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EXHIBIT 9
VOTING AND EXCHANGE TRUST AGREEMENT
THIS VOTING AND EXCHANGE TRUST AGREEMENT is entered into as of December 10,
1998, by and between Devon Energy Corporation, an Oklahoma corporation
("Devon"), Northstar Energy Corporation, an Alberta corporation ("Northstar"),
and CIBC Mellon Trust Company, a Canadian trust company ("Trustee").
WHEREAS, pursuant to an Amended and Restated Combination Agreement dated as
of June 29, 1998 by and between Devon and Northstar (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), Devon and Northstar would execute and deliver a Voting and Exchange
Trust Agreement containing the terms and conditions set forth in Exhibit E 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.
WHEREAS, pursuant to an arrangement (the "Arrangement") effected by
Articles of Arrangement dated December 10, 1998 filed pursuant to the Business
Corporations Act (Alberta) (or any successor or other corporate statute by which
Northstar may in the future be governed) (the "Act"), each issued and
outstanding common share of Northstar (a "Northstar Common Share") was exchanged
for issued and outstanding Exchangeable Shares of Northstar (the "Exchangeable
Shares").
WHEREAS, the Articles of Amendment of Northstar set forth the rights,
privileges, restrictions and conditions attaching to the Exchangeable Shares
(collectively, the "Exchangeable Share Provisions").
WHEREAS, Devon is to provide voting rights in Devon to each holder (other
than Devon and its Subsidiaries) from time to time of Exchangeable Shares, such
voting rights per Exchangeable Share to be equivalent to the voting rights per
share of Devon Common Stock.
WHEREAS, Devon is to grant to and in favor of the holders (other than Devon
and its Subsidiaries) from time to time of Exchangeable Shares the right, in the
circumstances set forth herein, to require Devon to purchase from each such
holder all or any part of the Exchangeable Shares held by the holder.
WHEREAS, the parties desire to make appropriate provision and to establish
a procedure whereby voting rights in Devon shall be exercisable by holders
(other than Devon and its Subsidiaries) from time to time of Exchangeable Shares
by and through the Trustee, which will hold legal title to one share of Devon
Special Voting Stock (the "Devon Special Voting Stock") to which voting rights
attach for the benefit of such holders and whereby the rights to require Devon
to purchase Exchangeable Shares from the holders thereof (other than Devon and
its Subsidiaries) shall be exercisable by such holders from time to time of
Exchangeable Shares by and through the Trustee, which will hold legal title to
such rights for the benefit of such holders.
WHEREAS, these recitals and any statements of fact in this agreement are
made by Devon and Northstar and not by the Trustee.
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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:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 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 Devon Common Stock are entitled to
vote, consent or otherwise act, the product of (i) the number of shares of
Exchangeable Shares issued and outstanding and held by Holders multiplied by
(ii) the Equivalent Vote Amount.
"Arrangement" has the meaning provided in the recitals hereto.
"Automatic Exchange Rights" means the benefit of the obligation of Devon to
effect the automatic exchange of shares of Devon Common Stock for Exchangeable
Shares pursuant to Section 5.12 hereof.
"Board of Directors" means the Board of Directors of Northstar or Devon, as
the case may be.
"Business Day" means any day other than a Saturday, a Sunday or a day when
the office of the Trustee is not open for business in Calgary, Alberta.
"Devon Common Stock" has the meaning provided in the Exchangeable Share
Provisions.
"Devon Consent" has the meaning provided in Section 4.2 hereof.
"Devon Meeting" has the meaning provided in Section 4.2 hereof.
"Devon Special Voting Stock" has the meaning provided in the recitals
hereto.
"Devon Successor" has the meaning provided in subsection 11.1(a) hereof.
"Equivalent Vote Amount" means, with respect any matter, proposition or
question on which holders of Devon Common Stock are entitled to vote, consent or
otherwise act, the number of votes to which a holder of one share of Devon
Common Stock is entitled with respect to such matter, proposition or question.
"Exchange Put Right" has the meaning provided in the Exchangeable Share
Provisions.
"Exchange Right" has the meaning provided in Article 5 hereof.
"Exchangeable Share Consideration" has the meaning provided in the
Exchangeable Share Provisions.
"Exchangeable Share Price" has the meaning provided in the Exchangeable
Share Provisions.
"Exchangeable Share Provisions" has the meaning provided in the recitals
hereto.
"Exchangeable Shares" has the meaning provided in the recitals hereto.
"Holder Votes" has the meaning provided in Section 4.2 hereof.
"Holders" means the registered holders from time to time of Exchangeable
Shares, other than Devon and its Subsidiaries.
"Insolvency Event" means the institution by Northstar of any proceeding to
be adjudicated a bankrupt or insolvent or to be dissolved or wound-up, or the
consent of Northstar 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
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(Canada), and the failure by Northstar to contest in good faith any such
proceedings commenced in respect of Northstar within 15 days of becoming aware
thereof, or the consent by Northstar to the filing of any such petition or to
the appointment of a receiver, or the making by Northstar of a general
assignment for the benefit of creditors, or the admission in writing by
Northstar of its inability to pay its debts generally as they become due, or
Northstar's not being permitted, pursuant to liquidity or solvency requirements
of applicable law, to redeem any Retracted Shares pursuant to Section 6.6 of the
Exchangeable Share Provisions.
"Liquidation Call Right" has the meaning provided in the Exchangeable Share
Provisions.
"Liquidation Event" has the meaning provided in subsection 5.12(b) hereof.
"Liquidation Event Effective Time" has the meaning provided in subsection
5.12(c) hereof.
"List" has the meaning provided in Section 4.6 hereof.
"Officer's Certificate" means, with respect to Devon or Northstar, as the
case may be, a certificate signed by any one of the Chairman of the Board, the
Vice-Chairman of the Board (if there be one), the President or any
Vice-President of Devon or Northstar, as the case may be.
"Person" includes an individual, body corporate, partnership, company,
unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative.
"Plan of Arrangement" has the meaning provided in the Exchangeable Share
Provisions.
"Redemption Call Right" has the meaning provided in the Exchangeable Share
Provisions.
"Retracted Shares" has the meaning provided in Section 5.7 hereof.
"Retraction Call Right" has the meaning provided in the Exchangeable Share
Provisions.
"Subsidiary" has the meaning provided in the Exchangeable Share Provisions.
"Support Agreement" means that certain support agreement made as of even
date hereof by and between Devon and Northstar.
"Trust" means the trust created by this agreement.
"Trust Estate" means the Voting Share, any other securities, the Exchange
Put Right, the Exchange Right, the Automatic Exchange Rights and any money or
other property which may be held by the Trustee from time to time pursuant to
this agreement.
"Trustee" means CIBC Mellon Trust Company and, subject to the provisions of
Article 10 hereof, includes any successor trustee or permitted assigns.
"Voting Rights" means the voting rights attached to the Voting Share.
"Voting Share" means the one share of Devon Special Voting Stock, U.S.
$0.10 par value, issued by Devon to and deposited with the Trustee, which
entitles the holder of record to a number of votes at meetings of holders of
Devon Common Stock equal to the Aggregate Equivalent Vote Amount.
1.2 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.
1.3 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.
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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.
1.5 PAYMENTS
All payments to be made hereunder will be made without interest and less
any tax required by Canadian law to be deducted or withheld.
ARTICLE 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 Put
Right, the Exchange Right and the Automatic Exchange Rights in order to enable
the Trustee to exercise such rights, in each case as trustee for and on behalf
of the Holders as provided in this agreement.
ARTICLE 3
VOTING SHARE
3.1 ISSUANCE AND OWNERSHIP OF THE VOTING SHARE
Devon 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. Devon 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 Devon 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:
(a) 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
(b) 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.
3.2 LEGENDED SHARE CERTIFICATES
Northstar will cause each certificate representing 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
Exchangeable Shares held by a Holder.
3.3 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.
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ARTICLE 4
EXERCISE OF VOTING RIGHTS
4.1 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 Devon at a Devon
Meeting or in connection with a Devon Consent (in each case, as hereinafter
defined). The Voting Rights shall be and remain vested in and exercised by the
Trustee. Subject to Section 7.15 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 Devon Consent is sought or a Devon 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.
4.2 NUMBER OF VOTES
With respect to all meetings of stockholders of Devon at which holders of
shares of Devon Common Stock are entitled to vote (a "Devon Meeting") and with
respect to all written consents sought by Devon from its stockholders including
the holders of shares of Devon Common Stock (a "Devon 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
Exchangeable Share owned of record by such Holder on the record date established
by Devon or by applicable law for such Devon Meeting or Devon Consent, as the
case may be, (the "Holder Votes") in respect of each matter, question or
proposition to be voted on at such Devon Meeting or to be consented to in
connection with such Devon Consent.
4.3 MAILINGS TO SHAREHOLDERS
With respect to each Devon Meeting and Devon Consent, the Trustee will mail
or cause to be mailed (or otherwise communicate in the same manner as Devon
utilizes in communications to holders of Devon 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 Devon to its stockholders:
(a) a copy of such notice, together with any proxy or information
statement and related materials to be provided to stockholders of Devon;
(b) a statement that such Holder is entitled to instruct the Trustee
as to the exercise of the Holder Votes with respect to such Devon Meeting
or Devon Consent, as the case may be, or, pursuant to Section 4.7 hereof,
to attend such Devon Meeting and to exercise personally the Holder Votes
thereat;
(c) 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:
(i) a proxy to such Holder or such Holder's designee to exercise
personally the Holder Votes; or
(ii) a proxy to a designated agent or other representative of the
management of Devon to exercise such Holder Votes;
(d) 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;
(e) a form of direction whereby the Holder may so direct and instruct
the Trustee as contemplated herein; and
(f) a statement of (i) 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 Devon Meeting shall not be earlier than the close of
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business on the Business Day prior to such meeting, and (ii) the method for
revoking or amending such instructions.
The materials referred to above are to be provided by Devon 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 Devon Meeting or Devon Consent, the number of
Exchangeable Shares owned of record by the Holder shall be determined at the
close of business on the record date established by Devon or by applicable law
for purposes of determining stockholders entitled to vote at such Devon Meeting
or to give written consent in connection with such Devon Consent. Devon will
notify the Trustee in writing of any decision of the board of directors of Devon
with respect to the calling of any such Devon Meeting or the seeking of any such
Devon 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 4.3.
4.4 COPIES OF STOCKHOLDER INFORMATION
Devon will deliver to the Trustee copies of all proxy materials, (including
notices of Devon Meetings, but excluding proxies to vote shares of Devon 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 Devon 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 Devon Common Stock. The Trustee will mail or otherwise send to
each Holder, at the expense of Devon, copies of all such materials (and all
materials specifically directed to the Holders or to the Trustee for the benefit
of the Holders by Devon) received by the Trustee from Devon at the same time as
such materials are first sent to holders of Devon Common Stock. The Trustee will
make copies of all such materials available for inspection by any Holder at the
Trustee s principal transfer office in the cities of Calgary and Toronto.
4.5 OTHER MATERIALS
Immediately after receipt by Devon or any stockholder of Devon of any
material sent or given generally to the holders of Devon 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), Devon 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 Devon, copies of all such materials received by the Trustee from Devon. The
Trustee will also make copies of all such materials available for inspection by
any Holder at the Trustee s principal transfer office in the cities of Calgary
and Toronto.
4.6 LIST OF PERSONS ENTITLED TO VOTE
Northstar shall, (i) prior to each annual, general or special Devon Meeting
or the seeking of any Devon 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 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
Devon Meeting or a Devon Consent, at the close of business on the record date
established by Devon or pursuant to applicable law for determining the holders
of Devon Common Stock entitled to receive notice of and/or to vote at such Devon
Meeting or to give consent in connection with such Devon Consent. Each such List
shall be delivered to the Trustee promptly after receipt by Northstar 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. Devon agrees to give Northstar
written notice (with a
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copy to the Trustee) of the calling of any Devon Meeting or the seeking of any
Devon 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 Northstar to perform its obligations under this Section 4.6.
4.7 ENTITLEMENT TO DIRECT VOTES
Any Holder named in a List prepared in connection with any Devon Meeting or
any Devon Consent will be entitled (i) to instruct the Trustee in the manner
described in Section 4.3 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.
4.8 VOTING BY TRUSTEE, AND ATTENDANCE OF TRUSTEE REPRESENTATIVE, AT MEETING.
(a) In connection with each Devon Meeting and Devon Consent, the Trustee
shall exercise, either in person or by proxy, in accordance with the
instructions received from a Holder pursuant to Section 4.3 hereof, the Holder
Votes as to which such Holder is entitled to direct the vote (or any lesser
number thereof as may be set forth in the instructions); provided, however, that
such written instructions are received by the Trustee from the Holder prior to
the time and date fixed by it for receipt of such instructions in the notice
given by the Trustee to the Holder pursuant to Section 4.3 hereof.
(b) 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 Devon 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:
(i) has not previously given the Trustee instructions pursuant to
Section 4.3 hereof in respect of such meeting, or
(ii) 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.
4.9 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 Devon utilizes in communications to holders
of Devon 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 Holder
at its address as shown on the books of Northstar. Northstar shall provide or
cause to be provided to the Trustee for this purpose, on a timely basis and
without charge or other expense:
(a) current lists of the Holders; and
(b) on 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 Northstar to the
Trustee, but shall be subject to review and comment by the Trustee.
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4.10 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 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 Devon, 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 Exchangeable Shares in connection with the exercise by the Holder of the
Exchange Put Right or the Exchange Right or the occurrence of the automatic
exchange of Exchangeable Shares for shares of Devon Common Stock, as specified
in Article 5 hereof (unless in any case Devon shall not have delivered the
Exchangeable Share Consideration deliverable in exchange therefor to the Trustee
for delivery to the Holders), or upon the redemption of 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 Northstar or
any other distribution of the assets of Northstar among its shareholders for the
purpose of winding up its affairs pursuant to Article 5 of the Exchangeable
Share Provisions, or upon the purchase of Exchangeable Shares from the holder
thereof by Devon pursuant to the exercise by Devon of the Retraction Call Right,
the Redemption Call Right or the Liquidation Call Right.
ARTICLE 5
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
5.1 GRANT AND OWNERSHIP OF THE EXCHANGE PUT RIGHT, EXCHANGE RIGHT AND AUTOMATIC
EXCHANGE RIGHT
Devon hereby grants to the Trustee as trustee for and on behalf of, and for
the use and benefit of, the Holders:
(a) the Exchange Put Right;
(b) the right (the "Exchange Right"), upon the occurrence and during
the continuance of an Insolvency Event, to require Devon to purchase from
each or any Holder all or any part of the Exchangeable Shares held by the
Holders; and
(c) the Automatic Exchange Rights,
all in accordance with the provisions of this agreement and the Exchangeable
Share Provisions, as the case may be. Devon 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 Put
Right, the Exchange Right and the Automatic Exchange Rights by Devon 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 Put Right, the Exchange 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 Put Right, the Exchange Right and the
Automatic Exchange Rights, provided that the Trustee shall:
(d) hold the Exchange Put Right, the Exchange Right and the Automatic
Exchange Rights and the legal title thereto as trustee solely for the use
and benefit of the Holders in accordance with the provisions of this
agreement; and
(e) except as specifically authorized by this agreement, have no power
or authority to exercise or otherwise deal in or with the Exchange Put
Right, the Exchange Right or the Automatic Exchange Rights, and the Trustee
shall not exercise any such rights for any purpose other than the purposes
for which this Trust is created pursuant to this agreement.
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5.2 LEGENDED SHARE CERTIFICATES
Northstar will cause each certificate representing Exchangeable Shares to
bear an appropriate legend notifying the Holders of:
(a) their right to instruct the Trustee with respect to the exercise
of the Exchange Put Right and the Exchange Right in respect of the
Exchangeable Shares held by a Holder; and
(b) the Automatic Exchange Rights.
5.3 GENERAL EXERCISE OF EXCHANGE PUT RIGHT AND EXCHANGE RIGHT
The Exchange Put Right and the Exchange Right shall be and remain vested in
and exercised by the Trustee. Subject to Section 7.15 hereof, the Trustee shall
exercise the Exchange Put Right and the Exchange Right only on the basis of
instructions received pursuant to this Article 5 from Holders entitled to
instruct the Trustee as to the exercise thereof. To the extent that no
instructions are received from a Holder with respect to the Exchange Put Right
and the Exchange Right, the Trustee shall not exercise or permit the exercise of
the Exchange Put Right and the Exchange Right.
5.4 PURCHASE PRICE
The purchase price payable by Devon for each Exchangeable Share to be
purchased by Devon (i) under the Exchange Put Right shall be the amount
determined under the Exchangeable Share Provisions, and (ii) under the Exchange
Right shall be an amount equal to the Exchangeable Share Price on the last
Business Day prior to the day of closing of the purchase and sale of such
Exchangeable Share under the Exchange Right. In connection with each exercise of
the Exchange Right, Devon will provide to the Trustee an Officer s Certificate
setting forth the calculation of the applicable Exchangeable Share Price for
each Exchangeable Share. The applicable Exchangeable Share Price for each such
Exchangeable Share so purchased may be satisfied only by Devon's issuing and
delivering or causing to be delivered to the Trustee, on behalf of the relevant
Holder, the applicable Exchangeable Share Consideration representing the total
applicable Exchangeable Share Price.
5.5 EXERCISE INSTRUCTIONS FOR EXCHANGE RIGHT
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 Exchangeable Shares registered in the name of such Holder on the
books of Northstar. 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 transfer offices in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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 Exchangeable
Shares which such Holder desires Devon to purchase, duly endorsed in blank, and
accompanied by such other documents and instruments as may be required to effect
a transfer of Exchangeable Shares under applicable law and the by-laws of
Northstar and such additional documents and instruments as the Trustee may
reasonably require, together with:
(a) a duly completed form of notice of exercise of the Exchange Right,
contained on the reverse of or attached to the Exchangeable Share
certificates, stating:
(i) that the Holder thereby instructs the Trustee to exercise the
Exchange Right so as to require Devon to purchase from the Holder the
number of Exchangeable Shares specified therein,
(ii) that such Holder has good title to and owns all such
Exchangeable Shares to be acquired by Devon free and clear of all liens,
claims, encumbrances, security interests and adverse claims or
interests,
(iii) the names in which the certificates representing Devon
Common Stock issuable in connection with the exercise of the Exchange
Right are to be issued, and
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(iv) the names and addresses of the persons to whom the
Exchangeable Share Consideration should be delivered; and
(b) payment (or evidence satisfactory to the Trustee, Northstar and
Devon of payment) of the taxes (if any) payable as contemplated by Section
5.8 of this agreement.
If only a part of the Exchangeable Shares represented by any certificate or
certificates delivered to the Trustee are to be purchased by Devon under the
Exchange Right, a new certificate for the balance of such Exchangeable Shares
shall be issued to the Holder at the expense of Northstar.
5.6 DELIVERY OF EXCHANGEABLE SHARE CONSIDERATION; EFFECT OF EXERCISE
As soon as practicable after receipt of the certificates representing the
Exchangeable Shares which the Holder desires Devon 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 Devon,
the Trustee shall notify Devon and Northstar of its receipt of the same, which
notice to Devon and Northstar shall constitute exercise of the Exchange Put
Right or the Exchange Right by the Trustee on behalf of the Holder of such
Exchangeable Shares, and Devon shall immediately thereafter deliver or cause to
be delivered to the Trustee, for delivery to the Holder of such Exchangeable
Shares (or to such other persons, if any, properly designated by such Holder),
the 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, Northstar and Devon
of the payment of) the taxes (if any) payable as contemplated by Section 5.8 of
this agreement. Immediately upon the giving of notice by the Trustee to Devon
and Northstar of the exercise of the Exchange Put Right or the Exchange Right,
as provided in this Section 5.6, (i) 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, (ii) Devon shall be required to take all action
necessary to permit it to occur, including delivery to the Trustee of the
relevant Exchangeable Share Consideration, no later than the close of business
on the third Business Day following the receipt by the Trustee of notice,
certificates and other documents as aforesaid and (iii) the Holder of such
Exchangeable Shares shall be deemed to have transferred to Devon all of its
right, title and interest in and to such Exchangeable Shares and the related
interest in the Trust Estate, 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 his proportionate part of the
total purchase price therefor, unless such Exchangeable Share Consideration is
not delivered by Devon to the Trustee by the date specified above, in which case
the rights of the Holder shall remain unaffected until such Exchangeable Share
Consideration is delivered by Devon and any cheque included therein is paid.
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
shares of Devon Common Stock delivered to it pursuant to the Exchange Put Right
or the Exchange Right. Notwithstanding the foregoing, until the Exchangeable
Share Consideration is delivered to the Holder, the Holder shall be deemed to
still be a holder of the sold Exchangeable Shares for purposes of voting rights
with respect thereto under this agreement.
5.7 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 Northstar to redeem any or all of the
Exchangeable Shares held by the Holder (the "Retracted Shares") and is notified
by Northstar pursuant to Section 6.6 of the Exchangeable Share Provisions that
Northstar will not be permitted as a result of liquidity or solvency provisions
of applicable law to redeem all such Retracted Shares, subject to receipt by the
Trustee of written notice to that effect from Northstar and provided that Devon
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 Northstar 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
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respect to those Retracted Shares which Northstar is unable to redeem. In any
such event, Northstar hereby agrees with the Trustee and in favour of the Holder
immediately to notify the Trustee of such prohibition against Northstar's
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
Northstar or to the transfer agent of the 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 which Northstar is not permitted to
redeem and will require Devon to purchase such shares in accordance with the
provisions of this Article 5.
5.8 STAMP OR OTHER TRANSFER TAXES
Upon any sale of Exchangeable Shares to Devon pursuant to the Exchange Put
Right, the Exchange Right or the Automatic Exchange Rights, the share
certificate or certificates representing Devon Common Stock to be delivered as
Exchangeable Share Consideration in connection with the payment of the total
purchase price therefor shall be issued in the name of the Holder of the
Exchangeable Shares so sold or in such names as such Holder may otherwise direct
in writing without charge to the holder of the Exchangeable Shares so sold,
provided, however, that such Holder:
(a) shall pay (and neither Devon, Northstar 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
(b) shall have established to the satisfaction of the Trustee, Devon
and Northstar that such taxes, if any, have been paid.
5.9 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, Northstar and Devon shall give written notice thereof to the Trustee. As
soon as practicable after receiving notice from Northstar or Devon of the
occurrence of an Insolvency Event, the Trustee will mail to each Holder, at the
expense of Devon with funds provided in advance, a notice of such Insolvency
Event in the form provided by Devon, which notice shall contain a brief
statement of the right of the Holders with respect to the Exchange Right.
5.10 QUALIFICATION OF DEVON COMMON STOCK
Devon covenants that if any shares of Devon 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,
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 Devon to the initial holder thereof (other than
Northstar) 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 Devon for purposes of Canadian federal or provincial securities law or an
"affiliate" of Devon for purposes of United States federal or state securities
law), Devon will in good faith expeditiously take all such actions and do all
such things as are necessary to cause such shares of Devon Common Stock to be
and remain duly registered, qualified or approved. Devon 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
Devon Common Stock to be issued and delivered pursuant to the Exchange Put
Right, the Exchange Right and the Automatic Exchange Rights and to be freely
tradeable thereafter (other than restrictions on transfer by reason of a holder
being a "control person" of Devon for the purposes of Canadian federal and
provincial securities law or an "affiliate" of Devon for the purposes of United
States federal or state securities law). Devon will in good faith
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expeditiously take all such actions and do all such things as are necessary to
cause all shares of Devon Common Stock to be delivered pursuant to the Exchange
Put Right, the Exchange Right or the Automatic Exchange Rights 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.
5.11 RESERVATION OF SHARES OF DEVON COMMON STOCK
Devon 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 Devon Common Stock:
(a) as is equal to the sum of
(i) the number of Exchangeable Shares issued and outstanding from
time to time, and
(ii) the number of Exchangeable Shares issuable upon the exercise
of all rights to acquire Exchangeable Shares outstanding from time to
time; and
(b) as are now and may hereafter be required to enable and permit
Northstar to meet its obligations hereunder, under the Amended and Restated
Certificate of Incorporation of Devon, under the Support Agreement, under
the Exchangeable Share Provisions and under any other security or
commitment pursuant to the Arrangement with respect to which Devon may now
or hereafter be required to issue shares of Devon Common Stock.
5.12 AUTOMATIC EXCHANGE ON LIQUIDATION OF DEVON
(a) Devon will give the Trustee written 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
Devon to institute voluntary liquidation, dissolution or winding-up
proceedings with respect to Devon or to effect any other distribution of
assets of Devon among its stockholders for the purpose of winding-up its
affairs, at least 60 days prior to the proposed effective date of such
liquidation, dissolution, winding-up or other distribution; and
(ii) immediately, upon the earlier of
A. receipt by Devon of notice of, and
B. Devon's 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 Devon or to
effect any other distribution of assets of Devon among its stockholders
for the purpose of winding-up its affairs.
(b) Immediately following receipt by the Trustee from Devon of notice of
any event (a "Liquidation Event") contemplated by Section 5.12(a) above, the
Trustee will give notice thereof to the Holders. Such notice will be provided by
Devon to the Trustee and shall include a brief description of the automatic
exchange of Exchangeable Shares for shares of Devon Common Stock provided for in
Section 5.12(c) below.
(c) In order that the Holders will be able to participate on a pro rata
basis with the holders of Devon Common Stock in the distribution of assets of
Devon 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 Exchangeable Shares shall be automatically exchanged for shares
of Devon Common Stock. To effect such automatic exchange, Devon shall be deemed
to have purchased each 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 Exchangeable Shares held by it at such time, for a
purchase price per share equal to the Exchangeable Share Price applicable at
such time. In connection with such automatic exchange, Devon will provide to the
Trustee an Officer's Certificate setting forth the calculation of the purchase
price for each Exchangeable Share.
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(d) The closing of the transaction of purchase and sale contemplated by
Section 5.12(c) above shall be deemed to have occurred immediately prior to the
Liquidation Event Effective Time, and each Holder of Exchangeable Shares shall
be deemed to have transferred to Devon all of the Holder's right, title and
interest in and to such Exchangeable Shares and the related interest in the
Trust Estate and shall cease to be a holder of such Exchangeable Shares, and
Devon shall deliver to the Holder the Exchangeable Share Consideration
deliverable upon the automatic exchange of Exchangeable Shares. Concurrently
with such Holder's ceasing to be a holder of Exchangeable Shares, the Holder
shall be considered and deemed for all purposes to be the holder of the shares
of Devon Common Stock issued to it pursuant to the automatic exchange of
Exchangeable Shares for Devon Common Stock, and the certificates held by the
Holder previously representing the Exchangeable Shares exchanged by the Holder
with Devon pursuant to such automatic exchange shall thereafter be deemed to
represent the shares of Devon Common Stock issued to the Holder by Devon
pursuant to such automatic exchange. Upon the request of a Holder and the
surrender by the Holder of Exchangeable Share certificates deemed to represent
shares of Devon Common Stock, duly endorsed in blank and accompanied by such
instruments of transfer as Devon may reasonably require, Devon shall deliver or
cause to be delivered to the Holder certificates representing the shares of
Devon Common Stock of which the Holder is the holder. Notwithstanding the
foregoing, until each Holder is actually entered on the register of holders of
Devon Common Stock, such Holder shall be deemed to still be a holder of the
transferred Exchangeable Shares for purposes of all voting rights with respect
thereto under this agreement.
ARTICLE 6
RESTRICTIONS ON ISSUANCE OF DEVON SPECIAL VOTING STOCK
During the term of this agreement, Devon will not issue any shares of Devon
Special Voting Stock in addition to the Voting Share.
ARTICLE 7
CONCERNING THE TRUSTEE
7.1 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:
(a) receipt and deposit of the Voting Share from Devon as trustee for
and on behalf of the Holders in accordance with the provisions of this
agreement;
(b) granting proxies and distributing materials to Holders as provided
in this agreement;
(c) voting the Holder Votes in accordance with the provisions of this
agreement;
(d) receiving the grant of the Exchange Put Right, the Exchange Right
and the Automatic Exchange Rights from Devon as trustee for and on behalf
of the Holders in accordance with the provisions of this agreement;
(e) exercising the Exchange Put Right and 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 Exchangeable Shares and other requisite
documents and distributing to such Holders the shares of Devon Common Stock
and cheques, if any, to which such Holders are entitled upon the exercise
of the Exchange Put Right and the Exchange Right or pursuant to the
Automatic Exchange Rights, as the case may be;
(f) holding title to the Trust Estate;
(g) investing any moneys forming, from time to time, a part of the
Trust Estate as provided in this agreement;
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(h) taking action at the direction of a Holder or Holders to enforce
the obligations of Devon under this agreement; and
(i) taking such other actions and doing such other things as are
specifically provided in this agreement.
In the exercise of such rights, powers and authorities, the Trustee shall
have (and is granted) such incidental and additional rights, powers and
authority not in conflict with any of the provisions of this agreement as the
Trustee, acting in good faith and in the reasonable exercise of its discretion,
may deem necessary, appropriate or desirable to effect the purpose of the Trust.
Any exercise of such discretionary rights, 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.
7.2 NO CONFLICT OF INTEREST
The Trustee represents to Northstar and Devon 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
7.2, 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 7.2, any interested
party may apply to the superior court of the province in which Northstar has its
registered office for an order that the Trustee be replaced as trustee
hereunder.
7.3 DEALINGS WITH TRANSFER AGENTS, REGISTRARS, ETC.
Northstar and Devon irrevocably authorize the Trustee, from time to time,
to:
(a) consult, communicate and otherwise deal with the respective
registrars and transfer agents, and with any such subsequent registrar or
transfer agent, of the Exchangeable Shares and Devon Common Stock; and
(b) requisition, from time to time,
(i) 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
(ii) from the transfer agent of Devon Common Stock, and any
subsequent transfer agent of such shares, to complete the exercise
from time to time of the Exchange Put Right, the Exchange Right and
the Automatic Exchange Rights in the manner specified in Article 5
hereof, the share certificates issuable upon such exercise.
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Northstar and Devon irrevocably authorize their respective registrars and
transfer agents to comply with all such requests. Devon 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, the
Exchange Right and the Automatic Exchange Rights, in each case pursuant to
Article 5 hereof.
7.4 BOOKS AND RECORDS
The Trustee shall keep available for inspection by Devon and Northstar, at
the Trustee's principal transfer office in Calgary, Alberta, correct and
complete books and records of account relating to the Trustee's actions under
this agreement, including without limitation all information relating to
mailings and instructions to and from Holders and all transactions pursuant to
the Voting Rights, the Exchange Put Right, the Exchange Right and the Automatic
Exchange Rights for the term of this agreement. On or before March 31, 1999, 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 Devon and Northstar a
brief report, dated as of the preceding December 31, with respect to:
(a) the property and funds comprising the Trust Estate as of that
date;
(b) the number of exercises of the Exchange Put Right and the Exchange
Right, if any, and the aggregate number of Exchangeable Shares received by
the Trustee on behalf of Holders in consideration of the issue and delivery
by Devon of shares of Devon Common Stock in connection with the Exchange
Put Right and the Exchange Right, during the calendar year ended on such
date; and
(c) all other actions taken by the Trustee in the performance of its
duties under this agreement which it had not previously reported.
7.5 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 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, Devon shall retain such
experts for purposes of providing such advice and assistance.
7.6 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's 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 Section 7.15 hereof, and with respect to the Exchange Put Right and
the Exchange Right pursuant to Article 5 hereof, subject to Section 7.15 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.
7.7 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 7.6 hereof and the Trustee shall have failed to
act within a reasonable time thereafter. In such case, but not
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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.
7.8 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 7.9 hereof, if applicable, and with any other applicable
provisions of this agreement.
7.9 EVIDENCE AND AUTHORITY TO TRUSTEE
Northstar and/or Devon 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 Northstar and/or Devon 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, 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 Northstar and/or Devon forthwith if and when:
(a) 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
7.9; or
(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this agreement, gives Northstar and/or Devon written
notice requiring it to furnish such evidence in relation to any particular
action or obligation specified in such notice.
Such evidence shall consist of an Officer's Certificate of Northstar and/or
Devon 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 Right, the Exchange Right or the Automatic Exchange Rights, and
except as otherwise specifically provided herein, such evidence may consist of a
report or opinion of any solicitor, auditor, accountant, appraiser, valuer,
engineer or other expert or any other person whose qualifications give authority
to a statement made by him, provided that, if such report or opinion is
furnished by a director, officer or employee of Northstar and/or Devon, it shall
be in the form of an Officer's Certificate or a statutory declaration.
Each statutory declaration, certificate, 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) the condition in question;
A. describing the nature and scope of the examination or
investigation upon which such person based the statutory declaration,
certificate, statement or opinion; and
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B. declaring that such person has made such examination or
investigation as such person believes is necessary to enable such person
to make the statements or give the opinions contained or expressed
therein.
7.10 EXPERTS, ADVISERS AND AGENTS
The Trustee may:
(a) in relation to these presents act and rely on the opinion or
advice of or information obtained from or prepared by any solicitor,
auditor, accountant, appraiser, valuer, engineer or other expert, whether
retained by the Trustee or by Northstar and/or Devon or otherwise, and may
employ such assistants as may be necessary to the proper determination and
discharge of its powers and duties and determination of its rights
hereunder and may pay proper and reasonable compensation for all such legal
and other advice or assistance as aforesaid; and
(b) retain or employ such agents and other assistants as it may
reasonably require for the proper determination and discharge of its powers
and duties hereunder, and may pay reasonable remuneration for all services
performed for it (and shall be entitled to receive reasonable remuneration
for all services performed by it) in the discharge of the trusts hereof and
compensation for all disbursements, costs and expenses made or incurred by
it in the determination and discharge of its duties hereunder and in the
management of the Trust.
7.11 INVESTMENT OF MONEYS HELD BY TRUSTEE
Unless herein otherwise expressly provided, any of the funds held by the
Trustee may be deposited in a trust account in the name of the Trustee (which
may be held with the Trustee or an affiliate or related party of the Trustee),
which account shall be interest bearing. Upon the written direction of
Northstar, the Trustee shall invest in its name such funds in Authorized
Investments (as defined herein) in accordance with such direction. Any direction
by Northstar to the Trustee as to the investment of the funds shall be in
writing and shall be provided to the Trustee no later than 9:00 a.m. on the day
on which the investment is to be made. Any such direction received by the
Trustee after 9:00 a.m. or received on a non-Business Day, shall be deemed to
have been given prior to 9:00 a.m. the next Business Day. "Authorized
Investments" means short term interest bearing or discount debt obligations
issued or guaranteed by the Government of Canada or a Province of Canada or a
Canadian chartered bank (which may include an affiliate or related party of the
Trustee, including without limitation the Mellon Bank Canada and the Canadian
Imperial Bank of Commerce) provided that each such obligation is rated at least
RI (middle) by DBRS Inc. or an equivalent rating by Canadian Bond Rating
Service.
7.12 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.
7.13 TRUSTEE NOT BOUND TO ACT ON REQUEST
Except as in this agreement otherwise specifically provided, the Trustee
shall not be bound to act in accordance with any direction or request of
Northstar and/or Devon 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.
7.14 AUTHORITY TO CARRY ON BUSINESS
The Trustee represents to Northstar and Devon 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 7.14, 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
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Right and the Automatic Exchange Rights shall not be affected in any manner
whatsoever by reason only of such event; provided, however, 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.
7.15 CONFLICTING CLAIMS
If conflicting claims or demands are made or asserted with respect to any
interest of any Holder in any 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 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:
(a) 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
(b) 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.
7.16 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.
ARTICLE 8
COMPENSATION
Devon and Northstar 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 counsel, 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 Devon and Northstar 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 in bad faith or with negligence or willful
misconduct.
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ARTICLE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 INDEMNIFICATION OF THE TRUSTEE
Devon and Northstar 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) 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 (to be confirmed in writing)
delivered to the Trustee by Devon or Northstar pursuant hereto. In no case shall
Devon or Northstar be liable under this indemnity for any claim against any of
the Indemnified Parties unless Devon and Northstar shall be notified by the
Trustee of the written assertion of a claim or of any action commenced against
the Indemnified Parties, promptly after any of the Indemnified Parties shall
have received any such written assertion of a claim or shall have been served
with a summons or other first legal process giving information as to the nature
and basis of the claim. Subject to (ii) below, Devon and Northstar shall be
entitled to participate at their own expense in the defense and, if Devon or
Northstar 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 Devon or Northstar, such authorization not to be unreasonably
withheld; or (ii) the named parties to any such suit include both the Trustee
and Devon or Northstar and the Trustee shall have been advised by counsel
acceptable to Devon or Northstar that there may be one or more legal defenses
available to the Trustee that are different from or in addition to those
available to Devon or Northstar and that an actual or potential conflict of
interest exists (in which case Devon and Northstar shall not have the right to
assume the defense of such suit on behalf of the Trustee, but shall be liable to
pay the reasonable fees and expenses of counsel for the Trustee). This indemnity
shall survive the resignation or removal of the Trustee and the termination of
the trust.
9.2 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.
ARTICLE 10
CHANGE OF TRUSTEE
10.1 RESIGNATION
The Trustee, or any trustee hereafter appointed, may at any time resign by
giving written notice of such resignation to Devon and Northstar 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 Devon and
Northstar 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, Devon and Northstar 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 superior court of the province in which Northstar has its
registered office upon application of one or more of the parties hereto. Should
the retiring Trustee apply for the appointment of a successor trustee by an
order of court of competent jurisdiction it shall be at the joint and several
expense of Devon and Northstar.
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10.2 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 Devon and Northstar, 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 10.1.
10.3 SUCCESSOR TRUSTEE
Any successor trustee appointed as provided under this agreement shall
execute, acknowledge and deliver to Devon and Northstar 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 Devon and Northstar 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,
Devon, Northstar 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.
10.4 NOTICE OF SUCCESSOR TRUSTEE
Upon acceptance of appointment by a successor trustee as provided herein,
Devon and Northstar shall cause to be mailed notice of the succession of such
trustee hereunder to each Holder specified in a List. If Devon or Northstar
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 Devon and Northstar.
ARTICLE 11
DEVON SUCCESSORS
11.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
Devon shall not enter into any transaction (whether by way of
reconstruction, reorganization, consolidation, merger, transfer, sale, lease or
otherwise) whereby all or substantially all of its undertaking, property and
assets would become the property of any other Person or, in the case of a
merger, of the continuing corporation resulting therefrom, but may do so if:
(a) such other Person or continuing corporation (the "Devon
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 relying on the opinion of legal counsel to the
Trustee are necessary or advisable to evidence the assumption by the Devon
Successor of liability for all moneys payable and property deliverable
hereunder, the covenant of such Devon 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 Devon under this agreement; and
(b) such transaction shall, to the satisfaction of the Trustee relying
on the opinion of legal counsel to the Trustee, be upon such terms which
substantially preserve and do not impair in any material respect any of the
rights, duties, powers and authorities of the Trustee or of the Holders as
a whole hereunder.
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11.2 VESTING OF POWERS IN SUCCESSOR
Whenever the conditions of Section 11.1 hereof have been duly observed and
performed, the Trustee, if required by Section 11.1 hereof, the Devon Successor
and Northstar shall execute and deliver the supplemental agreement provided for
in Article 12 hereof, and thereupon the Devon Successor shall possess and from
time to time may exercise each and every right and power of Devon under this
agreement in the name of Devon 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 Devon or any officers of Devon may be done and performed with like
force and effect by the directors or officers of such Devon Successor.
11.3 WHOLLY-OWNED SUBSIDIARIES
Nothing herein shall be construed as preventing the amalgamation or merger
of any wholly-owned subsidiary of Devon with or into Devon or the winding-up,
liquidation or dissolution of any wholly-owned subsidiary of Devon provided that
all of the assets of such subsidiary are transferred to Devon or another
wholly-owned subsidiary of Devon, and any such transactions are expressly
permitted by this Article 11.
ARTICLE 12
AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
12.1 AMENDMENTS, MODIFICATIONS, ETC.
Subject to Sections 12.2 and 12.4, this agreement may not be amended,
modified or waived except by an agreement in writing executed by Northstar,
Devon and the Trustee and approved by the Holders in accordance with Section
10.2 of the Exchangeable Share Provisions. 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.
12.2 MINISTERIAL AMENDMENTS
Notwithstanding the provisions of Section 12.1 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:
(a) adding to the covenants of any or all of the parties hereto for
the protection of the Holders hereunder subject to the receipt by the
Trustee of an opinion of counsel that the addition of the proposed covenant
is not prejudicial to the interests of the holders as a whole or the
Trustee;
(b) making such amendments or modifications not inconsistent with this
agreement as may be necessary or desirable with respect to matters or
questions which, in the opinion of the board of directors of each of Devon
and Northstar and in the opinion of the Trustee relying on the opinion of
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
(c) making such changes or corrections which, on the advice of counsel
to Northstar, Devon 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 Northstar and Devon shall be
of the opinion that such changes or corrections will not be prejudicial to
the interests of the Holders as a whole.
12.3 MEETING TO CONSIDER AMENDMENTS
Northstar, at the request of Devon, 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
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or meetings shall be called and held in accordance with the by-laws of
Northstar, the Exchangeable Share Provisions and all applicable laws.
12.4 CHANGES IN CAPITAL OF DEVON AND NORTHSTAR
At all times after the occurrence of any event effected pursuant to Section
2.7 or Section 2.8 of the Support Agreement, as a result of which either Devon
Common Stock or the Exchangeable Shares or both are in any way changed, this
agreement shall forthwith be amended and modified as necessary in order that it
shall apply with full force and effect, mutatis mutandis, to all new securities
into which Devon Common Stock or the 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.
12.5 EXECUTION OF SUPPLEMENTAL AGREEMENTS
From time to time, Northstar (when authorized by a resolution of its Board
of Directors), Devon (when authorized by a resolution of its board of directors)
and the Trustee may, subject to the provisions of these presents, and they
shall, when so directed by these presents, execute and deliver by their proper
officers, agreements or other instruments supplemental hereto, which thereafter
shall form part hereof, for any one or more of the following purposes:
(a) evidencing the succession of any Devon Successors to Devon and the
covenants of and obligations assumed by each such Devon Successor in
accordance with the provisions of Article 11 and the successor of any
successor trustee in accordance with the provisions of Article 10;
(b) making any additions to, deletions from or alterations of the
provisions of this agreement or the Voting Rights, the Exchange Put Right,
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 Devon, Northstar, the Trustee
or this agreement; and
(c) 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 counsel to the Trustee, the rights of the
Trustee and the Holders as a whole will not be prejudiced thereby.
ARTICLE 13
TERMINATION
13.1 TERM
The Trust created by this agreement shall continue until the earliest to
occur of the following events:
(a) no outstanding Exchangeable Shares are held by a Holder;
(b) each of Northstar and Devon elects in writing to terminate the
Trust and such termination is approved by the Holders of the Exchangeable
Shares in accordance with Section 10.1 of the Exchangeable Share
Provisions; and
(c) 21 years after the death of the last survivor of the descendants
of His Majesty King ▇▇▇▇▇▇ VI of the United Kingdom of Great Britain and
Northern Ireland living on the date of the creation of the Trust.
13.2 SURVIVAL OF AGREEMENT
This agreement shall survive any termination of the Trust and shall
continue until there are no 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.
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ARTICLE 14
GENERAL
14.1 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.
14.2 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.
14.3 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):
(a) if to Devon to:
Devon Energy Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Attention: President
Facsimile No. ▇▇▇-▇▇▇-▇▇▇▇
(b) if to Northstar to:
Northstar Energy Corporation
3000, ▇▇▇ -- ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: President
Facsimile No. ▇▇▇-▇▇▇-▇▇▇▇
(c) if to the Trustee to:
CIBC Melon Trust Company
▇▇▇, ▇▇▇ -- ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Corporate Trust Department
Facsimile No. ▇▇▇-▇▇▇-▇▇▇▇
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.
14.4 NOTICE TO 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 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
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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.
14.5 RISK OF PAYMENTS BY POST
Whenever payments are to be made or documents are to be sent to any Holder
by the Trustee, by Northstar or by Devon or by such Holder to the Trustee or to
Devon or Northstar, the making of such payment or sending of such document sent
through the mail shall be at the risk of Northstar or Devon, in the case of
payments made or documents sent by the Trustee or Northstar or Devon, and the
Holder, in the case of payments made or documents sent by the Holder.
14.6 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.
14.7 JURISDICTION
This agreement shall be construed and enforced in accordance with the laws
of the Province of Alberta and the federal laws of Canada applicable therein.
14.8 ATTORNMENT
Devon 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 such courts in any such
action or proceeding, agrees to be bound by any judgment of such 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 Northstar
at its registered office in the Province of Alberta as Devon's 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.
DEVON ENERGY CORPORATION
By: /s/ DUKE ▇. ▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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NORTHSTAR ENERGY CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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CIBC MELLON TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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