VOTING EXCHANGE AND SUPPORT AGREEMENT
GOLDSTRIKE INC.
("Goldstrike")
and
1203647 ALBERTA INC.
("Callco")
and
GRAN TIERRA GOLDSTRIKE INC.
(the "Corporation")
and
Olympia Trust Company
(the "Trustee")
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Voting Exchange and Support Agreement
------------------------------------------------------------------------------
This 10th day of November, 2005
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1
DEFINITIONS.....................................................2
SECTION 1.2 GENDER AND
NUMBER...............................................5
SECTION 1.3
HEADINGS........................................................5
SECTION 1.4 DATE FOR ANY
ACTION.............................................5
ARTICLE 2
PURPOSE OF AGREEMENT
SECTION 2.1 ESTABLISHMENT OF
TRUST..........................................5
ARTICLE 3
SPECIAL VOTING SHARE
SECTION 3.1 ISSUE AND OWNERSHIP OF
THE SPECIAL VOTING SHARE.................6
SECTION 3.2 LEGENDED SHARE
CERTIFICATES.....................................6
SECTION 3.3 SAFE KEEPING OF
CERTIFICATE.....................................6
ARTICLE 4
EXERCISE OF VOTING RIGHTS
SECTION 4.1 VOTING
RIGHTS...................................................7
SECTION 4.2 NUMBER OF
VOTES.................................................7
SECTION 4.3 MAILINGS TO
SHAREHOLDERS........................................7
SECTION 4.4 COPIES OF SHAREHOLDER
INFORMATION...............................9
SECTION 4.5 OTHER
MATERIALS.................................................9
SECTION 4.6 LIST OF PERSONS
ENTITLED TO VOTE...............................10
SECTION 4.7 ENTITLEMENT TO DIRECT
VOTES....................................10
SECTION 4.8 VOTING BY TRUSTEE AND
ATTENDANCE OF TRUSTEE
REPRESENTATIVE AT
MEETING......................................10
SECTION 4.9 DISTRIBUTION OF
WRITTEN MATERIALS..............................11
SECTION 4.10 TERMINATION OF VOTING
RIGHTS...................................11
ARTICLE 5
INSOLVENCY AND AUTOMATIC EXCHANGE RIGHTS
SECTION 5.1 GRANT AND OWNERSHIP OF
EXCHANGE RIGHTS.........................12
SECTION 5.2 LEGENDED SHARE
CERTIFICATES....................................13
SECTION 5.3 INSOLVENCY EXCHANGE
RIGHT......................................13
SECTION 5.4 EXERCISE OF INSOLVENCY
EXCHANGE RIGHT SUBSEQUENT TO
RETRACTION.....................................................15
SECTION 5.5 NOTICE OF INSOLVENCY
EVENT.....................................16
SECTION 5.6 AUTOMATIC EXCHANGE ON
LIQUIDATION OF GOLDSTRIKE................16
(i)
<PAGE>
ARTICLE 6
CERTAIN RIGHTS OF CALLCO TO ACQUIRE EXCHANGEABLE SHARES
SECTION 6.1
ACKNOWLEDGEMENT................................................18
SECTION 6.2 CALLCO LIQUIDATION
CALL RIGHT..................................18
SECTION 6.3 CALLCO REDEMPTION CALL
RIGHT...................................19
SECTION 6.4 CALLCO RETRACTION CALL
RIGHT...................................20
SECTION 6.5 CHANGE OF LAW CALL
RIGHT.......................................22
ARTICLE 7
WITHHOLDING RIGHTS AND STAMP TAXES
SECTION 7.1 WITHHOLDING
RIGHTS.............................................23
SECTION 7.2 STAMP
TAXES....................................................24
ARTICLE 8
RESTRICTIONS ON ISSUE OF GOLDSTRIKE SPECIAL VOTING SHARES
SECTION 8.1 ISSUE OF ADDITIONAL
SHARES.....................................24
ARTICLE 9
CONCERNING THE TRUSTEE
SECTION 9.1 POWERS AND DUTIES OF
THE TRUSTEE...............................24
SECTION 9.2 ACCEPTANCE OF
TRUST............................................26
SECTION 9.3 NO CONFLICT OF
INTEREST........................................26
SECTION 9.4 DEALINGS WITH TRANSFER
AGENTS, REGISTRARS, ETC.................27
SECTION 9.5 BOOKS AND
RECORDS..............................................27
SECTION 9.6 INCOME TAX RETURNS AND
REPORTS.................................28
SECTION 9.7 ACTION OF
BENEFICIARIES........................................28
SECTION 9.8 EXPERTS, ADVISERS AND
AGENTS...................................29
SECTION 9.9 TRUSTEE NOT REQUIRED
TO GIVE SECURITY..........................29
SECTION 9.10 AUTHORITY TO CARRY ON
BUSINESS.................................29
SECTION 9.11 CONFLICTING
CLAIMS.............................................30
SECTION 9.12
MERGER.........................................................30
SECTION 9.13
INDEMNIFICATION................................................31
SECTION 9.14
RESIGNATION....................................................32
SECTION 9.15
REMOVAL........................................................32
SECTION 9.16 SUCCESSOR
TRUSTEE..............................................32
SECTION 9.17 NOTICE OF SUCCESSOR
TRUSTEE....................................33
SECTION 9.18 INDEMNIFICATION PRIOR TO
CERTAIN ACTIONS BY TRUSTEE............33
SECTION 9.19 RELIANCE UPON
DECLARATIONS.....................................33
SECTION 9.20 EVIDENCE AND AUTHORITY TO
TRUSTEE..............................34
SECTION 9.21 TRUSTEE NOT BOUND TO ACT ON
REQUEST............................35
(ii)
<PAGE>
ARTICLE 10
COMPENSATION
SECTION 10.1 FEES AND EXPENSES OF THE
TRUSTEE...............................35
ARTICLE 11
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF GOLDSTRIKE AND THE CORPORATION
SECTION 11.1 COVENANTS OF GOLDSTRIKE
REGARDING EXCHANGEABLE SHARES..........35
SECTION 11.2 NOTIFICATION OF CERTAIN
EVENTS.................................37
SECTION 11.3 DELIVERY OF SHARES BY
GOLDSTRIKE...............................38
SECTION 11.4 DELIVERY OF
SHARES.............................................38
SECTION 11.5 QUALIFICATION OF GOLDSTRIKE
SHARES.............................38
SECTION 11.6 ECONOMIC
EQUIVALENCE...........................................38
SECTION 11.7 OWNERSHIP OF OUTSTANDING
SHARES; VOTING........................41
SECTION 11.8 GOLDSTRIKE AND AFFILIATES
NOT TO VOTE EXCHANGEABLE SHARES......41
SECTION 11.9 TENDER OFFERS,
ETC.............................................41
SECTION 11.10 TENDER
OFFERS..................................................42
SECTION 11.11 REPRESENTATIONS AND WARRANTIES OF
GOLDSTRIKE...................42
SECTION 11.12 RESERVATION OF GOLDSTRIKE
SHARES...............................43
SECTION 11.13 MERGER, AMALGAMATION OR BUSINESS
COMBINATION...................43
ARTICLE 12
AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
SECTION 12.1 AMENDMENTS, MODIFICATIONS,
ETC.................................43
SECTION 12.2 CHANGES IN CAPITAL OF
GOLDSTRIKE AND THE CORPORATION...........43
ARTICLE 13
TERMINATION
SECTION 13.1
TERM...........................................................44
ARTICLE 14
GENERAL
SECTION 14.1
SEVERABILITY...................................................44
SECTION 14.2
ENUREMENT......................................................44
SECTION 14.3 NOTICES TO
PARTIES.............................................44
SECTION 14.4 RISK OF PAYMENTS BY
POST.......................................47
SECTION 14.5
COUNTERPARTS...................................................47
SECTION 14.6
JURISDICTION...................................................47
ADDENDA
SCHEDULE "A"
SCHEDULE "B"
DETAILS OF THE GOLDSTRIKE SPECIAL VOTING
SHARE
(iii)
<PAGE>
VOTING EXCHANGE AND SUPPORT AGREEMENT
THIS
AGREEMENT is entered
into as of this 10th day of November, 2005, by
GOLDSTRIKE INC., a corporation incorporated under the laws of Nevada
("Goldstrike"), 1203647 ALBERTA INC., a
corporation incorporated under the laws
of Alberta ("Callco"), GRAN TIERRA GOLDSTRIKE INC., a
corporation
incorporated
under the laws of Alberta (the "Corporation"), and Olympia Trust Company, a
corporation authorized under the laws of Alberta to carry
on the business of a
trustee (the "Trustee").
WHEREAS,
pursuant to a share
purchase agreement
dated effective November
10, 2005 (the "Acquisition Agreement"), by and among Goldstrike, Gran Tierra
Energy Inc. and the holders (the "Holders")
of the issued and outstanding shares
in the capital of Gran Tierra Energy, Inc. specified therein, the parties
thereto agreed that on the closing of the
transactions
contemplated
under the
Acquisition Agreement, the parties hereto would execute and deliver a
Voting,
Exchange and Support Agreement containing the terms and
conditions set forth as
an Exhibit to the Acquisition
Agreement;
AND
WHEREAS, pursuant to
the Acquisition
Agreement, the
Corporation has
issued to certain of the Holders certain
exchangeable shares of
the Corporation
(the "Exchangeable Shares") having the rights,
privileges,
restrictions
and
conditions set forth in Schedule "A" annexed
hereto (the
"Exchangeable
Share
Provisions");
AND
WHEREAS the parties hereto desire to make appropriate provision and
to
establish a procedure whereby voting rights in
Goldstrike shall be
exercisable
by the Trustee in accordance with
instructions given to him by the Beneficiaries
(as hereinafter defined), and in connection
therewith, Goldstrike is to issue to
the Trustee, for the benefit of the
Beneficiaries,
pursuant to the Acquisition
Agreement, one preferred share in the capital of
Goldstrike
designated as a
"special voting share", $0.001 par value
(the "Goldstrike Special Voting Share")
having attached thereto the rights,
privileges,
restrictions and conditions set
forth in Schedule "B" annexed hereto;
AND
WHEREAS Callco is to
grant to and in favour of the Trustee, for the
benefit of the Beneficiaries, the right, in the circumstances
set forth herein,
to require Callco to purchase from the Beneficiaries all or any part of the
Exchangeable Shares held by the
Beneficiaries;
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:
<PAGE>
2
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions
Where used
herein or in any
amendments
hereto or in any
communications
required or permitted to be given
hereunder,
the following
capitalized
terms
shall have the following meanings, unless
the context otherwise requires:
"Acquisition Agreement" has the meaning
ascribed thereto in the recitals hereto.
"Act" means the Business Corporations Act
(Alberta), as amended, consolidated or
re-enacted from time to time.
"Affiliate" shall have the meaning ascribed
thereto in the Act.
"Automatic Exchange Rights" means the benefit of the
obligation of Callco
to
effect the automatic exchange of Exchangeable Shares for Goldstrike Shares
pursuant to Section 5.6 hereof upon the
occurrence of a Liquidation Event.
"Automatic Redemption Date" has the meaning
ascribed thereto in the Exchangeable
Share Provisions.
"Beneficiaries" means the registered holders from time to time of
Exchangeable
Shares, other than Goldstrike, Callco and
their Affiliates.
"Beneficiary Votes" has the meaning
ascribed thereto in Section 4.2.
"Board of Directors" means the board of
directors of the Corporation.
"Business Day" means any day, other than a Saturday, a Sunday or a day when
banks are not generally open for business
in Calgary, Alberta.
"Call Rights" means the Liquidation Call Right, Redemption Call Right,
Retraction Call Right or the Change of Law
Call Rights.
"Canadian Dollar Equivalent" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"Change of Law" means any amendment to the
ITA and other
applicable
provincial
income tax laws that permits beneficial
holders of
Exchangeable Shares
who are
resident in Canada to hold the Exchangeable
Shares as capital
property and deal
at arm's length with Goldstrike and the
Corporation (all for the purposes of the
ITA and other applicable provincial income tax laws) to exchange their
Exchangeable Shares for Goldstrike Shares on a
basis that will not require such
holders to recognize any gain or loss or any
actual or deemed dividend in
respect of such exchange for the purposes of the
ITA or applicable
provincial
income tax laws.
<PAGE>
3
"Change of Law Call Date" has the meaning
ascribed thereto in Section 6.5.
"Change of Law Call Right" has the meaning
ascribed thereto in Section 6.5.
"Change of Law Purchase Price" has the
meaning ascribed thereto in Section 6.5.
"Current Market Price" has the meaning
ascribed thereto in the Exchangeable
Share Provisions.
"Effective Date" means the date of issuance
of the Exchangeable Shares.
"Exchangeable Share Consideration" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"Exchangeable Share Provisions" has the
meaning ascribed thereto in the recitals
hereto.
"Exchangeable Shares" has the meaning
ascribed thereto in the recitals hereto.
"Goldstrike Consent" means any written
consent sought by Goldstrike from the
holders of Goldstrike Shares.
"Goldstrike Meeting" means any meeting of
shareholders
of Goldstrike at
which
holders of Goldstrike Shares are entitled
to vote.
"Goldstrike Shares" means the common shares of
$.001 par value per share in the
capital of Goldstrike.
"Goldstrike Special Voting Share" has the meaning ascribed thereto in the
recitals hereto.
"Holder(s)" has the meaning ascribed
thereto in the recitals hereto.
"Insolvency Event" means (i) the institution by the Corporation of any
proceeding to be adjudicated a bankrupt or insolvent or to be dissolved or
wound-up, or the consent of the Corporation to the institution of bankruptcy,
insolvency, dissolution or winding-up
proceedings against it, or (ii) the filing
of a petition, answer or consent seeking dissolution or winding-up
under any
bankruptcy, insolvency or analogous
laws, including without limitation the
Companies Creditors' Arrangement Act (Canada) and the
Bankruptcy and Insolvency
Act (Canada), and the failure by the
Corporation
to contest in good
faith any
such proceedings commenced in respect of the Corporation within 15 days of
becoming aware thereof, or the consent by the Corporation to the filing of
any
such petition or to the appointment of a receiver, or (iii) the making by the
Corporation of a general assignment for the benefit of creditors, or the
admission in writing by the Corporation of its inability to pay its debts
generally as they become due, or (iv) the Corporation not being permitted,
pursuant to liquidity or solvency
requirements of
applicable law, to redeem any
Retracted Shares pursuant to the
Exchangeable Share Provisions.
<PAGE>
4
"Insolvency Exchange Right" means the benefit of the
obligation
of Callco to
effect the exchange of Exchangeable Shares for Goldstrike Shares pursuant to
Section 5.3 hereof upon the occurrence of
an Insolvency Event.
"ITA" means the Income Tax Act (Canada), as
amended.
"Liquidation Call Purchase Price" has the
meaning ascribed
thereto in Section
6.2.
"Liquidation Call Right" has the meaning
ascribed thereto in Section 6.2.
"Liquidation Event" has the meaning
ascribed thereto in Section 5.6.
"Liquidation Event Effective Time" means the effective
time of a
Liquidation
Event.
"List" has the meaning ascribed thereto in
Section 4.6.
"Officer's Certificate" means, with respect
to Goldstrike or the Corporation, a
certificate signed on behalf of such
entity by any one of
the Chairman of
the
Board, the Vice-Chairman of the Board, the Chief Executive Officer, the
President or the Chief Financial
Officer of Goldstrike
or the Corporation,
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.
"Redemption Call Purchase Price" has the meaning
ascribed thereto in Section
6.3.
"Redemption Call Right" has the meaning
ascribed thereto in Section 6.3.
"Retracted Shares" has the meaning ascribed
thereto in Section 5.4.
"Retraction Call Purchase Price" has the meaning
ascribed thereto in Section
6.4.
"Retraction Call Right" has the meaning
ascribed thereto in Section 6.4.
"Retraction Date" has the meaning ascribed
thereto in the
Exchangeable
Share
Provisions.
"Retraction Request" has the meaning ascribed
thereto in the Exchangeable Share
Provisions.
"Securities Act" has the meaning ascribed
thereto in Section 11.5.
<PAGE>
5
"Subsidiary", in relation to any person,
means any body corporate, partnership,
joint venture, association or other entity of
which more than 50% of the total
voting power of shares or units of
ownership or beneficial interest entitled to
vote in the election of directors (or
members of a comparable governing body) is
owned or controlled, directly or
indirectly, by such person.
"Trust Estate" means the Goldstrike
Special Voting Share,
any other securities,
the Insolvency 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.
"Voting Rights" means the voting rights attached to the Goldstrike Special
Voting Share as set forth in Schedule "B"
annexed hereto.
Section 1.2 Gender and Number
Any
reference in this Agreement to gender includes all genders,
and words
imparting the singular number only shall
include the plural and vice versa.
Section 1.3 Headings
The
provision of a table of contents, the division of this Agreement
into
Articles and Sections and the insertion of headings are for convenience of
reference only and shall not affect the
interpretation of this Agreement.
Section 1.4 Date for Any Action
If any
date on which any
action is required to be taken under this
Agreement is not a Business Day, such action shall be required to
be taken on
the next succeeding Business Day.
ARTICLE 2
PURPOSE OF AGREEMENT
Section 2.1 Establishment of Trust
The
purpose of this
Agreement is to create the Trust for the
benefit of
the Beneficiaries, as herein provided. The Trustee will hold the
Goldstrike
Special Voting Share in order to enable
the Trustee to exercise the Voting
Rights and will hold the Automatic
Exchange Rights and
the Insolvency
Exchange
Right in order to enable the Trustee to
exercise such
rights, in each case as
trustee for and on behalf of the
Beneficiaries as provided in this Agreement.
<PAGE>
6
ARTICLE 3
SPECIAL VOTING SHARE
Section 3.1 Issue and Ownership of the
Special Voting Share
Immediately following execution of this Agreement, Goldstrike shall issue
to the Trustee the Goldstrike Special Voting Share (and shall deliver the
certificate representing such share to the Trustee) to be hereafter held of
record by the Trustee as trustee for and on behalf of, and for the use and
benefit of, the Beneficiaries and in accordance with the provisions of this
Agreement. Goldstrike hereby acknowledges receipt from the Trustee as
trustee
for and on behalf of the Beneficiaries of
good and valuable
consideration (and
the adequacy thereof) for the issuance of
the Goldstrike Special Voting Share by
Goldstrike 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 Goldstrike Special Voting Share and shall be
entitled to exercise all of the rights and powers of an
owner with respect
to
the Goldstrike Special Voting Share
provided that the Trustee shall:
(a)
hold the
Goldstrike Special Voting Share and the legal title thereto
as trustee solely for
the use and benefit of the Beneficiaries 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 Goldstrike
Special Voting Share and the Goldstrike Special
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.
Section 3.2 Legended Share Certificates
The
Corporation
will cause each
certificate
representing
Exchangeable
Shares to bear an appropriate legend notifying the Beneficiaries
of their right
to instruct the Trustee with respect to the exercise of the Voting
Rights in
respect of the Exchangeable Shares of the
Beneficiaries.
Section 3.3 Safe Keeping of Certificate
The
certificate
representing the Goldstrike Special Voting Share shall at
all times be held in safe keeping by the
Trustee or its duly authorized agent.
<PAGE>
7
ARTICLE 4
EXERCISE OF VOTING RIGHTS
Section 4.1 Voting Rights
The
Trustee, as the holder of record of the
Goldstrike
Special Voting
Share, shall be entitled to all of the
Voting Rights,
including the right to
vote in person or by proxy attaching to the Goldstrike
Special Voting Share
on
any matters, questions, proposals or propositions
whatsoever that may properly
come before the shareholders of Goldstrike
at any Goldstrike Meeting. The Voting
Rights shall be and remain vested in and
exercised by the Trustee subject to the
terms of this Agreement. The Trustee shall exercise the Voting Rights only
on
the basis of instructions received pursuant
to this Article 4 from Beneficiaries
on the record date established by Goldstrike or by applicable law for such
Goldstrike Meeting who are entitled to instruct the Trustee as to the voting
thereof. To the extent that no instructions
are received from a Beneficiary with
respect to the Voting Rights to which such
Beneficiary is entitled, the Trustee
shall not exercise or permit the exercise
of such Voting Rights.
Section 4.2 Number of Votes
With
respect to all
Goldstrike Meetings
and Goldstrike
Consents, each
Beneficiary shall be entitled to instruct
the Trustee to cast
and exercise the
votes comprised in the Voting Rights for
each Exchangeable Share owned of record
by such Beneficiary on the record date established by Goldstrike or by
applicable law for such Goldstrike
Meeting or Goldstrike
Consent, as the case
may be (the "Beneficiary Votes"), in
respect of each matter, question, proposal
or proposition to be voted on at such
Goldstrike
Meeting or by such
Goldstrike
Consent.
Any
Beneficiary who chooses to attend a Goldstrike Meeting in person will
be entitled to one vote on a show of
hands.
Section 4.3 Mailings to Shareholders
(1) With respect to each Goldstrike Meeting and Goldstrike Consent, the
Trustee
will use its
reasonable efforts
promptly to mail or
cause to be
mailed (or
otherwise communicate in the same manner as Goldstrike utilizes
in
communications
to holders of
Goldstrike Shares
subject to applicable
regulatory
requirements and provided that such manner of communications is
reasonably
available to the
Trustee and upon the Trustee being advised in
writing
of such method) to each of the
Beneficiaries
named in the List
(referred
to in Section
4.6 below),
such mailing or communication to
commence
wherever practicable on the same day as the mailing or notice
(or
other
communication)
with respect
thereto is commenced
by Goldstrike to
its
shareholders:
<PAGE>
8
(a)
a copy of such notice, together with any related materials,
including, without limitation, any circular or information
statement
or listing
particulars,
to be provided to shareholders of
Goldstrike;
(b)
a statement
that such Beneficiary is entitled to instruct the
Trustee as to the exercise of the Beneficiary Votes with respect to
such Goldstrike Meeting or Goldstrike Consent, as the case may be,
or, pursuant to Section 4.7 in the case of a Goldstrike
Meeting, to
attend such
Goldstrike
Meeting and to exercise personally the
Beneficiary 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 Beneficiary or his designee to exercise
personally the Beneficiary Votes; or
(ii) a proxy to a
designated agent or other representative of the
management of Goldstrike to exercise such Beneficiary Votes;
(d)
a statement that if no such instructions are received from the
Beneficiary, the
Beneficiary
Votes to which such
Beneficiary
is
entitled will not be exercised;
(e)
a form of
direction whereby the Beneficiary may so direct and
instruct the Trustee as contemplated herein; and
(f)
a statement of
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 any Goldstrike
Meeting shall not be later than the close of
business on the third Business Day prior to such meeting, and of
the
method for revoking or amending such instructions.
(2) The materials referred to in this Section 4.3 are to be provided to
the
Trustee by
Goldstrike, and the materials referred to in Section 4.3(1)(c),
Section
4.3(1)(e) and Section 4.3(1)(f) shall be subject to reasonable
comment by
the Trustee in a timely manner. Goldstrike shall ensure that
the
materials to be provided to the Trustee are
provided in
sufficient
time to
permit the Trustee to comment as aforesaid and to send all
materials
to each Beneficiary at the same time as such materials are
first
sent to
holders of Goldstrike Shares. Goldstrike agrees not to
communicate
with
holders of Goldstrike
Shares with respect to the materials referred
to in this
Section 4.3 otherwise than by mail unless such method of
communication is
also reasonably available to the Trustee for
communication with the Beneficiaries.
<PAGE>
9
(3) For the purpose of
determining Beneficiary Votes to which a Beneficiary is
entitled
in respect of any Goldstrike Meeting or Goldstrike Consent, the
number of
Exchangeable Shares
owned of record by the Beneficiaries shall
be
determined at the close of business on the record date established by
Goldstrike
or by applicable law for purposes of determining shareholders
entitled
to vote at such Goldstrike Meeting or to approve such
Goldstrike
Consent,
as the case may be. Goldstrike will notify the Trustee in
writing
of any
decision of the Board of Directors of Goldstrike with respect to
the
calling of any Goldstrike Meeting or requesting any Goldstrike
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.
Section 4.4 Copies of Shareholder
Information
Goldstrike
will deliver to the Trustee copies of all proxy materials
(including notices of Goldstrike Meetings but excluding proxies to vote
Goldstrike Shares), information statements, reports (including without
limitation, all interim and annual financial statements) and other written
communications that, in each case, are to
be distributed by Goldstrike from time
to time to holders of Goldstrike Shares in sufficient quantities and in
sufficient time so as to enable the
Trustee to send
those materials to each
Beneficiary at the same time as such
materials are first sent to holders of
Goldstrike Shares. The Trustee will mail or
otherwise send to each Beneficiary,
at the expense of Goldstrike, copies of all such materials (and all materials
specifically directed to the Beneficiaries or
to the Trustee for the benefit of
the Beneficiaries by Goldstrike) received by the Trustee from Goldstrike
contemporaneously with the sending of such
materials to holders
of Goldstrike
Shares.
Section 4.5 Other Materials
As
soon as reasonably practicable after receipt by Goldstrike or
shareholders of Goldstrike (if such receipt is known by Goldstrike) of any
material sent or given by or on behalf of a
third party to holders of Goldstrike
Shares generally, including without
limitation, dissident
proxy and information
circulars (and related information and material) and take-over bid and
securities exchange take-over bid circulars (and related information and
material), provided such material has not
been sent to the
Beneficiaries by or
on behalf of such third party, Goldstrike shall use its reasonable
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 Beneficiaries by such third party)
to each Beneficiary as
soon as possible thereafter. As soon as reasonably practicable after receipt
thereof, the Trustee will mail or otherwise
send to each
Beneficiary,
at the
expense of Goldstrike, copies of all such
materials received by the Trustee from
Goldstrike.
<PAGE>
10
Section 4.6 List of Persons Entitled to
Vote
The
Corporation shall, (a) prior to each annual, general and
extraordinary
Goldstrike Meeting and (b) 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 Beneficiaries arranged in alphabetical order and
showing the number of Exchangeable Shares held of record by each such
Beneficiary, 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
Goldstrike Meeting or Goldstrike Consent,
at the close of business on the record
date established by Goldstrike or pursuant
to applicable law for determining the
holders of Goldstrike Shares entitled to receive notice of and/or to vote at
such Goldstrike Meeting or to give such
Goldstrike Consent. Each such List shall
be delivered to the Trustee promptly after receipt by the Corporation 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 permit the Trustee to
perform its obligations under this Agreement. Goldstrike agrees to give the
Corporation notice (with a copy to the
Trustee) of the calling of any Goldstrike
Meeting or seeking of any Goldstrike Consent, together with the record date
therefor, sufficiently prior to the date of the
calling of such meeting or
seeking of such consent so as to enable the Corporation to perform its
obligations under this Section 4.6.
Section 4.7 Entitlement to Direct Votes
Subject
to Section
4.8, any Beneficiary named in a List prepared in
connection with any Goldstrike Meeting or Goldstrike Consent will be entitled
(a) to instruct the Trustee in the manner
described in Section
4.3 with respect
to the exercise of the Beneficiary
Votes to which such
Beneficiary is
entitled
or (b), in the case of a Goldstrike Meeting, to attend such meeting and
personally exercise thereat, as the proxy
of the Trustee, the
Beneficiary Votes
to which such Beneficiary is entitled.
Section 4.8 Voting by Trustee and Attendance of Trustee Representative at
Meeting
(1) In connection with each
Goldstrike
Meeting and Goldstrike
Consent, the
Trustee
shall exercise,
either in person or by
proxy, in accordance with
the
instructions received
from a Beneficiary pursuant to Section 4.3, the
Beneficiary Votes as
to which such
Beneficiary 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 Beneficiary
prior to the time and
date
fixed by
the Trustee for receipt of such instruction in the notice given
by the
Trustee to the Beneficiary pursuant to Section 4.3.
(2) Subject to the receipt of instructions from a Beneficiary pursuant to
Section
4.3 and any notice to
the contrary,
the Trustee shall cause a
representative who is
empowered by it to
sign and deliver, on
behalf of
the
Trustee, proxies for
Voting Rights to attend each Goldstrike Meeting.
Upon
submission
by a Beneficiary (or its designee) of identification
satisfactory to the
Trustee's
representative, and at
the Beneficiary's
request,
such representative shall sign and deliver to such
Beneficiary
(or its
designee) a proxy to exercise personally the Beneficiary Votes
as
to which
such Beneficiary is
otherwise entitled
hereunder to direct
the
vote, if
such Beneficiary
either (i) has not previously given the Trustee
instructions pursuant
to Section 4.3 in respect of such meeting, or (ii)
submits to
such representative
written revocation of any such previous
instructions. At such meeting, the Beneficiary exercising such
Beneficiary
Votes shall have the same rights
as the Trustee to speak at the meeting in
respect of
any matter, question,
proposal or proposition, to vote by way
of ballot
at the meeting in respect of any matter, question, proposal or
proposition, and to
vote at such meeting
by way of a show of
hands in
respect of
any matter, question or proposition.
<PAGE>
11
Section 4.9 Distribution of Written
Materials
Any
written materials distributed by the Trustee pursuant to this
Agreement shall be sent by mail (or
otherwise communicated in the same manner as
Goldstrike utilizes in communications to
holders of Goldstrike Shares subject to
applicable regulatory requirements and
provided such manner of communications is
reasonably available to the Trustee and upon the Trustee being advised in
writing of such method) to each Beneficiary
at its address as shown on the books
of the Corporation. Goldstrike agrees not to communicate with holders of
Goldstrike Shares with respect to such
written materials
otherwise than by mail
unless such method of communication is also
reasonably available
to the Trustee
for communication with the Beneficiaries.
The Corporation shall provide or cause
to be provided to the Trustee for purposes
of communication,
on a timely basis
and without charge or other expense:
(a)
a current List;
and
(b)
upon the
request of the Trustee, mailing labels to enable the
Trustee to carry out its duties under this Agreement.
Section 4.10 Termination of Voting
Rights
All of the
rights of a Beneficiary with respect to the Beneficiary
Votes
exercisable in respect of the Exchangeable Shares held by such Beneficiary,
including the right to instruct the Trustee as to the voting of or to vote
personally such Beneficiary Votes, shall be deemed to be surrendered by the
Beneficiary to Callco and such Beneficiary Votes and the Voting Rights
represented thereby shall cease immediately
upon (i) the delivery by such holder
to the Trustee of the certificates representing such Exchangeable Shares in
connection with the occurrence of the
automatic exchange of Exchangeable Shares
for Goldstrike Shares, as specified in Article 5 (unless
Callco shall not have
delivered the requisite Goldstrike Shares issuable in exchange
therefor to the
Trustee pending delivery to the Beneficiaries), or (ii) the retraction or
redemption of Exchangeable Shares pursuant
to section 6 or 7 of the Exchangeable
Share Provisions respectively, or (iii) the effective date of the
liquidation,
dissolution or winding-up of the Corporation pursuant to section 5 of the
Exchangeable Share Provisions, or (iv) the purchase of
Exchangeable Shares from
the holder thereof by Callco pursuant to the exercise by Callco of any of
the
Call Rights.
<PAGE>
12
ARTICLE 5
INSOLVENCY AND AUTOMATIC EXCHANGE RIGHTS
Section 5.1 Grant and Ownership of Exchange
Rights
(1) Goldstrike and Callco hereby agree with the
Trustee as trustee for and on
behalf of,
and for the use and
benefit of,
the Beneficiaries that the
Trustee
shall have (i) the Insolvency Exchange Right, and (ii) the
Automatic
Exchange Rights,
all in accordance with
the provisions of this
Agreement.
The Insolvency
Exchange Right shall
represent an agreement on
the terms
set out herein between Callco and the Trustee (acting on behalf
of the
Beneficiaries)
that upon the
occurrence of an
Insolvency Event,
Callco
will purchase from each and every Beneficiary all of the
Exchangeable Shares
held by such
Beneficiary.
The Automatic Exchange
Rights
shall represent
an agreement on the
terms set out herein
between
Callco and
the Trustee (acting on behalf of the Beneficiaries) that Callco
will
purchase and be deemed to purchase the outstanding Exchangeable
Shares
immediately
prior to the
Liquidation Event Effective Time. Callco
hereby
acknowledges receipt
from the Trustee as trustee for and on behalf
of the
Beneficiaries of good and valuable consideration (and the
adequacy
thereof)
for agreeing with the Trustee to be bound by the Insolvency
Exchange
Right and the Automatic Exchange Rights.
(2) 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 Insolvency
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
Insolvency Exchange
Right and the Automatic
Exchange
Rights, provided that the Trustee shall:
(a)
hold the
Insolvency Exchange Right and the Automatic Exchange Rights
and the legal
title thereto as trustee solely for the use and
benefit of the
Beneficiaries in
accordance with the
provisions of
this Agreement; and
<PAGE>
13
(b)
except as
specifically
authorized by this Agreement, have no power
or
authority to exercise or otherwise deal in or with the
Insolvency
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 the Trust is created pursuant to this
Agreement.
(3) The obligations of
Goldstrike to issue Goldstrike Shares to or as directed
by Callco
so as to enable Callco
to deliver such shares
pursuant to the
Insolvency
Exchange Right or the
Automatic Exchange Rights are subject to
all
applicable laws and regulatory requirements.
Section 5.2 Legended Share Certificates
The
Corporation
will cause each
certificate
representing
Exchangeable
Shares to bear an appropriate legend notifying the Beneficiaries of the
Insolvency Exchange Right and the Automatic
Exchange Rights.
Section 5.3 Insolvency Exchange Right
(1) Upon the occurrence and
during the
continuation of an
Insolvency Event,
each
Beneficiary shall be entitled to instruct the Trustee to exercise
the
Insolvency
Exchange Right in respect of all or any portion of the
Exchangeable Shares
held by the Beneficiary and thereby require Callco to
purchase
such Exchangeable
Shares from the Beneficiary in accordance with
the
provisions of this Agreement.
(2) The purchase price payable by Callco for each
Exchangeable
Share to be
purchased
by Callco under the Insolvency Exchange Right shall be an
amount
per share
equal to (i) the Current Market Price of a Goldstrike
Share on
the last
Business Day prior to the day of closing of the purchase and
sale
of such
Exchangeable
Share under the
Insolvency Exchange
Right, which
shall be
satisfied in full by Callco delivering or causing to be
delivered
to such
holder one Goldstrike
Share, plus (ii) to
the extent not paid by
the
Corporation
on the designated
payment date therefor,
an additional
amount
equal to and in full satisfaction of the full amount of all
declared
and unpaid dividends on each such Exchangeable Share held by
such
holder on
any dividend record
date which occurred prior to the closing of
the
purchase and sale. In connection with each exercise of the
Insolvency
Exchange
Right, Callco shall provide to the Trustee an Officer's
Certificate setting
forth the calculation
of the purchase price for each
Exchangeable Share. The purchase price for each such Exchangeable
Share so
purchased
may be satisfied only by Callco delivering or causing to be
delivered
to the Trustee, on behalf of the relevant Beneficiary, one
Goldstrike
Share and on the applicable payment date a cheque for the
balance,
if any, of the purchase price, less any amounts withheld
pursuant
to Section
7.1. Upon payment by Callco of such purchase price the relevant
Beneficiary shall
cease to have any
right to be paid by the Corporation
any amount
in respect
of declared and unpaid dividends on each such
Exchangeable Share.
<PAGE>
14
(3) To exercise the Insolvency
Exchange Right, the Trustee shall deliver to
Callco,
in person or by
certified or registered mail, at its head office
or at such
other place as Callco may from time to time designate by
written
notice to the Trustee, with a copy to the Corporation at its
principal
executive offices or
at such other place as the Corporation may
from
time to time designate by written notice to the Trustee, the
certificates
representing the
Exchangeable Shares
which the Beneficiary
desires
Callco to purchase,
duly endorsed for transfer to Callco,
and
accompanied by such other documents and instruments as may
be required to
effect a
transfer of Exchangeable Shares under the Act and the
constating
documents
of the Corporation and such additional documents and
instruments
as Callco
may reasonably require, together with:
(a)
a duly
completed form of notice of exercise of the Insolvency
Exchange Right,
contained on the reverse of or attached to the
Exchangeable Share certificates:
(i) stating that
the Trustee is exercising the Insolvency Exchange
Right on behalf of the
Beneficiary so as to require Callco to
purchase from the
Beneficiary
the number of Exchangeable
Shares specified therein;
(ii) containing
confirmation
from
the Beneficiary that the
Beneficiary has good
title to and owns all such Exchangeable
Shares to be acquired
by Callco free and
clear of all liens,
hypothecs, pledges, encumbrances, security interests, options,
restrictions, proxies
and adverse claims, except as set forth
herein and in the Exchangeable Share Provisions; and
(iii) setting
out the address of the Persons to whom the
Exchangeable Share Consideration should be delivered; and
(b)
payment (or
evidence satisfactory
to the Corporation and
Callco of
payment) of the taxes (if any) payable as contemplated by Section
7.2 hereof.
(4) If only part of the
Exchangeable
Shares represented by any certificate
delivered
to Callco are to be
purchased by Callco
under the Insolvency
Exchange
Right, a new
certificate
for the balance of
such Exchangeable
Shares
shall be issued to the Beneficiary at the expense of the
Corporation.
<PAGE>
15
(5) Promptly after receipt of
the certificates
representing the
Exchangeable
Shares
which the Beneficiary desires Callco to purchase under the
Insolvency
Exchange Right (together with such documents and instruments of
transfer
and a duly completed form of notice of exercise of the
Insolvency
Exchange
Right), duly endorsed for transfer to Callco,
which notice to
Callco and
the Corporation
shall constitute exercise of the Insolvency
Exchange
Right by the Trustee on behalf of the Beneficiary, Callco shall
promptly
thereafter
transfer to the
Beneficiary the
Exchangeable Share
Consideration
deliverable in
connection
with
the exercise of the
Insolvency
Exchange Right; provided, however, that no such delivery
shall
be made
unless and until the
Beneficiary
shall have paid (or provided
evidence
satisfactory to the Corporation and Callco of the payment of)
the
taxes (if
any) payable as contemplated by Section 7.2 hereof. Immediately
upon the
giving of notice by the Trustee, on behalf of a Beneficiary,
to
Callco and
the Corporation
of the exercise of the Insolvency Exchange
Right, as
provided in this Section 5.3, the Beneficiary shall be deemed
to
have
transferred to Callco all of its right, title and interest in and to
such
Exchangeable Shares,
shall cease to be a holder of such Exchangeable
Shares and
shall not be entitled to exercise any of the rights of a holder
in respect
thereof, other than the right to receive
the purchase
price
therefor
unless the Exchangeable Share Consideration is not delivered
by
Callco to
the Beneficiary by the date specified, in which case the rights
of the
Beneficiary shall remain unaffected until such Exchangeable
Share
Consideration is
delivered by Callco and any cheque included therein is
paid.
Notwithstanding
the foregoing, until the Exchangeable Share
Consideration is
delivered to the Beneficiary, the Beneficiary shall be
deemed to
be a holder of the sold Exchangeable Shares for purposes of
voting
rights with respect thereto under this Agreement.
Section 5.4 Exercise of Insolvency Exchange
Right Subsequent to Retraction
In the
event that a Beneficiary has exercised its right under Article 6
of
the Exchangeable Share Provisions to require the
Corporation to redeem any or
all of the Exchangeable Shares held by the Beneficiary (such number of
Exchangeable Shares so required to be redeemed
being hereinafter
collectively
referred to as the "Retracted Shares") and is notified by the Corporation
pursuant to Section 6.5 of the Exchangeable Share Provisions that the
Corporation will not be permitted as a result of liquidity or solvency
requirements or other provisions of applicable law to
redeem all such Retracted
Shares, subject to receipt by such
Beneficiary of written notice to that effect
from the Corporation and provided that the
Retraction Call Right with respect to
the Retracted Shares shall not have been
exercised, the
Retraction Request will
constitute, and will be deemed to
constitute, notice
from the Trustee on behalf
of such Beneficiary to Callco that the Trustee is
exercising
the Insolvency
Exchange Right on behalf of such
Beneficiary
with respect to those
Retracted
Shares which the Corporation is not permitted by
applicable law to
redeem. In
any such event, the Corporation hereby agrees with such
Beneficiary to
notify
such Beneficiary immediately of such prohibition against the Corporation
redeeming all of the Retracted Shares and
to forward or cause to be forwarded to
Callco immediately all relevant
materials delivered by such Beneficiary to
the
Corporation (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 Callco
will thereupon purchase such shares in accordance
with the provisions of
this
Article 5.
<PAGE>
16
Section 5.5 Notice of Insolvency Event
As soon as
practicable following
the occurrence of an Insolvency Event or
any event that with the giving of notice or
the passage of time or both would be
an Insolvency Event, the Corporation and Callco shall give written notice
thereof to the Trustee. As soon as practicable
following the receipt
of notice
from the Corporation and Callco of the occurrence of an
Insolvency Event,
or
upon the Trustee becoming aware of an
Insolvency Event, the Trustee will mail to
each Beneficiary a notice of such Insolvency Event in the form provided by
Callco, which notice shall contain a brief statement of the rights of the
Beneficiaries with respect to the
Insolvency Exchange Right.
Section 5.6 Automatic Exchange on
Liquidation of Goldstrike
(1) Goldstrike will give the Trustee written notice of each of the
following
events at
the time set forth below:
(a)
in the
event of any
determination
by the Board of Directors of
Goldstrike to
institute voluntary liquidation, dissolution or
winding-up proceedings
with respect to
Goldstrike or to effect any
other distribution of
assets of Goldstrike
among its
shareholders
for the purpose of winding up its affairs, at least 60 days prior
to
the proposed
effective date of such liquidation, dissolution,
winding-up or other distribution; and
(b)
immediately
upon the earlier of
(A) receipt by Goldstrike of notice
of, and (B) Goldstrike
otherwise becoming aware of any
instituted
claim, suit,
petition or other proceedings with respect to the
involuntary liquidation, dissolution or winding-up of
Goldstrike or
to effect any other
distribution of assets of Goldstrike among its
shareholders for the purpose of winding up its affairs, in each
case
where Goldstrike
has failed to contest in good faith any such
proceeding commenced
in respect of Goldstrike within 30 days of
becoming aware thereof.
(2) As soon as practicable
following receipt by the Trustee from Goldstrike of
notice
of any event (a "Liquidation Event") contemplated by Section
5.6(1)(a)
or 5.6(1)(b), the Trustee will give notice thereof to the
Beneficiaries. Such
notice shall be provided to the Trustee by Goldstrike
and
shall include a brief description of the automatic exchange of
Exchangeable Shares for Goldstrike Shares provided for in Section
5.6(3).
<PAGE>
17
(3) In order that the
Beneficiaries will be
able to participate on a pro rata
basis with
the holders of Goldstrike Shares in the distribution of
assets
of
Goldstrike in
connection with a
Liquidation
Event, all of the then
outstanding
Exchangeable Shares
shall be automatically exchanged for
Goldstrike
Shares. To effect such automatic exchange, Callco shall be
deemed to
have purchased from the Beneficiaries immediately prior to the
Liquidation Event Effective Time each Exchangeable Share then outstanding
and held
by Beneficiaries,
and each Beneficiary
shall be deemed to
have
sold the
Exchangeable
Shares held by it at
such time, free and
clear of
any lien,
claim or encumbrance, for a purchase price per share
equal to
(i) the
Current Market
Price of a
Goldstrike
Share at the
Liquidation
Event
Effective Time, which shall be satisfied in full by Callco
delivering
or causing to be delivered to the Beneficiary one Goldstrike
Share,
plus (ii) to the extent not paid by the Corporation on the
designated
payment date
therefor, an additional amount equal to and in
full
satisfaction of the
full amount of all declared and unpaid dividends
on each
such Exchangeable Share held by such holder on any dividend
record
date
which occurred prior to the date of the exchange. Callco shall
provide
the Trustee with an Officer's Certificate in connection with
each
automatic
exchange setting forth the calculation of the purchase price
for
each
Exchangeable
Share, which calculation the Trustee shall accept
without
any obligation
on its part to verify
or confirm its
accuracy or
completeness.
(4) Immediately prior to the Liquidation Event
Effective Time, the closing of
the
transaction
of purchase and sale contemplated by the automatic
exchange
of Exchangeable Shares
for Goldstrike Shares
shall be deemed to
have
occurred, and each Beneficiary shall be deemed to have transferred
to
Callco all
of the Beneficiary's
right, ti
