Exhibit 10.3


 


VOTING
AND EXCHANGE TRUST AGREEMENT


 


MEMORANDUM
OF AGREEMENT dated  as of the 18th day of October,
2007.


 


AMONG:


 


MARATHON OIL CORPORATION,
a corporation existing under the laws of Delaware (hereinafter referred to as “Marathon”)


 


-and-


 


1339971 ALBERTA LTD.,
a corporation existing under the laws of Alberta (hereinafter referred to as “AcquisitionCo”)


 


- and -


 


MARATHON CANADIAN OIL SANDS HOLDING
LIMITED,  a
corporation existing under the laws of Alberta (hereinafter referred to as “CallCo”)


 


- and -


 


VALIANT TRUST COMPANY, a
trust company incorporated under the laws of Alberta (hereinafter referred to
as the “Trustee”)


 


WHEREAS
pursuant to an arrangement agreement dated July 30, 2007 among Marathon,
AcquisitionCo, Western Oil Sands Inc. and WesternZagros Resources Inc. (such
agreement, as it may be amended or restated, is hereafter referred to as
the “Arrangement Agreement”), the
parties agreed that on the Effective Date (as defined in the Arrangement
Agreement) the parties would execute and deliver an agreement which would
govern the relationship among the parties as it related to the issuance and
existence of exchangeable shares in the capital of AcquisitionCo (the “Exchangeable Shares”), which will be issued
pursuant to the Arrangement;


 


AND
WHEREAS the articles of AcquisitionCo set forth the rights,
privileges, restrictions and conditions (collectively, the “Share Provisions”) attaching to the
Exchangeable Shares;


 


AND
WHEREAS the parties hereto have agreed to enter into this
Agreement in order to give effect to those exchange rights and voting rights to
be created for the benefit of holders of Exchangeable Shares;


 


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

DEFINITIONS AND INTERPRETATION


 


1.1                               Definitions


 


In this Agreement, each
term denoted by initial capital letters and not otherwise defined herein shall
have the meaning attributed thereto in the Share Provisions and the following
terms shall have the following meanings:


 


“Aggregate Equivalent Vote Amount” means,
with respect to any matter, proposition or question on which Marathon
Shareholders are entitled to vote, consent or otherwise act, the aggregate
number of votes which all Beneficiaries would have been entitled to exercise as
Marathon Shareholders if such Beneficiaries had exchanged their Exchangeable
Shares for Marathon Shares at the Exchange Ratio applicable on the record date
established by Marathon or by applicable law for consideration of the matter to
be voted on, consented to or otherwise acted upon;


 


“Automatic Exchange Rights” means the
benefit of the obligation of Marathon and CallCo to effect the automatic
exchange of Exchangeable Shares for Marathon Shares as defined in Section 5.12(c);


 


“Beneficiary Votes” has the meaning given to
that term in Section 4.2;


 


“Beneficiaries” means the registered holders
from time to time of Exchangeable Shares, other than Marathon and CallCo and
their affiliates;


 


“Consent” has the meaning given to that term
in Section 4.2;


 


“Exchange Rights” has the meaning given to
that term in Section 5.1(a);


 


“Indemnified Parties” has the meaning given
to that term in Section 8.1;


 


“Insolvency Event” means the institution by
AcquisitionCo of any proceeding to be adjudicated a bankrupt or insolvent or to
be wound up, or the consent of AcquisitionCo to the institution of bankruptcy,
insolvency, dissolution or winding-up proceedings against it, or the filing of
a petition, answer or consent seeking dissolution or winding-up under any
bankruptcy, insolvency or analogous laws, including without limitation the Companies Creditors’ Arrangement Act (Canada)
and the Bankruptcy and Insolvency Act (Canada),
and the failure by AcquisitionCo to contest in good faith any such proceedings
commenced in respect of AcquisitionCo within 15 days of becoming aware thereof,
or the consent by AcquisitionCo to the filing of any such petition or to the
appointment of a receiver, or the making by AcquisitionCo of a general
assignment for the benefit of creditors, or the admission in writing by
AcquisitionCo of its inability to pay its debts generally as they become due,
or AcquisitionCo not being permitted, pursuant to liquidity or solvency
requirements or other applicable law, to redeem any Retracted Shares pursuant
to Section 4.6 of the Share Provisions;


 


“Liquidation Event” has the meaning given to
that term in Section 5.12(b);


 


“Liquidation Event Effective Time” has the
meaning given to that term in Section 5.12(c);


 


“List” has the meaning given to that term in
Section 4.6;


 


“Marathon
Shareholder” means a holder of Marathon Shares;


 


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“Meeting” has the meaning given to that term
in Section 4.2;


 


“Officer’s Certificate” means, with respect
to Marathon, AcquisitionCo and/or CallCo, a certificate signed by any officer
or director of Marathon, AcquisitionCo or CallCo, as the case may be;


 


“Share Provisions” means the rights,
privileges, restrictions and conditions attaching to the Exchangeable Shares,
all as set forth in the articles of AcquisitionCo;


 


“Special Voting Shares” means the special
voting stock of Marathon, issued by Marathon to and deposited with the Trustee,
which entitles the Trustee, on behalf of the holders of record of Exchangeable
Shares who are Beneficiaries, to a number of votes at meetings of Marathon
Shareholders equal to the Aggregate Equivalent Vote Amount;


 


“Successor” has the meaning given to that
term in Section 10.1(a);


 


“Trust” means the trust created by this
Agreement;


 


“Trust Estate” means the Special Voting
Shares, the Voting Rights, the Exchange Rights, the Automatic Exchange Rights
and any money or other property which may be held by the Trustee from time
to time pursuant to this Agreement;


 


“Trustee” means Valiant Trust Company and,
subject to the provisions of Article 9, includes any successor trustee;
and


 


“Voting Rights” means the voting rights
attached to the Special Voting Shares.


 


1.2                               Interpretation
Not Affected by Headings, etc.


 


The division of this
Agreement into Articles, Sections and other portions and the insertion of
headings are for convenience of reference only and should not affect the
construction or interpretation of this Agreement. Unless otherwise indicated,
all references to an “Article” or “Section” followed by a number and/or a
letter refer to the specified Article or Section of this Agreement. The
terms “this Agreement”, “hereof”, “herein” and “hereunder” and similar
expressions refer to this Agreement and not to any particular Article, Section or
other portion hereof and include any agreement or instrument supplementary or
ancillary hereto.


 


1.3                               Number,
Gender, etc.


 


Words importing the
singular number only shall include the plural and vice versa. Words importing
any gender shall include all genders.


 


1.4                               Date
for any Action


 


If any date on which any
action is required to be taken under this Agreement is not a Business Day, such
action shall be required to be taken on the next succeeding Business Day.


 


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ARTICLE 2

PURPOSE OF AGREEMENT


 


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 Special Voting Shares in order to
enable the Trustee to exercise the Voting Rights, and will hold the Exchange
Rights and the Automatic Exchange Rights and the right to enforce the Support
Agreement 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.


 


ARTICLE 3

SPECIAL VOTING SHARES


 


3.1                               Issuance
and Ownership of the Special Voting Shares


 


Marathon has issued to
and has deposited with the Trustee a number of Special Voting Shares equal to
the number of Exchangeable Shares issued by AcquisitionCo on the date hereof. Marathon
shall, on each Marathon Dividend Payment Date, issue and deposit with the
Trustee additional Special Voting Shares to reflect adjustments to the Exchange
Ratio so that, as of each record date for determining the Marathon Shareholders
entitled to vote at a meeting of Marathon Shareholders, the number of Special
Voting Shares then held by the Trustee hereunder shall be equal to the
Aggregate Equivalent Vote Amount as of such date. Upon the exchange, retraction
or redemption of Exchangeable Shares pursuant to and in accordance with the
terms thereof, or the acquisition of such shares by Marathon or CallCo, the
Trustee shall, if so directed in writing by Marathon, surrender to Marathon a
number of Special Voting Shares equal to the number of Beneficiary Votes then
allocable to the Exchangeable Shares so exchanged, retracted or redeemed. Any
such Special Voting Shares so surrendered may be reissued by Marathon to
the Trustee hereunder. Each Special Voting Share issued to and deposited with
the Trustee pursuant to the foregoing provisions shall, until surrendered pursuant
to the foregoing provisions, be 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. Marathon 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 issuances of
the Special Voting Shares by Marathon to the Trustee pursuant to this Section 3.1.
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 Special Voting Shares and shall be entitled to exercise all of the rights
and powers of an owner with respect to the Special Voting Shares, provided that
the Trustee shall:


 


(a)                                  hold
the Special Voting Shares and the legal title thereto as trustee solely for the
use and benefit of the Beneficiaries in accordance with the provisions of this
Agreement;


 


(b)                                 except
as specifically authorized by this Agreement, have no power or authority to
sell, transfer, vote or otherwise deal in or with the Special Voting Shares;
and


 


(c)                                  not
use or dispose of any of the Special Voting Shares for any purpose other than
the purposes for which this Trust is created pursuant to this Agreement.


 


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3.2                               Legended
Share Certificates


 


AcquisitionCo 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 with respect to the Exchangeable Shares
held by a Beneficiary.


 


3.3                               Safekeeping
of Certificates


 


The certificates
representing the Special Voting Shares shall at all times be held in
safekeeping by the Trustee or its agent.


 


ARTICLE 4

EXERCISE OF VOTING RIGHTS


 


4.1                               Voting
Rights


 


The Trustee, as the
holder of record of the Special Voting Shares, shall be entitled to all of the
Voting Rights, including the right to consent to or to vote in person or by
proxy the Special Voting Shares, on any matter, question or proposition
whatsoever that may properly come before the Marathon Shareholders at a
Meeting or in connection with a Consent. The Voting Rights shall be and remain
vested in and exercised by the Trustee. Subject to Section 6.15 hereof,
the Trustee shall exercise the Voting Rights only on the basis of instructions
received pursuant to this Article 4 from Beneficiaries entitled to
instruct the Trustee as to the voting thereof at the time at which a Consent is
sought or a Meeting is held. 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
Beneficiary’s Voting Rights.


 


4.2                               Number
of Votes


 


With respect to all
meetings of Marathon Shareholders at which Beneficiaries are entitled to vote
(a “Meeting”) and with respect to
all written consents sought by Marathon from Marathon Shareholders (a “Consent”), each Beneficiary shall be
entitled to instruct the Trustee to cast and exercise, in the manner
instructed, a number of votes equal to the number of votes such Beneficiary
would have been entitled to exercise as a Marathon Shareholder if such
Beneficiary had exchanged its Exchangeable Shares for Marathon Shares at the
Exchange Ratio applicable on the record date established by Marathon or by
applicable law for such Meeting or Consent, as the case may be (the “Beneficiary Votes”), in respect of each
matter, question or proposition to be voted on at such Meeting or to be
consented to in connection with such Consent. The aggregate number of voting
rights in relation to Beneficiary Votes to which any individual Beneficiary may be
entitled in respect of any fractional entitlements to Marathon Shares shall be
rounded down to the nearest whole number of Marathon Shares.


 


4.3                               Mailings
to Beneficiaries


 


With respect to each
Meeting and Consent, the Trustee will mail or cause to be mailed (or otherwise
communicate in the same manner as Marathon utilizes in communications to
Marathon Shareholders, subject to the Trustee’s ability to provide this method
of communication and upon being advised in writing of such method) to each of
the Beneficiaries named in the List on the same day as the initial mailing or
notice (or other communication) with respect thereto is given by Marathon to
Marathon Shareholders:


 


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(a)                                  a
copy of such notice, together with any proxy or information statement and
related materials (but excluding proxies to vote Marathon Shares) to be
provided to Marathon Shareholders;


 


(b)                                 a
statement that such Beneficiary is entitled to instruct the Trustee as to the
exercise of the Beneficiary Votes with respect to such Meeting or Consent, as
the case may be, or, pursuant to Section 4.7 hereof, to attend such
Meeting and to exercise personally the Beneficiary Votes thereat as proxy of
the Trustee;


 


(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 such Beneficiary’s designee to exercise personally
the Beneficiary Votes; or


 


(ii)                                  a
proxy to a designated agent or other representative of the management of
Marathon 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 (i) the time and date by which such instructions must be
received by the Trustee in order to be binding upon it, which in the case of a
Meeting shall not be less than 24 hours prior to such meeting, and (ii) the
method for revoking or amending such instructions.


 


The materials referred to
above are to be provided by Marathon to the Trustee, but shall be subject to
review and comment by the Trustee.


 


For the purposes of
determining Beneficiary Votes to which a Beneficiary is entitled in respect of
any such Meeting or Consent, the number of Exchangeable Shares owned as of
record by the Beneficiary and the current Exchange Ratio shall be determined at
the close of business on the record date established by Marathon or by
applicable law for purposes of determining Marathon Shareholders entitled to
vote at such Meeting or to give written consent in connection with such Consent.
Marathon will notify the Trustee in writing of any decision of the board of
directors of Marathon with respect to the calling of any such Meeting or the
seeking of such Consent and shall provide all necessary information and
materials to the Trustee in each case promptly and in any event in sufficient
time to enable the Trustee to perform its obligations contemplated by this
Section 4.3.


 


4.4                               Copies
of Marathon Shareholder Information


 


Marathon will deliver to
the Trustee copies of all proxy materials (including notices of Meetings, but
excluding proxies to vote Marathon Shares), information statements, reports
(including, without limitation, all interim and annual financial statements and
management’s discussion and analysis thereon) and other written communications
that are to be distributed from time to time to beneficiaries of Marathon
Shares in sufficient quantities and in sufficient time so as to enable the
Trustee to send those materials to each Beneficiary concurrently with the transmittal
of such materials to Marathon Shareholders. The Trustee will mail or otherwise
send to each Beneficiary, at the expense of Marathon, copies of all such


 


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materials (and all
materials specifically directed to the Beneficiaries or to the Trustee for the
benefit of the Beneficiaries by Marathon) received by the Trustee from Marathon
concurrently with the transmittal of such materials to Marathon Shareholders. The
Trustee will make copies of all such materials available for inspection by any
Beneficiary at the Trustee’s principal transfer office in the cities of Calgary
and Toronto.


 


4.5                               Other
Materials


 


As soon as reasonably
practicable after receipt by Marathon or any Marathon Shareholder of any material
sent or given generally to the Marathon Shareholders by or on behalf of a third
party, including without limitation dissident proxy and information circulars
(and related information and material) and tender and exchange offer circulars
(and related information and material), Marathon 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 the Trustee or to Beneficiaries by such
third party) to each Beneficiary as soon as possible thereafter. As soon as
practicable after receipt thereof, the Trustee will mail or otherwise send to
each Beneficiary, at the expense of Marathon, copies of all such materials
received by the Trustee from Marathon. The Trustee will also make copies of all
such materials available for inspection by any Beneficiary at the Trustee’s
principal transfer office in the cities of Calgary and Toronto.


 


4.6                               List
of Persons Entitled to Vote


 


AcquisitionCo shall: (i) prior
to each annual, general or special Meeting or the seeking of any Consent and (ii) forthwith
upon each request made at any time by the Trustee in writing, prepare or cause
to be prepared a list (a “List”)
of the names and addresses of the 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
Meeting or a Consent, at the close of business on the record date established
by Marathon or pursuant to applicable law for determining the Marathon
Shareholders entitled to receive notice of and/or to vote at such Meeting or to
give consent in connection with such Consent. Each such List shall be delivered
to the Trustee promptly after receipt by AcquisitionCo of such request on the
record date for such meeting or seeking of consent, as the case may be,
and in any event within sufficient time as to enable the Trustee to perform its
obligations under this agreement. Marathon agrees to give AcquisitionCo written
notice (with a copy to the Trustee) of the calling of any Meeting or the
seeking of any Consent, together with the record dates therefor, sufficiently
prior to the date of the calling of such meeting or seeking of such consent so
as to enable AcquisitionCo to perform its obligations under this Section 4.6.


 


4.7                               Entitlement
to Direct Votes


 


Any Beneficiary named in
a List prepared in connection with any Meeting or any Consent will be entitled:
(i) to instruct the Trustee in the manner described in Section 4.3
hereof with respect to the exercise of the Beneficiary Votes to which such
Beneficiary is entitled; or (ii) to attend such meeting and personally to
exercise thereat (or to exercise with respect to any written consent), as the
proxy of the Trustee, the Beneficiary Votes to which such Beneficiary is
entitled.


 


4.8                               Voting
by Trustee, and Attendance of Trustee Representative, at Meeting


 


In connection with each
Meeting and 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
hereof, the Beneficiary Votes as to which such Beneficiary is entitled to
direct the vote (or any lesser number thereof


 


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as may be set
forth in the instructions); provided, however, that such written instructions
and any other required materials are received by the Trustee from the
Beneficiary prior to the time and date fixed by it for receipt of such
instructions and any other required materials in the notice given by the
Trustee to the Beneficiary pursuant to section 4.3 hereof.


 


The Trustee shall cause
such representatives as are empowered by it to sign and deliver, on behalf of
the Trustee, proxies for Voting Rights to attend each Meeting. Upon submission
by a Beneficiary (or its designee) of identification in a form satisfactory
to the Trustee’s representatives, and at the Beneficiary’s request, such
representatives 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
hereof in respect of such meeting; or (ii) submits to the Trustee’s
representatives written revocation of any such previous instructions. At such
Meeting, the Beneficiary exercising such Beneficiary Votes shall have the same
rights as the Trustee to speak at the meeting in respect of any matter,
question or proposition, to vote by way of ballot at the meeting in respect of
any matter, question or proposition and to vote at such Meeting by way of a
show of hands in respect of any matter, question or proposition.


 


4.9                               Distribution
of Written Materials


 


Any written materials to
be distributed by the Trustee to the Beneficiaries pursuant to this Agreement
shall be delivered or sent by mail (or otherwise communicated in the same
manner as Marathon utilizes in communications to Marathon Shareholders subject
to the Trustee’s ability to provide this method of communication and upon being
advised in writing of such method) to each Beneficiary at its address as shown
on the books of AcquisitionCo. AcquisitionCo shall provide or cause to be
provided to the Trustee for this purpose, on a timely basis and without charge
or other expense:


 


(a)                                  current
lists of the Beneficiaries; and


 


(b)                                 on
the request of the Trustee, mailing labels to enable the Trustee to carry out
it duties under this Agreement.


 


The materials referred to
above are to be provided by AcquisitionCo to the Trustee, but shall be subject
to review and comment by the Trustee.


 


4.10                        Termination
of Voting Rights


 


Except as otherwise
provided herein or in the Share Provisions, 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 Marathon, and such
Beneficiary Votes and the Voting Rights represented thereby shall cease
immediately, upon the delivery by such Beneficiary to the Trustee of the
certificates representing such Exchangeable Shares in connection with the
exercise by the Beneficiary of the Exchange Rights or the occurrence of the Automatic
Exchange Rights (unless in any case Marathon or CallCo shall not have delivered
the consideration deliverable in exchange therefor to the Trustee for delivery
to the Beneficiaries), or upon the retraction or redemption of Exchangeable
Shares pursuant to Article 4 or Article 5 of the Share Provisions, or
upon the effective date of the liquidation, dissolution or winding-up of
AcquisitionCo or any other distribution of the assets of AcquisitionCo among
its shareholders for the purpose of winding up its affairs pursuant to Article 6
of the Share Provisions, or upon the purchase of Exchangeable Shares


 


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from the
Beneficiary thereof by Marathon or CallCo pursuant to the exercise by Marathon
or CallCo of the Retraction Call Right, the Redemption Call Right or the
Liquidation Call Right.


 


ARTICLE 5

EXCHANGE RIGHTS AND AUTOMATIC EXCHANGE


 


5.1                               Grant
and Ownership of the Exchange Rights


 


Each of Marathon and
CallCo hereby grants to the Trustee as trustee for and on behalf of, and for
the use and benefit of, the Beneficiaries:


 


(a)                                  the
right (the “Exchange Rights”),
upon the occurrence and during the continuance of an Insolvency Event, to
require Marathon or CallCo to purchase from each or any Beneficiary all or any part of
the Exchangeable Shares held by that Beneficiary; and


 


(b)                                 the
Automatic Exchange Rights,


 


all in accordance with
the provisions of this Agreement. Each of Marathon and 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
the grant of the Exchange Rights and the Automatic Exchange Rights by Marathon
and CallCo to the Trustee. During the term of the Trust and subject to the
terms and conditions of this Agreement, the Trustee shall possess and be vested
with full legal ownership of the Exchange Rights and the Automatic Exchange
Rights and shall be entitled to exercise all of the rights and powers of an
owner with respect to the Exchange Rights and the Automatic Exchange Rights,
provided that the Trustee shall:


 


(c)                                  hold
the Exchange Rights 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


 


(d)                                 except
as specifically authorized by this Agreement, have no power or authority to
exercise or otherwise deal in or with the Exchange Rights 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.


 


5.2                               Legended
Share Certificates


 


AcquisitionCo will cause
each certificate representing Exchangeable Shares to bear an appropriate legend
notifying the Beneficiaries of:


 


(a)                                  their
right to instruct the Trustee with respect to the exercise of the Exchange
Rights in respect of the Exchangeable Shares held by a Beneficiary; and


 


(b)                                 the
Automatic Exchange Rights.


 


5.3                               General
Exercise of Exchange Rights


 


The Exchange Rights shall
be and remain vested in and exercisable by the Trustee. Subject to Section 6.15,
the Trustee shall exercise the Exchange Rights only on the basis of
instructions received pursuant to this Article 5 from Beneficiaries
entitled to instruct the Trustee as to the exercise thereof. To


 


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the extent that no
instructions are received from a Beneficiary with respect to the Exchange
Rights, the Trustee shall not exercise or permit the exercise of the Exchange
Rights.


 


5.4                               Purchase
Price


 


The purchase price
payable by Marathon or CallCo, as applicable, for each Exchangeable Share to be
purchased by Marathon or CallCo, as applicable, under the Exchange Rights shall
be an amount per share equal to the amount determined by multiplying the
Exchange Ratio on the last Business Day prior to the date of closing of the
purchase and sale of such Exchangeable Shares under the Exchange Rights (as
provided for in Section 5.6) by the Current Market Price of a Marathon
Share on the last Business Day prior to such date.


 


In connection with each
exercise of the Exchange Rights, Marathon or 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 Marathon or
CallCo, as applicable, delivering or causing to be delivered to the Trustee, on
behalf of the relevant Beneficiary, a certificate or certificates representing
that number of Marathon Shares (which securities shall be duly issued as fully
paid and non-assessable and shall be free and clear of any lien, claim or
encumbrance) equal to the Exchange Ratio as at the last Business Day prior to
the date of closing of the purchase and sale of such Exchangeable Shares under
the Exchange Rights, such purchase price to be paid in accordance with Section 5.6
(but less any amounts withheld pursuant to Section 5.13). Upon payment by
Marathon or CallCo, as applicable, of such purchase price, the relevant
Beneficiary shall cease to have any right to be paid any amount in respect of
accrued and unpaid dividends (but not in respect of dividends which have been
declared and are unpaid) on each such Exchangeable Share by AcquisitionCo.


 


5.5                               Exercise
Instructions


 


Subject to the terms and
conditions herein set forth, a Beneficiary shall be entitled, upon the
occurrence and, during the continuance of an Insolvency Event, to instruct the
Trustee to exercise the Exchange Rights with respect to all or any part of
the Exchangeable Shares registered in the name of such Beneficiary on the books
of AcquisitionCo. To cause the exercise of the Exchange Rights by the Trustee,
the Beneficiary shall deliver to the Trustee, in person or by certified or
registered mail, at its principal office in Calgary or Toronto or at such other
places in Canada as the Trustee may from time to time designate by written
notice to the Beneficiaries, the certificates representing the Exchangeable Shares
which such Beneficiary desires Marathon or CallCo to purchase, duly endorsed in
blank for transfer, and accompanied by such other documents and instruments as may be
required to effect a transfer of Exchangeable Shares under the Act and the
by-laws of AcquisitionCo and such additional documents and instruments as the
Trustee, Marathon, CallCo and AcquisitionCo may reasonably require,
together with:


 


(a)                                  a
duly completed form of notice of exercise of the Exchange Rights,
contained on the reverse of or attached to the Exchangeable Share certificates,
stating: (i) that the Beneficiary thereby instructs the Trustee to
exercise the Exchange Rights so as to require Marathon or CallCo to purchase
from the Beneficiary the number of Exchangeable Shares specified therein; (ii) that
such Beneficiary has good title to and owns all such Exchangeable Shares to be
acquired by Marathon or CallCo, as applicable, free and clear of all liens,
claims and encumbrances; (iii) the names in which the certificates
representing Marathon Shares issuable in connection with the exercise of the
Exchange Rights are to be issued; and (iv) the names and addresses of the
persons to whom such new certificates should be delivered; and


 


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(b)                                 payment
(or evidence satisfactory to the Trustee, Marathon, CallCo and AcquisitionCo of
payment) of the taxes (if any) payable as contemplated by Section 5.8 of
this Agreement.


 


If
only a part of the Exchangeable Shares represented by any certificate or certificates
delivered to the Trustee are to be purchased by Marathon or CallCo under the
Exchange Rights, a new certificate for the balance of such Exchangeable Shares
shall be issued to the holder at the expense of AcquisitionCo.


 


5.6                               Delivery
of Marathon Shares; Effect of Exercise


 


Promptly after the
receipt of the certificates representing the Exchangeable Shares which the
Beneficiary desires Marathon or CallCo to purchase under the Exchange Rights,
together with such documents and instruments of transfer, and a duly completed form of
notice of exercise of the Exchange Rights (and payment of taxes, if any,
payable as contemplated by Section 5.8 or evidence thereof), duly endorsed
for transfer to Marathon or CallCo, as applicable, the Trustee shall notify Marathon,
CallCo and AcquisitionCo of its receipt of the same, which notice to Marathon,
CallCo and AcquisitionCo shall constitute exercise of the Exchange Rights by
the Trustee on behalf of the holder of such Exchangeable Shares, and Marathon
or CallCo, as applicable, shall promptly thereafter deliver or cause to be
delivered to the Trustee, for delivery to the holder of such Exchangeable
Shares (or to such other persons, if any, properly designated by such holder)
the number of Marathon Shares issuable in connection with the exercise of the
Exchange Rights, provided, however, that no such delivery shall be made unless
and until the Beneficiary requesting the same shall have paid (or provided
evidence satisfactory to the Trustee, Marathon, CallCo and AcquisitionCo of the
payment of) the taxes (if any) payable as contemplated by Section 5.8 of
this Agreement. Immediately upon the giving of notice by the Trustee to
Marathon, CallCo and AcquisitionCo of the exercise of the Exchange Rights as
provided in this Section 5.6, the closing of the transaction of purchase
and sale contemplated by the Exchange Rights shall be deemed to have occurred
and the holder of such Exchangeable Shares shall be deemed to have transferred
to Marathon or CallCo, as determined by Marathon at the time, all of such
holder’s right, title and interest in and to such Exchangeable Shares and the
related interest in the Trust Estate and shall cease to be a holder of such
Exchangeable Shares and shall not be entitled to exercise any of the rights of
a holder in respect thereof, other than: (i) the right to receive his
proportionate share of the total purchase price therefor, unless the requisite
number of Marathon Shares is not delivered by Marathon or CallCo, as
applicable, to the Trustee within five Business Days of the date of the giving
of such notice by the Trustee, in which case the rights of the Beneficiary
shall remain unaffected until such Marathon Shares are so delivered, by
Marathon or CallCo, as applicable; and (ii) the right to receive declared
but unpaid dividends in respect of such Exchangeable Shares. Upon delivery to
the Trustee of such Marathon Shares, the Trustee shall deliver such Marathon
Shares to such Beneficiary (or to such other persons, if any, properly
designated by such Beneficiary). Concurrently with such Beneficiary ceasing to
be a holder of Exchangeable Shares, the Beneficiary shall be considered and
deemed for all purposes to be the holder of the Marathon Shares delivered to it
pursuant to the Exchange Rights.


 


5.7                               Exercise
of Exchange Rights Subsequent to Retraction


 


In the event that a
Beneficiary has exercised its right under Article 4 of the Share
Provisions to require AcquisitionCo to redeem any or all of the Exchangeable
Shares held by the Beneficiary (the “Retracted
Shares”) and is notified by AcquisitionCo pursuant to Section 4.6
of the Share Provisions that AcquisitionCo will not be permitted as a result of
liquidity and solvency requirements of applicable law to redeem all such
Retracted Shares, and provided that neither Marathon nor CallCo shall have
exercised the Retraction Call Right with respect to the Retracted Shares and
that the Beneficiary has not revoked the retraction request delivered by the
Beneficiary to AcquisitionCo pursuant to Section 4.1 of the Share
Provisions, and provided, further, that the Trustee has received written notice
of same from Marathon, CallCo or AcquisitionCo, the retraction request will
constitute and will be deemed to constitute


 


11

















 


notice from the
Beneficiary to the Trustee instructing the Trustee to exercise the Exchange
Rights with respect to those Retracted Shares that AcquisitionCo is unable to
redeem. In any such event, AcquisitionCo hereby agrees with the Trustee and in
favour of the Beneficiary promptly to forward or cause to be forwarded to the
Trustee all relevant materials delivered by the Beneficiary to AcquisitionCo or
to the transfer agent of the Exchangeable Shares (including, without
limitation, a copy of the retraction request delivered pursuant to Section 4.1
of the Share Provisions) in connection with such proposed redemption of the
Retracted Shares and the Trustee will thereupon exercise the Exchange Rights
with respect to the Retracted Shares that AcquisitionCo is not permitted to
redeem and will require Marathon or CallCo to purchase such shares in
accordance with the provisions of this Article 5.


 


5.8                               Stamp
or Other Transfer Taxes


 


Upon any sale of
Exchangeable Shares to Marathon or CallCo pursuant to the Exchange Rights or
the Automatic Exchange Rights, the certificate or certificates representing
Marathon Shares to be delivered in connection with the payment of the total
purchase price therefor shall be issued in the name of the Beneficiary of the
Exchangeable Shares so sold or in such names as such Beneficiary may otherwise
direct in writing without charge to the holder of the Exchangeable Shares so
sold; provided, however, that such Beneficiary: (a) shall pay (and none of
Marathon, CallCo, AcquisitionCo or the Trustee shall be required to pay) any
documentary, stamp, transfer or other taxes that may be payable in respect
of any transfer involved in the issuance or delivery of such shares to a Person
other than such Beneficiary, or (b) shall have evidenced to the
satisfaction of the Trustee, Marathon, CallCo and AcquisitionCo that such
taxes, if any, have been paid.


 


5.9                               Notice
of Insolvency Event


 


As soon as practicable
following the occurrence of either an Insolvency Event or any event that with
the giving of notice or the passage of time or both would be an Insolvency
Event, Marathon, CallCo and AcquisitionCo shall give written notice thereof to
the Trustee. As soon as practicable following the receipt of notice from
Marathon, CallCo and AcquisitionCo of the occurrence of an Insolvency Event, or
upon the Trustee becoming aware of an Insolvency Event, the Trustee will mail
to each Beneficiary, at the expense of Marathon, a notice of such Insolvency
Event in the form provided by Marathon, which notice shall contain a brief
statement of the rights of the Beneficiaries with respect to the Exchange
Rights.


 


5.10                        Qualification
of Marathon Shares


 


Marathon and CallCo
covenant that if any Marathon Shares to be issued and delivered pursuant to the
Exchange Rights or the Automatic Exchange Rights require registration or
qualification with or approval of or the filing of any document, including any
prospectus, registration statement or similar document, or the taking of any
proceeding with or the obtaining of any order, ruling or consent from any
Governmental Entity under any Canadian or United States, federal, state or
provincial law or regulation or pursuant to the rules and regulations of
any regulatory authority or the fulfillment of any other Canadian federal or
provincial legal requirement before such securities may be issued and
delivered by or on behalf of Marathon or CallCo to the initial holder thereof
or in order that such securities may be freely traded in Canada or the
United States thereafter (other than any restrictions of general application on
transfer by reason of a holder being a “control person” or “affiliate”, as the
case may be, of Marathon for purposes of Canadian or U.S. securities
laws), Marathon and CallCo will in good faith expeditiously take all such
actions and do all such things as are necessary or desirable to cause such
Marathon Shares to be and remain duly registered, qualified or approved. Marathon
and CallCo will in good faith expeditiously take all such actions and do all
such things as are reasonably necessary or desirable to cause all Marathon
Shares to be delivered pursuant to the Exchange Rights or the Automatic
Exchange Rights to be listed,


 


12

















 


quoted or posted
for trading on all stock exchanges and quotation systems on which outstanding
Marathon Shares are then principally listed, quoted or posted for trading at
such time.


 


5.11                        Marathon
Shares


 


Marathon and CallCo
hereby represent, warrant and covenant that the Marathon Shares issuable as
described herein will be duly authorized and validly issued as fully paid and
non-assessable and shall be free and clear of any lien, claim or encumbrance. Marathon
hereby represents, warrants and covenants that it has irrevocably reserved for
issuance and will at all times keep available, free from pre-emptive and other
rights, out of its authorized and unissued Marathon Shares such number of
Marathon Shares (or other shares or securities into which Marathon Shares may be
reclassified or changed as contemplated by Section 2.6 of the Support
Agreement) (i) as is equal to the sum of the number of Marathon Shares
issuable upon the redemption, retraction or exchange of all (A) Exchangeable
Shares issued and outstanding from time to time and (B) Exchangeable Shares
issuable upon the exercise of all rights to acquire Exchangeable Shares
outstanding from time to time and (ii) as are now and may hereafter
be required to enable and permit AcquisitionCo to meet its obligations
hereunder, under the Support Agreement and under the Share Provisions.


 


5.12                        Automatic
Exchange on Liquidation of Marathon


 


(a)                                  Marathon
will give the Trustee written notice of each of the following events at the
time set forth below:


 


(i)                                     in
the event of any determination by the board of directors of Marathon to
institute voluntary liquidation, dissolution or winding-up proceedings with
respect to Marathon or to effect any other distribution of assets of Marathon
among the Marathon 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


 


(ii)                                  as
soon as practicable following the earlier of (A) receipt by Marathon of
notice of, and (B) Marathon otherwise becoming aware of, any threatened or
instituted claim, suit, petition or other proceedings with respect to the
involuntary liquidation, dissolution or winding-up of Marathon or to effect any
other distribution of assets of Marathon among the Marathon Shareholders for
the purpose of winding up its affairs, in each case where Marathon has failed
to contest in good faith any such proceeding commenced in respect of Marathon
within 30 days of becoming aware thereof.


 


(b)                                 As
soon as practicable following receipt by the Trustee from Marathon of notice of
any event (a “Liquidation Event”)
contemplated by Section 5.12(a)(i) or 5.12(a)(ii) above, the
Trustee will give notice thereof, in the form provided by Marathon, to the
Beneficiaries and such notice shall include a brief description of the
Automatic Exchange Rights.


 


(c)                                  In
order that the Beneficiaries will be able to participate on a pro rata basis with the holders of
Marathon Shares in the distribution of assets of Marathon in connection with a
Liquidation Event, immediately prior to the effective time (the “Liquidation Event Effective Time”) of a
Liquidation Event all of the then outstanding Exchangeable Shares shall be
automatically exchanged for Marathon Shares (the benefit in favour of
Beneficiaries of the obligation of Marathon and CallCo to effect the automatic
exchange


 


13

















 


of Exchangeable
Shares for Marathon Shares as aforesaid is defined as the “Automatic Exchange Rights”). To effect such
automatic exchange, Marathon or CallCo shall purchase immediately prior to the
Liquidation Event Effective Time each Exchangeable Share then outstanding and
held by Beneficiaries, and each Beneficiary shall sell the Exchangeable Shares
held by it at such time, for a purchase price per share determined by
multiplying the Current Market Price of a Marathon Share on the Business Day
prior to the Liquidation Event Effective Time and the Exchange Ratio as at the
Business Day prior to the Liquidation Event Effective Time. Marathon or 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. The purchase price for each such Exchangeable Share so
purchased may be satisfied only by Marathon or CallCo, as applicable,
delivering or causing to be delivered to the Trustee, on behalf of the relevant
Beneficiary, that number of Marathon Shares equal to the Exchange Ratio as at
the Business Day prior to the Liquidation Event Effective Time, such purchase
price to be paid in accordance with Section 5.12(d) (but less any
amounts withheld pursuant to Section 5.13).


 


(d)                                 Immediately
prior to the Liquidation Event Effective Time:


 


(i)                                     the
closing of the transaction of purchase and sale contemplated by the automatic
exchange of Exchangeable Shares for Marathon Shares shall be deemed to have
occurred;


 


(ii)                                  each
Beneficiary shall be deemed to have transferred to Marathon or CallCo, as
determined by Marathon at that time, all of the Beneficiary’s right, title and
interest in and to such Beneficiary’s Exchangeable Shares and the related
interest in the Trust Estate;


 


(iii)                               any
right of each such Beneficiary to receive declared and unpaid dividends from
AcquisitionCo shall be deemed to be satisfied and discharged;


 


(iv)                              each
such Beneficiary shall cease to be a holder of such Exchangeable Shares; and


 


(v)                                 Marathon
or CallCo, as applicable, shall deliver or cause to be delivered to the Trustee
on behalf of such Beneficiary the Marathon Shares issuable upon the automatic
exchange of Exchangeable Shares for Marathon Shares.


 


(e)                                  Concurrently
with such Beneficiary ceasing to be a holder of Exchangeable Shares, the
Beneficiary shall be considered and deemed for all purposes to be the holder of
the Marathon Shares issued pursuant to the automatic exchange of Exchangeable
Shares for Marathon Shares and the certificates held by the Beneficiary
previously representing the Exchangeable Shares exchanged by the Beneficiary
with Marathon or CallCo, as applicable, pursuant to such automatic exchange
shall thereafter be deemed to represent Marathon Shares issued to the
Beneficiary pursuant to such automatic exchange. Upon the request of a
Beneficiary and the surrender by the Beneficiary of Exchangeable Share
certificates deemed to represent Marathon Shares, duly endorsed in blank and
accompanied by such instruments of transfer as Marathon and CallCo may reasonably
require, Marathon or CallCo, as applicable, shall deliver or cause to be
delivered to the Beneficiary certificates representing Marathon Shares of which
the Beneficiary is the holder.


 


14

















 


5.13                        Withholding
Rights


 


Marathon, CallCo and the
Trustee shall be entitled to deduct and withhold from any consideration otherwise
payable under this Agreement to any holder of Exchangeable Shares or Marathon
Shares such amounts as Marathon, CallCo or the Trustee is required to deduct
and withhold with respect to such payment under the Tax Act or any provision of
provincial, local or foreign tax law, in each case as amended or succeeded. The
Trustee may act on the advice of counsel with respect to such matters. To
the extent that amounts are so withheld, such withheld amounts shall be treated
for all purposes as having been paid to the holder of the shares in respect of
which such deduction and withholding was made, provided that such withheld
amounts are actually remitted to the appropriate taxing authority. To the
extent that the amount so required to be deducted or withheld from any payment
to a holder exceeds the cash portion of the consideration otherwise payable to
the holder, Marathon, CallCo and the Trustee are hereby authorized to sell or
otherwise dispose of such portion of the consideration as is necessary to
provide sufficient funds to Marathon, CallCo or the Trustee, as the case may be,
to enable it to comply with such deduction or withholding requirement and
Marathon, CallCo or the Trustee shall notify the holder thereof and remit to
such holder any unapplied balance of the net proceeds of such sale. No
liability shall accrue to Marathon, the Trustee or CallCo if consideration or
other assets sold or disposed of pursuant to this Section 5.13 are sold at
a loss to such affected holder or such assets so sold or disposed of are sold
or disposed of for an amount which may be less than might otherwise have
been obtained if sold or disposed of at a different point in time or in
different circumstances.


 


5.14                        No
Fractional Entitlements


 


Notwithstanding anything
contained in this Agreement, including, without limitation, Article 5, no
Beneficiary (or the Trustee as trustee for and on behalf of, and for the use
and benefit of a Beneficiary) shall be entitled to, and Marathon and CallCo
will not deliver, fractions of Marathon Shares. Where the application of the
provisions of this Agreement, including, without limitation, Article 5,
would otherwise result in a Beneficiary (or the Trustee, on behalf of the
Beneficiary) receiving a fraction of a Marathon Share the Beneficiary (or the
Trustee on behalf of the Beneficiary) shall be entitled to receive the nearest
whole number of Marathon Shares.


 


ARTICLE 6

CONCERNING THE TRUSTEE


 


6.1                               Powers
and Duties of the Trustee


 


The rights, powers,
duties and authorities of the Trustee under this Agreement, in its capacity as
Trustee of the Trust, shall include:


 


(a)                                  receipt
and deposit of the Special Voting Shares as Trustee for and on behalf of the
Beneficiaries in accordance with the provisions of this Agreement;


 


(b)                                 delivery
of proxies and distribution of materials to Beneficiaries as provided in this
Agreement;


 


(c)                                  voting
the Beneficiary Votes in accordance with the provisions of this Agreement;


 


(d)                                 receiving
the grant of the Exchange Rights and the Automatic Exchange Rights from
Marathon and CallCo as Trustee for and on behalf of the Beneficiaries in
accordance with the provisions of this Agreement;


 


15
















 


(e)                                  exercising
the Exchange Rights and enforcing the benefit of the Automatic Exchange Rights,
in each case in accordance with the provisions of this Agreement, and in
connection therewith receiving from Beneficiaries Exchangeable Shares and other
requisite documents and distributing to such Beneficiaries Marathon Shares and
cheques, if any, to which such Beneficiaries are entitled upon the exercise of
the Exchange Rights or pursuant to the Automatic Exchange Rights, as the case may be;


 


(f)                                    holding
title to the Trust Estate;


 


(g)                                 investing
any moneys forming, from time to time, a part of the Trust Estate as
provided in this Agreement;


 


(h)                                 taking
action on its own initiative or at the direction of a Beneficiary or
Beneficiaries to enforce the obligations of Marathon, CallCo and AcquisitionCo
under this Agreement; and


 


(i)                                     taking
such other actions and doing such other things as are specifically provided in
this Agreement.


 


In the exercise of
such rights, powers, duties and authorities the Trustee shall have (and is
granted) such incidental and additional rights, powers, duties and authority
not in conflict with any of the provisions of this Agreement as the Trustee,
acting in good faith and in the reasonable exercise of its discretion, may deem
necessary, appropriate or desirable to effect the purpose of the Trust. Any
exercise of such discretionary rights, powers, duties and authorities in good
faith by the Trustee shall be final, conclusive and binding upon all persons.


 


The Trustee in
exercising its rights, powers, duties and authorities hereunder shall act
honestly and in good faith and with a view to the best interests of the
Beneficiaries and shall exercise the care, diligence and skill that a
reasonably prudent trustee would exercise in comparable circumstances.


 


The Trustee shall
not be bound to give notice or do or take any act, action or proceeding by
virtue of the powers conferred on it hereby unless and until it shall be
specifically required to do so under the terms hereof, nor shall the Trustee be
required to take any notice of, or to do, or to take any act, action or
proceeding as a result of any default or breach of any provision hereunder,
unless and until notified in writing of such default or breach, which notices
shall distinctly specify the default or breach desired to be brought to the
attention of the Trustee, and in the absence of such notice the Trustee may for
all purposes of this Agreement conclusively assume that no default or breach
has been made in the observance or performance of any of the representations,
warranties, covenants, agreements or conditions contained herein.


 


6.2                               No
Conflict of Interest


 


The Trustee represents to
Marathon, CallCo and AcquisitionCo that at the date of execution and delivery
of this Agreement there exists no material conflict of interest in the role of
the Trustee as a fiduciary hereunder and the role of the Trustee in any other
capacity. The Trustee shall, within 90 days after it becomes aware that such
material conflict of interest exists, either eliminate such material conflict
of interest or resign in the manner and with the effect specified in Article 9.
If, notwithstanding the foregoing provisions of this


 


16

















 


Section 6.2,
the Trustee has such a material conflict of interest, the validity and
enforceability of this Agreement shall not be affected in any manner whatsoever
by reason only of the existence of such material conflict of interest. If the
Trustee contravenes the foregoing provisions of this Section 6.2, any
interested party may apply to the Court of Queen’s Bench of Alberta for an
order that the Trustee be replaced as Trustee hereunder.


 


6.3                               Dealings
with Transfer Agents, Registrars, etc.


 


Marathon, CallCo and
AcquisitionCo irrevocably authorize the Trustee, from time to time, to:


 


(a)                                  consult,
communicate and otherwise deal with the respective registrars and transfer
agents, and with any subsequent registrar or transfer agent, of the
Exchangeable Shares and Marathon Shares; and


 


(b)                                 requisition,
from time to time: (i) from any such registrar or transfer agent any
information readily available from the records maintained by it which the
Trustee may reasonably require for the discharge of its duties and
responsibilities under this Agreement; and (ii) from the transfer agent of
Marathon Shares, and any subsequent transfer agent of such Marathon Shares, the
Marathon Shares certificates issuable upon the exercise from time to time of
the Exchange Rights and pursuant to the Automatic Exchange Rights.


 


Marathon and
AcquisitionCo irrevocably authorize their respective registrars and transfer
agents to comply with all such requests. Marathon covenants that it will supply
its registrar and transfer agent with duly executed Marathon Shares
certificates for the purpose of completing the exercise from time to time of
the Exchange Rights and the Automatic Exchange Rights.


 


6.4                               Books
and Records


 


The Trustee shall keep
available for inspection by Marathon, CallCo and AcquisitionCo at the Trustee’s
principal office in Calgary correct and complete books and records of account
relating to the Trust created by this Agreement, including without limitation,
all relevant data relating to mailings and instructions to and from
Beneficiaries and all transactions pursuant to the Special Voting Shares, the
Exchange Rights and the Automatic Exchange Rights. On or before January 15,
2008, and on or before January 15 in every year thereafter, so long as
this Agreement has not been terminated, the Trustee shall transmit to Marathon,
CallCo and AcquisitionCo a brief report, dated as of the preceding December 31,
with respect to:


 


(a)                                  the
property and funds comprising the Trust Estate as of that date;


 


(b)                                 the
number of exercises of the Exchange Rights, if any, and the aggregate number of
Exchangeable Shares received by the Trustee on behalf of Beneficiaries in
consideration of the issuance of Marathon Shares in connection with the
Exchange Rights, during the calendar year ended on such December 31; and


 


(c)                                  any
action taken by the Trustee in the performance of its duties under this
Agreement which it had not previously reported and which, in the Trustee’s
opinion, materially affects the Trust Estate.


 


6.5                               Income
Tax Returns and Reports


 


The Trustee shall, to the
extent necessary, prepare and file on behalf of the Trust appropriate Canadian
and United States income tax returns and any other returns or reports as may be
required by applicable law. In connection therewith, the Trustee may obtain
the advice and assistance of such experts


 


17

















 


or advisors as the
Trustee reasonably considers necessary or advisable (who may be experts or
advisors to Marathon, CallCo and AcquisitionCo). If reasonably requested by the
Trustee, Marathon, CallCo and AcquisitionCo shall retain qualified experts or
advisors for the purpose of providing such tax advice or assistance.


 


6.6                               Indemnification
Prior to Certain Actions by Trustee


 


The Trustee shall
exercise any or all of the rights, duties, powers or authorities vested in it
by this Agreement at the request, order or direction of any Beneficiary upon
such Beneficiary furnishing to the Trustee reasonable funding, security or
indemnity against the costs, expenses and liabilities which may be
incurred by the Trustee therein or thereby, provided that no Beneficiary shall
be obligated to furnish to the Trustee any such security or indemnity in
connection with the exercise by the Trustee of any of its rights, duties,
powers and authorities with respect to the Voting Rights pursuant to Article 4,
subject to Section 6.15, and with respect to the Exchange Rights pursuant
to Article 5, subject to Section 6.15, and with respect to the
Automatic Exchange Rights pursuant to Article 5.


 


None of the provisions
contained in this Agreement shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the exercise of any of its
rights, powers, duties, or authorities unless funded, given security and
indemnified as aforesaid.


 


6.7                               Action
of Beneficiaries


 


No Beneficiary shall have
the right to institute any action, suit or proceeding or to exercise any other
remedy authorized by this Agreement for the purpose of enforcing any of its
rights or for the execution of any trust or power hereunder unless the
Beneficiary has requested the Trustee to take or institute such action, suit or
proceeding and furnished the Trustee with the funds, security or indemnity
referred to in Section 6.6 and the Trustee shall have failed to act within
a reasonable time thereafter. In such case, but not otherwise, the Beneficiary
shall be entitled to take proceedings in any court of competent jurisdiction
such as the Trustee might have taken; it being understood and intended that no
one or more Beneficiaries shall have any right in any manner whatsoever to
affect, disturb or prejudice the rights hereby created by any such action, or
to enforce any right hereunder or the Voting Rights, the Exchange Rights or the
Automatic Exchange Rights except subject to the conditions and in the manner
herein provided, and that all powers and trusts hereunder shall be exercised
and all proceedings at law shall be instituted, had and maintained by the
Trustee, except only as herein provided, and in any event for the equal benefit
of all Beneficiaries.


 


6.8                               Reliance
Upon Declarations


 


The Trustee shall not be
considered to be in contravention of any of its rights, powers, duties and
authorities hereunder if, when required, it acts and relies in good faith upon
statutory declarations, certificates, opinions or reports furnished pursuant to
the provisions hereof or required by the Trustee to be furnished to it in the
exercise of its rights, powers, duties and authorities hereunder if such
statutory declarations, certificates, opinions or reports comply with the
provisions of Section 6.9, if applicable, and with any other applicable
provisions of this Agreement.


 


6.9                               Evidence
and Authority to Trustee


 


Marathon, CallCo and/or
AcquisitionCo shall furnish to the Trustee evidence of compliance with the
conditions provided for in this Agreement relating to any action or step
required or permitted to be taken by Marathon, CallCo and/or AcquisitionCo or
the Trustee under this Agreement or as a result of any obligation imposed under
this Agreement, including, without limitation, in respect of the Voting


 


18

















 


Rights, the
Exchange Rights or the Automatic Exchange Rights and the taking of any other
action to be taken by the Trustee at the request of or on the application of
Marathon, CallCo and/or AcquisitionCo promptly if and when:


 


(a)                                  such
evidence is required by any other section of this Agreement to be
furnished to the Trustee in accordance with the terms of this Section 6.9;
or


 


(b)                                 the
Trustee, in the exercise of its rights, powers, duties and authorities under
this Agreement, gives Marathon, CallCo and/or AcquisitionCo written notice
requiring it to furnish such evidence in relation to any particular action or
obligation specified in such notice.


 


Such evidence shall
consist of an Officer’s Certificate of Marathon, CallCo and/or AcquisitionCo or
a statutory declaration or a certificate made by persons entitled to sign an
Officer’s Certificate stating that any such condition has been complied with in
accordance with the terms of this Agreement.


 


Whenever such
evidence relates to a matter other than the Voting Rights, the Exchange Rights
or the Automatic Exchange Rights or the taking of any other action to be taken
by the Trustee at the request or on the application of Marathon, CallCo and/or
AcquisitionCo, and except as otherwise specifically provided herein, such
evidence may consist of a report or opinion of any solicitor, attorney,
auditor, accountant, appraiser, valuer, engineer or other expert or any other Person
whose qualifications give authority to a statement made by him, provided that
if such report or opinion is furnished by a director, officer or employee of
Marathon, CallCo and/or AcquisitionCo it shall be in the form of an
Officer’s Certificate or a statutory declaration.


 


Each statutory
declaration, Officer’s Certificate, opinion or report furnished to the Trustee
as evidence of compliance with a condition provided for in this Agreement shall
include a statement by the Person giving the evidence:


 


(a)                                  declaring
that he or she has read and understands the provisions of this Agreement
relating to the condition in question;


 


(b)                                 describing
the nature and scope of the examination or investigation upon which he or she
based the statutory declaration, certificate, statement or opinion; and


 


(c)                                  declaring
that he or she has made such examination or investigation as he or she believes
is necessary to enable him or her to make the statements or give the opinions
contained or expressed therein.


 


6.10                        Experts, Advisers
and Agents


 


The Trustee may:


 


(a)                                  in
relation to these presents act and rely on the opinion or advice of or
information obtained from any solicitor, attorney, auditor, accountant,
appraiser, valuer, engineer or other expert, whether retained by the Trustee or
by Marathon, CallCo and/or AcquisitionCo or otherwise, and may retain or
employ such assistants as may be necessary to the proper discharge of its
powers and duties and determination of its rights hereunder and may pay
proper and reasonable compensation for all such legal and other advice or
assistance as aforesaid; and


 


19

















 


(b)                                 employ
such agents and other assistants as it may reasonably require for the
proper determination and discharge of its powers and duties hereunder, and may pay
reasonable remuneration for all services performed for it (and shall be
entitled to receive reasonable remuneration for all services performed by it)
in the discharge of the trusts hereof and compensation for all disbursements,
costs and expenses made or incurred by it in the discharge of its duties
hereunder and in the management of the Trust.


 


6.11                        Investment
of Moneys Held by Trustee


 


Unless otherwise provided
in this Agreement, any moneys held by or on behalf of the Trustee which under
the terms of this Agreement may or ought to be invested or which may be
on deposit with the Trustee or which may be in the hands of the Trustee may be
invested and reinvested in the name or under the control of the Trustee, in
trust for AcquisitionCo, in securities in which, under the laws of the Province
of Alberta, trustees are authorized to invest trust moneys, provided that such
securities are stated to mature within one year after their purchase by the
Trustee, and the Trustee shall so invest such moneys on the written direction
of AcquisitionCo. Pending the investment of any moneys as hereinbefore
provided, such moneys may be deposited in the name of the Trustee in any
chartered bank in Canada (including an affiliate of the Trustee) or, with the
consent of AcquisitionCo, in the deposit department of the Trustee or any other
loan or trust company authorized to accept deposits under the laws of Canada or
any province thereof at the rate of interest then current on similar deposits,
and the Trustee shall be entitled to receive a fee from such bank, loan or
trust company for so depositing such moneys.


 


6.12                        Trustee
Not Required to Give Security


 


The Trustee shall not be
required to give any bond or security in respect of the execution of the
trusts, rights, duties, powers and authorities of this Agreement or otherwise
in respect of the premises.


 


6.13                        Trustee
Not Bound to Act on Request


 


Except as in this
Agreement otherwise specifically provided, the Trustee shall not be bound to
act in accordance with any direction or request of Marathon, CallCo and/or
AcquisitionCo or of the directors thereof until a duly authenticated copy of
the instrument or resolution containing such direction or request shall have
been delivered to the Trustee, and the Trustee shall be empowered to act upon
any such copy purporting to be authenticated and reasonably believed by the
Trustee to be genuine.


 


6.14                        Authority
to Carry on Business


 


The Trustee represents to
Marathon, CallCo and/or AcquisitionCo that at the date of execution and
delivery by it of this Agreement it is authorized to carry on the business of a
trust company in the Province of Alberta but if, notwithstanding the provisions
of this Section 6.14, it ceases to be so authorized to carry on business,
the validity and enforceability of this Agreement and the Voting Rights, the
Exchange Rights and the Automatic Exchange Rights shall not be affected in any
manner whatsoever by reason only of such event but the Trustee shall, within 90
days after ceasing to be authorized to carry on the business of a trust company
in the Province of Alberta, either become so authorized or resign in the manner
and with the effect specified in Article 9.


 


6.15                        Conflicting
Claims


 


If conflicting claims or
demands are made or asserted with respect to any interest of any Beneficiary in
any Exchangeable Shares, including any disagreement between the heirs,
representatives, successors or assigns succeeding to all or any part of
the interest of any Beneficiary in any Exchangeable


 


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Shares, resulting
in conflicting claims or demands being made in connection with such interest,
then the Trustee shall be entitled, at its sole discretion, to refuse to
recognize or to comply with any such claims or demands. In so refusing, the
Trustee may elect not to exercise any portion of the Voting Rights,
Exchange Rights or Automatic Exchange Rights subject to such conflicting claims
or demands and, in so doing, the Trustee shall not be or become liable to any
Person on account of such election or its failure or refusal to comply with any
such conflicting claims or demands. The Trustee shall be entitled to continue
to refrain from acting and to refuse to act until:


 


(a)                                  the
rights of all adverse claimants with respect to the Voting Rights, Exchange
Rights or Automatic Exchange Rights subject to such conflicting claims or
demands have been adjudicated by a final judgment of a court of competent
jurisdiction; or


 


(b)                                 all
differences with respect to the Voting Rights, Exchange Rights or Automatic
Exchange Rights subject to such conflicting claims or demands have been
conclusively settled by a valid written agreement binding on all such adverse
claimants, and the Trustee shall have been furnished with an executed copy of
such agreement certified to be in full force and effect.


 


If the Trustee
elects to recognize any claim or comply with any demand made by any such
adverse claimant, it may in its discretion require such claimant to
furnish such surety bond or other security satisfactory to the Trustee as it
shall deem appropriate to fully indemnify it as between all conflicting claims
or demands.


 


6.16                        Acceptance
of Trust


 


The Trustee hereby
accepts the Trust created and provided for by and in this Agreement and agrees
to perform the same upon the terms and conditions herein set forth and to
hold all rights, privileges and benefits conferred hereby and by law in trust
for the various Persons who shall from time to time be Beneficiaries, subject
to all the terms and conditions herein set forth.


 


ARTICLE 7

COMPENSATION


 


7.1                               Fees
and Expenses of the Trustee


 


Marathon, CallCo and
AcquisitionCo jointly and severally agree to pay the Trustee reasonable
compensation for all of the services rendered by it under this Agreement and
will reimburse the Trustee for all reasonable expenses (including, but not
limited to, taxes other than taxes based on the net income of the Trustee, fees
paid to legal counsel and other experts and advisors (provided, however, that
the payment of fees to legal counsel and other experts and advisors shall be
required to be pre-approved by AcquisitionCo) and travel expenses) and
disbursements, including the cost and expense of any suit or litigation of any
character and any proceedings before any Governmental Entity reasonably
incurred by the Trustee in connection with its duties under this Agreement;
provided that Marathon, CallCo and AcquisitionCo shall have no obligation to
reimburse the Trustee for any expenses or disbursements paid, incurred or
suffered by the Trustee in any suit or litigation in which the Trustee is
determined to have acted with gross negligence, willful misconduct or fraud.


 


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ARTICLE 8

INDEMNIFICATION AND LIMITATION OF LIABILITY


 


8.1                               Indemnification
of the Trustee


 


Marathon, CallCo and
AcquisitionCo jointly and severally agree to indemnify and hold harmless the
Trustee and each of its directors, officers, employees, shareholders and agents
appointed and acting in accordance with this Agreement (collectively, the “Indemnified Parties”) in respect of:


 


(a)                                  any
liability and all costs, charges and expenses sustained or incurred in respect
of any action, suit or proceeding that is proposed or commenced against the
Trustee or against such directors, officers, employees, shareholders or agents,
as the case may be, for or in respect of any act, omission or error in
respect of the Trustee’s acceptance or administration of the Trust and the
Trustee’s execution of all duties and responsibilities and exercise of all
powers and authorities pertaining thereto;


 


(b)                                 all
other costs, charges, taxes, penalties and interest in respect of unpaid taxes;
and


 


(c)                                  all
other expenses and liabilities sustained or incurred by the Trustee in respect
of the administration or termination of the Trust,


 


unless any of the
foregoing arise out of the gross negligence, wilful misconduct or fraud of the
Trustee or any of its directors, officers, employees, shareholders or agents,
in which case the provisions of this Section 8.1 shall not apply.


 


Marathon, CallCo and
AcquisitionCo shall be notified by the Trustee of the written assertion of a
claim or of any action commenced against any of the Indemnified Parties,
promptly after any of the Indemnified Parties shall have received any such
written assertion of a claim or shall have been served with a summons or other
first legal process giving information as to the nature and basis of the claim,
provided that the omission to so notify Marathon, CallCo and AcquisitionCo
shall not relieve Marathon, CallCo and AcquisitionCo of any liability which any
of them may have to any Indemnified Party except and only to the extent
that any such delay in or failure to give notice as herein required prejudices
the defence of such claim or action or results in any increase in the liability
which Marathon, CallCo and AcquisitionCo have under this indemnity. Subject to
subparagraph (ii) below, Marathon, CallCo and AcquisitionCo shall be
entitled to participate at their own expense in the defense and, if Marathon,
CallCo and AcquisitionCo so elect at any time after receipt of such notice, any
of them may assume the defense of any suit brought to enforce any such
claim in which case, the Trustee shall have the right to employ separate counsel
in any such suit and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Trustee unless: (i) the
employment of such counsel has been authorized in writing by Marathon, CallCo
and AcquisitionCo; or (ii) the named parties to any such suit include both
the Trustee and Marathon, CallCo or AcquisitionCo and the Trustee shall have
been advised by counsel acceptable to Marathon, CallCo or AcquisitionCo that
there may be one or more legal defenses available to the Trustee that are
different from or in addition to those available to Marathon, CallCo or
AcquisitionCo and that, in the judgment of such counsel, would present a
conflict of interest were a joint representation to be undertaken (in which
case Marathon, CallCo and AcquisitionCo shall not have the right to assume the
defense of such suit on behalf of the Trustee but shall be liable to pay the
reasonable fees and expenses of counsel for the Trustee). This indemnity shall
survive the termination of this Agreement and the resignation or removal of the
Trustee.


 


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8.2                               Limitation
of Liability


 


The Trustee shall not be
held liable for any loss which may occur by reason of depreciation of the
value of any part of the Trust Estate or any loss incurred on any
investment of funds pursuant to this Agreement, except to the extent that such
loss is principally and directly attributable to the gross negligence, willful
misconduct or fraud on the part of the Trustee.


 


ARTICLE 9

CHANGE OF TRUSTEE


 


9.1                               Resignation


 


The Trustee, or any
trustee hereafter appointed, may at any time resign by giving written
notice of such resignation to Marathon, CallCo and AcquisitionCo specifying the
date on which it desires to resign, provided that such notice shall not be
given less than sixty (60) days before such desired resignation date unless
Marathon, CallCo and AcquisitionCo otherwise agree, and provided, further, that
such resignation shall not take effect until the date of the appointment of a
successor trustee and the acceptance of such appointment by the successor
trustee. Upon receiving such notice of resignation, Marathon, CallCo and
AcquisitionCo shall promptly appoint a successor trustee, which shall be a
corporation organized and existing under the laws of Canada or any province
thereof and authorized to carry on the business of a trust company in the
Province of Alberta, by written instrument in duplicate, one copy of which
shall be delivered to the resigning trustee and one copy to the successor
trustee. Failing the appointment and acceptance of a successor trustee, a
successor trustee may be appointed by order of a court of competent
jurisdiction upon application of one or more of the parties to this Agreement. If
the retiring trustee is the party initiating an application for the appointment
of a successor trustee by order of a court of competent jurisdiction, Marathon,
CallCo and AcquisitionCo shall be jointly and severally liable to reimburse the
retiring trustee for its legal costs and expenses in connection with same.


 


9.2                               Removal


 


The Trustee, or any
trustee hereafter appointed, may (provided a successor trustee is
appointed) be removed at any time on not less than sixty (60) days’ prior
notice by written instrument executed by Marathon, CallCo and AcquisitionCo, in
duplicate, one copy of which shall be delivered to the trustee so removed and
one copy to the successor trustee.


 


9.3                               Successor
Trustee


 


Any successor trustee
appointed as provided under this Agreement shall execute, acknowledge and
deliver to Marathon, CallCo and AcquisitionCo and to its predecessor trustee an
instrument accepting such appointment. Thereupon the resignation or removal of
the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement,
with the like effect as if originally named as trustee in this Agreement. However,
on the written request of Marathon, CallCo and AcquisitionCo or of the
successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of this Agreement, execute and
deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon the request of any such successor
trustee, Marathon, CallCo, AcquisitionCo and such predecessor trustee shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Notwithstanding
the foregoing and Section 9.4 below, any corporation into or with which
the Trustee may be merged or consolidated or amalgamated, or any


 


23

















 


corporation
resulting therefrom to which the Trustee shall be a party, or any corporation
succeeding to the trust business of the Trustee shall be the successor to the
Trustee hereunder without any further act on its part or any of the
parties hereto.


 


9.4                               Notice
of Successor Trustee


 


Upon acceptance of
appointment by a successor trustee as provided herein, Marathon, CallCo or
AcquisitionCo shall cause to be mailed notice of the succession of such trustee
hereunder to each Beneficiary shown on the register of holders of Exchangeable
Shares. If Marathon, CallCo or AcquisitionCo shall fail to cause such notice to
be mailed within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of Marathon, CallCo and AcquisitionCo.


 


ARTICLE 10

SUCCESSORS


 


10.1                        Certain
Requirements in Respect of Combination, etc.


 


Marathon shall not
complete 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, and may do so if:


 


(a)                                  such
other Person or continuing entity (herein called the “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, a trust agreement supplemental hereto and such other instruments
(if any) as are satisfactory to the Trustee, acting reasonably, and in the
opinion of legal counsel to the Trustee are reasonably necessary or advisable
to evidence the assumption by the Successor of liability for all moneys payable
and property deliverable hereunder and the covenant of such 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 Marathon under this
Agreement; and


 


(b)                                 such
transaction shall, to the satisfaction of the Trustee, acting reasonably, and
in the opinion of legal counsel to the Trustee, 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 Trustee or of
the Beneficiaries hereunder.


 


10.2                        Vesting of
Powers in Successor


 


Whenever the conditions
of Section 10.1 have been duly observed and performed, the Trustee,
Successor, CallCo and AcquisitionCo shall, if required by Section 10.1,
execute and deliver the supplemental trust agreement provided for in Article 11
and thereupon Successor shall possess and from time to time may exercise each
and every right and power of Marathon under this Agreement in the name of
Marathon or otherwise and any act or proceeding by any provision of this
Agreement required to be done or performed by the Board of Directors or any
officers of AcquisitionCo on behalf of Marathon may be done and performed
with like force and effect by the directors or officers of such Successor.


 


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10.3                        Wholly-Owned
Subsidiaries


 


Nothing herein shall be
construed as preventing the combination of any wholly-owned direct or indirect
subsidiary of Marathon with or into Marathon or the winding-up, liquidation or
dissolution of any wholly-owned subsidiary of Marathon provided that the assets
of such subsidiary are transferred to Marathon or another wholly-owned direct
or indirect subsidiary of Marathon. Any such transactions are expressly
permitted by this Article 10.


 


ARTICLE 11

AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS


 


11.1                        Amendments,
Modifications, etc.


 


This Agreement may not
be amended or modified except by an agreement in writing executed by Marathon,
CallCo, AcquisitionCo and the Trustee and approved by the Beneficiaries in
accordance with Section 10.2 of the Share Provisions.


 


11.2                        Ministerial
Amendments


 


Notwithstanding the provisions
of Section 11.1, the parties to this Agreement may in writing, at any
time and from time to time, without the approval of the Beneficiaries, amend or
modify this Agreement for the purposes of:


 


(a)                                  adding
to the covenants of any or all parties hereto or any combination of them for
the protection of the Beneficiaries hereunder provided that the board of
directors of each of Marathon, CallCo and AcquisitionCo shall be of the
opinion, after consultation with counsel, that such additions will not be prejudicial
to the rights or interests of the Beneficiaries;


 


(b)                                 making
such amendments or modifications not inconsistent with this Agreement as may be
necessary or desirable with respect to matters or questions arising hereunder
which, in the good faith opinion of the board of directors of each of Marathon,
CallCo and AcquisitionCo and in the opinion of the Trustee, having in mind the
best interests of the Beneficiaries it may be expedient to make, provided
that such boards of directors and the Trustee, acting on the advice of counsel,
shall be of the opinion that such amendments and modifications will not be
prejudicial to the rights or interests of the Beneficiaries; or


 


(c)                                  making
such changes or corrections which, on the advice of counsel to Marathon, CallCo,
AcquisitionCo and the Trustee, are required for the purpose of curing or
correcting any ambiguity, defect, inconsistent provision, clerical omission,
mistake or manifest error, provided that the Trustee, acting on the advice of
counsel, and the board of directors of each of Marathon, CallCo and
AcquisitionCo shall be of the opinion that such changes or corrections will not
be prejudicial to the rights and interests of the Beneficiaries.


 


11.3                        Meeting to
Consider Amendments


 


AcquisitionCo, at the request
of Marathon, shall call a meeting or meetings of the Beneficiaries for the
purpose of considering any proposed amendment or modification requiring
approval pursuant hereto. Any such meeting or meetings shall be called and held
in accordance with the by-laws of AcquisitionCo, the Share Provisions and all
applicable laws.


 


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11.4                        Changes in
Capital of Marathon and AcquisitionCo


 


At all times after the
occurrence of any event contemplated pursuant to Section 2.6 or 2.7 of the
Support Agreement or otherwise, as a result of which either Marathon Shares or
the Exchangeable Shares or both are in any way changed, this Agreement shall
forthwith be amended and modified as necessary in order that it shall apply with
full force and effect, mutatis mutandis,
to all new securities into which Marathon Shares or the Exchangeable Shares or
both are so changed and the parties hereto shall execute and deliver a
supplemental trust agreement giving effect to and evidencing such necessary
amendments and modifications.


 


11.5                        Execution
of Supplemental Trust Agreements


 


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. From time to time AcquisitionCo (when authorized by a
resolution of the Board of Directors), Marathon (when authorized by a
resolution of the board of directors of Marathon) and CallCo (when authorized
by a resolution of the board of directors of CallCo) and the Trustee may,
subject to the provisions of these presents, and they shall, when so directed
by these presents, execute and deliver by their proper officers, trust
agreements or other instruments supplemental hereto, which thereafter shall form part hereof,
for any one or more of the following purposes:


 


(a)                                  evidencing
the succession of Successors and the covenants of and obligations assumed by
each such Successor in accordance with the provisions of Article 10 and the
successors of any successor trustee in accordance with the provisions of Article 9;


 


(b)                                 making
any additions to, deletions from or alterations of the provisions of this
Agreement or the Exchange Rights or the Automatic Exchange Rights which, in the
opinion of the Trustee, will not be prejudicial to the interests of the
Beneficiaries or are, in the opinion of counsel to the Trustee, necessary or
advisable in order to incorporate, reflect or comply with any legislation the
provisions of which apply to Marathon, CallCo, AcquisitionCo, the Trustee or
this Agreement; and


 


(c)                                  for
any other purposes not inconsistent with the provisions of this Agreement,
including without limitation, to make or evidence any amendment or modification
to this Agreement as contemplated hereby, provided that, in the opinion of the
Trustee, the rights of the Trustee and Beneficiaries will not be prejudiced
thereby.


 


ARTICLE 12

TERMINATION


 


12.1                        Term


 


The Trust created by this
Agreement shall continue until the earliest to occur of the following events:


 


(a)                                  no
outstanding Exchangeable Shares are held by a Beneficiary; and


 


(b)                                 each
of Marathon, CallCo and AcquisitionCo elects in writing to terminate the Trust
and such termination is approved by the Beneficiaries in accordance with Section 10.2
of the Share Provisions; and


 


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(c)                                  21 years after the death of the last survivor
of the descendants of Her Majesty Queen Elizabeth II living on the date of the
creation of the Trust.


 


12.2                        Survival
of Agreement


 


This Agreement shall
survive any termination of the Trust and shall continue until there are no
Exchangeable Shares outstanding held by a Beneficiary; provided, however, that
the provisions of Article 7 and Article 8 shall survive any such
termination of this Agreement.


 


ARTICLE 13

GENERAL


 


13.1                        Severability


 


If any provision of this
Agreement is held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remainder of this Agreement shall not in any
way be affected or impaired thereby and this Agreement shall be carried out as
nearly as possible in accordance with its original terms and conditions.


 


13.2                        Enurement


 


This Agreement shall be
binding upon and enure to the benefit of the parties hereto and their respective
successors and permitted assigns and to the benefit of the Beneficiaries.


 


13.3                        Notices to
Parties


 


All notices and other
communications between the parties hereunder shall be in writing and shall be
deemed to have been given if delivered personally or by confirmed fax to the
parties at the following addresses (or at such other address for such party as
shall be specified in like notice):


 


(a)                                  if
to Marathon, AcquisitionCo or CallCo, at:


Marathon Oil Corporation


5555 San Felipe Road


Houston, Texas

77056-2723


 


Attention:                                         Richard
L. Horstman, Assistant General Counsel


Fax No.:                                                   (713)
513-4172


 


(b)                                 if
to the Trustee, at:


Valiant
Trust Company


310,
606 - 4th Street SW


Calgary,
Alberta  T2P 1T1


 


Attention:                                         Manager,
Stock Transfer


Fax No.:                                                   (403)
233-2857


 


Any notice or other
communication given personally shall be deemed to have been given and received
upon delivery thereof and if given by fax shall be deemed to have been given
and received on the date of


 


27

















 


receipt thereof unless
such day is not a Business Day in which case it shall be deemed to have been
given and received upon the immediately following Business Day.


 


13.4                        Notice to
Beneficiaries


 


Any and all notices to be
given and any documents to be sent to any Beneficiaries may be given or
sent to the address of such Beneficiaries shown on the register of holders of
Exchangeable Shares in any manner permitted by the by-laws of AcquisitionCo
from time to time in force in respect of notices to shareholders and shall be
deemed to be received (if given or sent in such manner) at the time specified
in such by-laws, the provisions of which by-laws shall apply mutatis mutandis to notices or documents
as aforesaid sent to such Beneficiaries.


 


13.5                        Counterparts


 


This Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.


 


13.6                        Governing
Law


 


This Agreement shall be
construed and enforced in accordance with the laws of the Province of Alberta
and the federal laws of Canada applicable therein.


 


13.7                        Assignment
by and Successor to CallCo


 


Notwithstanding any other
provision in this Agreement to the contrary:


 


(a)                                  Any
corporation into or with which CallCo may be merged or consolidated or
amalgamated, or any corporation resulting therefrom to which CallCo shall be a
party, shall be the successor to CallCo hereunder without any further act on
its part or any of the parties hereto; and


 


(b)                                 CallCo
may transfer or assign its rights and interest in or under this Agreement
to any affiliate of AcquisitionCo or Marathon; provided, however, that such
affiliates shall expressly assume, by agreement satisfactory in form and
substance to the Trustee and executed and delivered to the Trustee, the due and
punctual performance and observance of each and every covenant and condition of
this Agreement to be performed and observed by CallCo.


 


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[Rest of the Page Left
Intentionally Blank]


 


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13.8                        Attornment


 


Each of the Trustee,
Marathon, CallCo and AcquisitionCo agrees that any action or proceeding arising
out of or relating to this Agreement may be instituted in the courts of
Alberta, waives any objection which it may have now or hereafter to the
venue of any such action or proceeding, irrevocably submits to the jurisdiction
of such courts in any such action or proceeding, agrees to be bound by any
judgment of such courts and not to seek, and hereby waives, any review of the
merits of any such judgment by the courts of any other jurisdiction.


 


IN WITNESS WHEREOF the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.


 


	
   

  	
  MARATHON OIL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David E. Roberts, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1339971 ALBERTA LTD.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard L. Horstman

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MARATHON CANADIAN OIL SANDS

  HOLDING LIMITED

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard L. Hortsman

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  VALIANT TRUST COMPANY

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bonnie Steedman

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Philip Menard

  	
   

  
					



 


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