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EXHIBIT 4.3
VOTING AND EXCHANGE TRUST AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 4th day of February, 1994.
B E T W E E N:
SOFTKEY INTERNATIONAL INC.,
a corporation subsisting under the laws
of the State of Delaware,
(hereinafter referred to as the "Parent"),
OF THE FIRST PART,
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SOFTKEY SOFTWARE PRODUCTS INC.,
a corporation subsisting under the laws
of the Province of Ontario,
(hereinafter referred to as the "Corporation"),
OF THE SECOND PART,
- and -
THE R-M TRUST COMPANY,
a trust company incorporated under the
laws of Canada,
(hereinafter referred to as the `Trustee"),
OF THE THIRD PART.
WHEREAS pursuant to a combination agreement dated as of August 17, 1993, as
amended and restated, by and among WordStar International Incorporated (the
former corporate name of the Parent), SoftKey Software Products Inc. (a
predecessor to the Corporation), Spinnaker Software Corporation and SSC
Acquisition Corporation, (such agreement as so amended and restated is
hereinafter referred to as the "Combination Agreement") the parties agreed that
as soon as practicable after the satisfaction or waiver, if permissible, of all
of the conditions set forth in the Combination Agreement to the
Spinnaker-WordStar-SoftKey Transaction, the SoftKey-WordStar Transaction or the
SoftKey-Spinnaker Transaction (as each such term is defined in the Combination
Agreement), as the case may be, but in no event later than the second business
day after the latest to occur of such conditions, the Parent and the Corporation
would execute and deliver a Voting and Exchange Trust Agreement containing the
terms and conditions set
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forth in Exhibit B to the Combination Agreement together with such other terms
and conditions as may be agreed to by the parties to the Combination Agreement
acting reasonably;
AND WHEREAS pursuant to an arrangement (the "Arrangement") effected by
articles of arrangement dated February 4, 1994 filed pursuant to the Business
Corporations Act (Ontario), SoftKey Software Products Inc. (a predecessor to the
Corporation) and 1056920 Ontario Inc. amalgamated to continue as the
Corporation;
AND WHEREAS pursuant to the Arrangement and immediately following the
above-mentioned amalgamation each issued and outstanding Class A voting common
share of the Corporation, other than those held by the Parent, was exchanged by
the holder thereof with the Parent for 3.6 issued and outstanding shares of
Common Stock of the Parent (the "Parent Common Shares") and each issued and
outstanding Class B non-voting common share of the Corporation was converted
into 3.6 issued and outstanding Exchangeable Non-Voting Shares of the
Corporation (the "Exchangeable Shares");
AND WHEREAS subsequent to the exchange of Class A voting common shares of
the Corporation for Parent Common Shares, the Parent Common Shares were
consolidated on a 1-for-10 basis;
AND WHEREAS pursuant to the Arrangement, the issued and outstanding
Exchangeable Shares were consolidated on a 1-for-10 basis;
AND WHEREAS the above-mentioned articles of arrangement set forth the
rights, privileges, restrictions and conditions (collectively the "Exchangeable
Share Provisions") attaching to the Exchangeable Shares;
AND WHEREAS the Parent is the registered and beneficial owner of all of the
issued and outstanding Class A voting common shares of the Corporation;
AND WHEREAS pursuant to the Arrangement the Parent is to provide voting
rights in the Parent to each holder (other than the Parent, its subsidiaries and
Affiliates) from time to time of Exchangeable Shares, such voting rights per
Exchangeable Share to be equivalent to the voting rights per Parent Common
Share;
AND WHEREAS pursuant to the Arrangement the Parent is to grant to and in
favour of the holders (other than the Parent, its subsidiaries and Affiliates)
from time to time of Exchangeable Shares the right, in the circumstances set
forth herein, to require the Parent to purchase from each such holder all or any
part of the Exchangeable Shares held by the holder;
AND WHEREAS the parties desire to make appropriate provision and to
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establish a procedure whereby voting rights in the Parent shall be exercisable
by holders (other than the Parent, its subsidiaries and Affiliates) from time to
time of Exchangeable Shares by and through the Trustee, which will hold legal
title to one share of Parent Special Voting Stock to which voting rights attach
for the benefit of such holders, and whereby the right to require the Parent to
purchase Exchangeable Shares from the holders thereof (other than the Parent,
its subsidiaries and Affiliates) shall be exercisable by such holders from time
to time of Exchangeable shares by and through the Trustee, which will hold legal
title to such right for the benefit of such holders;
AND WHEREAS these recitals and any statements of fact in this trust
agreement are made by the Parent and the Corporation and not by the Trustee;
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this trust agreement and for other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), the parties
agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. In this trust agreement, the following terms shall have the
following meanings:
"AFFILIATE" of any person means any other person directly or
indirectly controlled by, or under common control of, that person.
For the purposes of this definition, "control" (including,
correlative meanings, the terms "controlled by" and "under common
control of"), as applied to any person, means the possession by
another person, directly or indirectly, of the power to direct or
cause the direction of the management and policies of that first
mentioned person, whether through the ownership of voting securities,
by contract or otherwise.
"AUTOMATIC EXCHANGE RIGHTS" means the benefit of the obligation of
the Parent to effect the automatic exchange of Parent Common Shares
for Exchangeable Shares pursuant to section 5.12.
"BENEFICIARIES" means the registered holders from time to time of
Exchangeable Shares, other than the Patent, its subsidiaries and
Affiliates.
"BENEFICIARY VOTES" has the meaning ascribed thereto in section 4.2.
"BOARD OF DIRECTORS" means the Board of Directors of the Corporation.
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"BUSINESS DAY" means a day other than a Saturday, a Sunday or a
statutory holiday in the City of Toronto, Ontario or the City of
Boston, Massachusetts.
"CANADIAN DOLLAR EQUIVALENT" means in respect of an amount expressed
in a foreign currency (the "Foreign Currency Amount") at any date the
product obtained by multiplying (a) the Foreign Currency Amount by
(b) the noon spot exchange rate on such date for such foreign
currency expressed in Canadian dollars as reported by the Bank of
Canada or, in the event such spot exchange rate is not available,
such exchange rate on such date for such foreign currency expressed
in Canadian dollars as may he deemed by the Board of Directors to he
appropriate for such purpose.
"CURRENT MARKET PRICE" means, in respect of a Parent Common Share on
any date, the Canadian Dollar Equivalent of the average of the
closing bid and asked prices of Parent Common Shares during a period
of 20 consecutive trading days ending not more than five trading days
before such date on the National Market System of the National
Association of Securities Dealers Automated Quotation System, or, if
the Parent Common Shares are not then quoted on the National Market
System of the National Association of Securities Dealers Automated
Quotation System, on such other stock exchange or automated quotation
system on which the Parent Common Shares are listed or quoted, as the
case may be, as may be selected by the Board of Directors for such
purpose; provided, however, that if in the opinion of the Board of
Directors the public distribution or trading activity of Parent
Common Shares during such period does not create a market which
reflects the fair market value of a Parent Common Share, then the
Current Market Price of a Parent Common Share shall be determined by
the Board of Directors based upon the advice of such qualified
independent financial advisors as the Board of Directors of the
Parent may deem to be appropriate, and provided further that any such
selection, opinion or determination by the Board of Directors shall
be conclusive and binding.
"EXCHANGE RIGHT" has the meaning ascribed thereto in Section 5.1.
"INSOLVENCY EVENT" means the institution by the Corporation of any
proceeding to be adjudicated a bankrupt or insolvent or to be
dissolved or wound up, or the consent of the Corporation to the
institution of bankruptcy, insolvency, dissolution or winding up
proceedings against it, or the filing of a petition, answer or
consent seeking dissolution or winding up under any bankruptcy,
insolvency or analogous laws, including without limitation the
Companies Creditors' Arrangement Act (Canada) and the Bankruptcy and
Insolvency Act (Canada), and the failure by the Corporation
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to contest in good faith any such proceedings commenced in respect of
the Corporation within 15 days of becoming aware thereof, or the
consent by the Corporation to the filing of any such petition or to
the appointment of a receiver, or the making by the Corporation of a
general assignment for the benefit of creditors, or the admission in
writing by the Corporation of its inability to pay its debts
generally as they become due, or the Corporation 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.
"LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in the Plan
of Arrangement.
"LIQUIDATION EVENT" has the meaning ascribed thereto in
section 5.13(b).
"LIQUIDATION EVENT EFFECTIVE DATE" has the meaning ascribed thereto
in section 5.13(c).
"LIST" has the meaning ascribed thereto in section 4.6.
"OFFICER'S CERTIFICATE" means, with respect to the Parent or the
Corporation, as the case may be, a certificate signed by any one of
the Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice-President or any other senior officer of the
Parent or the Corporation, as the case may be.
"CONSENT" has the meaning ascribed thereto in section 4.2.
"PARENT MEETING" has the meaning ascribed thereto in section 4.2.
"PARENT SUCCESSOR" has the meaning ascribed thereto in section
11.1(a).
"PERSON" includes an individual, partnership, corporation, company,
unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative.
"PLAN OF ARRANGEMENT" means the plan of arrangement of SoftKey
Software Product Inc. (a predecessor to the Corporation) providing
for the arrangement.
"REDEMPTION CALL RIGHT" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"RETRACTED SHARES" has the meaning ascribed thereto in section 5.7.
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"RETRACTION CALL RIGHT" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"SUPPORT AGREEMENT" means that certain support agreement made as of
even date hereof between the Corporation and the Parent.
"TRUST" means the trust created by this agreement.
"TRUST ESTATE" means the Voting Share, any other securities, the
Exchange Right, the Automatic Exchange Rights and any money or other
property which may be held by the Trustee from time to time pursuant
to this trust agreement.
"TRUSTEES" means The R-M Trust Company and, subject to the provisions
of Article 10, includes any successor trustee.
"VOTING RIGHTS" means the voting rights attached to the Voting Share.
"VOTING SHARE" means the one share of Parent Special Voting Stock,
U.S. $1.00 par value, issued by the Parent to and deposited with the
Trustee, which entitles the holder of record to a number of votes at
meetings of holders of Parent Common Shares equal to the number of
Exchangeable Shares outstanding from time to time other than
Exchangeable Shares held by the Parent, its subsidiaries and
Affiliates.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this trust
agreement into articles, sections and paragraphs and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation of this trust agreement.
1.3 NUMBER, GENDER, ETC. Words importing the singular number only shall
include the plural and vice versa. Words importing the use of 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 trust 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 trust agreement is to create
the Trust for the benefit of the Beneficiaries, as herein provided. The Trustee
will hold the Voting Share in order to enable the Trustee to exercise the Voting
Rights and will hold the Exchange Right and the right to effect the automatic
exchange of Exchangeable Shares for Parent Common Shares pursuant to section
5.12 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 trust
agreement.
ARTICLE 3
VOTING SHARE
3.1 ISSUE AND OWNERSHIP OF THE VOTING SHARE. The Parent hereby issues to and
deposits with the Trustee the Voting Share to be hereafter held of record by the
Trustee as trustee for and on behalf of, and for the use and benefit of, the
Beneficiaries and in accordance with the provisions of this trust agreement. The
Parent hereby acknowledges receipt from the Trustee as trustee for and on behalf
of the Beneficiaries of good and valuable consideration (and the adequacy
thereof) for the issuance of the Voting Share by the Parent to the Trustee.
during the term of the Trust and subject to the terms and conditions of this
trust agreement, the Trustee shall posses and be vested with full legal
ownership of the Voting Share and shall be entitled to exercise all of the
rights and powers of an owner with respect to the Voting Share, provided that
the Trustee shall:
(a) hold the Voting Share and the legal title thereto as trustee solely
for the use and benefit of the Beneficiaries in accordance with the
provisions of this trust agreement; and
(b) except as specifically authorized by this trust agreement, have no
power or authority to sell, transfer, vote or otherwise deal in or
with the Voting Share and the Voting Share shall not be used or
disposed of by the Trustee for any purpose other than the purposes
for which this Trust is created pursuant to this trust agreement.
3.2 LEGENDED SHARE CERTIFICATES. The Corporation will cause each certificate
representing Exchangeable Shares to bear an appropriate legend notifying the
Beneficiaries of their right to instruct the Trustee with respect to the
exercise of the Voting Rights with respect to the Exchangeable Shares held by a
Beneficiary.
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3.3 SAFE KEEPING OF CERTIFICATE. The certificate representing the Voting
Share shall at all times be held in safe keeping by the Trustee.
ARTICLE 4
EXERCISE OF VOTING SHARE
4.1 VOTING SHARE. The Trustee, as the holder of record of the Voting Share,
shall be entitled to all of the Voting Rights, including the right to consent to
or to vote in person or by proxy the Voting Share, on any matter, question or
proposition whatsoever that may properly come before the shareholders of the
Parent at a Parent Meeting or in connection with a Parent Consent (in each case,
as hereinafter defined). The Voting Rights shall be and remain vested in and
exercised by the Trustee. Subject to section 7.15 hereof, the Trustee shall
exercise the Voting Rights only:
(a) 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 the Parent Consent is effective
or the Parent Meeting is held; or
(b) to the extent that no instructions are received from a Beneficiary
with respect to the Voting Rights to which such Beneficiary is
entitled, the Trustee shall not exercise or permit the exercise of
such Voting Rights.
4.2 NUMBER OF VOTES. With respect to all meetings of shareholders of the
Parent at which holders of Parent Common Shares are entitled to vote (a "Parent
Meeting") and with respect to all written consents sought by the Parent from its
shareholders including the holders of Parent Common Shares (a "Parent Consent"),
each Beneficiary shall be entitled to instruct the Trustee to cast and exercise
one of the votes comprised in the Voting Rights for each Exchangeable Share
owned of record by such Beneficiary on the record date established by the Parent
or by applicable law for such Parent Meeting or Parent Consent, as the case may
be (the "Beneficiary Votes") in respect of each matter, question or proposition
to be voted on at such Parent Meeting or to be consented to in connection with
such Parent Consent.
4.3 MAILINGS TO SHAREHOLDERS. With respect to each Parent Meeting and Parent
Consent, the Trustee will mail or cause to be mailed (or otherwise communicate
in the same manner as the Parent utilizes in communications to holders of Parent
Common Shares) to each of the Beneficiaries named in the List referred to in
section 4.6 on the same day as the initial mailing or notice (or other
communication) with respect thereto is given by the Parent to its shareholders:
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(a) a copy of such notice, together with any related materials to be
provided to shareholders of the Parent;
(b) a statement that such Beneficiary is entitled to instruct the
Trustee as to the exercise of the Beneficiary Votes with respect to
such Parent Meeting or Parent Consent, as the case may be, or,
pursuant to section 4.7, to attend such Parent Meeting and to
exercise personally the Beneficiary Votes thereat;
(c) a statement as to the manner in which such instructions may be
given to the Trustee, including an express indication that
instructions may be given to the Trustee to give:
(i) a proxy to such Beneficiary or his designee to exercise
personally the Beneficiary Votes; or
(ii) a proxy to a designated agent or other representatives of the
management of the Parent to exercise such Beneficiary Votes;
(d) a statement that if no such instructions are received from the
Beneficiary, the Beneficiary Votes to which such Beneficiary is
entitled will not be exercised;
(e) a form of direction whereby the Beneficiary may so direct and
instruct the Trustee as contemplated herein; and
(f) a statement of the time and date by which such instructions must be
received by the Trustee in order to be binding upon it, which in
the case of a Parent Meeting shall not be earlier than the close of
business on the second Business Day prior to such meeting, and of
the method for revoking or amending such instructions.
For the purpose of determining Beneficiary Votes to which a Beneficiary is
entitled in respect of any such Parent Meeting or Parent Consent, the number of
Exchangeable Shares owned of record by the Beneficiary shall be determined at
the close of business on the record date established by the Parent or by
applicable law for purposes of determining shareholders entitled to vote at such
Parent Meeting or to give written consent in connection with such Parent
Consent. The Parent will notify the Trustee of any decision of the Board of
Directors of the Parent with respect to the calling of any such Parent Meeting
or the seeking of any such Parent 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.
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4.4 COPIES OF SHAREHOLDER INFORMATION. The Parent will deliver to the Trustee
copies of all proxy materials, (including notices of Parent Meetings but
excluding proxies to vote Parent Common Shares), information statements, reports
(including without limitation all interim and annual financial statements) and
other written communications that are to be distributed from time to time to
holders of Parent Common Shares in sufficient quantities and in sufficient time
so as to enable the Trustee to send those materials to each Beneficiary at the
same time as such materials are first sent to holders of Parent Common Shares.
The Trustee will mail or otherwise send to each Beneficiary, at the expense of
Parent, copies of all such materials (and all materials specifically directed to
the Beneficiaries or to the Trustee for the benefit of the Beneficiaries by the
Parent) received by the Trustee from the Parent at the same time as such
materials are first sent to holders of Parent Common Shares. The Trustee will
also make available for inspection by any Beneficiary at the Trustee's principal
corporate trust office in the cities of Xxxxxxxx, Xxxxxxx and Vancouver all
proxy materials, information statements, reports and other written
communications that are:
(a) received by the Trustee as the registered holder of the Voting
Share and made available by the Parent to the holders of Parent
Common Shares; or
(b) specifically directed to the Beneficiaries or to the Trustee for
the benefit of the Beneficiaries by the Parent.
4.5 OTHER MATERIALS. Immediately after receipt by the Parent or any
shareholder of the Parent of any material sent or given to the holders of Parent
Common Shares 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),
the Parent shall use its best efforts to obtain and deliver to the Trustee
copies thereof in sufficient quantities so as to enable the Trustee to forward
such material (unless the same has been provided directly to Beneficiaries by
such third party) to each Beneficiary as soon as possible thereafter. As soon as
practicable after receipt thereof, the Trustee will mail or otherwise send to
each Beneficiary, at the expense of the Parent, copies of all such materials
received by the Trustee from the Parent. The Trustee will also make available
for inspection by any Beneficiary at the Trustee's principal corporate trust
office in the cities of Xxxxxxxx, Xxxxxxx and Vancouver copies of all such
materials.
4.6 LIST OF PERSONS ENTITLED TO VOTE. The Corporation shall, (a) prior to
each annual, general and special Parent Meeting or the seeking of any Parent
Consent and (b) forthwith upon each request made at any time by the Trustee in
writing, prepare or cause to be prepared a list (a "List") of the names and
addresses of the Beneficiaries arranged in alphabetical order and showing the
number of Exchangeable Shares held of record by each such Beneficiary, in each
case at the close of business on the date specified by the Trustee in such
request or, in the case of a List prepared in connection with a Parent Meeting
or a Parent Consent, at the close of business on the record date
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established by the Parent or pursuant to applicable law for determining the
holders of Parent Common Shares entitled to receive notice of and/or to vote at
such Parent Meeting or to give consent in connection with such Parent Consent.
Each such List shall be delivered to the Trustee promptly after receipt by the
Corporation of such request or the record date for such meeting or seeking of
consent, as the case may be, and in any event within sufficient time as to
enable the Trustee to perform its obligations under this Agreement. The Parent
agrees to give the Corporation notice (with a copy to the Trustee) of the
calling of any Parent Meeting or the seeking of any Parent 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 the Corporation 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 Parent Meeting or any Parent Consent will be entitled (a) to
instruct the Trustee in the manner described in section 4.3 with resect to the
exercise of the Beneficiary Votes to which such Beneficiary is entitled or (b)
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 except, in each case, to the extent
that such Beneficiary has transferred the ownership of any Exchangeable Shares
in respect of which such Beneficiary is entitled to Beneficiary Votes after the
close of business on the record date for such meeting or seeking of consent.
4.8 VOTING BY TRUSTEE, AND ATTENDANCE OF TRUSTEE REPRESENTATIVE, AT MEETING.
(a) In connection with each Parent Meeting and Parent Consent, the
Trustee shall exercise, either in person or by proxy, in accordance
with the instructions received from a Beneficiary pursuant to
section 43, the Beneficiary Votes as to which such Beneficiary is
entitled to direct the vote (or any lesser number thereof as may be
set forth in the instructions); provided, however, that such
written instructions are received by the Trustee from the
Beneficiary prior to the time and date fixed by it for receipt of
such instructions in the notice given by the Trustee to the
Beneficiary pursuant to section 4.3.
(b) 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 Parent Meeting. Upon submission by a
Beneficiary (or its designee) of identification 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 in respect of such
meeting, or (ii) submits to the Trustee's representatives written
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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 distributed by
the Trustee pursuant to this trust agreement shall be delivered or sent by mail
(or otherwise communicated in the same manner as the Parent utilizes in
communications to holders of Parent Common Shares) to each Beneficiary at its
address as shown on the books of the Corporation. The Corporation 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 the registered holders of
Exchangeable Shares; and
(b) upon the request of the Trustee, mailing labels to enable the
Trustee to carry out its duties under this trust agreement.
4.10 TERMINATION OF VOTING RIGHTS. All of the rights of a Beneficiary with
respect to the Beneficiary Votes exercisable in respect of the Exchangeable
Shares held by such Beneficiary, including the right to instruct the Trustee as
to the voting of or to vote personally such Beneficiary Votes, shall be deemed
to be surrendered by the Beneficiary to the Parent and such Beneficiary Votes
and the Voting Rights represented thereby shall cease immediately upon the
delivery by such holder to the Trustee of the certificates representing such
Exchangeable Shares in connection with the exercise by the Beneficiary of the
Exchange Right or the occurrence of the automatic exchange of Exchangeable
Shares for Parent Common Shares, as specified in Article 5 hereof (unless in
either case the Parent shall not have delivered the requisite Parent Common
Shares issuable in exchange therefor to the Trustee for delivery to the
Beneficiaries), or upon the redemption of Exchangeable Shares pursuant to
Article 6 or Article 7 of the Exchangeable Share Provisions, or upon the
effective date of the liquidation, dissolution or winding-up of the Corporation
pursuant to Article 5 of the Exchangeable Share Provisions, or upon the purchase
of Exchangeable Shares from the holder thereof by the Parent pursuant to the
exercise by the Parent of the Retraction Call Right, the Redemption Call Right
or the Liquidation Call Right.
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ARTICLE 5
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
5.1 GRANT AND OWNERSHIP OF THE EXCHANGE RIGHT. The Parent hereby grants to
the Trustee as trustee for and on behalf of, and for the use and benefit of, the
Beneficiaries the right (the "Exchange Right"), upon the occurrence and during
the continuance of an Insolvency Event, to require the Parent to purchase from
each or any Beneficiary all or any part of the Exchangeable Shares held by the
Beneficiary and the Automatic Exchange Rights, all in accordance with the
provisions of this agreement. The Parent 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 Right and
the Automatic Exchange Rights by the Parent to the Trustee. During the term of
the Trust and subject to the terms and conditions of this trust agreement, the
Trustee shall possess and be vested with full legal ownership of the Exchange
Right and the Automatic Exchange Rights and shall be entitled to exercise all of
the rights and powers of an owner with respect to the Exchange Right and the
Automatic Exchange Rights, provided that the Trustee shall:
(a) hold the Exchange Right and the Automatic Exchange Rights and the
legal title thereto as trustee solely for the use and benefit of
the Beneficiaries in accordance with the provisions of this trust
agreement; and
(b) except as specifically authorized by this trust agreement, have no
power or authority to exercise or otherwise deal in or with the
Exchange Right or the Automatic Exchange Rights, and the Trustee
shall not exercise any such rights for any purpose other than the
purposes for which this Trust is created pursuant to this trust
agreement.
5.2 LEGENDED SHARE CERTIFICATES. The Corporation 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 Right in respect of the Exchangeable Shares held by a
Beneficiary; and
(b) the Automatic Exchange Rights.
5.3 GENERAL EXERCISE OF EXCHANGE RIGHT. The Exchange Right shall be and
remain vested in and exercised by the Trustee. Subject to section 7.15, the
Trustee shall exercise the Exchange Right only:
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(a) on the basis of instructions received pursuant to this Article 5
from Beneficiaries entitled to instruct the Trustee as to the
exercise thereof; or
(b) to the extent that no instructions are received from a Beneficiary
with respect to the Exchange Right, the Trustee shall not exercise
or permit the exercise of the Exchange Right.
5.4 PURCHASE PRICE The purchase price payable by the Parent for each
Exchangeable Share to be purchased by the Parent under the Exchange Right shall
be an amount per share equal to (a) the Current Market Price of a Parent Common
Share on the last Business Day prior to the day of closing of the purchase and
sale of such Exchangeable Share under the Exchange Right plus (b) an additional
amount equivalent to the full amount of all dividends declared and unpaid on
each such Exchangeable Share (provided that if the record date for any such
declared and unpaid dividends occurs on or after the day of closing of such
purchase and sale the purchase price shall not include such additional amount
equivalent to the declared and unpaid dividends). In connection with each
exercise of the Exchange Right, the Parent will 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 the Parent issuing and delivering or causing
to be delivered to the Trustee, on behalf of the relevant Beneficiary, one
Parent Common Share and a cheque for the balance, if any, of the purchase price.
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 Right with respect to all or any part of the Exchangeable Shares
registered in the name of such Beneficiary on the books of the Corporation. To
cause the exercise of the Exchange Right by the Trustee, the Beneficiary shall
deliver to the Trustee, in person or by certified or registered mail, at its
principal corporate trust office in Toronto, Ontario 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 the Parent to purchase, duly endorsed in blank, and
accompanied by such other documents and instruments as may be required to effect
a transfer of Exchangeable Shares under the Business Corporations Act (Ontario)
and the by-laws of the Corporation and such additional documents and instruments
as the Trustee may reasonably require together with (a) a duly completed form of
notice of exercise of the Exchange Right, 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 Right so as
to require the Parent 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 the Parent free and
clear of all liens, claims and encumbrances, (iii) the names in which the
certificates representing the Parent Common Shares issuable in connection with
the exercise of the Exchange Right
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are to be issued and (iv) the names and addresses of the persons to whom such
new certificates should be delivered and (b) payment (or evidence satisfactory
to the Trustee, the Corporation and the Parent of payment) of the taxes (if any)
payable as contemplated by section 5.8 of this trust agreement. If only a part
of the Exchangeable Shares represented by any certificate or certificates
delivered to the Trustee are to be purchased by the Parent under the Exchange
Right, a new certificate for the balance of such Exchangeable Shares shall be
issued to the holder at the expense of the Corporation.
5.6 DELIVERY OF PARENT COMMON SHARES: EFFECT OF EXERCISE. Promptly after
receipt of the certificates representing the Exchangeable Shares which the
Beneficiary desires the Parent to purchase under the Exchange Right together
with such documents and instruments of transfer and a duly completed form of
notice of exercise of the Exchange Right (and payment of taxes, if any, or
evidence thereof), duly endorsed for transfer to the Parent, the Trustee shall
notify the Parent and the Corporation of its receipt of the same, which notice
to the Parent and the Corporation shall constitute exercise of the Exchange
Right by the Trustee on behalf of the holder of such Exchangeable Shares, and
the Parent shall immediately thereafter deliver or cause to be delivered to the
Trustee, for delivery to the Beneficiary of such Exchangeable Shares (or to such
other persons, if any, properly designated by such Beneficiary), the
certificates for the number of Parent Common Shares issuable in connection with
the exercise of the Exchange Right, which shares shall be duly issued as fully
paid and non-assessable and shall be free and clear of any lien, claim or
encumbrance, and cheques for the balance, if any, of the total purchase price
therefor; 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, the Corporation and the Parent of the payment of)
the taxes (if any) payable as contemplated by section 5.8 of this trust
agreement. Immediately upon the giving of notice by the Trustee to the Parent
and the Corporation of the exercise of the Exchange Right, as provided in this
section 5.6, the closing of the transaction of purchase and sale contemplated by
the Exchange Right shall be deemed to have occurred, and the Beneficiary of such
Exchangeable Shares shall be deemed to have transferred to the Parent all of its
right, title and interest in and to such Exchangeable Shares and in 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 the right to receive his proportionate part of the
total purchase price therefor, unless the requisite number of Parent Common
Shares (together with a cheque for the balance, if any, of the total purchase
price therefor) is not allotted, issued and delivered by the Parent to the
Trustee, for delivery to such Beneficiary (or to such other persons, if any,
properly designated by such Beneficiary), 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 Parent Common Shares are so
allotted, issued and delivered by the Parent and any such cheque is so delivered
and paid. Concurrently with such Beneficiary ceasing to be a holder of
Exchangeable Shares, the Beneficiary shall be considered and deemed for all
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purposes to be the holder of the Parent Common Shares delivered to it pursuant
to the Exchange Right.
5.7 EXERCISE OF EXCHANGE RIGHT SUBSEQUENT TO RETRACTION. In the event that a
Beneficiary has exercised its right under Article 6 of the Exchangeable Share
Provisions to require the Corporation to redeem any or all of the Exchangeable
Shares held by the Beneficiary (the "Retracted Shares") and is notified by the
Corporation pursuant to Section 6.6 of the Exchangeable Share Provisions that
the Corporation will not be permitted as a result of solvency requirements of
applicable law to redeem all such Retracted Shares, and provided that the Parent
shall not 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 the Corporation pursuant to Section 6.1 of the
Exchangeable Share Provisions, the retraction request will constitute and will
be deemed to constitute notice from the Beneficiary to the Trustee instructing
the Trustee to exercise the Exchange Right with respect to those Retracted
Shares which the Corporation is unable to redeem. In any such event, the
Corporation hereby agrees with the Trustee and in favour of the Beneficiary
immediately to notify the Trustee of such prohibition against the Corporation
redeeming all of the Retracted Shares and immediately to forward or cause to be
forwarded to the Trustee all relevant materials delivered by the Beneficiary to
the Corporation or to the transfer agent of the Exchangeable Shares (including
without limitation a copy of the retraction request delivered pursuant to
Section 6.1 of the Exchangeable Share Provisions) in connection with such
proposed redemption of the Retracted Shares and the Trustee will thereupon
exercise the Exchange Right with respect to the Retracted Shares that the
Corporation is not permitted to redeem and will require the Parent 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
the Parent pursuant to the Exchange Right or the Automatic Exchange Rights, the
share certificate or certificates representing the Parent Common 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 neither the Parent, the
Corporation nor 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 established to the satisfaction of the Trustee, the
Parent and the Corporation that such taxes, if any, have been paid.
5.9 NOTICE OF INSOLVENCY EVENT. Immediately upon the occurrence of an
Insolvency Event or any event which with the giving of notice or the passage of
time or both would be an Insolvency Event, the Corporation and the Parent shall
give written notice thereof to the Trustee. As soon as practicable after
receiving notice from the Corporation and
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the Parent or from any other person of the occurrence of an Insolvency Event,
the Trustee will mail to each Beneficiary, at the expense of the Parent, a
notice of such Insolvency Event, which notice shall contain a brief statement of
the right of the Beneficiaries with respect to the Exchange Right.
5.10 QUALIFICATION OF PARENT COMMON SHARES. The Parent covenants that if any
Parent Common Shares to be issued and delivered pursuant to the Exchange Right
or the Automatic Exchange Rights require registration or qualification with or
approval of or the filing of any document including any prospectus or similar
document or the taking of any proceeding with or the obtaining of any order,
mailing or consent from any governmental or regulatory authority under any
Canadian or United States federal, provincial or state law or regulation or
pursuant to the rules and regulations of any regulatory authority or the
fulfillment of any other legal requirement before such shares may be issued and
delivered by the Parent to the initial bolder thereof or in order that such
shares may be freely traded thereafter (other than any restrictions on transfer
by reason of a holder being a "control person of the Parent for purposes of
Canadian federal or provincial securities law or an "affiliate" of the Parent
for purposes of United States federal or state securities law), the Parent will
in good faith expeditiously take all such actions and do all such things as are
necessary or desirable to cause such Parent Common Shares to be and remain duly
registered, qualified or approved. The Parent will in good faith expeditiously
take all such actions and do all such things as are necessary or desirable to
cause all Parent Common Shares to be delivered pursuant to the Exchange Right or
the Automatic Exchange Rights to be listed, quoted or posted for trading on all
stock exchanges and quotation systems on which outstanding Parent Common Shares
are listed, quoted or posted for trading at such time.
5.11 RESERVATION OF PARENT COMMON SHARES.
The Parent 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 capital
stock such number of Parent Common Shares (a) as is equal to the sum of (i) the
number of Exchangeable Shares issued and outstanding from time to time and (ii)
the number of Exchangeable Shares issuable upon the exercise of all rights to
acquire Exchangeable Shares outstanding from time to time and (b) as are now and
may hereafter be required to enable and permit the Corporation to meet its
obligations hereunder, under the Support Agreement, under the Exchangeable Share
Provisions and under any other security or commitment pursuant to which the
Parent may now or hereafter be required to issue Parent Common Shares.
5.12 AUTOMATIC EXCHANGE ON LIQUIDATION OF PARENT.
(a) The Parent will give the Trustee notice of each of the following
events at the time set forth below:
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(i) in the event of any determination by the Board of Directors
of the Parent to institute voluntary liquidation, dissolution
or winding-up proceedings with respect to the Parent or to
effect any other distribution of assets of the Parent among
its shareholders for the purpose of winding up its affairs,
at least 60 days prior to the proposed effective date of such
liquidation, dissolution, winding-up or other distribution;
and
(ii) immediately, upon the earlier of (A) receipt by the Parent of
notice of and (B) the Parent 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 the Parent or to effect any
other distribution of assets of the Parent among its
shareholders for the purpose of winding up its affairs.
(b) Immediately following receipt by the Trustee from the Parent 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 to the Beneficiaries. Such notice shall include a brief
description of the automatic exchange of Exchangeable Shares for
Parent Common Shares provided for in section 5.12(c).
(c) In order that the Beneficiaries will be able to participate on a
pro rata basis with the holders of Parent Common Shares in the
distribution of assets of the Parent in connection with a
Liquidation Event, on the fifth Business Day prior to the effective
date (the "Liquidation Event Effective Date") of a Liquidation
Event all of the then outstanding Exchangeable Shares shall be
automatically exchanged for Parent Common Share. To effect such
automatic exchange, the Parent shall purchase each Exchangeable
Share outstanding on the fifth Business Day prior to the
Liquidation Event Effective Date and held by Beneficiaries, and
each Beneficiary shall sell the Exchangeable Shares held by it at
such time, for a purchase price per share equal to (a) the Current
Market Price of a Parent Common Share on the fifth Business Day
prior to the Liquidation Event Effective Date, which shall be
satisfied in lull by the Parent issuing to the Beneficiary one
Parent Common Share, plus (b) an additional amount equivalent to
the full amount of all dividends declared and unpaid thereon. In
connection with such automatic exchange, the Parent will provide to
the Trustee an Officer's Certificate setting forth the calculation
of the purchase price for each Exchangeable Share.
(d) On the fifth Business Day prior to the Liquidation Event Effective
Date, the closing of the transaction of purchase and sale
contemplated by the automatic exchange of Exchangeable Shares for
Parent Common Shares
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shall be deemed to have occurred, and each Beneficiary of
Exchangeable Shares shall be deemed to have transferred to the
Parent all of the Beneficiary'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 the Parent shall issue to the Beneficiary the Parent Common
Shares issuable upon the automatic exchange of Exchangeable Shares
for Parent Common Shares and shall deliver to the Trustee for
delivery to the Beneficiary a cheque for the balance, if any, of
the total purchase price for such Exchangeable Shares. 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 Parent Common Shares issued to it
pursuant to the automatic exchange of Exchangeable Shares for
Parent Common Shares and the certificates held by the Beneficiary
previously representing the Exchangeable Shares exchanged by the
Beneficiary with the Parent pursuant to such automatic exchange
shall thereafter be deemed to represent the Parent Common Shares
issued to the Beneficiary by the Parent pursuant to such automatic
exchange. Upon the request of a Beneficiary and the surrender by
the Beneficiary of Exchangeable Share certificates deemed to
represent Parent Common Shares, duly endorsed in blank and
accompanied by such instruments of transfer as the Parent may
reasonably require, the Parent shall deliver or cause to be
delivered to the Beneficiary certificates representing the Parent
Common Shares of which the Beneficiary is the holder.
ARTICLE 6
RESTRICTIONS ON ISSUE OF PARENT SPECIAL VOTING STOCK
6.1 ISSUE OF ADDITIONAL SHARES. During the term of this trust agreement, the
Parent will not issue any shares of Parent Special Voting Stock in addition to
the Voting Share.
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ARTICLE 7
CONCERNING THE TRUSTEE
7.1 POWERS AND DUTIES OF THE TRUSTEE. The rights, powers and authorities of
the Trustee under this trust agreement, in its capacity as trustee of the Trust,
shall include:
(a) purchasing the Voting Share from the Parent as trustee for and on
behalf of the Beneficiaries in accordance with the provisions of
this agreement;
(b) granting proxies and distributing materials to Beneficiaries as
provided in this trust agreement;
(c) voting the Beneficiary Votes in accordance with the provisions of
this trust agreement;
(d) receiving the grant of the Exchange Right and the Automatic
Exchange Rights from the Parent as trustee for and on behalf of the
Beneficiaries in accordance with the provisions of this trust
agreement;
(e) exercising the Exchange Right and enforcing the benefit of the
Automatic Exchange Rights, in each case in accordance with the
provisions of this trust agreement, and in connection therewith
receiving from Beneficiaries Exchangeable Shares and other
requisite documents and distributing to such Beneficiaries the
Parent Common Shares and cheques, if any, to which such
Beneficiaries are entitled upon the exercise of the Exchange Right
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 trust agreement;
(h) taking action on its own initiative or at the direction of a
Beneficiary or Beneficiaries to enforce the obligations of the
Parent under this trust agreement; and
(i) taking such other actions and doing such other things as are
specifically provided in this trust agreement.
In the exercise of such rights, powers and authorities the Trustee shall
have (and is granted) such incidental and additional rights, powers and
authority not in conflict with any of the provisions of this trust agreement as
the Trustee, acting in good faith and in the reasonable exercise of its
discretion, may deem necessary, appropriate or
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desirable to effect the purpose of the Trust. Any exercise of such discretionary
rights, powers and authorities by the Trustee shall be final, conclusive and
binding upon all persons. For greater certainty, the Trustee shall have only
those duties as are set out specifically in this trust agreement.
The Trustee in exercising its rights, powers, duties and authorities
hereunder shall act honestly and in good faith 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.
7.2 NO CONFLICT OF INTEREST. The Trustee represents to the Corporation and
the Parent that at the date of execution and delivery of this trust 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 a material
conflict of interest exists, either eliminate such material conflict of interest
or resign in the manner and with the effect specified in Article 10. If,
notwithstanding the foregoing provisions of this section 7.2, the Trustee has
such a material conflict of interest, the validity and enforceability of this
trust 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 7.2, any interested party may apply to
the Ontario Court of Justice (General Division) for an order that the Trustee be
replaced as trustee hereunder.
7.3 DEALINGS WITH TRANSFER AGENTS, REGISTRARS. ETC. The Corporation and the
Parent 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 such subsequent
registrar or transfer agent, of the Exchangeable Shares and the
Parent Common 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 trust
agreement and (ii) from the transfer agent of the Parent Common
Shares, and any subsequent transfer agent of such shares, the share
certificates issuable upon the exercise from time to time of the
Exchange Right and pursuant to the automatic exchange of
Exchangeable Shares for Parent Common Shares in the manner
specified in Article 5 hereof.
The Corporation and the Parent irrevocably authorize their respective registrars
and transfer agents to comply with all such requests. The Parent covenants that
it will supply its transfer agent with duly executed share certificates for the
purpose of completing the exercise from time to time of the Exchange Right and
the automatic
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exchange of Exchangeable Shares for Parent Common Shares, in each case pursuant
to Article 5 hereof.
7.4 BOOKS AND RECORDS. The Trustee shall keep available for inspection by the
Parent and the Corporation, at the Trustee's principal corporate trust office in
Toronto, Ontario, correct and complete books and records of account relating to
the Trustee's actions under this trust agreement, including without limitation
all information relating to mailings and instructions to and from Beneficiaries
and all transactions pursuant to the Exchange Right and the Automatic Exchange
Rights. On or before March 31, 1994, and on or before March 31 in every year
thereafter, so long as the Voting Share is on deposit with the Trustee, the
Trustee shall transmit to the Parent and the Corporation 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 Right, if any, and the
aggregate number of Exchangeable Shares received by the Trustee on
behalf of Beneficiaries in consideration of the issue and delivery
by the Parent of Parent Common Shares in connection with the
Exchange Right, during the calendar year ended on such date; and
(c) all other actions taken by the Trustee in the performance of its
duties under this trust agreement which it had not previously
reported.
7.5 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 and, in connection therewith, may obtain the advice and assistance of
such experts as the Trustee may consider necessary or advisable.
7.6 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 trust agreement at the request, order or direction of any Beneficiary upon
such Beneficiary furnishing to the Trustee reasonable funding security and
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 funding, 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 Share pursuant to Article 4 hereof,
subject to section 7.15, and with respect to the Exchange Right pursuant to
Article 5 hereof; subject to section 7.15, and with respect to the Automatic
Exchange Rights pursuant to Article 5 hereof.
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None of the provisions contained in this trust 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 funds, security and indemnified as aforesaid.
7.7 ACTIONS BY BENEFICIARIES. No Beneficiary shall have the right to
institute any action, suit or proceeding or to exercise any other remedy
authorized by this trust 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 funding, security and indemnity
referred to in section 7.6 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 under 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.
7.8 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 lists, mailing labels,
notices, statutory declarations, certificates, opinions, reports or other papers
or documents 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 lists, mailing labels, notices, statutory
declarations, certificates, opinions, reports or other papers or documents
comply with the provisions of section 7.9 hereof, if applicable, and with any
other applicable provisions of this trust agreement.
7.9 EVIDENCE AND AUTHORITY TO TRUSTEE. The Corporation and/or the Parent
shall furnish to the Trustee evidence of compliance with the conditions provided
for in this trust agreement relating to any action or step required or permitted
to be taken by the Corporation and/or the Parent or the Trustee under this trust
agreement or as a result of any obligation imposed under this trust agreement,
including, without limitation, in respect of the Voting Rights or the Exchange
Right 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 the Corporation
and/or the Parent forthwith if and when:
(a) such evidence is required by any other section of this trust
agreement to be furnished to the Trustee in accordance with the
terms of this section 7.9; or
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(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this trust agreement, gives the Corporation
and/or the Parent 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 the
Corporation and/or the Parent 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 trust
agreement.
Whenever such evidence relates to a matter other than the Voting Rights
or the Exchange Right or the automatic exchange of Exchangeable Shares for
Parent Common Shares pursuant to section 5.12, and except as otherwise
specifically provided herein, such evidence may consist of a report or opinion
of any solicitor, 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 the Corporation and/or the Parent it shall be in the form
of an Officer's Certificate or a statutory declaration.
Each statutory declaration, certificate, opinion or report furnished to
the Trustee as evidence of compliance with a condition provided for in this
trust agreement shall include a statement by the person giving the evidence:
(a) declaring that he has read and understands the provisions of this
trust agreement relating to the condition in question;
(b) describing the nature and scope of the examination or investigation
upon which he based the statutory declaration, certificate,
statement or opinion; and
(c) declaring that he has made such examination or investigation as he
believes is necessary to enable him to make the statements or give
the opinions contained or expressed therein.
7.10 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, auditor, accountant,
appraiser, valuer, engineer or other expert, whether retained by
the Trustee or by the Corporation and/or the Parent or otherwise,
and may 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
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(b) employ such agents and other assistants as it may reasonably
require for the proper 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.
7.11 INVESTMENT OF MONEYS HELD BY TRUSTEE. Unless otherwise provided in this
trust agreement, any moneys held by or on behalf of the Trustee which under the
terms of this trust 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
securities in which, under the laws of the Province of Ontario, trustees are
authorized to invest trust moneys, provided that such securities are stated to
mature within two years after their purchase by the Trustee, and the Trustee
shall so invest such moneys on the written direction of the Corporation. 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 or, with
the consent of the Corporation, 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.
7.12 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 trust agreement or otherwise in respect
of the premises.
7.13 TRUSTEE NOT BOUND TO ACT ON CORPORATION'S REQUEST. Except as in this
trust agreement otherwise specifically provided, the Trustee shall not be bound
to act in accordance with any direction or request of the Corporation and/or the
Parent 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 and rely
upon any such copy purporting to be authenticated and believed by the Trustee to
be genuine.
7.14 AUTHORITY TO CARRY ON BUSINESS. The Trustee represents to the Corporation
and the Parent that at the date of execution and delivery by it of this trust
agreement it is authorized to carry on the business of a trust company in the
Province of Ontario but if, notwithstanding the provisions of this section 7.14,
it ceases to be so authorized to carry on business, the validity and
enforceability of this trust agreement and the Voting Rights, the Exchange Right
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
Ontario, either become so authorized or resign in the manner and with the effect
specified in Article 10.
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7.15 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 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 claim or demand.
In so refusing, the Trustee may elect not to exercise any Voting Rights,
Exchange Right 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 Right 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 Right
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.
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 fully to indemnify it as between all conflicting claims
or demands.
7.16 ACCEPTANCE OF TRUST. The Trustee hereby accepts the Trust created and
provided for by and in this trust 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 8
COMPENSATION
8.1 FEES AND EXPENSES OF THE TRUSTEE. The Parent and the Corporation jointly
and severally agree to pay to the Trustee reasonable compensation for all of the
services rendered by it under this trust agreement and will reimburse the
Trustee for all reasonable expenses (including taxes) and disbursements,
including the cost and expense
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of any suit or litigation of any character and any proceeds before any
governmental agency reasonably incurred by the Trustee in connection with its
rights and duties under this trust agreement; provided that the Parent and the
Corporation 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 in bad faith or with
negligence or willful misconduct.
ARTICLE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 INDEMNIFICATION OF THE TRUSTEE. The Parent and the Corporation jointly
and severally agree to indemnify and hold harmless the Trustee and each of its
directors, officers, employees and agents appointed and acting in accordance
with this trust agreement (collectively, the "Indemnified Parties") against all
claims, losses, damages, costs, penalties, fines and reasonable expenses
(including reasonable expenses of the Trustee's legal counsel) which, without
fraud, negligence, willful misconduct or bad faith on the part of such
Indemnified Party, may be paid, incurred or suffered by the Indemnified Party by
reason of or as a result of the Trustee's acceptance or administration of the
Trust, its compliance with its duties set forth in this trust agreement, or any
written or oral instructions delivered to the Trustee by the Parent or the
Corporation pursuant hereto. In no case shall the Parent or the Corporation be
liable under this indemnity for any claim against any of the Indemnified Parties
unless the Parent and the Corporation shall be notified by the Trustee of the
written assertion of a claim or of any action commenced against 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. Subject to (ii), below, the Parent and the Corporation shall be entitled
to participate at their own expense in the defence and, if the Parent or the
Corporation so elect at any time after receipt of such notice, either of them
may assume the defence of any suit brought to enforce any such claim. The
Trustee shall have the right to employ separate counsel in any such suit and
participate in the defence 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 by the Parent or the Corporation; or (ii) the named
parties to any such suit include both the Trustee and the Parent or the
Corporation and the Trustee shall have been advised by counsel acceptable to the
Parent or the Corporation that there may be one or more legal defences available
to the Trustee which are different from or in addition to those available to the
Parent or the Corporation (in which case the Parent and the Corporation shall
not have the right to assume the defence of such suit on behalf of the Trustee
but shall be liable to pay the reasonable fees and expenses of counsel for the
Trustee).
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9.2 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
trust agreement, except to the extent that such loss is attributable to the
fraud, negligence, wilful misconduct or bad faith on the part of the Trustee.
ARTICLE 10
CHANGE OF TRUSTEE
10.1 RESIGNATION. The Trustee, or any trustee hereafter appointed, may at any
time resign by giving written notice of such resignation to the Parent and the
Corporation specifying the date on which it desires to resign, provided that
such notice shall never be given less than 30 days before such desired
resignation date unless the Parent and the Corporation 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, the Parent and
the Corporation shall promptly appoint a successor trustee by written instrument
in duplicate, one copy of which shall be delivered to the resigning trustee and
one copy to the successor trustee.
10.2 REMOVAL. The Trustee, or any trustee hereafter appointed, may be removed
at any time on 30 days' prior notice by written instrument executed by the
Parent and the Corporation, in duplicate, one copy of which shall be delivered
to the trustee so removed and one copy to the successor trustee.
10.3 SUCCESSOR TRUSTEE. Any successor trustee appointed as provided under this
trust agreement shall execute, acknowledge and deliver to the Parent and the
Corporation 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 trust agreement, with like effect as
if originally named as trustee in this trust agreement However, on the written
request of the Parent and the Corporation 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 trust 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, the Parent,
the Corporation 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.
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10.4 NOTICE OF SUCCESSOR TRUSTEE. Upon acceptance of appointment by a
successor trustee as provided herein, the Parent and the Corporation shall cause
to be mailed notice of the succession of such trustee hereunder to each
Beneficiary specified in a List. If the Parent or the Corporation 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 the Parent and the Corporation.
ARTICLE 11
PARENT SUCCESSORS
11.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC. The Parent shall not
enter into 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
corporation resulting therefrom unless, but may do so if:
(a) such other person or continuing corporation is a corporation
(herein called the "Parent Successor") incorporated under the laws
of any state of the United States or the laws of Canada or any
province thereof;
(b) the Parent Successor, by operation of law, becomes, without more,
bound by the terms and provisions of this trust 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 and in the opinion of legal counsel to the Trustee are
necessary or advisable to evidence the assumption by the Parent
Successor of liability for all moneys payable and property
deliverable hereunder and the covenant of such Parent 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 the
Parent under this trust agreement; and
(c) such transaction shall, to the satisfaction of the Trustee and in
the opinion of legal counsel to the Trustee, be upon such terms 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.
11.2 VESTING OF POWERS IN SUCCESSOR. Whenever the conditions of section 11.1
hereof have been duly observed and performed, the Trustee, if required, by
section 11.1 hereof, the Parent Successor and the Corporation shall execute and
deliver the supplemental trust agreement provided for in Article 12 and
thereupon the Parent Successor shall
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possess and from time to time may exercise each and every right and power of the
Parent under this trust agreement in the name of the Parent or otherwise and any
act or proceeding by any provision of this trust agreement required to be done
or performed by the Board of Directors of the Parent or any officers of the
Parent may be done and performed with like force and effect by the directors or
officers of such Parent Successor.
11.3 WHOLLY-OWNED SUBSIDIARIES. Nothing herein shall be construed as
preventing the amalgamation or merger of any wholly-owned subsidiary of the
Parent with or into the Parent or the winding-up, liquidation or dissolution of
any wholly-owned subsidiary of the Parent provided that all of the assets of
such subsidiary are transferred to the Parent or another wholly-owned subsidiary
of the Parent and any such transactions are expressly permitted by this Article
11.
ARTICLE 12
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
12.1 AMENDMENTS, MODIFICATIONS. ETC. This trust agreement may not be amended
or modified except by an agreement in writing executed by the Corporation, the
Parent and the Trustee and approved by the Beneficiaries in accordance with
Section 10.2 of the Exchangeable Share Provisions.
12.2 MINISTERIAL AMENDMENTS. Notwithstanding the provisions of section 12.1
hereof, the parties to this trust agreement may in writing, at any time and from
time to time, without the approval of the Beneficiaries, amend or modify this
trust agreement for it the purposes of:
(a) adding to the covenants of either or both parties hereto for the
protection of the Beneficiaries hereunder;
(b) making such amendments or modifications not inconsistent with this
trust agreement as may be necessary or desirable with respect to
matters or questions which, in the opinion of the Board of
Directors of each of the Parent and Corporation and in the opinion
of the Trustee and its counsel, having in mind the best interests
of the Beneficiaries as a whole, it may be expedient to make,
provided that such boards of directors and the Trustee and its
counsel shall be of the opinion that such amendments and
modifications will not be prejudicial to the interests of the
Beneficiaries as a whole; or
(c) making such changes or corrections which, on the advice of counsel
to the Corporation, the Parent and the Trustee, are required for
the purpose of curing or correcting any ambiguity or defect or
inconsistent provision or
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clerical omission or mistake or manifest error, provided that the
Trustee and its counsel and the Board of Directors of each of the
Corporation and the Parent shall be of the opinion that such
changes or corrections will not be prejudicial to the interests of
the Beneficiaries as a whole.
12.3 MEETING TO CONSIDER AMENDMENTS. The Corporation, at the request of the
Parent, 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 the Corporation, the Exchangeable Share Provisions and all
applicable laws.
12.4 CHANGES IN CAPITAL OF PARENT AND THE CORPORATION. At all times after the
occurrence of any event effected pursuant to section 2.7 or section 2.8 of the
Support Agreement, as a result of which either the Parent Common Shares or the
Exchangeable Shares or both are in any way changed, this trust 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 the
Parent Common 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.
12.5 EXECUTION OF SUPPLEMENTAL TRUST AGREEMENTS. No amendment to or
modification or waiver of any of the provisions of this trust agreement
otherwise permitted hereunder shall be effective unless made in writing and
signed by all of the parties hereto. From time to time the Corporation (when
authorized by a resolution of the Board of Directors), the Parent (when
authorized by a resolution of its Board of Directors) 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 Parent Successors to the Parent and
covenants of and obligations assumed by each such Parent Successor
in accordance with the provisions of Article 11 and the successor
of any successor trustee in accordance with the provisions of
Article 10;
(b) making any additions to, deletions from or alterations of the
provisions of this trust agreement or the Voting Rights, the
Exchange Right or the Automatic Exchange Rights which, in the
opinion of the Trustee and its counsel, will not be prejudicial to
the interests of the Beneficiaries as a whole 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 the Parent, the Corporation, the Trustee or this
trust agreement; and
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(c) for any other purposes not inconsistent with the provisions of this
trust 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 and its
counsel, the rights of the Trustee and the Beneficiaries as a whole
will not be prejudiced thereby.
ARTICLE 13
TERMINATION
13.1 TERM. The Trust created by this trust agreement shall continue until the
earliest to occur of the following events:
(a) no outstanding Exchangeable Shares are held by a Beneficiary;
(b) each of the Corporation and the Parent elects in writing to
terminate the Trust and such termination is approved by the
Beneficiaries of the Exchangeable Shares 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 Xxxxxx VI of the United Kingdom of Great Britain
and Northern Ireland living on the date of the creation of the
Trust.
13.2 SURVIVAL OF AGREEMENT. This trust 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
Articles 8 and 9 shall survive any such termination of this trust agreement.
ARTICLE 14
GENERAL
14.1 SEVERABILITY. If any provision of this trust agreement is held to be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remainder of this trust agreement shall not in any way be affected or
impaired thereby and the agreement shall be carried out as nearly as possible in
accordance with its original terms and conditions.
14.2 ENUREMENT. This trust 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.
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14.3 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 telecopy 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 the Parent at:
000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx
X.X.X. 00000
ATTENTION: PRESIDENT
Telecopy: (000) 000-0000
(b) if to the Corporation at:
0000 Xxxxxxxx Xxxx. East
8th Floor
Xxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
ATTENTION: PRESIDENT
Telecopy: (000) 000-0000
(c) if to the Trustee at:
if by mail:
The R-M Trust Company
P.O. Box 7010
Adelaide Street Postal Station
Toronto, Ontario
IMSC 2W9
ATTENTION: VICE-PRESIDENT
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if delivered:
The R-M Trust Company
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx
XXX 0X0
ATTENTION: VICE-PRESIDENT
Telecopy: (000) 000-0000
Any notice or other communication given personally shall be deemed to have been
given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and received on the date of 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.
14.4 NOTICE OF 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 holder shown on the register of holders of Exchangeable Shares in any
manner permitted by the by-laws of the Corporation 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 holders.
14.5 RISK OF PAYMENTS BY POST. Whenever payments are to be made or documents
are to be sent to any Beneficiary by the Trustee or by the Corporation, or by
such Beneficiary to the Trustee or to the Parent or the Corporation, the making
of such payment or sending of such document sent through the post shall be at
the risk of the Corporation, in the case of payments made or documents sent by
the Trustee or the Corporation, and the Beneficiary, in the case of payments
made or documents sent by the Beneficiary.
14.6 COUNTERPARTS. This trust 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.
14.7 JURISDICTION. This trust agreement shall be construed and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
14.8 ATTORNMENT. The Parent agrees that any action or proceeding arising out
of or relating to this trust agreement may be instituted in the courts of
Ontario, 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 the
said courts in any such action
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or proceeding, agrees to be bound by any judgment of the said courts and not to
seek, and hereby waives, any review of the merits of any such judgment by the
courts of any other jurisdiction and hereby appoints the Corporation at its
registered office in the Province of Ontario as the Parent's attorney for
service of process.
IN WITNESS WHEREOF, the parties hereto have caused this trust agreement
to be duly executed as of the date first above written.
SOFTKEY INTERNATIONAL INC.
By /s/ Xxxxxxx Xxxxx
---------------------------
/s/ Xxxxx X'Xxxxx
---------------------------
SOFTKEY SOFTWARE PRODUCTS INC.
By /s/ Authorized signatory
---------------------------
---------------------------
THE R-M TRUST COMPANY
By /s/ Xxxxx Xxxxxxxxx
---------------------------
/s/ Authorized signatory
---------------------------
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