exv10w13



 



Exhibit 10.13




FORM
OF



AMENDED AND RESTATED




DECLARATION OF TRUST




Forfeitable Exchangeable Shares




l, 2007





 









 




AMENDED AND RESTATED DECLARATION OF TRUST



Forfeitable Exchangeable Shares




THIS DECLARATION OF TRUST is made as of the l day of l, 2007, by Dennis Wilson (the “Trustee”).



WHEREAS pursuant to a stock option plan (the “Option Plan”) of LIPO Investments (Canada) Inc.(“LIPO
Canada”) dated December 1, 2005, Dennis Wilson (the “Trustee”) was appointed as trustee of the Plan
to hold legal title to the shares of LIPO Canada issued on the exercise of options granted under
the Option Plan;



AND WHEREAS pursuant to the provisions of the Option Plan certain options granted under the Option
Plan were issued and designated as “forfeitable shares” and held in trust by the Trustee for the
benefit of the holders thereof subject to certain repurchase and other rights;







AND
WHEREAS in connection with an arrangement agreement (the
“Arrangement Agreement”) dated as of April 26,
2007 among Lululemon Corp. (“Lululemon”), Lululemon
Callco ULC (“Callco”), Lulu Canadian
Holding, Inc. (“Exchangeco”), LIPO Investments (USA), Inc. and LIPO Canada, all shares of LIPO
Canada, including the “forfeitable shares” were exchanged with Exchangeco for exchangeable shares
(“Exchangeable Shares”) of Exchangeco, and none of the Trustee nor the former holders of the
options granted under the Option Plan are now shareholders or option holders of LIPO Canada, so
that it is impractical to continue to record the terms of the trust in the Option Plan;







AND WHEREAS pursuant to the Arrangement Agreement, the Trustee has agreed to enter into a
declaration of trust substantially in the form of this Trust Declaration, to amend and restate the
trust which was created under the Option Plan, to record the terms pursuant to which the Trustee
will hold Exchangeable Shares issued in respect of “forfeitable shares”;



NOW THEREFORE this Declaration records the terms on which the Trustee will hold the Trust Estate
(as defined below) in trust for the benefit of the Beneficial Holders on the terms hereof:



ARTICLE 1



DEFINITIONS




1.1 Definitions




In this Trust Declaration, the following terms shall have the following meanings:



“Arrangement” means the arrangement under part 9, division 5 of the BCA on the terms and subject to
the conditions set out in the Plan of Arrangement, subject to any amendments or variations thereto
made in accordance with Article 6 of the Arrangement Agreement or Article 6 of the Plan of
Arrangement or made at the direction of the Court in the Final Order.



“BCA” means the Business Corporations Act (British Columbia), as amended.



“Beneficial Holders” has the meaning assigned in Section 3.1.



 









 





“Board of Directors” means the board of directors of Exchangeco.



“Business Day” means any day on which commercial banks are generally open for business in
Vancouver, British Columbia and New York, New York, other than a Saturday, a Sunday or a day
observed as a holiday in Vancouver, British Columbia under the laws of the Province of British
Columbia or the federal laws of Canada or in New York, New York under the laws of the State of New
York or the federal laws of the United States of America.



“Court” means the Supreme Court of British Columbia.



“Declaration of Trust” means this Declaration of Trust as it may be amended or supplemented from
time to time.







“Effective
Date” means the date following the grant of the Final Order
on which the parties to the Arrangement Agreement agree the
Arrangement becomes effective;







“Effective Time” means the time on the Effective Date at which the Arrangement becomes effective.







“Eligible Person” means any individual regularly employed on a full-time or part-time basis by
Lululemon or any company in which Lululemon is a direct or indirect shareholder or with which
Lululemon does not act at arm’s length or other persons who perform management or consulting
services for Lululemon or any company in which Lululemon is a direct or indirect shareholder or
with which Lululemon does not act at arm’s length in any such
case on an ongoing basis.







“Exchange Trust Agreement” means the Agreement made between Lululemon, Callco, the Company and a
third party trustee in connection with the Plan of Arrangement, substantially in the form and
content of Exhibit C annexed to the Reorganization Agreement with such changes thereto as the parties
to the Arrangement Agreement, acting reasonably, may agree, a copy of which is available at the
registered office of the Company.



“Exchangeable Share Provisions” means the rights, privileges, restrictions and conditions attaching
to the Exchangeable Shares, which rights, privileges, restrictions and conditions shall be
substantially as set out in Appendix 1 of the Plan of Arrangement.



“Exchangeable Shares” means the non-voting exchangeable shares in the capital of Exchangeco, having
substantially the rights, privileges, restrictions and conditions set out in the Exchangeable Share
Provisions.



“Final Order” means the order of the Court approving the Plan of Arrangement as such order may be
amended at any time prior to the Effective Date or, if appealed, then, unless such appeal is
withdrawn or denied, as affirmed.



“Forfeitable Shares” means those Exchangeable Shares issued pursuant to the Plan of Arrangement in
exchange for LIPO Canada Shares which were designated as “forfeitable shares” pursuant to the LIPO
Option Plan, until such shares cease to be forfeitable in accordance with the conditions set out in
Appendix A.



 









 





“Government Entity” means any federal, provincial, state, local or foreign government or any court
of competent jurisdiction, administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign.



“Insolvency Event” means the institution by Exchangeco of any proceeding to be adjudicated a
bankrupt or insolvent or to be wound up, or the consent of Exchangeco to the institution of
bankruptcy, insolvency 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 Exchangeco to contest in good faith any such
proceedings commenced in respect of Exchangeco within 30 days of becoming aware thereof, or the
consent by Exchangeco to the filing of any such petition or to the appointment of a receiver, or
the making by Exchangeco of a general assignment for the benefit of creditors, or the admission in
writing by Exchangeco of its inability to pay its debts generally as they become due, or Exchangeco
not being permitted, pursuant to solvency requirements of applicable law, to redeem any Retracted
Shares pursuant to Section 6.6 of the Exchangeable Share Provisions.







“Lock-up
Agreement” means the lock-up agreement entered into by each
of the Beneficial Holders pursuant to the terms of the Reorganization
Agreement.







“Lululemon Common Stock” means the common stock of Lululemon, par value US$0.01 per share and any
other securities into which such shares may be changed.



“person” means any individual, a general or limited partnership, a corporation, a trust, a joint
venture, an unincorporated organization, a limited liability entity, any other entity and any
Government Entity.



“Plan of Arrangement” means the plan of arrangement substantially in the form and content of
Exhibit B to the Arrangement Agreement and any amendments or variations thereto made in accordance
with Article 6 of the Arrangement Agreement or Article 6 of the Plan of Arrangement or made at the
direction of the Court.



“Reorganization
Agreement” means the Agreement and Plan of Reorganization
dated April 26, 2007 by and among Lululemon, Exchangeco, LIPO
Canada, LIPO USA and certain other parties.




“Subsidiary” of any person means any corporation or other organization whether incorporated or
unincorporated of which at least a majority of the securities or interests having by the terms
thereof ordinary voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other organization is directly or
indirectly owned or controlled (i) by such person, (ii) by any one or more of its subsidiaries, or
(iii) by such person and one or more of its subsidiaries; provided, however, that no person that is
not directly or indirectly wholly-owned by any other person shall be a subsidiary of such other
person unless such other person controls, or has the right, power or ability to control, that
person.



“Trust” means the trust created by this Trust Declaration.







“Trust
Estate” means the Forfeitable Shares, any other securities and any money or other
property which may be held by the Trustee from time to time pursuant to this Trust Declaration.







“Trustee” means Dennis Wilson and, subject to the provisions of Article 6, includes any successor
trustee.



 









 





ARTICLE 2



PURPOSE OF TRUST DECLARATION




2.1 Continuance of Trust




Effective as at the time of the amendment of the Option Plan pursuant to the Plan of Arrangement,
the trust established by the Option Plan is hereby continued for the benefit of the Beneficial
Holders from time to time, and the Trustee agrees to hold the Forfeitable Shares and the Trust
Estate as trustee for the Beneficial Holders on the terms set out in this Trust Declaration.



ARTICLE 3



PROVISIONS APPLICABLE TO FORFEITABLE SHARES




3.1 Forfeitable Shares




Upon completion of the Plan of Arrangement, the Forfeitable Shares shall be issued to and
registered in the name of the Trustee, to be held in trust for the respective beneficial holders
(the “Beneficial Holders”) thereof pursuant to the terms of this Article 3. Shares which are
designated as Forfeitable Shares will be entitled to become non-forfeitable in accordance with the
conditions set out in Appendix A.



3.2 Trustee Agreements Related to Forfeitable Shares




The Trustee acknowledges and agrees that, other than as set forth in this Trust Declaration:




	 	(a)	 	the Trustee will hold legal title to the Forfeitable Shares as nominee, agent
and trustee for the benefit and account of the respective Beneficial Holders thereof as
principal and beneficial owner subject to and in accordance with this Article 3 and
subject to the terms and conditions of any transfer, deed, shareholder agreement or
other instrument, document or encumbrance pertaining to the Forfeitable Shares;
	 
	 	(b)	 	subject to forfeiture pursuant to Section 3.4, any benefit, interest, profit or
advantage arising out of or accruing from such Forfeitable Shares is and will continue
to be a benefit, interest, profit or advantage of the Beneficial Holder and if received
by the Trustee will be received and held by the Trustee for the use, benefit and
advantage of the Beneficial Holder and the Trustee will account to the Beneficial
Holder for any money or other consideration paid to or to the order of the Trustee in
connection with the Trust Estate;
	 
	 	(c)	 	the Trustee may at his discretion, whether on his own initiative or upon with
the direction of such Beneficial Holder, act as the agent of the Beneficial Holder, as
principal, in respect of any matter relating to such Forfeitable Shares or the
performance or observance of any contract or Agreement relating to the Forfeitable
Shares; and
	 
	 	(d)	 	the Trustee will have the full right and power to execute and deliver, under
seal and otherwise, any shareholder agreement or other instrument or document




 









 






	 	 	 	pertaining to the Forfeitable Shares without delivering proof to any person
(including, without limitation, any other party to any such instrument or document)
of its authority to do so and any person may act in reliance on any such instrument
or document and for all purposes any such instrument or document will be binding on
the Beneficial Holder.





3.3 Voting Rights




Notwithstanding anything to the contrary contained herein, the Trustee shall have sole power in his
absolute discretion to exercise the voting rights with respect to all Forfeitable Shares
outstanding, from time to time, for his own benefit, until such shares cease to be Forfeitable
Shares.



3.4 Forfeiture of Shares





	 	(a)	 	Upon the date on which a holder of Forfeitable Shares ceases to be an Eligible
Person then the Trustee shall repurchase all Forfeitable Shares which it holds on
behalf of such holder including any benefit, interest, profit or advantage which may
have arisen or may in the future arise out of or accrue from such Forfeitable Shares,
for cash in an amount equal to the price paid for the shares of LIPO Canada upon
issuance thereof which were exchanged for such Forfeitable Shares pursuant to the Plan
of Arrangement.
	 
	 	(b)	 	Immediately following the payment of the purchase price referred to in Section
3.4(a) the Trustee shall distribute such funds to the Beneficial Holder and the Trustee
shall be the sole registered and beneficial owner of such Forfeitable Shares and all
such benefits, interest, profit or advantage.





3.5 Ceasing to be Forfeitable Shares








Upon the
later of (a) an Exchangeable Share ceasing to be a Forfeitable Share
and (b) the expiry of the Lock-up Agreement to which the Beneficial
Holder is a party, the provisions of this Article 3
shall cease to apply to such Share and legal title will pass to the Beneficial Holder thereof who
shall thenceforth be the sole legal and beneficial owner thereof. Promptly thereafter the Trustee
shall direct Exchangeco’s transfer agent to reregister such share in the name of such Beneficial
Holder, direct Exchangeco to deliver or cause to be delivered such re-registered share certificate
to the Beneficial Holder promptly after receipt thereof from the transfer agent and pay over to the
Beneficial Holder all benefits, interest, profit or advantage which have been received by the
Trustee in respect of such Forfeitable Shares.







ARTICLE 4



CONCERNING THE TRUSTEE




4.1 Powers and Duties of the Trustee




In addition to the rights set out in Article 3, but subject to his duties and obligations
hereunder, the Trustee will have in his capacity as Trustee of the Trust, the unfettered discretion
at any time and from time to time to administer the Trust Estate in whatever manner the Trustee may
determine, as if he were the sole owner of the Trust Estate, including, without limitation, the
power, duty and authority to:



 









 






	 	(a)	 	hold title to the Trust Estate;
	 
	 	(b)	 	invest any moneys forming, from time to time, a part of the Trust Estate as
provided in this Trust Declaration;
	 
	 	(c)	 	accelerate the vesting provisions attached to some or all of the Forfeitable
Shares;
	 
	 	(d)	 	consent to the transfer of a beneficial interest in the Forfeitable Shares to
an Eligible Person;
	 
	 	(e)	 	exchange the Forfeitable Shares or any part of the Trust Estate for other
property; and
	 
	 	(f)	 	take such other actions and doing such other things as are specifically
provided in this Trust Declaration.





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 Trust Declaration 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 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 Beneficial Holders and shall
exercise the care, diligence and skill that a reasonable person 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 he 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 Trust Declaration 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.



4.2 Income Tax Returns and Reports




The Trustee shall, to the extent necessary, prepare and file on behalf of the Trust appropriate
United States and Canadian income tax returns and any other returns or reports as may be required
by applicable law or pursuant to the rules and regulations of any securities exchange or other
trading system through which the Exchangeable Shares are traded. In connection therewith, the
Trustee may obtain the advice and assistance of such experts or advisors as the Trustee considers
necessary or advisable (who may be experts or advisors to Lululemon or Exchangeco).



 









 





4.3 Action of Beneficial Holders




No Beneficial Holder shall have the right to institute any action, suit or proceeding or to
exercise any other remedy authorized by this Trust Declaration for the purpose of enforcing any of
its rights or for the execution of any trust or power hereunder unless the Beneficial Holder has
requested the Trustee to take or institute such action, suit or proceeding and the Trustee shall
have failed to act within a reasonable time thereafter. In such case, but not otherwise, the
Beneficial Holder shall be entitled to take proceedings in any court of competent jurisdiction such
as the Trustee might have taken; it being understood and intended that no one or more Beneficial
Holders shall have any right in any manner whatsoever to affect, disturb or prejudice the rights
hereby created by any such action, or to enforce any right hereunder, 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 Beneficial Holders.



4.4 Reliance Upon Declarations




The Trustee shall not be considered to be in contravention of any of his 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 this Trust Declaration.



4.5 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 Trust Declaration.



4.6 Conflicting Claims




If conflicting claims or demands are made or asserted with respect to any interest of any
Beneficial Holder in any Exchangeable Shares, including any disagreement between the heirs,
representatives, successors or assigns succeeding to all or any part of the interest of any
Beneficial Holder in any Exchangeable Shares, resulting in conflicting claims or demands being made
in connection with such interest, then the Trustee shall be entitled, at its sole discretion, to
refuse to recognize or to comply with any such claims or demands. In so refusing, the Trustee may
elect not to exercise any rights hereunder 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 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 other 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.



4.7 Acceptance of Trust




The Trustee hereby accepts the Trust created and provided for by and in this Trust Declaration 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 Beneficial Holders, subject to all the terms and conditions herein set forth.



ARTICLE 5



LIMITATION OF LIABILITY




5.1 Limitation of Liability




The Trustee shall not be held liable for any loss or damage relating to any matter regarding the
Trust or the performance of its duties and obligations hereunder, including, without limitation,
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 Trust Declaration, except to the
extent that such loss is attributable to the fraud, gross negligence, recklessness, wilful
misconduct or bad faith on the part of the Trustee.



The Trustee will not be liable to the Trust or to any Beneficial Holder for the acts, omissions,
receipts, neglects or defaults of any person, firm or corporation employed or engaged by it as
permitted hereunder, or for joining in any receipt or act of conformity, or for any loss, damage or
expense caused to the Trust through the insufficiency or deficiency of any security in or upon
which any of the monies of or belonging to the Trust shall be laid out or invested, or for any loss
or damage arising from the bankruptcy, insolvency or tortious act of any person, firm or
corporation with whom or which the Trust Estate or any part of it shall be lodged or deposited, or
for any loss occasioned by error in judgment or oversight on the part of the Trustee, or for any
other loss, damage or misfortune which may happen in the execution by the Trustee of his duties
hereunder, except to the extent that the Trustee does not meet the standard of care set out in
Section 4.1 and except as set out in this Article 5.



ARTICLE 6



CHANGE OF TRUSTEE




6.1 Resignation




The Trustee, or any Trustee hereafter appointed, may at any time resign by appointing a successor
trustee provided 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.



6.2 Successor Trustee




Any successor trustee appointed as provided under this Trust Declaration shall execute 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 Trust Declaration, with the like effect as if originally named as trustee in
this Trust Declaration.



6.3 Declaration of Trustee




If the Trustee dies during the term of this Trust before he has resigned and appointed a successor
trustee, the persons who are the executors and trustees of the last will and testament of the
Trustee will have the right to appoint a successor trustee of the Trust.



6.4 Notice of Successor Trustee




Upon acceptance of appointment by a successor trustee as provided herein, the successor trustee
shall cause to be mailed notice of the succession of such trustee hereunder to each Beneficial
Holder.



ARTICLE 7



AMENDMENTS AND SUPPLEMENTAL TRUST DECLARATIONS




7.1 Amendments, Modifications, etc.




This Trust Declaration may not be amended or modified except by an Agreement in writing executed by
the Trustee and approved by the Beneficial Holders in accordance with Section 10.2 of the
Exchangeable Share Provisions.



7.2 Ministerial Amendments




Notwithstanding the provisions of Section 7.1, the Trustee may in writing, at any time and from
time to time, without the approval of the Beneficial Holders, amend or modify this Trust
Declaration for the purposes of:




	 	(a)	 	adding to the covenants of any or all parties hereto for the protection of the
Beneficial Holders hereunder if the Trustee is of the good faith opinion that such
additions will not be prejudicial to the rights or interests of the Beneficial Holders;
	 
	 	(b)	 	making such amendments or modifications not inconsistent with this Trust
Declaration as may be necessary or desirable with respect to matters or questions
which, in the good faith opinion of the Trustee, having in mind the best interests of
the Beneficial Holders it may be expedient to make, provided that the Trustee,




 









 






	 	 	 	acting on the advice of counsel, is of the opinion that such amendments and
modifications will not be prejudicial to the interests of the Beneficial Holders; or
	 
	 	(c)	 	making such changes or corrections which, on the advice of counsel to the
Trustee, are required for the purpose of curing or correcting any ambiguity or defect
or inconsistent provision or clerical omission or mistake or manifest error, provided
that the Trustee, acting on the advice of counsel is of the opinion that such changes
or corrections will not be prejudicial to the rights and interests of the Beneficial
Holders.





7.3 Meeting to Consider Amendments




The Trustee will request Exchangeco to call a meeting or meetings of the Beneficial Holders 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 articles of
Exchangeco, the Exchangeable Share Provisions and all applicable laws.



7.4 Execution of Supplemental Trust Declarations




No amendment to or modification or waiver of any of the provisions of this Trust Declaration
otherwise permitted hereunder shall be effective unless made in writing and signed by the Trustee.
From time to time, the Trustee may, subject to the provisions of this Trust Declaration, execute
and deliver, trust agreements or other instruments supplemental hereto, which thereafter shall form
part hereof, for any one or more of the following purposes:




	 	(a)	 	making any additions to, deletions from or alterations of the provisions of
this Trust Declaration, which, in the opinion of the Trustee, will not be prejudicial
to the interests of the Beneficial Holders 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 Lululemon, Exchangeco, the Trustee or this
Trust Declaration; and
	 
	 	(b)	 	for any other purposes not inconsistent with the provisions of this Trust
Declaration, including without limitation, to make or evidence any amendment or
modification to this Trust Declaration as contemplated hereby, provided that, in the
opinion of the Trustee, the rights of the Trustee and Beneficial Holders will not be
prejudiced thereby.





ARTICLE 8



TERMINATION




8.1 Term




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




	 	(a)	 	no outstanding Forfeitable Shares are held by the Trustee;




 









 






	 	(b)	 	the Trustee elects in writing to terminate the Trust and such termination is
approved by the Beneficial Holders in accordance with section 10.2 of the Exchangeable
Share Provisions; and
	 
	 	(c)	 	21 years after the death of the last survivor of the descendants of His Majesty
King George VI of Canada and the United Kingdom of Great Britain and Northern Ireland
living on the date of the creation of the Trust.





8.2 Survival of Trust Declaration




This Trust Declaration shall survive any termination of the Trust and shall continue until there
are no Forfeitable Shares outstanding held by the Trustee; provided, however, that the provisions
of Article 5 shall survive any such termination of this Trust Declaration.



ARTICLE 9



GENERAL




9.1 Notices




All notices, requests, claims, demands, waivers and other communications under this Trust
Declaration shall be in writing and shall be deemed given (a) five Business Days following sending
by registered or certified mail, postage prepaid, (b) when sent, if sent by facsimile, provided
that the facsimile transmission is promptly confirmed by telephone, (c) when delivered, if
delivered personally to the intended recipient and (d) one Business Day following sending by
overnight delivery via a courier service that is nationally recognized in the U.S. and Canada and,
in each case, addressed to a party at the following address for such party.




If to the Trustee, to:



Dennis Wilson

#2 2108 West 4th Avenue

Vancouver, BC V6K 1N6





If to the Beneficial Holders to the last address in the central securities register for
Exchangeco.



or to such other address(es) as shall be furnished in writing by any such party to the other party
hereto in accordance with the provisions of this Section 9.1.



9.2 Interpretation




When a reference is made in this Trust Declaration to an Article or a section, such reference shall
be to an Article or a section of this Trust Declaration unless otherwise indicated. The table of
contents and headings contained in this Trust Declaration are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Trust Declaration. Whenever the words
‘include’, ‘includes’ or ‘including’ are used in this Trust Declaration, they shall be deemed to be
followed by the words ‘without limitation’. The terms ‘this Trust Declaration’, ‘hereof’, ‘herein’
and ‘hereunder’ and similar expressions refer to this Trust Declaration and not to any particular
Article, section or other portion hereof and include any agreement or instrument



 









 







supplementary or ancillary hereto. Words importing the singular number only shall include the
plural and vice versa. Words importing any gender shall include all genders. If any date on which
any action is required to be taken under this Trust Declaration is not a Business Day, such action
shall be required to be taken on the next succeeding Business Day.



9.3 Severability




If any term or other provision of this Trust Declaration is invalid, illegal or incapable of being
enforced by any rule or law, or public policy, all other conditions and provisions of this Trust
Declaration shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Trust
Declaration so as to effect the original intent of the parties as closely as possible to the end
that the transactions contemplated hereby are fulfilled to the extent possible.



9.4 Counterparts




This Trust Declaration may be executed in one or more counterparts, all of which shall be
considered one and the same Trust Declaration and shall become effective when one or more
counterparts have been signed by each of the parties hereto and delivered to the other parties.



9.5 Governing Law




This Trust Declaration shall be governed by, and construed in accordance with, the laws of the
Province of British Columbia and the laws of Canada applicable therein, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.



9.6 Enforcement




The parties hereto agree that irreparable damage would occur in the event that any of the
provisions of this Trust Declaration were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to an
injunction or injunctions to prevent breaches of any provision of this Trust Declaration and to
enforce specifically the terms and provisions of this Trust Declaration in any court of competent
jurisdiction in the Province of British Columbia, this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the parties hereto (a) consents
to submit itself to the personal jurisdiction of any court of competent jurisdiction in the
Province of British Columbia, in the event any dispute arises out of this Trust Declaration, (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (c) agrees that it will not bring any action relating to
this Trust Declaration in any court other than any court of competent jurisdiction in the Province
of British Columbia, and (d) waives any right to trial by jury with respect to any action related
to or arising out of this Trust Declaration.



 









 





9.7 No Waiver




No provisions of this Trust Declaration shall be deemed waived by any party, unless such waiver is
in writing and signed by the authorized representatives of the person against whom it is sought to
enforce such waiver.



9.8 Expenses




Except as expressly set forth in this Trust Declaration, all costs and expenses and third party
fees, paid or incurred in connection with this Trust Declaration shall be paid in accordance with
section 7.6 of the Arrangement Agreement.



9.9 Further Assurances




From time to time, as and when requested by any party, each party shall execute and deliver, or
cause to be executed and delivered, all such documents and instruments and shall take, or cause to
be taken, all such further or other actions, as such other party may reasonably deem necessary or
desirable to consummate the transactions contemplated by this Trust Declaration.



IN WITNESS WHEREOF the Trustee has caused this Trust Declaration to be duly executed under seal as
of the date first above written.



	 	 	 	 	 
	By :
	 	 	 	 
	 

	 	 	 	 
	 

	 	DENNIS WILSON, in his capacity as trustee	 	 
















 









 












APPENDIX A




RELEASE CONDITIONS ATTACHED TO FORFEITABLE SHARES




The
number of Exchangeable Shares which cease to be forfeitable on the dates set out below shall be

determined by multiplying the appropriate number in the chart below by the Exchange Ratio (as

defined in the Plan of Arrangement).




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Beneficial Holder	 	December 5, 2007	 	December 5, 2008	 	December 5, 2009	 	Total
	Darrell Kopke
	 	 	238,312	 	 	 	111,122	 	 	 	27,662	 	 	 	377,096	 
	Deanne Schweitzer
	 	 	158,875	 	 	 	74,082	 	 	 	18,439	 	 	 	251,396	 
	Christopher Ng
	 	 	48,525	 	 	 	48,525	 	 	 	27,661	 	 	 	124,711	 
	Shannon Wilson
	 	 	105,917	 	 	 	49,388	 	 	 	12,292	 	 	 	167,597	 
	Delaney Schweitzer
	 	 	59,702	 	 	 	43,214	 	 	 	10,756	 	 	 	113,672	 
	Julianne Lee
	 	 	52,084	 	 	 	52,084	 	 	 	13,829	 	 	 	117,997	 
	Bree Stanlake
	 	 	45,128	 	 	 	45,128	 	 	 	13,832	 	 	 	104,088	 
	Karen Wyder
	 	 	73,513	 	 	 	61,735	 	 	 	15,364	 	 	 	150,612	 
	Brian Bacon
	 	 	76,346	 	 	 	76,346	 	 	 	27,661	 	 	 	180,353	 
	Chloe Gow-Jarrett
	 	 	50,147	 	 	 	33,954	 	 	 	8,452	 	 	 	92,553	 
	Cassandra Sze
	 	 	30,695	 	 	 	27,781	 	 	 	6,916	 	 	 	65,392	 
	Erin Westelman
	 	 	22,546	 	 	 	22,546	 	 	 	9,989	 	 	 	55,081	 
	David Andru
	 	 	10,372	 	 	 	10,372	 	 	 	10,373	 	 	 	31,117	 
	Jenna Hills
	 	 	35,730	 	 	 	27,781	 	 	 	6,914	 	 	 	70,425	 
	Laura Rowse
	 	 	20,219	 	 	 	20,219	 	 	 	11,525	 	 	 	51,963	 
	Lisa Fuhrman
	 	 	27,578	 	 	 	27,578	 	 	 	8,453	 	 	 	63,609	 
	Kerry Brown
	 	 	17,692	 	 	 	17,692	 	 	 	14,137	 	 	 	49,521	 
	Jeremy Wong
	 	 	27,049	 	 	 	24,694	 	 	 	6,147	 	 	 	57,890	 
	Bonnie Fung
	 	 	7,171	 	 	 	7,171	 	 	 	7,172	 	 	 	21,514	 
	Erica Larsen
	 	 	935	 	 	 	935	 	 	 	935	 	 	 	2,805	 
	Andrea Murray
	 	 	51,458	 	 	 	43,214	 	 	 	10,757	 	 	 	105,429	 
	Jeramiah Morris
	 	 	24,303	 	 	 	24,303	 	 	 	6,915	 	 	 	55,521	 
	Diana Mulvey
	 	 	11,525	 	 	 	11,525	 	 	 	11,525	 	 	 	34,575	 
	TOTAL
	 	 	1,195,822	 	 	 	861,389	 	 	 	287,706	 	 	 	2,344,917