EXHIBIT 4.3
FORM OF ACKNOWLEDGEMENT OF NOVATION
TO: XXXXXX INDUSTRIES, INC.
XXXXXX EXCHANGECO (CANADA) INC.
COMPUTERSHARE TRUST COMPANY OF CANADA
3064297 NOVA SCOTIA COMPANY
The undersigned, Xxxxxx Industries Ltd. ("NIL"), refers to (i) the Support
Agreement dated April 26, 2002 among Xxxxxx Industries, Inc. ("NII"), 3064297
Nova Scotia Company and Xxxxxx Exchangeco (Canada) Inc. ("Canco"), and (ii) the
Voting and Exchange Trust Agreement dated April 26, 2002 among NII, Canco and
Computershare Trust Company of Canada, in its capacity as trustee for the
registered holders from time to time of the non-voting exchangeable shares in
the capital of Canco (other than NII and its affiliates) (in such capacity, the
"Trustee").
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, NIL hereby acknowledges and agrees as follows:
1. The proposed reorganization of NII, as publicly disclosed by NII on
January 2, 2002 and as generally described in the draft registration
statement filed by NII with the United States Securities and Exchange
Commission on such date, as such registration statement has been
amended and supplemented from time to time, has been completed and
constitutes an Acquiror Control Transaction for purposes of section 3.4
of the Support Agreement and section 10.4 of the Voting and Exchange
Trust Agreement.
2. All references in the Support Agreement and the Voting and Exchange
Trust Agreement to "Acquiror" shall hereafter be and be deemed to be
references to NIL, and all references in the Support Agreement and the
Voting and Exchange Trust Agreement to "Acquiror Shares" shall
hereafter be and be deemed to be references to common shares of NIL.
3. NIL hereby deposits with the Trustee a voting security in the capital
of NIL that will allow Beneficiaries (as that term is defined in the
Voting and Exchange Trust Agreement) to exercise voting rights in
respect of NIL substantially similar to those provided for in the
Voting and Exchange Trust Agreement.
4. All notices and other communications under the Support Agreement and
the Voting and Exchange Trust Agreement that are to be given to NIL
shall be given to the same address, telecopier number and contact
person as for NII.
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5. This Acknowledgement shall be governed by and construed in accordance
with the laws of the Province of Alberta and the laws of Canada
applicable therein and shall be treated in all respects as an Alberta
contract. NIL hereby irrevocably attorns to the jurisdiction of the
courts of the Province of Alberta in respect of all matters arising
under or in relation to this Acknowledgement, the Support Agreement or
the Voting and Exchange Trust Agreement.
DATED: , 2002
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XXXXXX INDUSTRIES LTD.
By:
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Name:
Title:
