EXCHANGE RIGHTS AGREEMENT
THIS EXCHANGE RIGHTS AGREEMENT is made as of the ___ day of ___, 2006 (as
amended, supplemented or otherwise modified from time to time, the "AGREEMENT"),
by and among BARNABUS ENERGY, INC. ("BEI"), a corporation incorporated under the
laws of the State of Nevada, 2093603 ONTARIO INC. ("EXCHANGECO"), a corporation
incorporated under the laws of Ontario, and the holders of Exchangeable Shares
(as defined herein) listed on Schedule "A" annexed hereto.
RECITALS
WHEREAS, pursuant to a stock purchase agreement dated of even date hereof
(the "SHARE PURCHASE AGREEMENT") between BEI, Exchangeco, Solar Roofing Systems
Inc. ("SOLAR") and the shareholders of Solar, Exchangeco has agreed to acquire
all of the common shares of Solar (the "SOLAR SHARES") that BEI does not
currently own;
AND WHEREAS in accordance with the Share Purchase Agreement, shareholders
of Solar will exchange their Solar Shares for cash and either (i) BEI Shares (as
hereinafter defined) or (ii) in the case of holders who are residents of Canada,
Exchangeable Shares (as hereinafter defined);
AND WHEREAS BEI is to the have the right, exercisable upon the occurrence
of certain events, to require each holder of Exchangeable Shares (other than BEI
and its affiliates) to sell their Exchangeable Shares to BEI on the terms and
conditions set forth in this Agreement;
AND WHEREAS BEI is to grant to, and in favour of, each holder (other than
BEI and its affiliates) from time to time of the Exchangeable Shares the right
to require BEI to purchase from such holder all or any part of the Exchangeable
Shares held by such holder on the terms and conditions set forth in this
Agreement;
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this Agreement and for $1 as well as other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. Each term denoted herein by initial capital letters and not
otherwise defined herein shall have the meaning ascribed thereto in the
applicable Exchangeable Share Provisions (as hereinafter defined), unless the
context requires otherwise. In this Agreement, the following terms shall have
the following meanings:
(a) "AUTOMATIC EXCHANGE RIGHTS" means the benefit of the obligation of
BEI to effect the automatic exchange of Exchangeable Shares for BEI
Shares pursuant to Section 2.10 hereof.
(b) "BEI SHARES" means the common shares in the capital of BEI.
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(c) "BEI INSOLVENCY EVENT" has the meaning given to that term in Section
2.10(a) hereof.
(d) "EXCHANGE RIGHT CONSIDERATION" has the meaning given to that term in
Section 2.4 hereof.
(e) "EXCHANGEABLE SHARES" means the exchangeable Class A shares in the
capital of Exchangeco.
(f) "EXCHANGE RIGHT" has the meaning given to that term in Section 2.1
hereof.
(g) "EXCHANGEABLE SHARE PROVISIONS" means the rights, privileges,
restrictions and conditions attached to the Exchangeable Shares as
set forth in the articles of incorporation of Exchangeco, as in
effect from time to time.
(h) "HOLDERS" means the registered holders of the Exchangeable Shares.
(i) "LIQUIDATION DISTRIBUTION" has the meaning given to that term in the
Exchangeable Share Provisions.
(j) "RETRACTED SHARES" has the meaning given to that term in Section 2.7
hereof.
1.2 HEADINGS. The division of this Agreement into Articles, Sections and other
portions and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation of this Agreement. Unless
otherwise indicated, all references to an "Article" or "Section " followed by a
number and/or a letter refer to the specified Article or Section of this
Agreement. The terms "this Agreement", "hereof", "herein" and "hereunder" and
similar expressions refer to this Agreement and not to any particular Article,
Section or other portion hereof and include any agreement or instrument
supplementary or ancillary hereto.
1.3 NUMBER AND GENDER. Words importing the singular number only shall include
the plural and vice versa. Words importing the use of any gender shall include
all genders.
1.4 DATE FOR ANY ACTION. If any date on which any action is required to be taken
under this Agreement is not a Business Day, such action shall be required to be
taken on the next succeeding Business Day.
ARTICLE 2
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE RIGHT
2.1 GRANT AND OWNERSHIP OF THE EXCHANGE RIGHT AND AUTOMATIC EXCHANGE RIGHT. BEI
hereby grants to each of the Holders:
(a) the right (the "EXCHANGE RIGHT") to require BEI, upon the occurrence
and during the continuance of any:
(i) Liquidation Distribution, or
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(ii) failure of Exchangeco, by reason other than a Liquidation
Distribution, to purchase the Retracted Shares pursuant to a
duly completed and delivered Retraction Request
to purchase from each or any Holder, at any time and from time to
time all or any part of the Exchangeable Shares held by each such
Holder; and
(b) the Automatic Exchange Rights,
all in accordance with the provisions of this Agreement. BEI hereby acknowledges
receipt from each of the Holders of $1 (and the adequacy thereof) for the grant
of the Exchange Right and the Automatic Exchange Rights by BEI to the Holders.
2.2 SHARE CERTIFICATES. Exchangeco will cause each certificate representing
Exchangeable Shares to bear an appropriate legend notifying the Holders of (a)
their right to exercise the Exchange Right in respect of the Exchangeable Shares
held by such Holders; and (b) the Automatic Exchange Rights.
2.3 GENERAL EXERCISE OF EXCHANGE RIGHT. The Exchange Right shall be and remain
vested in and exercised by each Holder in respect of the Exchangeable Shares
held by such Holder.
2.4 PURCHASE PRICE FOR THE EXCHANGEABLE SHARES. The purchase price payable by
BEI for each Exchangeable Share to be purchased by BEI under the Exchange Right
shall be an amount per share equal to (a) the Current Market Price of a BEI
Common Share on the last Business Day prior to the day of closing of the
purchase and sale of such Exchangeable Share under the Exchange Right, which
shall be satisfied in full by BEI causing to be sent to such Holder one BEI
Common Share, plus (b) to the extent not paid by Exchangeco, an additional
amount equal to the full amount of all declared and unpaid dividends on each
such Exchangeable Share held by such holder on any dividend record date which
occurred prior to the closing of the purchase and sale. The purchase price for
each such Exchangeable Share so purchased may be satisfied only by BEI issuing
and delivering to such Holder one BEI Common Share and on the applicable payment
date a cheque for the balance, if any, of the purchase price without interest
but less any amounts withheld pursuant to Section 2.11 (the "EXCHANGE RIGHT
CONSIDERATION").
2.5 EXERCISE INSTRUCTIONS. Subject to the terms and conditions herein set forth,
a Holder shall be entitled, upon the occurrence and during the continuance of
any event as provided by Section 2.1(a)(i) or 2.1(a)(ii), to exercise the
Exchange Right with respect to all or any part of the Exchangeable Shares
registered in the name of such Holder on the books of Exchangeco. To exercise
the Exchange Right, the Holder shall deliver to Exchangeco, in person or by
certified or registered mail, the certificates representing the Exchangeable
Shares that such Holder desires BEI to exchange, duly endorsed in blank and
accompanied by such other documents and instruments as may be required to effect
a transfer of the Exchangeable Shares under the Business Corporations Act
(Ontario) and the by-laws of Exchangeco and such additional documents and
instruments as Exchangeco or BEI may reasonably require together with (a) a duly
completed Notice of Exercise in the form attached hereto as Schedule B and (b)
payment (or evidence satisfactory to Exchangeco and BEI of payment) of the taxes
(if any) payable as contemplated by Section 2.8 of this Agreement. If only a
part of the Exchangeable Shares represented by any certificate or certificates
are to be exchanged by BEI under the Exchange Right, a new certificate for the
balance of such Exchangeable Shares shall be issued to the applicable Holder.
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2.6 DELIVERY OF EXCHANGE RIGHT CONSIDERATION; EFFECT OF EXERCISE. Promptly after
receipt by Exchangeco of the certificate representing the Exchangeable Shares
that the Holder desires BEI to purchase under the Exchange Right (together with
such documents and instruments of transfer and an Exercise Notice and payment of
taxes, if any, or evidence thereof, pursuant to Section 2.8 of this Agreement),
duly endorsed for transfer to BEI, Exchangeco shall notify BEI (with a copy of
such notice sent to the applicable Holder) of its receipt of the same, which
notice to BEI shall constitute exercise of the Exchange Right by the holder of
such Exchangeable Shares, and BEI shall as soon as reasonably practical
thereafter deliver or cause to be delivered to the holder of such Exchangeable
Shares (or to such other persons, if any, properly designated by the applicable
Holder) (i) the number of BEI Shares issuable in connection with the exercise of
the Exchange Right, which shares shall, when issued and delivered against the
surrender of the applicable documents described above, be duly issued, fully
paid and non-assessable and shall be free and clear of all liens, claims or
encumbrances other than (a) liens, claims or encumbrances incurred by such
Holders, (b) rights of first refusal, rights of co-sale or other similar rights
set forth in separate agreements among such Holders, BEI and applicable third
parties, and (c) restrictions on transfer under U.S. state and/or federal
securities laws, or as otherwise required by such laws at the time a transfer is
proposed, and (ii) cheques for the balance, if any, of the total Exchange Right
Consideration therefor, without interest, less any tax required to be deducted
or withheld from the total Exchange Right Consideration by BEI, provided,
however, that no such delivery shall be made (x) unless and until the Holder
requesting the same shall have paid (or provided evidence satisfactory to
Exchangeco of the payment of) the taxes (if any) payable as contemplated by
Section 2.8 of this Agreement and (y) unless either (i) a registration statement
under the Securities Act of 1933 with respect thereto shall be in effect or (ii)
in the opinion of counsel reasonably acceptable in form and substance to BEI,
the proposed delivery shall be exempt from registration under that Act.
Immediately upon the giving of notice by Exchangeco to BEI of the exercise of
the Exchange Right as provided in this Section 2.6, the exchange shall be deemed
to have occurred, and the holder of such Exchangeable Shares shall be deemed to
have transferred to BEI all of its right, title and interest in and to such
Exchangeable Shares and shall cease to be a holder of such 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 the Exchange Right Consideration
therefor, unless the requisite number of BEI Shares together with a cheque for
the balance, if any, of the total Exchange Right Consideration therefor, without
interest, less any tax required to be deducted or withheld from the total
Exchange Right Consideration by BEI is not allotted, issued and delivered by BEI
to such Holder (or to such other persons, if any, properly designated by such
Holder), within five (5) Business Days of the date of the exercise of the
Exchange Right, in which case the rights of the Holder as a holder of the
applicable Exchangeable Shares shall remain unaffected until such BEI Shares are
so allotted, issued and delivered by BEI and any such cheque is so delivered and
paid. Concurrently with such Holder ceasing to be a holder of the applicable
Exchangeable Shares, the Holder shall be considered and deemed for all purposes
to be the holder of the BEI Shares delivered to it pursuant to the Exchange
Right, provided that under no circumstances shall any Holder as a result of the
Exchange Right be deemed to simultaneously hold Exchangeable Shares and BEI
Shares for which such Exchangeable Shares may be exchanged pursuant to the
Exchange Right.
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2.7 EXERCISE OF EXCHANGE RIGHT SUBSEQUENT TO RETRACTION. In the event that a
Holder has exercised its rights under Article 6 of the Exchangeable Share
Provisions to require Exchangeco to redeem any or all of the Exchangeable Shares
held by the applicable Holder (the "RETRACTED SHARES") and is notified by
Exchangeco pursuant to Section 6.6 of the Exchangeable Share Provisions that
Exchangeco will not be permitted as a result of solvency requirements or other
provisions of applicable law to redeem all such Retracted Shares, provided that
BEI shall not have exercised the Retraction Call Right with respect to the
Retracted Shares and that the Holder of such Retracted Shares has not revoked
the retraction request delivered by such Holder to Exchangeco 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 of the
exercise of the Exchange Right with respect to those Retracted Shares that
Exchangeco is unable to redeem. In any such event, Exchangeco hereby agrees to
immediately notify the Holder of such prohibition against Exchangeco redeeming
all of the Retracted Shares in full.
2.8 STAMP OR OTHER TRANSFER TAXES. Upon any exchange of Exchangeable Shares
pursuant to the Exchange Right or the Automatic Exchange Rights, the share
certificate or certificates representing BEI Shares to be delivered in
connection with the payment of the total consideration therefor shall be issued
in the name of the Holder of the Exchangeable Shares so exchanged or in such
names as such Holder may otherwise direct in writing without charge to the
Holder of the Exchangeable Shares so exchanged, provided, however, that such
Holder (a) shall pay (and neither BEI nor Exchangeco 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 (b) shall have established to the satisfaction
of BEI and Exchangeco that such taxes, if any, have been paid.
2.9 RESERVATION OF SHARES OF BEI STOCK. BEI hereby represents, warrants and
covenants that it has 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 BEI Shares as are now and may hereafter be
required to enable and permit BEI and Exchangeco to meet their obligations
hereunder, under the Support Agreement (the "SUPPORT Agreement") between BEI,
Exchangeco and the Holders of even date herewith, as the same may be amended
from time to time, and under the Exchangeable Share Provisions. BEI covenants
that it will supply its transfer agent, if any, with duly executed share
certificates for the purpose of completing the exercise from time to time of the
Exchange Right and the Automatic Exchange Rights.
2.10 AUTOMATIC EXCHANGE ON XXXXXXXXXXX OF BEI
(a) Each of the following events shall give rise to the automatic
exchange of the Exchangeable Shares (the "AUTOMATIC EXCHANGE
RIGHTS") as provided in this Section 2.10 (each a "BEI INSOLVENCY
EVENT"):
(i) any determination by the board of directors of BEI to
institute voluntary liquidation, dissolution or winding-up
proceedings with respect to BEI or to effect any other
distribution of assets of BEI among its stockholders for the
purpose of winding up its affairs (it being understood that a
sale of all or substantially all of the assets of BEI or any
merger, consolidation or similar transaction involving BEI
shall not, in and of itself, constitute a liquidation,
dissolution or winding-up of BEI); and
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(ii) the commencement of any claim, suit, petition or other
proceedings with respect to the involuntary liquidation,
dissolution or winding up of BEI or to effect any other
distribution of assets of BEI among its stockholders for the
purpose of winding up its affairs, provided, however, that
such shall only be a BEI Insolvency Event if BEI has failed to
contest in good faith any such proceeding commenced in respect
of BEI within 60 days thereof or if BEI is not successful in
any such good faith contestation and all rights of appeal have
expired or been exhausted.
(b) In order that the Holders will be able to participate on a pro rata
basis with the holders of BEI Shares in the distribution of assets
of BEI in connection with a BEI Insolvency Event, immediately prior
to the effective time of a BEI Insolvency Event all of the then
outstanding Exchangeable Shares shall be automatically exchanged for
BEI Shares. To effect such automatic exchange, BEI shall be deemed
to have purchased, immediately prior to the effective time of a BEI
Insolvency Event each Exchangeable Share then outstanding and held
by Holders, and each Holder shall be deemed to have sold the
Exchangeable Shares held by it at such time, for a purchase price
per share equal to (a) the Current Market Price of a BEI Share on
the fifth Business Day prior to the BEI Insolvency Event Effective
Date, which shall be satisfied in full by BEI issuing to the Holder
one BEI Share, and (b) to the extent not paid by Exchangeco, an
additional amount equivalent to the full amount of all declared and
unpaid dividends on each such Exchangeable Share held by such Holder
on any dividend record date which occurred prior to the date of the
exchange.
(c) Immediately prior to the effective time of a BEI Insolvency Event,
the closing of the purchase and sale transaction contemplated by the
automatic exchange of Exchangeable Shares for BEI Shares shall be
deemed to have occurred, and each Holder of Exchangeable Shares
shall be deemed to have transferred to BEI all of the Holder's
right, title and interest in and to such Exchangeable Shares and
shall cease to be a Holder of such Exchangeable Shares and BEI shall
issue to the Holder the BEI Shares issuable upon the automatic
exchange of Exchangeable Shares for BEI Shares and shall deliver to
the Holder a cheque for the balance, if any, of the Unpaid Dividend
Amount, without interest, less any amounts withheld pursuant to
section 2.11 hereof, provided however, that no such delivery shall
be made (x) unless and until the Holder shall have paid (or provided
evidence satisfactory to Exchangeco of the payment of) the taxes (if
any) payable as contemplated by Section 2.8 of this Agreement and
(y) unless either (i) a registration statement under the U.S.
Securities Act of 1933, as amended, with respect thereto shall be in
effect, or (ii) in the opinion of counsel reasonably acceptable in
form and substance to BEI, the proposed delivery shall be exempt
from registration under that Act. Concurrently with such Holder
ceasing to be a holder of Exchangeable Shares, the Holder shall be
considered and deemed for all purposes to be the holder of the BEI
Shares issued to it pursuant to the automatic exchange of
Exchangeable Shares for BEI Shares and the certificates held by the
Holder previously representing the Exchangeable Shares exchanged by
the Holder with BEI pursuant to such automatic exchange shall
thereafter be deemed to represent the BEI Shares issued to the
Holder by BEI pursuant to such automatic exchange. Upon the request
of a Holder and the surrender by the Holder of Exchangeable Share
certificates deemed to represent BEI Shares duly endorsed in blank
and accompanied by such instruments of transfer as BEI may
reasonably require, BEI shall deliver or cause to be delivered to
the Holder certificates representing the BEI Shares representing the
Exchange Right Consideration in respect of such Exchangeable Shares.
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(d) If the issuance of any BEI Shares (or other shares or securities
into which any such shares may be reclassified or changed as
contemplated by Section 3.3 hereof) to be issued and delivered under
this Agreement requires exemption from registration under any
Canadian or United States federal, provincial or state securities or
other law or regulation before such shares (or such other shares or
securities) may be issued by BEI and delivered by BEI at the
direction of Exchangeco to the holder of surrendered Exchangeable
Shares, subject to obtaining such necessary representations and
warranties from such holder of surrendered Exchangeable Shares, BEI
will use reasonable efforts to take all such actions and do all such
things as are reasonably necessary or desirable on its part to cause
the issuance of such BEI Shares (or such other shares or securities)
to be exempt from registration under United States and/or Canadian
law, as the case may be.
2.11 WITHHOLDING RIGHTS. Exchangeco and BEI shall be entitled to deduct and
withhold from any dividend or consideration otherwise payable to a holder of
Exchangeable Shares (whether pursuant to this Agreement, the Exchangeable Share
Provisions or otherwise) such amounts as Exchangeco or BEI is required to deduct
and withhold with respect to such payment under the Income Tax Act (Canada) (the
"ACT"), the United States Internal Revenue Code of 1986 or any provincial,
state, local or foreign tax law, in each case, as amended. To the extent that
amounts are so withheld, such withheld amounts shall be treated for all purposes
hereof as having been paid to the holder of the Exchangeable Shares in respect
of which such deduction and withholding was made, notwithstanding that such
withheld amounts are actually remitted to the appropriate taxing authority. To
the extent that any such amount so required to be deducted or withheld from any
payment to a Holder exceeds the cash portion of the consideration otherwise
payable to the Holder, BEI shall promptly notify the Holder and unless such
Holder remits the difference in cash to BEI before the tax amount is required to
be remitted to the tax authority, then BEI may sell or otherwise dispose of such
portion of the consideration (including, without limitation, any of the BEI
Common Shares) as is necessary to provide sufficient funds to BEI to enable it
to comply with such deduction or withholding requirement and BEI shall give an
accounting to the Holder with respect thereto and shall notify and pay over to
such Holder any unapplied balance of the net proceeds of such sale that was not
remitted to such tax authority in satisfaction of a deduction or withholding
requirement.
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In order to assist BEI in complying with any such deduction and
withholding requirement, the Holder shall, to the extent applicable, deliver to
BEI (i) if such Holder is an individual, trust or corporation, a declaration
sworn by the individual, a trustee or a director, as the case may be, before a
notary or commissioner for oaths to the effect that such Holder, is not and will
not be, on the date of payment, a non-resident of Canada for the purposes of the
Act or (ii) if such Holder is a partnership, a declaration sworn by a general
partner before a notary or commissioner for oaths to the effect that such Holder
is a "Canadian partnership", as defined in the Act.
ARTICLE 3
AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
3.1 AMENDMENT, MODIFICATIONS, ETC. Subject to Sections 3.3 and 4.8, this
Agreement may not be amended or modified without the approval of BEI, Exchangeco
and the Holders given in accordance with Section 11.2 of the Exchangeable Share
Provisions.
3.2 MEETING TO CONSIDER AMENDMENTS. Exchangeco, at the request of BEI, shall
call a meeting or meetings of the Holders for the purpose of considering any
proposed amendment or modification requiring approval pursuant to Section 3.1
hereof. Any such meeting or meetings shall be called and held in accordance with
the by-laws of Exchangeco, the Exchangeable Share Provisions and all applicable
laws.
3.3 CHANGES IN THE CAPITAL OF BEI AND EXCHANGECO. At all times after the
occurrence of any event effected pursuant to Section 2.7 of the Support
Agreement, as a result of which BEI Shares or the Exchangeable Shares or any
combinations thereof, 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, to all new securities into which BEI Shares or the Exchangeable
Shares, or any combinations thereof, are to be changed and the parties hereto
shall, if necessary, execute and deliver a supplemental agreement giving effect
to and evidencing such necessary amendments and modifications.
ARTICLE 4
GENERAL
4.1 TERM OF AGREEMENT. This Agreement shall come into force and be effective as
of the date hereof and shall terminate and be of no further force and effect at
such time as no Exchangeable Shares (or securities or rights convertible into or
exchangeable for or carrying rights to acquire Exchangeable Shares) are held by
any party other than a member of BEI or its affiliates.
4.2 SEVERABILITY. If any provision of this Agreement is held to be invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remainder of this Agreement shall not in any way be affected or impaired thereby
and the agreement shall be carried out as nearly as possible in accordance with
its original terms and conditions.
4.3 ENUREMENT. This Agreement shall be binding upon and enure to the benefit of
the parties hereto and their respective successors and permitted assigns and to
the benefit of all subsequent Holders.
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4.4 NOTICES.
(a) All notices and other communications 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 BEI or Exchangeco at:
Barnabus Energy, Inc.
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
X.X.X.
Attention: Xxxxx Xxxxxxx, Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: D. Xxxxx Xxxxx, Esq.
Facsimile: 212.308.4844
(ii) if to any Holder:
to the address of such Holder shown on the register of holders
of the applicable Exchangeable Shares in any manner permitted
by the by-laws of Exchangeco from time to time in force in
respect of notices to shareholders and shall be deemed to be
received (if given or sent in such manner) at the time
specified in such by-laws, the provisions of which by-laws
shall apply, with such changes as the context may require, to
notices or documents as aforesaid sent to such Holders;
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with a copy to:
Fasken Xxxxxxxxx XxXxxxxx
Toronto Dominion Bank Tower
X.X. Xxx 00
Xxxxxxx-Xxxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxx
Fax No: (000) 000-0000
(b) Any notice or other communication given personally shall be
deemed to have been given and received upon delivery thereof
and if given by telecopy shall be deemed to have been given
and received on the date of receipt thereof unless such day is
not a Business Day in which case it shall be deemed to have
been given and received upon the immediately following
Business Day.
4.5 EXECUTION. 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. Counterparts may be exchanged by facsimile and
shall be mutually binding on the parties.
4.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its conflict
of law provisions. Each party irrevocably submits to the non-exclusive
jurisdiction of the courts of the State of New York with respect to any matter
arising hereunder or related hereto. The parties hereto agree that any action or
proceeding arising out of or relating to this Agreement may be instituted in the
courts of the State of New York, 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.
4.7 WAIVER. No waiver of any rights under this Agreement shall be effective
unless made in writing and signed by the party giving it. No failure to
exercise, or delay in exercising, any right under this Agreement shall operate
as a waiver of such right.
4.8 MINISTERIAL AMENDMENTS. Exchangeco shall not propose, agree to or otherwise
give effect to any amendment to, or waiver or forgiveness of its rights or
obligations under the this Agreement without the approval of Holders given in
accordance with Section 11.2 of the Exchangeable Share Provisions, other than
such amendments, waivers and/or forgiveness as may be necessary or advisable for
the purposes of:
(a) adding to the covenants of the other party or parties to such
agreements for the protection of Exchangeco or the Holders;
(b) making such provisions or modifications not inconsistent with such
agreements as may be necessary or desirable with respect to matters
or questions arising thereunder which, in the opinion of the Board
of Directors of each of BEI and Exchangeco, it may be expedient to
make, provided that the Board of Directors of each of BEI and
Exchangeco shall be of the opinion, after consultation with counsel,
that such provisions and modifications will not be prejudicial to
the interests of the Holders; or
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(c) making such changes in or corrections to such agreements which, on
the advice of counsel to Exchangeco, are required for the purpose of
curing or correcting any ambiguity or defect or inconsistent
provision or clerical omission or mistake or manifest error
contained therein, provided that the Board of Directors of each of
BEI and Exchangeco shall be of the opinion, after consultation with
counsel, that such changes or corrections will not be prejudicial to
the interests of the Holders.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BARNABUS ENERGY, INC.
Per:
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Name:
Title:
2093603 ONTARIO INC.
Per:
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Name:
Title:
(Signatures Continue on the Following Page)
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1594505 ONTARIO INC.
Per:
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Name:
Title:
MARGREG LTD.
Per:
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Name:
Title:
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) XXXXX XXXXX
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) XXXXXXX XXXXXXXX
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) XXXX XXXXXX
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) XXXXXX XXXX
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) XXXXXX XXXXX
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)
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) XXXX XXXXXX
)
)
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) XXX KAFATO
)
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) ------------------------------------------
) KRINO KAFATO
)
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) XXXX XXXXXXX
)
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) XXXXX XXXXX
)
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) XXXXX KNIGHTS
)
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) XXXXXXX XXXXX
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)
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) XXXXXX XXXXXX
XXXX FAMILY TRUST
By:
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Xxxxxx Xxxx, Trustee
By:
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Xxxxxxxx Xxxx, Trustee
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SCHEDULE "A"
HOLDERS
1594505 Ontario Inc.
Margreg Ltd.
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxx
Xxxxxx Xxxxx
Xxxx Xxxxxx
Xxx Kafato
Krino Kafato
Xxxx Xxxxxxx
Xxxx Xxxxx
Xxxxx Knights
Xxxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxx Family Trust
SCHEDULE "B"
NOTICE OF EXERCISE
TO: BARNABUS ENERGY, INC. ("BEI")
RE: Exchangeable Shares in the capital of 2093603 ONTARIO INC. ("EXCHANGECO")
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The undersigned holder of exchangeable shares in the capital of Exchangeco (the
"EXCHANGEABLE SHARES") hereby exercises the Exchange Right so as to require BEI
to purchase Exchangeable Shares (the "EXCHANGED SHARES") registered in the name
of the undersigned, subject to the rights, privileges, restrictions and
conditions attached to the Exchangeable Shares (the "EXCHANGEABLE SHARE
PROVISIONS"). All capitalized words used in this Notice of Exercise have the
respective meanings assigned thereto in the Exchange Rights Agreement dated of
even date hereof between BEI and the holders of Exchangeable Shares (the
"EXCHANGE RIGHTS AGREEMENT"). The undersigned presents and surrenders with this
Notice of Exercise a certificate or certificates representing the Exchanged
Shares. THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT A FAILURE TO PRESENT AND
SURRENDER TO EXCHANGECO THE CERTIFICATE OR CERTIFICATES REPRESENTING THE
EXCHANGED SHARES SHALL INVALIDATE THIS NOTICE OF EXERCISE.
The undersigned hereby represents and warrants that the undersigned:
(a) has good title to and owns all of the Exchanged Shares free and
clear of all liens, claims and encumbrances, except as set forth in
the Exchange Rights Agreement and the Exchangeable Share Provisions;
(b) is not a non-resident of Canada for the purposes of the Income Tax
Act (Canada); and
(c) either (1) is not in the United States, is not a U.S. Person and is
not exchanging such securities for the account or benefit of a U.S.
Person or a Person in the United States, or (2) will provide BEI
with an opinion of counsel, of recognized standing reasonably
satisfactory to BEI, that the issuance of the BEI Common Shares upon
exchange of the Exchangeable Shares is being made in compliance with
applicable state securities laws and in accordance with an available
exemption from registration under the United States Securities Act
of 1933, as amended (the "1933 ACT"). For the purposes hereof,
"United States" and "U.S. Person" have the meanings ascribed thereto
in the 1933 Act.
THE UNDERSIGNED HEREBY ACKNOWLEDGES THE OVERRIDING RIGHT OF BEI TO PURCHASE ALL
BUT NOT LESS THAN ALL OF THE EXCHANGED SHARES FROM THE UNDERSIGNED AND THAT THIS
NOTICE OF EXERCISE IS DEEMED TO BE A REVOCABLE OFFER BY THE UNDERSIGNED TO SELL
THE EXCHANGED SHARES TO BEI IN ACCORDANCE WITH THE EXCHANGE RIGHTS AGREEMENT.
DATED this day of , 20 .
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(signed by holder of Exchanged Shares)
(print name of holder)
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