AMENDED AND RESTATED SUPPORT AGREEMENT among ENERPLUS RESOURCES FUND - and - FOCUS LIMITED PARTNERSHIP - and - FET MANAGEMENT LTD. Dated as of February 13, 2008
Exhibit
99.2
AMENDED
AND RESTATED
among
-
and -
FOCUS
LIMITED PARTNERSHIP
-
and -
FET MANAGEMENT LTD.
Dated
as of February 13, 2008
TABLE
OF CONTENTS
|
Article 1
INTERPRETATION
|
3 | |||
|
1.1 Defined Terms
|
3 | |||
|
1.2 Interpretation Not Affected by Headings,
etc.
|
3 | |||
|
1.3 Currency
|
4 | |||
|
1.4 Number, etc.
|
4 | |||
|
1.5 Date For Any Action
|
4 | |||
|
1.6 Entire Agreement
|
4 | |||
|
1.7 Accounting Matters
|
4 | |||
|
1.8 Construction
|
4 | |||
|
1.9 Governing Law
|
5 | |||
|
Article 2 COVENANTS OF ENERPLUS AND
FLP
|
5 | |||
|
2.1 Covenants Regarding FLP B
Units
|
5 | |||
|
2.2 Segregation of Funds
|
6 | |||
|
2.3 Reservation of Enerplus
Units
|
6 | |||
|
2.4 Notification of Certain
Events
|
6 | |||
|
2.5 Delivery of Enerplus Units
|
7 | |||
|
2.6 Qualification of Enerplus
Units
|
7 | |||
|
2.7 Economic Equivalence
|
7 | |||
|
2.8 Tender Offers
|
9 | |||
|
2.9 Ownership of Outstanding
Interests
|
9 | |||
|
2.10 Enerplus and Affiliates Not to Vote FLP B
Units
|
10 | |||
|
2.11 Consideration For Enerplus
Units
|
10 | |||
|
2.12 Other Enerplus Subsidiaries
|
11 | |||
|
Article 3 ENERPLUS
SUCCESSORS
|
11 | |||
|
3.1 Certain Requirements in Respect of Combination,
etc.
|
11 | |||
|
3.2 Vesting of Powers in
Successor
|
11 | |||
|
3.3 Wholly-Owned Subsidiaries
|
11 | |||
|
3.4 Successorship Transaction
|
11 | |||
|
Article 4 GENERAL
|
12 | |||
|
4.1 Term
|
12 | |||
|
4.2 Changes in Capital of Enerplus and
FLP
|
12 | |||
|
4.3 Notices to Parties
|
12 | |||
|
4.4 Assignment
|
13 | |||
|
4.5 Binding Effect
|
13 | |||
|
4.6 Amendments, Modifications
|
13 | |||
|
4.7 Administrative Amendments
|
13 | |||
|
4.8 Meeting to Consider
Amendments
|
14 | |||
|
4.9 Amendments Only in Writing
|
14 | |||
|
4.10 Severability
|
14 | |||
|
4.11 Further Assurances
|
14 | |||
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4.12 Execution in Counterparts
|
14 | |||
|
4.13 Waiver
|
15 | |||
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4.14 Limitations on Liability
|
15 |
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THIS AMENDED AND RESTATED SUPPORT
AGREEMENT dated as of February 13, 2008, amending and restating the
Support Agreement dated June 27, 2005.
AMONG:
ENERPLUS RESOURCES FUND, a
trust established under the laws of Alberta (the "Enerplus")
- and
-
FOCUS LIMITED PARTNERSHIP, a
limited partnership established under the laws of Alberta ("FLP" or the "Partnership")
- and
-
FET MANAGEMENT LTD., a
corporation amalgamated pursuant to the laws of Alberta (the "General Partner")
WHEREAS in connection with the
plan of arrangement under Section 193 of the ABCA completed effective June 27,
2006, among, inter
alia, Focus Energy Trust, FET Acquisition Corp. and Profico Energy
Management Ltd., FLP issued Class B limited partnership units ("FLP B Units") to certain
holders of common shares of Profico Energy Management Ltd.;
AND WHEREAS in connection
therewith Focus Energy Trust ("Focus"), Focus Commercial
Trust, FLP and the General Partner executed a support agreement dated June 27,
2005 the "Original Support
Agreement").
AND WHEREAS the Original
Support Agreement is amended and restated in connection with a plan of
arrangement effective as of the date hereof among Enerplus, EnerMark Inc., Focus
and FET Resources Ltd., pursuant to which, inter alia, Enerplus has
assumed the covenants and obligations of Focus with respect to the issue of
Enerplus Units pursuant to the Exchangeable Securities Provisions (as defined
herein).
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 hereto covenant and agree as
follows:
ARTICLE 1
INTERPRETATION
|
1.1
|
Defined
Terms
|
Each term
denoted herein by initial capital letters and not otherwise defined herein shall
have the meaning ascribed thereto in the rights, privileges, restrictions and
conditions (collectively, the "Exchangeable Securities
Provisions") attaching to the FLP B Units of FLP; and "Agreement",
"herein", "hereof", "hereto", "hereunder" and similar expressions mean and refer
to this Support Agreement, as from time to time amended, supplemented or
restated and not to any particular article, section, schedule or other portion
hereof.
|
1.2
|
Interpretation
Not Affected by Headings, etc.
|
The
division of this Agreement into sections and other portions and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation hereof. Unless otherwise indicated, all
references in this Agreement to an "Article" or "Section" followed by a number
and/or a letter refer to the specified article or section of this Agreement, and
all references in this Agreement to a "Schedule" followed by a letter refer to
the specified schedule to this Agreement.
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|
1.3
|
Currency
|
Unless
otherwise indicated, all sums of money referred to in this Agreement are
expressed in lawful money of Canada.
|
1.4
|
Number,
etc.
|
Unless
the context otherwise requires, words importing the singular shall include the
plural and vice versa and words importing any gender shall include all
genders.
|
1.5
|
Date
For Any Action
|
In the
event that any date on which any action is required to be taken hereunder by any
of the parties hereto is not a Business Day, such action shall be required to be
taken on the next succeeding day which is a Business Day.
|
1.6
|
Entire
Agreement
|
This
Agreement and the agreements and other documents referred to herein constitute
the entire agreement between the parties with respect to the transactions
contemplated hereby and thereby and supersede all other prior agreements,
understandings, negotiations and discussions, whether oral or written, between
the parties with respect thereto.
|
1.7
|
Accounting
Matters
|
Unless
otherwise indicated, all accounting terms used in this Agreement shall have the
meanings attributable thereto under Canadian generally accepted accounting
principles and all determinations of an accounting nature required to be made
shall be made in a manner consistent with Canadian generally accepted accounting
principles and past practice.
|
1.8
|
Construction
|
In this
Agreement, unless otherwise indicated:
|
(a)
|
the
words "include", "including" or "in particular", when following any
general term or statement, shall not be construed as limiting the general
term or statement to the specific items or matters set forth or to similar
items or matters, but rather as permitting the general term or statement
to refer to all other items or matters that could reasonably fall within
the broadest possible scope of the general term or
statement;
|
|
(b)
|
a
reference to a statute means that statute, as amended and in effect as of
the date of this Agreement, and includes each and every regulation and
rule made thereunder and in effect as of the date
hereof;
|
|
(c)
|
a
reference to an "approval", "authorization", "consent", "designation",
"notice" or "agreement" means an approval, authorization, consent,
designation, notice or agreement, as the case may be, in writing, signed
by an authorized representative of the party or parties
thereto;
|
|
(d)
|
the
phrase "ordinary course of business", or any variation thereof, of any
person refers to the business of such person, carried on in the regular
and ordinary course including commercially reasonable and businesslike
actions that are in the regular and ordinary course of business for a
company operating in the industry in which such business is
conducted;
|
|
(e)
|
where
a word, term or phrase is defined, its derivatives or other grammatical
forms have a corresponding meaning;
|
|
(f)
|
time
is of the essence; and
|
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-
|
(g)
|
references
to a "party" or "parties" are references to a party or parties to this
Agreement.
|
|
1.9
|
Governing
Law
|
This
Agreement shall be governed by and construed in accordance with the laws of
Alberta and the federal laws of Canada applicable therein.
ARTICLE 2
COVENANTS
OF ENERPLUS AND FLP
|
2.1
|
Covenants
Regarding FLP B Units
|
So long
as any FLP B Units not owned by Enerplus or its affiliates are outstanding,
Enerplus shall:
|
(a)
|
not
pay any distribution on Enerplus Units
unless:
|
|
|
(i)
|
FLP
shall (A) simultaneously make a loan equal or economically equivalent to
each such distribution per Enerplus Unit (as provided for in the
Exchangeable Securities Provisions, including as adjusted for the Exchange
Ratio therein) on each FLP B Unit (an "Equivalent Loan") and
(B) have sufficient money or other assets available to enable the due and
punctual advance of such loan in accordance with applicable law and the
terms of the Exchangeable Securities Provisions;
or
|
|
|
(ii)
|
if
the distribution is a distribution of Enerplus Units, FLP shall (A) effect
a corresponding, contemporaneous and economically equivalent subdivision
of the FLP B Units (as provided for in the Exchangeable Securities
Provisions, including as adjusted for the Exchange Ratio therein) (an
"Equivalent Securities
Subdivision"), and (B) have sufficient authorized but unissued
securities available to enable the Equivalent Securities
Subdivision;
|
|
(b)
|
advise
FLP sufficiently in advance of the declaration by Enerplus of any
distribution on Enerplus Units and take all such other actions as are
reasonably necessary, in cooperation with FLP, to ensure that: (i) the
respective record date and loan advance date for an Equivalent Loan on the
FLP B Units shall be the same as the record date and payment date for the
corresponding distribution on Enerplus Units; or (ii) the record date and
effective date for an Equivalent Securities Subdivision shall be the same
as the record date and payment date for the distribution of Enerplus
Units;
|
|
(c)
|
ensure
that the record date for any distribution declared on Enerplus Units is
not less than seven (7) Business Days after the declaration date of such
distribution;
|
|
(d)
|
take
all such actions and do all such things as are reasonably necessary or
desirable to enable and permit FLP, in accordance with applicable law, to
pay and otherwise perform its obligations with respect to the satisfaction
of the Liquidation Amount, the Retraction Price, the Redemption Price or
Automatic Redemption Price in respect of each of its issued and
outstanding FLP B Units (other than FLP B Units owned by Enerplus or its
affiliates) upon its liquidation, dissolution or winding-up or any other
distribution of its assets among its Partners for the purpose of
winding-up its affairs, the delivery of a Retraction Request by a holder
of FLP B Units issued by it or a redemption of FLP B Units by it, as the
case may be, including all such actions and all such things as are
necessary or desirable to enable and permit it to cause to be delivered to
the holders of FLP B Units the requisite Enerplus Units, cash and other
property in accordance with the provisions of Article 5, 6, 7 or 8, as the
case may be, of the Exchangeable Securities
Provisions;
|
|
(e)
|
take
all such actions and do all such things as are reasonably necessary or
desirable to enable and permit any Enerplus Subsidiary, in accordance with
applicable law, to perform its obligations arising upon the exercise by it
of the Liquidation Call Right, including all such actions and all such
things as are necessary or desirable to enable and permit the applicable
Enerplus Subsidiary to cause to be delivered to the holders of FLP B Units
the requisite Enerplus Units, cash and other property in accordance with
the provisions of the Liquidation Call Right, as the case may be;
and
|
- 5
-
|
(f)
|
(unless
all of the limited partnership interests therein are owned directly or
indirectly by Enerplus) not (and will ensure that each Enerplus Subsidiary
and their respective affiliates does not) exercise its vote as a Partner
to initiate the voluntary liquidation, dissolution or winding-up of FLP or
any other distribution of the assets of FLP among its Partners for the
purpose of winding up its affairs nor take any action or omit to take any
action (and Enerplus will not permit any Enerplus Subsidiary or any of
their respective affiliates to take any action or omit to take any action)
that is designed to result in the liquidation, dissolution or winding up
of FLP or any other distribution of the assets of FLP among its respective
Partners for the purpose of winding up its
affairs.
|
|
2.2
|
Segregation
of Funds
|
|
(a)
|
Enerplus
will cause FLP to deposit a sufficient amount of funds in a separate
account of FLP and segregate a sufficient amount of such other assets and
property as is necessary to enable FLP to make the loans when required and
to pay or otherwise satisfy its respective obligations under Article 5, 6,
7 or 8 of the Exchangeable Securities Provisions or, if required, to pay
the purchase price for Enerplus Units as contemplated by Section 2.5
hereof, as applicable.
|
|
(b)
|
Enerplus
will cause any applicable Enerplus Subsidiary to deposit a sufficient
amount of funds in a separate account of such Enerplus Subsidiary and
segregate a sufficient amount of such other assets and property as is
necessary to enable such Enerplus Subsidiary to pay the purchase price for
Enerplus Units as contemplated by Section
2.5.
|
|
2.3
|
Reservation
of Enerplus Units
|
Enerplus
hereby represents, warrants and covenants in favour of each of FLP and the
General Partner that Enerplus has reserved for issuance and will, at all times
while any FLP B Units (other than FLP B Units held by Enerplus or its
affiliates) are outstanding, keep available, free from preemptive and other
rights, that number of Enerplus Units (or other securities into which Enerplus
Units may be reclassified or changed as contemplated by Section
2.7):
|
(a)
|
as
is equal to the sum of:
|
|
|
(i)
|
the
number of FLP B Units issued and outstanding from time to time, multiplied
by the Exchange Ratio; and
|
|
|
(ii)
|
the
number of FLP B Units issuable upon the exercise of all rights to acquire
FLP B Units outstanding from time to time, multiplied by the Exchange
Ratio; and
|
|
(b)
|
as
are now or may hereafter be required to enable and permit Enerplus to meet
its obligations under the Voting and Exchange Trust Agreement and under
any other security or commitment with respect to which Enerplus may now or
may hereafter be required to issue Enerplus Units, to enable and permit
any Enerplus Subsidiary to meet its obligations arising upon exercise by
it of the Liquidation Call Right and to enable and permit FLP to meet its
obligations hereunder and under the Exchangeable Securities
Provisions.
|
|
2.4
|
Notification
of Certain Events
|
In order
to assist Enerplus in compliance with its obligations hereunder, FLP shall
notify Enerplus of each of the following events at the times set forth
below:
|
(a)
|
in
the event of any proposed liquidation, dissolution or winding-up of it or
any other distribution of its assets 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;
|
- 6
-
|
(b)
|
promptly,
upon the earlier of receipt by it of notice of or it otherwise becoming
aware of any threatened or instituted claim, suit, petition or other
proceeding with respect to its involuntary liquidation, dissolution or
winding-up or to effect any other distribution of its assets among its
unitholders for the purpose of winding up its
affairs;
|
|
(c)
|
promptly,
upon its receipt of a Retraction
Request;
|
|
(d)
|
promptly
following the date on which notice of redemption is given to holders of
its FLP B Units, upon the determination of a Redemption Date in accordance
with the Exchangeable Securities
Provisions;
|
|
(e)
|
promptly
upon its issuance of any FLP B Units or rights to acquire FLP B Units
(other than the issuance of FLP B Units and rights to acquire FLP B Units
pursuant to the Plan); and
|
|
(f)
|
promptly
upon receipt of notification of any event which would result in any holder
of FLP B Units becoming a
Non-Resident.
|
|
2.5
|
Delivery
of Enerplus Units
|
In
furtherance of its obligations under Sections 2.1(d) and (e), upon notice from
FLP or any applicable Enerplus Subsidiary of any event that requires FLP or such
Enerplus Subsidiary to cause to be delivered Enerplus Units to any holder of FLP
B Units, Enerplus shall forthwith issue and deliver the requisite number of
Enerplus Units to be received by, and issued to or to the order of, the former
holder of the surrendered FLP B Units, as FLP or such Enerplus Subsidiary shall
direct. All such Enerplus Units shall be duly authorized, validly issued and
fully paid and non-assessable and shall be free and clear of any lien, claim or
encumbrance.
|
2.6
|
Qualification
of Enerplus Units
|
Enerplus
covenants that if any Enerplus Units (or other securities into which Enerplus
Units may be reclassified or changed as contemplated by Section 2.7) to be
issued and delivered hereunder (including for greater certainty, pursuant to the
Exchangeable Securities Provisions, or pursuant to the Exchange Right or the
Automatic Exchange Rights (each as defined in the Voting and Exchange Trust
Agreement)) require registration or qualification with, or approval of, or the
filing of any document, including any prospectus or similar 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 federal, provincial
or territorial securities or other law or regulation or pursuant to the rules
and regulations of any securities or other regulatory authority, or the
fulfilment of any other Canadian legal requirement before such Enerplus Units
(or other securities into which Enerplus Units may be reclassified or changed as
contemplated by Section 2.7) may be issued and delivered by Enerplus at the
direction of FLP or any applicable Enerplus Subsidiary, to the holder of
surrendered FLP B Units in accordance with the terms thereof or in order that
such Enerplus Units (or other securities into which Enerplus Units may be
reclassified or changed as contemplated by Section 2.7) may be freely traded
thereafter (other than any restrictions of general application on transfer by
reason of a holder being a "control person" of Enerplus for purposes of Canadian
provincial securities law), Enerplus will use its reasonable best efforts and in
good faith expeditiously take all such actions and do all such things as are
necessary or desirable and within its power to cause such Enerplus Units (or
other securities into which Enerplus Units may be reclassified or changed as
contemplated by Section 2.7) to be and remain duly registered, qualified or
approved under Canadian provincial securities laws, as the case may be. Enerplus
will use its reasonable best efforts and in good faith expeditiously take all
such actions and do all such things as are reasonably necessary or desirable to
cause all Enerplus Units (or other securities into which Enerplus Units may be
reclassified or changed as contemplated by Section 2.7) to be delivered
hereunder to be listed, quoted or posted for trading on all stock exchanges and
quotation systems on which outstanding Enerplus Units (or other securities into
which Enerplus Units may be reclassified or changed as contemplated by Section
2.7) are listed and are quoted or posted for trading at such time.
|
2.7
|
Economic
Equivalence
|
So long
as any FLP B Units not owned by Enerplus or its affiliates are
outstanding:
- 7
-
|
(a)
|
Enerplus
will not, without prior approval of FLP and the holders of the FLP B Units
given in accordance with Section 11.1 of the Exchangeable Securities
Provisions:
|
|
|
(i)
|
issue
or distribute Enerplus Units (or securities exchangeable for or
convertible into or carrying rights to acquire Enerplus Units) to the
holders of all or substantially all of the then outstanding Enerplus Units
by way of distribution, other than an issue of Enerplus Units (or
securities exchangeable for or convertible into or carrying rights to
acquire Enerplus Units) to holders of Enerplus Units (A) who exercise an
option to receive distributions in Enerplus Units (or securities
exchangeable for or convertible into or carrying rights to acquire
Enerplus Units) in lieu of receiving cash distributions, or (B) pursuant
to any distribution reinvestment plan;
or
|
|
|
(ii)
|
issue
or distribute rights, options or warrants to the holders of all or
substantially all of the then outstanding Enerplus Units entitling them to
subscribe for or to purchase Enerplus Units (or securities exchangeable
for or convertible into or carrying rights to acquire Enerplus Units);
or
|
|
|
(iii)
|
issue
or distribute to the holders of all or substantially all of the then
outstanding Enerplus Units:
|
|
|
(A)
|
securities
of Enerplus of any class other than Enerplus Units (other than securities
exchangeable for or convertible into or carrying rights to acquire
Enerplus Units);
|
|
|
(B)
|
rights,
options or warrants other than those referred to in Section
2.7(a)(ii);
|
|
|
(C)
|
evidences
of indebtedness of Enerplus; or
|
|
|
(D)
|
assets
of Enerplus,
|
unless
the economic equivalent on a per FLP B Unit basis, adjusted for the Exchange
Ratio, of such rights, options, warrants, securities, evidences of indebtedness
or other assets is issued or loaned simultaneously to holders of the FLP B
Units; provided that, for greater certainty, the above restrictions shall not
apply to any securities issued or distributed by Enerplus in order to give
effect to a redemption by Enerplus of Enerplus Units in accordance with the
Enerplus Trust Indenture.
|
(b)
|
Enerplus
will not without the prior approval of FLP and the prior approval of the
holders of the FLP B Units given in accordance with Section 11.1 of the
Exchangeable Securities Provisions:
|
|
|
(i)
|
subdivide,
redivide or change the then outstanding Enerplus Units into a greater
number of Enerplus Units; or
|
|
|
(ii)
|
reduce,
combine, consolidate or change the then outstanding Enerplus Units into a
lesser number of Enerplus Units; or
|
|
|
(iii)
|
reclassify
or otherwise change Enerplus Units or effect a merger, reorganization or
other transaction affecting Enerplus
Units,
|
unless
the same or an economically equivalent change, adjusted for the Exchange Ratio,
shall simultaneously be made to, or in the rights of the holders of, the FLP B
Units.
|
(c)
|
Enerplus
will ensure that the record date for any event referred to in Section
2.7(a) or Section 2.7(b), or (if no record date is applicable for such
event) the effective date for any such event, is not less than five
Business Days after the date on which such event is declared or announced
by Enerplus (with contemporaneous notification thereof by Enerplus to
FLP).
|
|
(d)
|
The
Board of Directors shall determine, in good faith and in its sole
discretion, economic equivalence for the purposes of any event referred to
in Section 2.7(a) or Section 2.7(b) and each such determination shall be
conclusive and binding on Enerplus and the holders of FLP B Units. In
making each such determination, the following factors shall, without
excluding other factors determined by the Board of Directors to be
relevant, be considered by the Board of
Directors:
|
- 8
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|
|
(i)
|
in
the case of the distribution of any rights, options or warrants to
subscribe for or purchase Enerplus Units (or securities exchangeable for
or convertible into or carrying rights to acquire Enerplus Units), the
relationship between the exercise price of each such right, option or
warrant and the Current Market Price, the volatility of Enerplus Units and
the term of any such instrument;
|
|
|
(ii)
|
in
the case of the distribution of any other form of property (including any
securities of Enerplus of any class other than Enerplus Units, any rights,
options or warrants other than those referred to in Section 2.7(d)(i), any
evidences of indebtedness of Enerplus or any assets of Enerplus), the
relationship between the fair market value (as determined by the Board of
Directors in the manner above contemplated) of such property to be issued
or distributed with respect to each outstanding Enerplus Unit and the
Current Market Price;
|
|
|
(iii)
|
in
the case of any subdivision, redivision or change of the then outstanding
Enerplus Units into a greater number of Enerplus Units or the reduction,
combination, consolidation or change of the then outstanding Enerplus
Units into a lesser number of Enerplus Units or any merger, reorganization
or other transaction affecting Enerplus Units, the effect thereof upon the
then outstanding Enerplus Units;
and
|
|
|
(iv)
|
in
all such cases, the general taxation consequences of the relevant event to
holders of FLP B Units to the extent that such consequences may differ
from the taxation consequences to holders of Enerplus Units (except for
any differing consequences arising as a result of differing marginal
taxation rates and without regard to the individual circumstances of
holders of FLP B Units); and
|
|
(e)
|
FLP
agrees that, to the extent required, upon due notice from Enerplus, it
will use its best efforts to take or cause to be taken such steps as may
be necessary for the purposes of ensuring that appropriate loans are made
by it, or subdivisions, redivisions or changes are made to the FLP B
Units, in order to implement the required economic equivalent with respect
to Enerplus Units and FLP B Units as provided for in this Section
2.7.
|
|
2.8
|
Tender
Offers
|
For so
long as FLP B Units remain outstanding (other than FLP B Units held by Enerplus
or its affiliates), in the event that a tender offer, share exchange offer,
issuer bid, take-over bid or similar transaction with respect to Enerplus Units
(an "Offer") is proposed
by Enerplus or is proposed to Enerplus or Enerplus unitholders and is
recommended by the appropriate board of directors on behalf of Enerplus, or is
otherwise effected or to be effected with the consent or approval of Enerplus,
and the FLP B Units are not redeemed by FLP, Enerplus will use its reasonable
best efforts expeditiously and in good faith to take all such actions and do all
such things as are necessary or desirable to enable and permit holders of FLP B
Units (other than Enerplus or its affiliates) to participate in such Offer to
the same extent and on an economically equivalent basis as the holders of
Enerplus Units (including, for greater certainty, as adjusted for the Exchange
Ratio), without discrimination. Without limiting the generality of the
foregoing, Enerplus will use its reasonable best efforts expeditiously and in
good faith to ensure that holders of FLP B Units may participate in each such
Offer without being required to retract FLP B Units as against FLP (or, if so
required, to ensure that any such retraction, shall be effective only upon, and
shall be conditional upon, the closing of such Offer and only to the extent
necessary to tender or deposit to the Offer). Nothing herein shall affect the
rights of FLP to redeem FLP B Units in the event of a Trust Control
Transaction.
|
2.9
|
Ownership
of Outstanding Interests
|
Without
the prior approval of FLP and the prior approval of the holders of the FLP B
Units given in accordance with Section 11.1 of the Exchangeable Securities
Provisions, Enerplus covenants and agrees in favour of FLP that, as long as any
outstanding FLP B Units are owned by any person other than Enerplus or any of
its affiliates, Enerplus will be and remain the direct or indirect beneficial
owner of all issued and outstanding voting interests in the capital of FLP and
the General Partner. Notwithstanding the foregoing, Enerplus shall not be in
violation of this section if any person or group of persons acting jointly or in
concert acquires all or substantially all of the assets of Enerplus or Enerplus
Units pursuant to any merger of Enerplus pursuant to which Enerplus is not the
surviving entity.
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2.10
|
Enerplus
and Affiliates Not to Vote FLP B
Units
|
Enerplus
covenants and agrees that it will not, and will cause any applicable Enerplus
Subsidiary and Enerplus' affiliates not to, exercise any voting rights which may
be exercisable by holders of FLP B Units from time to time pursuant to the
Exchangeable Securities Provisions or the Limited Partnership Agreement with
respect to any FLP B Unit held by it or by its affiliates in respect of any
matter considered at any meeting of holders of FLP B Units.
|
2.11
|
Consideration
For Enerplus Units
|
|
(a)
|
In
respect of each Enerplus Unit required to be delivered by an Enerplus
Subsidiary pursuant to Article 10 of the Exchangeable Securities
Provisions:
|
|
|
(i)
|
Enerplus
agrees that it shall cause the applicable Enerplus Subsidiary to issue,
and such Enerplus Subsidiary shall be deemed to issue, to Enerplus, in
exchange for such Enerplus Unit, that number or amount of securities,
notes, property or other interests ("Subsidiary Property") as
is equal to the fair market value of such Enerplus Unit on the date such
Enerplus Subsidiary is required to deliver an Enerplus Unit pursuant to
the Exchangeable Securities Provisions;
and
|
|
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(ii)
|
Enerplus
agrees that it shall cause the applicable Enerplus Subsidiary to transfer,
and such Enerplus Subsidiary shall be deemed to transfer, the FLP B Unit
acquired by such Enerplus Subsidiary in respect of the delivery of such
Enerplus Unit to FLP in exchange and as a subscription for, and FLP agrees
and shall be deemed to issue to such Enerplus Subsidiary in respect
thereof, one Class A Unit of FLP, whereupon the FLP B Unit of FLP shall be
and be deemed to be cancelled.
|
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(b)
|
In
respect of each Enerplus Unit required to be delivered by FLP pursuant to
Article 5, 6, 7 or 8 of the Exchangeable Securities
Provisions:
|
|
|
(i)
|
Enerplus
agrees that it shall cause the applicable Enerplus Subsidiary to issue,
and such Enerplus Subsidiary shall be deemed to issue, to Enerplus, in
exchange for such Enerplus Unit, that number or amount of Subsidiary
Property as is equal to the fair market value of such Enerplus Unit on the
date FLP is required to deliver a Enerplus Unit pursuant to the
Exchangeable Securities Provisions;
and
|
|
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(ii)
|
Enerplus
agrees that it shall cause the applicable Enerplus Subsidiary to transfer,
and such Enerplus Subsidiary shall be deemed to transfer, such Enerplus
Unit to FLP in exchange and as a subscription for, and FLP agrees and
shall be deemed to issue to such Enerplus Subsidary in respect thereof,
one Class A Unit of FLP.
|
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(c)
|
In
respect of each Enerplus Unit required to be delivered by Enerplus
pursuant to the Voting and Exchange Trust
Agreement:
|
|
|
(i)
|
Enerplus
agrees that it shall cause the applicable Enerplus Subsidiary to issue,
and such Enerplus Subsidiary shall be deemed to issue, to Enerplus, in
exchange for the FLP B Unit acquired by Enerplus in consideration of the
issuance of said Enerplus Unit, that number or amount of Subsidiary
Property as is equal to the fair market value of such Enerplus Unit on the
date Enerplus is required to deliver a Enerplus Unit pursuant to the
Voting and Exchange Trust Agreement;
and
|
|
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(ii)
|
Enerplus
agrees that it shall cause the applicable Enerplus Subsidary to transfer,
and such Enerplus Subsidiary shall be deemed to transfer, the FLP B Unit
acquired by Enerplus in respect of the delivery of such Enerplus Unit to
FLP in exchange and as a subscription for, and FLP agrees and shall be
deemed to issue to such Enerplus Subsidiary in respect thereof, one Class
A Unit of FLP, whereupon the FLP B Unit of FLP shall be and be deemed to
be cancelled.
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2.12
|
Other
Enerplus Subsidiaries
|
Enerplus
agrees that it shall cause any Enerplus Subsidiary to take all such other
actions, including to issue such other Subsidiary Property, as may be necessary
or desirable to give effect to the provisions and intent of this
Agreement.
ARTICLE 3
ENERPLUS
SUCCESSORS
|
3.1
|
Certain
Requirements in Respect of Combination,
etc.
|
Enerplus
shall not consummate 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 entity resulting therefrom unless, but may do so if:
|
(a)
|
such
other person (the "Enerplus Successor") by
operation of law, becomes, without more, 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 reasonably
necessary or advisable to evidence the assumption by Enerplus Successor of
liability for all moneys payable and property deliverable hereunder and
the covenant of such Enerplus 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 Enerplus under this
Agreement;
|
|
(b)
|
in
the event that Enerplus Units are reclassified or otherwise changed as
part of such transaction, the same or an economically equivalent change,
after giving effect to the Exchange Ratio, is simultaneously made to, or
in the rights of the holders of, the FLP B Units;
and
|
|
(c)
|
such
transaction shall be upon such terms and conditions as substantially to
preserve and not to impair in any material respect any of the rights,
duties, powers and authorities of the other parties hereunder or the
holders of FLP B Units.
|
|
3.2
|
Vesting
of Powers in Successor
|
Whenever
the conditions of Section 3.1 have been duly observed and performed, the
parties, if required by Section 3.1, shall execute and deliver the supplemental
agreement provided for in Section 3.1(a) and thereupon Enerplus Successor shall
possess and from time to time may exercise each and every right and power of
Enerplus under this Agreement in the name of Enerplus or otherwise and any act
or proceeding by any provision of this Agreement required to be done or
performed by any appropriate director or officer on behalf of Enerplus, may be
done and performed with like force and effect by the directors or officers of
such Enerplus Successor.
|
3.3
|
Wholly-Owned
Subsidiaries
|
Nothing
herein shall be construed as preventing the amalgamation or merger of any
wholly-owned direct or indirect subsidiary of Enerplus (other than FLP) with or
into Enerplus or the winding-up, liquidation or dissolution of any wholly-owned
subsidiary of Enerplus provided that all of the assets of such subsidiary are
transferred to Enerplus or another wholly-owned direct or indirect subsidiary of
Enerplus and any such transactions are expressly permitted by this Article
3.
|
3.4
|
Successorship
Transaction
|
Notwithstanding
Article 2 and the foregoing provisions of Article 3, in the event of a Trust
Control Transaction:
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(a)
|
which
does not result in an acceleration of the Redemption Date in accordance
with paragraph (ii) of the definition of "Redemption Date";
and
|
|
(b)
|
in
which all or substantially all of the then outstanding Enerplus Units are
converted into or exchanged for securities or rights to receive such
securities (the "Other
Securities") of another person (the "Other Entity") that,
immediately after such Trust Control Transaction, owns or controls,
directly or indirectly, Enerplus;
|
then all
references herein to the "Enerplus" shall thereafter be
and be deemed to be references to the "Other Entity" and all
references herein to "Enerplus
Units" shall thereafter be and be deemed to be references to the "Other Securities" (with
appropriate adjustments, if any, as are required to result in a holder of FLP B
Units on the exchange, redemption or retraction of such securities pursuant to
the Exchangeable Securities Provisions or exchange of such securities pursuant
to the Voting and Exchange Enerplus Agreement immediately subsequent to Trust
Control Transaction being entitled to receive that number of Other Securities
equal to the number of Other Securities such holder of FLP B Units would have
received if the exchange, redemption or retraction of such securities pursuant
to the Exchangeable Securities Provisions or exchange of such securities
pursuant to the Voting and Exchange Enerplus Agreement had occurred immediately
prior to Trust Control Transaction and such Trust Control Transaction was
completed) without any need to amend the terms and conditions of the FLP B Units
and without any further action required.
ARTICLE 4
GENERAL
|
4.1
|
Term
|
This
Agreement shall come into force and be effective as of the date hereof and shall
terminate and be of no further force and effect at such time as no FLP B Units
(or securities or rights convertible into or exchangeable for or carrying rights
to acquire FLP B Units) are held by any person other than Enerplus and any of
its affiliates.
|
4.2
|
Changes
in Capital of Enerplus and FLP
|
At all
times after the occurrence of any event contemplated pursuant to Sections 2.7
and 2.8 or otherwise as a result of which either Enerplus Units or the FLP B
Units or both are in any way changed, this Agreement shall forthwith be deemed
amended and modified as necessary in order that it shall apply with full force
and effect, mutatis
mutandis, to all new securities into which Enerplus Units or the FLP B
Units or both are so changed and the parties hereto shall execute and deliver an
agreement in writing giving effect to and evidencing such necessary amendments
and modifications.
|
4.3
|
Notices
to Parties
|
Any
notice, consent, waiver, direction or other communication required or permitted
to be given under this Agreement by a party to any other party shall be in
writing and shall be delivered by hand delivery, facsimile transmission or
(provided that the mailing party does not know and should not reasonably have
known of any disruption or anticipated disruption of postal service which might
affect delivery of the mail) by registered mail (postage prepaid), addressed to
the party to whom the notice is to be given, at its specified address herein.
Any notice, consent, waiver, direction or other communication aforesaid shall,
if hand delivered or delivered by facsimile transmission, be deemed to have been
given and received on the date on which it was hand delivered or delivered
(based on facsimile confirmation) by facsimile transmission (if prior to 4:30 pm
(local time at the place of receipt) on a Business Day and, if not, the next
succeeding Business Day) and if sent by registered mail be deemed to have been
given and received on the fourth Business Day at the point of delivery following
the date on which it was so sent. The specified address herein shall be, in the
case of:
|
(a)
|
Enerplus,
addressed to:
|
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c/o
EnerMark Inc.
The Dome
Tower, Suite 3000
▇▇▇ -
▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention:
Vice President, General Counsel & Corporate Secretary
Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇
|
(b)
|
FLP,
addressed to:
|
FOCUS
LIMITED PARTNERSHIP
▇/▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ -
▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention:
Vice President, General Counsel & Corporate Secretary
Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇
|
(c)
|
General
Partner, addressed to:
|
FET
Management Ltd.
The Dome
Tower, Suite 3000
▇▇▇ -
▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention:
Vice President, General Counsel & Corporate Secretary
Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇
or such
other address as may be designated by any of the parties by notice to the other
parties given in accordance with this Section.
|
4.4
|
Assignment
|
No party
hereto may assign this Agreement or any of its rights, interests or obligations
under this Agreement (whether by operation of law or otherwise) except that FLP
may assign in its sole discretion, any or all of its rights, interests and
obligations hereunder to any wholly-owned subsidiary of Enerplus.
|
4.5
|
Binding
Effect
|
Subject
to Section 4.4, this Agreement and the Plan shall be binding upon, enure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
|
4.6
|
Amendments,
Modifications
|
Subject
to Sections 4.2, 4.7 and 4.10, this Agreement may not be amended or modified
except by an agreement in writing executed by FLP, the General Partner and
Enerplus and approved by the holders of the FLP B Units in accordance with
Section 11.1 of the Exchangeable Securities Provisions.
|
4.7
|
Administrative
Amendments
|
Notwithstanding
the provisions of Section 4.6, the parties to this Agreement may in writing at
any time and from time to time, without the approval of the holders of the FLP B
Units, amend or modify this Agreement for the purposes of:
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(a)
|
adding
to the covenants of any or all parties provided that the Board of
Directors shall be of the good faith opinion that such additions will not
be prejudicial to the rights or interests of the holders of the FLP B
Units;
|
|
(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 good faith opinion of the Board of Directors, it may be expedient
to make, provided that such board of directors shall be of the good faith
opinion that such amendments or modifications will not be prejudicial to
the rights or interests of the holders of the FLP B Units;
or
|
|
(c)
|
making
such changes or corrections which, on the advice of counsel to General
Partner are required for the purpose of curing or correcting any ambiguity
or defect or inconsistent provision or clerical omission or mistake or
manifest error, provided that the Board of Directors shall be of the good
faith opinion that such changes or corrections will not be prejudicial to
the rights or interests of the holders of the FLP B
Units.
|
|
4.8
|
Meeting
to Consider Amendments
|
FLP, at
the request of Enerplus, agrees to call a meeting or meetings of the holders of
its FLP B Units for the purpose of considering any proposed amendment or
modification requiring approval pursuant to Section 4.6; provided that any such
meeting shall only be called for a bona fide business purpose
and not for the principal purpose of causing a Redemption Date to occur or
transpire. Any such meeting or meetings shall be called and held in accordance
with the Limited Partnership Agreement of FLP, as applicable, the Exchangeable
Securities Provisions and all applicable laws.
|
4.9
|
Amendments
Only in Writing
|
No
amendment to or modification or waiver of any of the provisions of this
Agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by all of the parties hereto.
|
4.10
|
Severability
|
If any
one or more of the provisions or parts thereof contained in this Agreement
should be or become invalid, illegal or unenforceable in any respect in any
jurisdiction, the remaining provisions or parts thereof contained herein shall
be and shall be conclusively deemed to be, as to such jurisdiction, severable
therefrom and:
|
(a)
|
the
validity, legality or enforceability of such remaining provisions or parts
thereof shall not in any way be affected or impaired by the severance of
the provisions or parts thereof severed;
and
|
|
(b)
|
the
invalidity, illegality or unenforceability of any provision or part
thereof contained in this Agreement in any jurisdiction shall not affect
or impair such provision or part thereof or any other provisions of this
Agreement in any other
jurisdiction.
|
|
4.11
|
Further
Assurances
|
Each
party hereto shall, from time to time, and at all times hereafter, at the
request of any other party hereto, but without further consideration, do all
such further acts and execute and deliver all such further documents and
instruments as shall be reasonably required in order to fully perform and carry
out the terms and intent hereof.
|
4.12
|
Execution
in Counterparts
|
This
Agreement may be executed in counterparts, each of which is and is hereby
conclusively deemed to be an original and counterparts collectively are to be
conclusively deemed one instrument. Delivery of counterparts may be effected by
facsimile transmission.
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|
4.13
|
Waiver
|
No waiver
by, any party hereto shall be effective unless such waiver is in writing and any
waiver shall affect only the matter, and the occurrence thereof, specifically
identified and shall not extend to any other matter or occurrence.
|
4.14
|
Limitations
on Liability
|
The
parties hereto acknowledge that:
|
(a)
|
EnerMark
Inc. is entering into this Agreement solely in its capacity as
administrator on behalf of Enerplus and the obligations of Enerplus
hereunder shall not be personally binding upon such administrator or any
of the unitholders of Enerplus and that any recourse against Enerplus, its
trustee or any unitholder of Enerplus in any manner in respect of any
indebtedness, obligation or liability of Enerplus arising hereunder or
arising in connection herewith or from the matters to which this Agreement
relates, if any, including without limitation claims based on negligence
or otherwise tortious behaviour, shall be limited to, and satisfied only
out of, the "Trust Fund" as defined in the Enerplus Trust
Indenture;
|
|
(b)
|
Focus
Limited Partnership is a limited partnership formed under the laws of
Alberta, a limited partner of which is only liable for any of the limited
partnership's liabilities or any of the limited partnership's losses to
the extent of the amount that the limited partner has contributed or
agreed to contribute to the limited partnership's capital and the limited
partner's pro
rata share of any undistributed
income.
|
IN WITNESS WHEREOF the parties
hereto have executed this Agreement.
|
by
EnerMark Inc.
|
|
|
Per:
|
"▇▇▇▇▇
▇. ▇▇▇▇▇"
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
Vice
President, General Counsel
&
Corporate Secretary
|
|
|
FOCUS LIMITED
PARTNERSHIP,
by
its general partner, FET Management Ltd.
|
|
|
Per:
|
"▇▇▇▇▇
▇. ▇▇▇▇▇"
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
Vice
President, General Counsel
&
Corporate Secretary
|
|
|
FET
MANAGEMENT LTD.
|
|
|
Per:
|
"▇▇▇▇▇
▇. ▇▇▇▇▇"
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
Vice
President, General Counsel
&
Corporate Secretary
|
|
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