able
to make certain payments and to deliver or cause to be delivered shares of
Weatherford Common Stock in satisfaction of the obligations of Services under
the Exchangeable Share Provisions with respect to the payment and satisfaction
of dividends, Liquidation Amounts, Retraction Prices and Redemption Prices, all
in accordance with the Exchangeable Share Provisions;
78
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) DEFINED TERMS. Each term denoted herein by initial capital letters and
not otherwise defined herein shall have the meaning attributed thereto
in the Exchangeable Share Provisions, unless the context requires
otherwise.
(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. COVENANTS OF WEATHERFORD AND SERVICES
(a) COVENANTS OF WEATHERFORD REGARDING SERIES 1 EXCHANGEABLE SHARES. So
long as any Series 1 Exchangeable Shares are outstanding, Weatherford
will:
(i) not declare or pay any dividend on Weatherford Common Stock
unless (A) Services will have or will be provided with
sufficient assets, funds and other property available to enable
the due declaration and the due and punctual payment in
accordance with applicable law of an equivalent dividend on the
Series 1 Exchangeable Shares and (B) Sections 2(a)(ii), (iii)
and (iv) shall be complied with in connection with such
dividend;
(ii) use its reasonable best efforts to cause Services to declare
simultaneously with the declaration of any dividend on
Weatherford Common Stock an equivalent dividend on the Series 1
Exchangeable Shares and, when such dividend is paid on
Weatherford Common Stock, use its reasonable best efforts to
cause Services to pay simultaneously therewith such equivalent
dividend on the Series 1 Exchangeable Shares, in each case in
accordance with the Exchangeable Share Provisions;
(iii) advise Services of the declaration by Weatherford of any
dividend on Weatherford Common Stock and take all such other
actions as are reasonably necessary, in cooperation with
Services, to ensure that the respective declaration date, record
date and payment date for a dividend on the Series 1
Exchangeable Shares shall be the same as the record date,
declaration date and payment date for the corresponding dividend
on Weatherford Common Stock and such dividend on the Series 1
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Exchangeable Shares shall correspond with any requirement of the
principal stock exchange on which the Series 1 Exchangeable
Shares are listed;
(iv) take all such actions and do all such things as are necessary or
desirable to enable and permit Services, in accordance with
applicable law, to pay and otherwise perform its obligations
with respect to the satisfaction of the Liquidation Amount in
respect of each issued and outstanding Series 1 Exchangeable
Share upon the liquidation, dissolution or winding-up of
Services, including without limitation all such actions and all
such things as are necessary or desirable to enable and permit
Services to cause to be delivered shares of Weatherford Common
Stock to the holders of Series 1 Exchangeable Shares in
accordance with the provisions of Article 5 of the Exchangeable
Share Provisions;
(v) take all such actions and do all such things as are necessary or
desirable to enable and permit Services, in accordance with
applicable law, to pay and otherwise perform its obligations
with respect to the satisfaction of the Retraction Price and the
Redemption Price, including without limitation all such actions
and all such things as are necessary or desirable to enable and
permit Services to cause to be delivered shares of Weatherford
Common Stock to the holders of Series 1 Exchangeable Shares,
upon the retraction or redemption of the Series 1 Exchangeable
Shares in accordance with the provisions of Article 6 or Article
7 of the Exchangeable Share Provisions, as the case may be; and
(vi) not indirectly exercise its vote as a shareholder to initiate
the voluntary liquidation, dissolution or winding-up of
Services, nor take any action or omit to take any action that is
designed to result in, nor omit to take any action to prevent,
the liquidation. dissolution or winding-up of Services.
(b) SEGREGATION OF FUNDS. Weatherford will cause Services to deposit a
sufficient amount of funds in a separate account and segregate a
sufficient amount of such assets and other property as is necessary to
enable Services to pay or otherwise satisfy the applicable dividends,
Liquidation Amount, Retraction Price or Redemption Price, in each case
for the benefit of holders from time to time of the Series 1
Exchangeable Shares, and Services will use such funds, assets and
other property so segregated exclusively for the payment of dividends
and the payment or other satisfaction of the Liquidation Amount, the
Retraction Price or the Redemption Price, as applicable, net of any
corresponding withholding tax obligations and for the remittance of
such withholding tax obligations.
(c) RESERVATION OF SHARES OF WEATHERFORD COMMON STOCK. Weatherford hereby
represents, warrants and covenants that it has irrevocably reserved
for issuance and will at all times keep available, free from
preemptive and other rights, out of its authorized and unissued
capital stock such number of shares of Weatherford Common Stock (or
other shares or securities into which Weatherford Common Stock may be
reclassified or changed as contemplated by Section 2(g) hereof) (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
Weatherford and Services to meet their respective obligations
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hereunder, under the Voting and Exchange Trust Agreement, under the
Exchangeable Share Provisions and under any other security or
commitment pursuant to the Arrangement with respect to which
Weatherford may now or hereafter be required to issue shares of
Weatherford Common Stock.
(d) NOTIFICATION OF CERTAIN EVENTS. In order to assist Weatherford to
comply with its obligations hereunder, Services will give Weatherford
notice of each of the following events at the time set forth below:
(i) in the event of any determination by the Board of Directors of
Services to institute voluntary liquidation, dissolution or
winding-up proceedings with respect to Services or to effect any
other distribution of the assets of Services among its
shareholders for the purpose of winding-up its affairs, at least
5 days prior to the proposed effective date of such liquidation,
dissolution, winding-up or other distribution;
(ii) immediately, upon the earlier of (A) receipt by Services of
notice of, and (B) Services 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 Services or to effect any other
distribution of the assets of Services among its shareholders
for the purpose of winding-up its affairs;
(iii) immediately, upon receipt by Services of a Retraction Request
(as defined in the Exchangeable Share Provisions);
(iv) at least 10 days prior to any accelerated Automatic Redemption
Date determined by the Board of Directors of Services in
accordance with the Exchangeable Share Provisions; and
(v) as soon as practicable upon the issuance by Services of any
Series 1 Exchangeable Shares or rights to acquire Series 1
Exchangeable Shares.
(e) DELIVERY OF SHARES OF WEATHERFORD COMMON STOCK. In furtherance of its
obligations hereunder, upon notice of any event which requires
Services to cause to be delivered shares of Weatherford Common Stock
to any holder of Series 1 Exchangeable Shares, Weatherford shall
forthwith issue and deliver the requisite shares of Weatherford Common
Stock to or to the order of the former holder of the surrendered
Series 1 Exchangeable Shares, as Services shall direct. All such
shares of Weatherford Common Stock shall be duly issued as fully paid
and non-assessable and shall be free and clear of any lien, claim,
encumbrance, security interest or adverse claim.
(f) QUALIFICATION OF SHARES OF WEATHERFORD COMMON STOCK AND LISTING OF
SERIES 1 EXCHANGEABLE SHARES. Weatherford covenants that if any shares
of Weatherford Common Stock (or other shares or securities into which
Weatherford Common Stock may be reclassified or changed as
contemplated by Section 2(g) hereof) to be issued and delivered
hereunder, including for greater certainty, pursuant to the
Exchangeable Share Provisions, or pursuant to the Exchange Right or
the Automatic Exchange Rights (both as defined in the Voting and
Exchange Trust Agreement) require registration or qualification with
or approval of or the filing of any document including any prospectus
or similar
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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 (or other
shares or securities into which Weatherford Common Stock may be
reclassified or changed as contemplated by Section 2(g) hereof) may be
issued and delivered by Weatherford to the initial holder thereof
(other than Services) 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 Weatherford for purposes of
Canadian federal or provincial securities law or an "affiliate" of
Weatherford or, prior to the Effective Date, of Alpine for purposes of
United States federal or state securities law), Weatherford will in
good faith expeditiously take all such actions and do all such things
as are necessary to cause such shares of Weatherford Common Stock (or
other shares or securities into which Weatherford Common Stock may be
reclassified or changed as contemplated by Section 2(g) hereof) to be
and remain duly registered, qualified or approved. Weatherford
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 Weatherford Common
Stock (or other shares or securities into which Weatherford Common
Stock may be reclassified or changed as contemplated by Section 2(g)
hereof) to be issued and delivered hereunder, including for greater
certainty, pursuant to the Exchangeable Share Provisions, or pursuant
to the Exchange Right and the Automatic Exchange Rights to be freely
tradeable thereafter (other than restrictions on transfer by reason of
a holder being a "control person" of Weatherford for the purposes of
Canadian federal and provincial securities law or an "affiliate" of
Weatherford or, prior to the Effective Date, of Alpine for the
purposes of United States federal or state securities law).
Weatherford will in good faith expeditiously take all such actions and
do all such things as are necessary to cause all shares of Weatherford
Common Stock (or other shares or securities into which Weatherford
Common Stock may be reclassified or changed as contemplated by Section
2(g) hereof) to be delivered hereunder, including for greater
certainty, pursuant to the Exchangeable Share Provisions, or 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. Weatherford will in good
faith expeditiously take all such action and do all such things as are
necessary to cause all Series 1 Exchangeable Shares to be and to
continue to be listed and posted for trading on the TSE, if possible,
or failing which, on another stock exchange in Canada.
(g) EQUIVALENCE.
(i) Weatherford will not without the prior approval of Services and
the prior approval of the holders of the Series 1 Exchangeable
Shares given in accordance with Section 9.2 of the Exchangeable
Share Provisions:
(A) issue or distribute shares of Weatherford Common Stock (or
securities exchangeable for or convertible into or carrying
rights to acquire shares of Weatherford Common Stock) to
the holders of all or substantially all of the then
outstanding Weatherford Common Stock by way of stock
dividend or other distribution; or
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(B) issue or distribute rights, options or warrants to the
holders of all or substantially all of the then outstanding
shares of Weatherford Common Stock entitling them to
subscribe for or to purchase shares of Weatherford Common
Stock (or securities exchangeable for or convertible into
or carrying rights to acquire shares of Weatherford Common
Stock); or
(C) issue or distribute to the holders of all or substantially
all of the then outstanding shares of Weatherford Common
Stock (I) shares or securities of Weatherford of any class
other than Weatherford Common Stock (other than shares
convertible into or exchangeable for or carrying rights to
acquire shares of Weatherford Common Stock), (II) rights,
options or warrants other than those referred to in Section
2(g)(i)(B) above, (III) evidences of indebtedness of
Weatherford or (IV) assets of Weatherford;
unless it has taken its reasonable best efforts to permit
Services to issue or distribute the equivalent on a per share
basis of such rights, options, securities, shares, evidences of
indebtedness or other assets to holders of the Series 1
Exchangeable Shares and to issue or distribute such rights,
options, securities, shares, evidences of indebtedness or other
assets simultaneously to holders of the Series 1 Exchangeable
Shares.
(ii) Weatherford will not
(A) subdivide, redivide or change the then outstanding shares
of Weatherford Common Stock into a greater number of shares
of Weatherford Common Stock; or
(B) reduce, combine or consolidate or change the then
outstanding shares of Weatherford Common Stock into a
lesser number of shares of Weatherford Common Stock; or
(C) reclassify or otherwise change the shares of Weatherford
Common Stock or effect an amalgamation, merger,
reorganization or other transaction affecting the shares of
Weatherford Common Stock;
unless it has taken its reasonable best efforts to permit
Services to simultaneously make the same or an equivalent change
to, or in the rights of holders of, the Series 1 Exchangeable
Shares and unless it has taken its reasonable best efforts to
cause Services to make the same or an equivalent change to, or
in the rights of the holders of, the Series 1 Exchangeable
Shares.
(iii) Weatherford will use its reasonable best efforts to ensure that
the record date for any event referred to in Section 2(g)(i) or
2(g)(ii) above, or (if no record date is applicable for such
event) the effective date for any such event, is not less than
10 days after the date on which such event is declared or
announced by Weatherford (with simultaneous notice thereof to
be given by Weatherford to Services).
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(h) TENDER OFFERS, ETC. In the event that a tender offer, share exchange
offer, issuer bid, take-over bid or similar transaction with respect
to Weatherford Common Stock (an "Offer") is proposed by Weatherford or
is proposed to Weatherford or its shareholders and is recommended by
the Board of Directors of Weatherford, or is otherwise effected or to
be effected with the consent or approval of the Board of Directors of
Weatherford, Weatherford shall take all such actions and do all such
things as are reasonably necessary or desirable to enable and permit
holders of Series 1 Exchangeable Shares to participate in such Offer
to the same extent and on an equivalent basis as the holders of shares
of Weatherford Common Stock.
(i) WEATHERFORD NOT TO VOTE SERIES 1 EXCHANGEABLE SHARES. Weatherford
covenants and agrees that it will appoint and cause to be appointed
proxyholders with respect to all Series 1 Exchangeable Shares held by
Weatherford and its Subsidiaries for the sole purpose of attending
each meeting of holders of Series 1 Exchangeable Shares in order to be
counted as part of the quorum for each such meeting. Weatherford
further covenants and agrees that it will not, and will cause its
Subsidiaries not to, exercise any voting rights which may be
exercisable by holders of Series 1 Exchangeable Shares from time to
time pursuant to the Exchangeable Share Provisions or pursuant to the
provisions of the Business Corporations Act (Alberta) (or any
successor or other corporate statute by which Services may in the
future be governed) with respect to any Series 1 Exchangeable Shares
held by it or by its Subsidiaries in respect of any matter considered
at any meeting of holders of Series 1 Exchangeable Shares.
(j) DUE PERFORMANCE. On and after the Effective Date, Weatherford shall
duly and timely perform all of its obligations provided for in the
Plan of Arrangement, including any obligations that may arise upon the
exercise of Xxxxxxxxxxx'x rights under the Exchangeable Share
Provisions.
3. GENERAL
(a) TERM. This agreement shall come into force and be effective as of the
date hereof and shall terminate and be of no further force and effect
at such time as no Series 1 Exchangeable Shares (or securities or
rights convertible into or exchangeable for or carrying rights to
acquire Series 1 Exchangeable Shares) are held by any party other than
Weatherford and any of its Subsidiaries.
(b) CHANGES IN CAPITAL OF WEATHERFORD AND SERVICES. Notwithstanding the
provisions of Section 3(d) hereof, at all times after the occurrence
of any event effected pursuant to Section 2(g) or 2(h) hereof, as a
result of which either Weatherford 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 Weatherford Common Stock or the Series 1
Exchangeable Shares or both are so changed and the parties hereto
shall execute and deliver an agreement in writing giving effect to and
evidencing such necessary amendments and modifications.
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(c) SEVERABILITY, If any provision of this agreement is held to be
invalid, illegal or unenforceable, the validity, legality or
enforceability of the remainder of this agreement shall not in any way
be affected or impaired thereby and this agreement shall be carried
out as nearly as possible in accordance with its original terms and
conditions.
(d) AMENDMENTS, MODIFICATIONS, ETC. This agreement may not be amended or
modified except by an agreement in writing executed by Services and
Weatherford and approved by the holders of the Series 1 Exchangeable
Shares in accordance with Section 9.2 of the Exchangeable Share
Provisions.
(e) MINISTERIAL AMENDMENTS. Notwithstanding the provisions of Section
3(d), the parties to this agreement may in writing, at any time and
from time to time, without the approval of the holders of the Series 1
Exchangeable Shares, amend or modify this agreement for the purposes
of:
(i) adding to the covenants of either or both parties for the
protection of the holders of the Series 1 Exchangeable Shares;
(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 Services, it may be expedient to make, provided
that such board of directors shall be of the opinion that such
amendments or modifications will not be prejudicial to the
interests of the holders of the Series 1 Exchangeable Shares; or
(iii) making such changes or corrections which, on the advice of
counsel to Services and Weatherford, are required for the
purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or
manifest error, provided that the board of directors of Services
shall be of the opinion that such changes or corrections will
not be prejudicial to the interests of the holders of the Series
1 Exchangeable Shares.
(f) MEETING TO CONSIDER AMENDMENTS. Services, at the request of
Weatherford, shall call a meeting or meetings of the holders of the
Series 1 Exchangeable Shares for the purpose of considering any
proposed amendment or modification requiring approval of such
shareholders. Any such meeting or meetings shall be called and held in
accordance with the by-laws of Services, the Exchangeable Share
Provisions and all applicable laws.
(g) AMENDMENTS ONLY IN WRITING. 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 both
of the parties hereto.
(h) INUREMENT. This agreement shall be binding upon and inure to the
benefit of the parties hereto and the holders, from time to time, of
Series 1 Exchangeable Shares and each of their respective heirs,
successors and assigns.
(i) NOTICES TO PARTIES. All notices and other communications between the
parties shall be in writing and shall be deemed to have been given if
delivered personally or by confirmed
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telecopy to the parties at the following addresses (or at such other
address for either such party as shall be specified in like notice):
(i) if to Weatherford at:
Xxxxxxxxxxx International, Inc.
000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
(ii) if to Services at:
Xxxxxxxxxxx Oil Services, Inc.
000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
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 confirmed 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.
(j) COUNTERPARTS. This agreement may be executed in counterparts, each of
which shall be deemed an original, and 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.
(k) 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.
(l) ATTORNMENT. Weatherford 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 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 Services at
its registered office in the Province of Alberta as Xxxxxxxxxxx'x
attorney for service of process.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first above written.
XXXXXXXXXXX INTERNATIONAL, INC. XXXXXXXXXXX OIL SERVICES, INC.
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Per: Per:
------------------------------ ------------------------------
Per: Per:
------------------------------ ------------------------------
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EXHIBIT C
VOTING AND EXCHANGE TRUST AGREEMENT
MEMORANDUM OF AGREEMENT made as of the _____ day of ______________, 2000.
B E T W E E N:
XXXXXXXXXXX INTERNATIONAL, INC., a corporation existing
under the laws of the State of Delaware (hereinafter
referred to as "Weatherford")
OF THE FIRST PART,
- and -
XXXXXXXXXXX OIL SERVICES, INC., a corporation existing under
the laws of the Province of Alberta (hereinafter referred to
as "Services")
OF THE SECOND PART,
- and -
MONTREAL TRUST COMPANY OF CANADA 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 June 16, 2000, by
and among Weatherford, Services, Weatherford Canada Ltd. and Alpine Oil Services
Corporation ("Alpine") (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), Weatherford and
Services would execute and deliver a Voting and Exchange Trust Agreement
containing the terms and conditions set forth in Exhibit C 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 _________________, 2000 filed pursuant to the
Business Corporations Act (Alberta), each issued and outstanding common share of
Alpine (an "Alpine Common Share") was transferred to Services in consideration
for _____ Series 1 Exchangeable Shares of Services (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");
88
AND WHEREAS Weatherford is to provide voting rights in Weatherford to each
holder (other than Weatherford 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 Weatherford Common Stock (the
"Weatherford Common Stock");
AND WHEREAS Weatherford is to xxxxx to and in favour of the holders (other
than Weatherford and its Subsidiaries) from time to time of Series 1
Exchangeable Shares the right, in the circumstances set forth herein, to require
Weatherford 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 Weatherford shall be exercisable
by holders (other than Weatherford 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 Weatherford Series A, Preferred Stock, $1.00 par value
(the "Weatherford Special Voting Preferred Stock") to which voting rights attach
for the benefit of such holders and whereby the rights to require Weatherford to
purchase Series 1 Exchangeable Shares from the holders thereof (other than
Weatherford 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 Weatherford and Services 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 Weatherford 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.
"Automatic Exchange Rights" means the benefit of the obligation of
Weatherford to effect the automatic exchange of shares of Weatherford
Common Stock for Series 1 Exchangeable Shares pursuant to Section 5(1)(iii)
hereof.
"Board of Directors" means the Board of Directors of Services.
"Business Day" has the meaning set out in the Exchangeable Share
Provisions.
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"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 Weatherford Common Stock are entitled to
vote, consent or otherwise act, the number of votes to which a holder of
one share of Weatherford Common Stock is entitled with respect to such
matter, proposition or question.
"Exchange Put Right" has the meaning set out in the Exchangeable Share
Provisions.
"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 Weatherford and its Subsidiaries.
"Indemnified Parties" has the meaning set out in Section 9(a) hereof.
"Insolvency Event" means the institution by Services of any proceeding
to be adjudicated a bankrupt or insolvent or to be dissolved or wound-up,
or the consent of Services 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 Services to contest in good
faith any such proceedings commenced in respect of Services within 15 days
of becoming aware thereof, or the consent by Services to the filing of any
such petition or to the appointment of a receiver, or the making by
Services of a general assignment for the benefit of creditors, or the
admission in writing by Services of its inability to pay its debts
generally as they become due, or Services 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 or to redeem any
other exchangeable shares of Services 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.
"List" has the meaning set out in Section 4(f) hereof.
"Officer's Certificate" means, with respect to Weatherford or
Services, 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 officer of Weatherford or Services, as the case
may be.
"Person" includes an individual, partnership, corporation, company,
unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative.
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"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.
"Services Common Shares" means common shares in the share capital of
Services.
"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 Services and Weatherford.
"Trust" means the trust created by this agreement.
"Trust Estate" means the Voting Share, the Exchange Right, the
Exchange Put Right, the Automatic Exchange Rights and any securities, money
or other property which may be held by the Trustee from time to time
pursuant to this agreement.
"Trustee" means Montreal Trust Company of Canada and, subject to the
provisions of Article 10 hereof, includes any successor trustee or
permitted assigns.
"Voting Share" means the one share of Weatherford Special Voting
Preferred Stock issued by Weatherford to and deposited with the Trustee,
which entitles the holder of record to a number of votes at meetings of
holders of Weatherford Common Stock equal to the Aggregate Equivalent Vote
Amount.
"Weatherford Common Stock" has the meaning set out in the recitals
hereto.
"Weatherford Consent" has the meaning set out in Section 4(b) hereof.
"Weatherford Meeting" has the meaning set out in Section 4(b) hereof.
"Weatherford Special Voting Preferred Stock" has the meaning set out
in the recitals hereto.
"Weatherford Successor" has the meaning set out in Section 11 (a)(i)
hereof "Voting Rights" means the voting rights attached to the Voting
Share.
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(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, the Exchange Put 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. Weatherford 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. Weatherford 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 Weatherford 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
(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. Services 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.
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(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 Weatherford at a Weatherford Meeting
or in connection with a Weatherford 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 Weatherford Consent is sought or a Weatherford 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
Weatherford at which holders of shares of Weatherford Common Stock are
entitled to vote (a "Weatherford Meeting") and with respect to all
written consents sought by Weatherford from its stockholders including
the holders of shares of Weatherford Common Stock (a "Weatherford
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
Weatherford or by applicable law for such Weatherford Meeting or
Weatherford Consent, as the case may be (the "Holder Votes") in
respect of each matter, question or proposition to be voted on at such
Weatherford Meeting or to be consented to in connection with such
Weatherford Consent.
(c) MAILINGS TO SHAREHOLDERS. With respect to each Weatherford Meeting and
Weatherford Consent, the Trustee will mail or cause to be mailed (or
otherwise communicate in the same manner as Weatherford utilizes in
communications to holders of Weatherford 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 Holders named
in the List on the same day as the initial mailing or notice (or other
communication) with respect thereto is given by Weatherford 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
Weatherford;
(ii) a statement that such Holder is entitled to instruct the Trustee
as to the exercise of the Holder Votes with respect to such
Weatherford Meeting or Weatherford Consent, as the case may be,
or, pursuant to Section 4(g) hereof, to attend such Weatherford
Meeting and to exercise personally as the proxy of the Trustee,
the Holder Votes thereat;
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(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 Weatherford 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 Weatherford 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 Weatherford 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 Weatherford Meeting or Weatherford
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 Weatherford or by applicable law for purposes of
determining stockholders entitled to vote at such Weatherford Meeting
or to give written consent in connection with such Weatherford
Consent. Weatherford will notify the Trustee in writing of any
decision of the board of directors of Weatherford with respect to the
calling of any such Weatherford Meeting or the seeking of any such
Weatherford Consent and shall provide all necessary information and
materials to the Trustee in each case 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. Weatherford will deliver to the
Trustee copies of all proxy materials, (including notices of
Weatherford Meetings but excluding proxies to vote shares of
Weatherford 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 Weatherford 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 Weatherford Common Stock. The Trustee will mail or
otherwise send to each Holder, at the expense of Weatherford, copies
of all such materials (and all materials specifically directed to the
Holders or to the Trustee for the benefit of the Holders by
Weatherford) received by the Trustee from Weatherford at the same time
as such materials are first sent to holders of Weatherford 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.
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(e) OTHER MATERIALS. Immediately after receipt by Weatherford or any
stockholder of Weatherford of any material sent or given generally to
the holders of Weatherford 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),
Weatherford 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
Weatherford, copies of all such materials received by the Trustee from
Weatherford. 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. Services shall, (i) prior to each
annual, general and special Weatherford Meeting or the seeking of any
Weatherford 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 Weatherford
Meeting or a Weatherford Consent, at the close of business on the
record date established by Weatherford or pursuant to applicable law
for determining the holders of Weatherford Common Stock entitled to
receive notice of and/or to vote at such Weatherford Meeting or to
give consent in connection with such Weatherford Consent. Each such
List shall be delivered to the Trustee promptly after receipt by
Services 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. Weatherford agrees to give Services written
notice (with a copy to the Trustee) of the calling of any Weatherford
Meeting or the seeking of any Weatherford 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 Services 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 Weatherford Meeting or any Weatherford 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 Weatherford Meeting and Weatherford 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
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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 Weatherford 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
Weatherford utilizes in communications to holders of Weatherford Common
Stock) to each Holder at its address as shown on the books of Services.
Services 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 Services 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 Weatherford 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 Put Right, Exchange Right or the occurrence of the
automatic exchange of Series 1 Exchangeable Shares for shares of
Weatherford Common Stock, as specified in Article 5 hereof (unless in any
case Weatherford 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
Services pursuant to Article 5 of the Exchangeable Share Provisions, or
upon the purchase of Series 1
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Exchangeable Shares from the holder thereof by Weatherford pursuant to the
exercise by Weatherford of the Retraction Call Right, the Redemption Call
Right or the Liquidation Call Right.
5. EXCHANGE RIGHT, EXCHANGE PUT RIGHT AND AUTOMATIC EXCHANGE RIGHTS
(a) GRANT AND OWNERSHIP OF THE EXCHANGE RIGHT, THE EXCHANGE PUT RIGHT AND
THE AUTOMATIC EXCHANGE RIGHTS. Weatherford 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 Weatherford to
purchase from each or any Holder all or any part of the Series 1
Exchangeable Shares held by the Holders,
(ii) the Exchange Put Right, and
(iii) the Automatic Exchange Rights,
all in accordance with the provisions of this agreement. Weatherford
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, the Exchange
Put Right and the Automatic Exchange Rights by Weatherford 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, the Exchange Put
Right and the Automatic Exchange Rights and shall be entitled to
exercise all of the rights and powers of an owner with respect to the
Exchange Right, the Exchange Put Right and the Automatic Exchange
Rights, provided that the Trustee shall:
(A) hold the Exchange Right, the Exchange Put 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
(B) except as specifically authorized by this agreement, have no
power or authority to exercise or otherwise deal in or with
the Exchange Right, the Exchange Put 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. Services 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 and Exchange Put Right in respect of the
Series 1 Exchangeable Shares held by a Holder, and
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(ii) the Automatic Exchange Rights.
(c) GENERAL EXERCISE OF EXCHANGE RIGHT AND EXCHANGE PUT RIGHT. The
Exchange Right and Exchange Put 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 and Exchange Put 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 or Exchange Put Right, the Trustee shall
not exercise or permit the exercise of the Exchange Right or Exchange
Put Right.
(d) PURCHASE PRICE. The purchase price payable by Weatherford for each
Series 1 Exchangeable Share to be purchased by Weatherford (i) 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; and (ii) under the Exchange Put Right shall
be the amount determined under the Exchangeable Share Provisions. In
connection with each exercise of the Exchange Right, Weatherford 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
Weatherford 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 Services. To cause the exercise of the Exchange Right by
the Trustee, the Holder shall deliver to the Trustee, in person or by
certified or registered mail, at its principal office in Calgary,
Alberta, or in 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 Weatherford 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 Services and such
additional documents and instruments as the Trustee 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 Weatherford 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 Weatherford free and clear of all liens, claims and encumbrances,
(C) the names in which the certificates representing Weatherford
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,
Services and Weatherford of payment) of the taxes (if any) payable as
contemplated by Section 5(h) of this agreement. If only a part of the
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Series 1 Exchangeable Shares represented by any certificate or
certificates delivered to the Trustee are to be purchased by
Weatherford 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 Services.
(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 Weatherford to
purchase under the Exchange Put Right or the Exchange Right (together
with such documents and instruments of transfer and a duly completed
form of notice of exercise of the Exchange Put Right or the Exchange
Right), duly endorsed for transfer to Weatherford, the Trustee shall
notify Weatherford and Services of its receipt of the same, which
notice to Weatherford and Services shall constitute exercise of the
Exchange Right by the Trustee on behalf of the Holder of such Series 1
Exchangeable Shares, and Weatherford 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 Put Right or 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, Services and Weatherford of the payment of) the taxes (if
any) payable as contemplated by Section 5(h) of this agreement.
Immediately upon the giving of notice by the Trustee to Weatherford
and Services of the exercise of the Exchange Put Right or the Exchange
Right, as provided in this Section 5(f), the closing of the
transaction of purchase and sale contemplated by the Exchange Put
Right or 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 Weatherford 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
Weatherford 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 Weatherford 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 Weatherford Common Stock
delivered to it pursuant to the Exchange Put Right or 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 Services to redeem any or all of the
Series 1 Exchangeable Shares held by the Holder (the "Retracted
Shares") and is notified by Services pursuant to Section 6.6 of the
Exchangeable Share Provisions that Services will not be permitted as a
result of liquidity or solvency requirements of applicable law to
redeem all such Retracted Shares, subject to
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receipt by the Trustee of written notice to that effect from Services
and provided that Weatherford 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
Services 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 Services is unable to redeem. In any such event, Services
hereby agrees with the Trustee and in favour of the Holder immediately
to notify the Trustee of such prohibition against Services 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 Services 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
Services is not permitted to redeem and will require Weatherford to
purchase such shares in accordance with the provisions of this Article
5.
(h) STAMP OR OTHER TRANSFER TAXES. Upon any sale of Series 1 Exchangeable
Shares to Weatherford pursuant to the Exchange Put Right, the Exchange
Right or the Automatic Exchange Rights, the share certificate or
certificates representing Weatherford 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 Weatherford, Services 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, Weatherford
and Services 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, Services and
Weatherford shall give written notice thereof to the Trustee. As soon
as practicable after receiving notice from Services and Weatherford or
from any other Person of the occurrence of an Insolvency Event, the
Trustee will mail to each Holder, at the expense of Weatherford, a
notice of such Insolvency Event in the form provided by Weatherford,
which notice shall contain a brief statement of the right of the
Holders with respect to the Exchange Right.
(j) QUALIFICATION OF WEATHERFORD COMMON STOCK. Weatherford covenants that
if any shares of Weatherford Common Stock to be issued and delivered
pursuant to the Exchange Put Right, 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
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Weatherford to the initial holder thereof (other than Services) 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 Weatherford for purposes of Canadian federal or provincial
securities law or an "affiliate" of Xxxxxxxxxxx or, prior to the
Effective Date, of Alpine for purposes of United States federal or
state securities law), Weatherford will in good faith expeditiously
take all such actions and do all such things as are necessary to cause
such shares of Weatherford Common Stock to be and remain duly
registered, qualified or approved. Weatherford 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 Weatherford Common Stock to be issued and
delivered pursuant to the Exchange Right, the Exchange Put 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 Weatherford for the purposes of Canadian federal
and provincial securities law or an "affiliate" of Xxxxxxxxxxx or,
prior to the Effective Date, of Alpine for the purposes of United
States federal or state securities law). Weatherford will in good
faith expeditiously take all such actions and do all such things as
are necessary to cause all shares of Weatherford Common Stock to be
delivered pursuant to the Exchange Put Right, 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 WEATHERFORD COMMON STOCK. Weatherford 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 Weatherford 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
Weatherford and Services to meet their respective obligations
hereunder, under the Support Agreement, under the Exchangeable Share
Provisions and under any other security or commitment pursuant to the
Arrangement with respect to which Weatherford may now or hereafter be
required to issue shares of Weatherford Common Stock.
(l) AUTOMATIC EXCHANGE ON LIQUIDATION OF WEATHERFORD.
(i) Weatherford 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 Weatherford to institute voluntary liquidation,
dissolution or winding-up proceedings with respect to
Weatherford or to effect any other distribution of assets of
Weatherford among its stockholders for the purpose of
winding-up its affairs, at least 21 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 Weatherford
of notice of, and (II) Weatherford otherwise becoming aware
of, any threatened or instituted
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claim, suit, petition or other proceedings with respect to
the involuntary liquidation, dissolution or winding-up of
Weatherford or to effect any other distribution of assets of
Weatherford among its stockholders for the purpose of
winding-up its affairs.
(ii) Immediately following receipt by the Trustee from Weatherford 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 Weatherford to the
Trustee and shall include a brief description of the automatic
exchange of Series 1 Exchangeable Shares for shares of
Weatherford Common Stock provided for in Section 5(l)(iii) below.
(iii) In order that the Holders will be able to participate on a pro
rata basis with the holders of Weatherford Common Stock in the
distribution of assets of Weatherford 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 Weatherford Common Stock.
To effect such automatic exchange, Weatherford 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, Weatherford 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 Weatherford 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 Weatherford shall
deliver to the Holder the Series 1 Exchangeable Share
Consideration deliverable upon the automatic exchange of Series 1
Exchangeable Shares. 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 Xxxxxxxxxxx Common Stock issued to it pursuant to the
automatic exchange of Series 1 Exchangeable Shares for
Xxxxxxxxxxx Common Stock and the certificates held by the Holder
previously representing the Series 1 Exchangeable Shares
exchanged by the Holder with Xxxxxxxxxxx pursuant to such
automatic exchange shall thereafter be deemed to represent the
shares of Xxxxxxxxxxx Common Stock issued to the Holder by
Xxxxxxxxxxx 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
Xxxxxxxxxxx Common Stock, duly endorsed in blank and accompanied
by such instruments of transfer as Xxxxxxxxxxx may reasonably
require, Xxxxxxxxxxx shall deliver or cause to be delivered to
the Holder certificates representing the shares of Xxxxxxxxxxx
Common Stock of which
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the Holder is the holder. Notwithstanding the foregoing until
each Holder is actually entered on the register of holders of
Xxxxxxxxxxx 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.
6. RESTRICTIONS ON ISSUANCE OF XXXXXXXXXXX SPECIAL VOTING PREFERRED STOCK
During the term of this agreement, Xxxxxxxxxxx will not issue any shares of
Xxxxxxxxxxx Special Voting Preferred 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 Xxxxxxxxxxx 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 Put Right, the Exchange
Right and the Automatic Exchange Rights from Xxxxxxxxxxx as
trustee for and on behalf of the Holders in accordance with
the provisions of this agreement;
(v) exercising the Exchange Put Right, 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 Xxxxxxxxxxx Common
Stock and cheques and property, if any, to which such Holders
are entitled upon the exercise of the Exchange Put Right or 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 Xxxxxxxxxxx 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
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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, 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 Services and
Xxxxxxxxxxx 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 for an order that the Trustee be replaced as trustee
hereunder.
(c) DEALINGS WITH TRANSFER AGENTS, REGISTRARS, ETC. Services and
Xxxxxxxxxxx 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 Xxxxxxxxxxx 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 Xxxxxxxxxxx Common Stock, and
any subsequent transfer agent of such shares, the share
certificates issuable upon the exercise from time to time of the
Exchange Put Right and the Exchange Right and
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pursuant to the Automatic Exchange Rights in the manner specified
in Article 5 hereof.
Services and Xxxxxxxxxxx irrevocably authorize their respective
registrars and transfer agents to comply with all such requests.
Xxxxxxxxxxx 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 Put Right and 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 Xxxxxxxxxxx and Services, at the Trustee's
principal office in Calgary, Alberta, or Xxxxxxx, Xxxxxxx,
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 Put Right, the Exchange Right and the
Automatic Exchange Rights for the term of this agreement. On or
before March 31, 2001, and on or before March 31 in every year
thereafter, so long as the Voting Share is on deposit with the
Trustee, the Trustee shall transmit to Xxxxxxxxxxx and Services a
brief report, dated as of the preceding December 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 Put Right and
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 Xxxxxxxxxxx of shares of Xxxxxxxxxxx Common
Stock in connection with the Exchange Put Right and
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
United States and 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, Xxxxxxxxxxx
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 to Article 4 hereof, subject to
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Section 7(o) hereof, and with respect to the Exchange Put Right
and 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 Put Right, 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. Services and/or Xxxxxxxxxxx
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 Services and/or
Xxxxxxxxxxx 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 Put
Right 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 Services and/or Xxxxxxxxxxx
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
(ii) the Trustee, in the exercise of its rights, powers, duties
and authorities under this agreement, gives Services and/or
Xxxxxxxxxxx written notice requiring it to furnish such
evidence in relation to any particular action or obligation
specified in such notice.
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Such evidence shall consist of an Officer's Certificate of
Services and/or Xxxxxxxxxxx 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 Put 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 attorney, 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 Services and/or Xxxxxxxxxxx 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:
(i) declaring that he has read and understands the
provisions of this agreement relating to the condition
in question:
(ii) describing the nature and scope of the examination or
investigation upon which he based the statutory
declaration, certificate, statement, opinion or
report; and
(iii) 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 this agreement act and rely on the
opinion or advice of or information obtained from or
prepared by any attorney, solicitor, auditor,
accountant, appraiser, valuer, engineer or other
expert, whether retained by the Trustee or by Services
and/or Xxxxxxxxxxx or otherwise, and may employ such
assistance 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
(ii) employ such agents and other assistance 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.
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(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 securities in which, under the laws of the
Province of Alberta, trustees are authorized to invest trust
moneys, provided that such securities are stated to mature
within two years after their purchase by the Trustee, and
the Trustee shall so invest such moneys on the written
direction of Services. 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 Services, 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 is otherwise
specifically provided in this agreement, the Trustee shall
not be bound to act in accordance with any direction or
request of Services and/or Xxxxxxxxxxx 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
Services and Xxxxxxxxxxx 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 Put Right, 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.
(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 Put Right,
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:
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(i) the rights of all adverse claimants with respect to the
Voting Rights, Exchange Put Right, 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 Put Right, 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) Xxxxxxxxxxx and Services 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 Xxxxxxxxxxx and Services
shall have no obligation to reimburse the Trustee for any expenses or
disbursements paid, incurred or suffered by the Trustee in any suit or
litigation in which the Trustee is determined to have acted
fraudulently or in bad faith or with negligence or willful misconduct.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY
(a) INDEMNIFICATION OF THE TRUSTEE. Xxxxxxxxxxx and Services 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 Xxxxxxxxxxx or Services
pursuant hereto. Notwithstanding the foregoing, in no case will the
Trustee be indemnified for consequential
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damages. In no case shall Xxxxxxxxxxx or Services be liable under this
indemnity for any claim against any of the Indemnified Parties unless
Weatherford and Services 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 clause
(ii), below in this paragraph, Weatherford and Services shall be
entitled to participate at their own expense in the defense and, if
Xxxxxxxxxxx or Services 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 Xxxxxxxxxxx or Services, such authorization not to
be unreasonably withheld; or (ii) the named parties to any such suit
include both the Trustee and Weatherford or Services and the Trustee
shall have been advised by counsel acceptable to Weatherford or
Services that there may be one or more legal defenses available to the
Trustee that are different from or in addition to those available to
Weatherford or Services and that an actual or potential conflict of
interest exists (in which case Weatherford and Services 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).
(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.
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
Weatherford and Services 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 Weatherford and
Services 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, Weatherford and
Services 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.
(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 Weatherford and Services, 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).
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(c) SUCCESSOR TRUSTEE. Any successor trustee appointed as provided under
this agreement shall execute, acknowledge and deliver to Weatherford
and Services 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
Weatherford and Services 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, Weatherford, Services 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, Weatherford and Services shall
cause to be mailed notice of the succession of such trustee hereunder
to each Holder specified in a List. If Weatherford or Services 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 Weatherford and
Services.
11. WEATHERFORD SUCCESSORS
(a) CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC. Weatherford shall
not enter into any transaction (whether by way of reorganization,
consolidation, merger, amalgamation, transfer, sale, lease or
otherwise) whereby all or substantially all of its 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 such other Person or continuing
corporation (the "Weatherford 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 Weatherford Successor of liability for all moneys payable and
property deliverable hereunder and the covenant of such Weatherford
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
Weatherford under this agreement.
(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 Weatherford Successor and
Services shall execute and deliver the supplemental agreement provided
for in Article 12 hereof and thereupon the Weatherford Successor shall
possess and from time to time may exercise each and every right and
power of Weatherford under this agreement in the name of Weatherford
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 Weatherford or any officers of Weatherford may be done and
performed with like force and effect by the directors or officers of
such Weatherford Successor.
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(c) WHOLLY-OWNED SUBSIDIARIES. Nothing herein shall be construed as
preventing the amalgamation or merger of any wholly-owned subsidiary
of Weatherford with or into Weatherford or the winding-up, liquidation
or dissolution of any wholly-owned subsidiary of Weatherford provided
that all of the assets of such subsidiary are transferred to
Weatherford or another wholly-owned subsidiary of Weatherford, and any
such transactions are expressly permitted by this Article 11.
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 Services,
Weatherford 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 Services 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 Services, Weatherford 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 Services and Weatherford 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. Services, at the request of
Weatherford, 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 Services, the
Exchangeable Share Provisions and all applicable laws.
(d) CHANGES IN CAPITAL OF WEATHERFORD AND SERVICES. 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 Weatherford
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 Weatherford Common
Stock or the Series 1
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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.
(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 Services,
Weatherford and the Trustee may, subject to the provisions of this
agreement, and they shall, when so directed by this agreement, 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 Weatherford Successor to
Weatherford and the covenants of and obligations assumed by each
such Weatherford Successor 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
Put 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 Weatherford, Services, 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 Services and Weatherford 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 this 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 Weatherford at:
Xxxxxxxxxxx International, Inc.
000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
(ii) if to Services at:
Xxxxxxxxxxx Oil Services, Inc.
000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
(iii) if to the Trustee at:
--------------------------------------
--------------------------------------
--------------------------------------
Attention:
----------------------------
Facsimile:
----------------------------
Any notice or other communication given personally shall be deemed to
have been given and received upon delivery thereof and if given by
facsimile 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
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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 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 Services or
by Weatherford or by such Holder to the Trustee or to Weatherford or
Services, the making of such payment or sending of such document sent
through the post shall be at the risk of Services or Weatherford, in
the case of payments made or documents sent by the Trustee or Services
or Weatherford, 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. Weatherford 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
Services at its registered office in the Province of Alberta as
Xxxxxxxxxxx'x 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.
XXXXXXXXXXX INTERNATIONAL, INC.
By
-----------------------------------------
XXXXXXXXXXX OIL SERVICES, INC.
By
-----------------------------------------
MONTREAL TRUST COMPANY OF CANADA
By
-----------------------------------------
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