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EXHIBIT 10.5
FORM OF CUSTODY AGREEMENT
MEMORANDUM OF AGREEMENT made as of the day of , 2000.
BETWEEN:
VIVENDI, a corporation existing under the laws of France (hereinafter
referred to as "Vivendi", as such term is modified in section 1.1 of the
Merger Agreement),
-and -
3744531 CANADA INC., a corporation existing under the laws of Canada
(hereinafter referred to as "Vivendi Exchangeco"),
-and -
[ ], a trust company incorporated under the laws of Canada
(hereinafter referred to as the "Custodian"),
WHEREAS in connection with a merger agreement (the "Merger Agreement") made
as of June 19, 2000 among Vivendi (by a predecessor corporation), The Seagram
Company Ltd., a corporation existing under the laws of Canada ("Seagram"), and
the other parties thereto, Vivendi Exchangeco is to issue exchangeable shares
(the "Exchangeable Shares") to certain holders of securities of Seagram under a
plan of arrangement (the "Arrangement") contemplated in the Merger Agreement;
AND WHEREAS under the Merger Agreement, Vivendi and Vivendi Exchangeco are
required to execute a custody agreement substantially in the form of this
Agreement;
NOW THEREFORE in consideration of the foregoing and the mutual agreements
contained herein and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto covenant and
agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1. Definitions. In this Agreement, the following terms shall have the
following meanings:
"Accredited Intermediary" means -- , an entity qualifying as an
accredited intermediary eligible to hold securities of Vivendi in bearer
form under French law and, subject to the provisions of Article 7, includes
any successor thereto;
"Affiliate" has the meaning ascribed thereto in the Securities Act;
"Arrangement" means the arrangement under section 192 of the CBCA on
the terms and subject to the conditions set out in the Plan of Arrangement;
"Blocked Period" has the meaning ascribed thereto in section 3.1(d);
"Business Day" means any day on which commercial banks are generally
open for business in Toronto, Ontario, New York City, New York and France,
other than a Saturday, a Sunday or a day observed as a holiday in Toronto,
Ontario, in New York City, New York or in France under applicable laws;
"CBCA" means the Canada Business Corporations Act, as amended;
"Custodian" means -- and, subject to the provisions of Article 7,
includes any successor custodian;
"Depositary" means the depositary for the Vivendi ADSs;
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"Effective Time" has the meaning ascribed thereto in the Plan of
Arrangement;
"Exchange Right" has the meaning ascribed thereto in section 4.1 of
the Exchange Trust Agreement;
"Exchange Trust Agreement" means that certain exchange trust agreement
made as of even date herewith among Vivendi Exchangeco, Vivendi Holdings,
Vivendi and [Trustee] in connection with the Plan of Arrangement
substantially in the form and content of Schedule D annexed to the Merger
Agreement, as amended under the terms of the Exchange Trust Agreement;
"Exchangeable Shares" means the non-voting exchangeable shares in the
capital of Vivendi Exchangeco, having the rights, privileges, restrictions
and conditions set out in Appendix I to the Plan of Arrangement;
"Holder" means a registered holder of Exchangeable Shares, each of
whom is thereby also the holder of an equivalent number of Vivendi Voting
Rights, other than Vivendi and its affiliates;
"Holder Votes" has the meaning ascribed thereto in section 3.2;
"Liquidation Call Right" has the meaning ascribed thereto in the Plan
of Arrangement;
"Merger Agreement" means the agreement made as of June 19, 2000 among
Vivendi (by a predecessor corporation), Seagram and the other parties
thereto, as amended, supplemented and/or restated in accordance therewith
prior to the Effective Date, providing for, among other things, the
Arrangement;
"Nasdaq" means the NASDAQ Stock Market and any successor exchange or
market;
"NYSE" means the New York Stock Exchange, Inc. and any successor
exchange or market;
"Officer's Certificate" means, with respect to Vivendi, or Vivendi
Exchangeco, as the case may be, a certificate signed by any officer or
director of Vivendi or Vivendi Exchangeco, as the case may be;
"Person" includes any individual, firm, partnership, limited
partnership, joint venture, venture capital fund, limited liability
company, unlimited liability company, association, trust, trustee,
executor, administrator, legal personal representative, estate, group, body
corporate, corporation, unincorporated association or organization,
government body, syndicate or other entity, whether or not having legal
status;
"Plan of Arrangement" means the plan of arrangement relating to the
arrangement of Seagram under section 192 of the CBCA substantially in the
form and content of Schedule F annexed to the Merger Agreement and any
amendments or variations thereto made in accordance with section 6.1 of the
Merger Agreement or Article 6 of the Plan of Arrangement or made at the
direction of the Court;
"Receipt Date" has the meaning ascribed thereto in section 3.1(a);
"Redemption Call Right" has the meaning ascribed thereto in the Plan
of Arrangement;
"Retraction Call Right" has the meaning ascribed thereto in the Share
Provisions;
"Retraction Request" has the meaning ascribed thereto in the Share
Provisions;
"Securities Act" means the Securities Act (Ontario) and the rules,
regulations and policies made thereunder, as amended from time to time;
"Share Provisions" means the rights, privileges, restrictions and
conditions attaching to the Exchangeable Shares set forth in Appendix I to
the Plan of Arrangement;
"Vivendi" has the meaning ascribed thereto in the Share Provisions;
"Vivendi ADSs" has the meaning ascribed thereto in the Share
Provisions;
"Vivendi ADS Record Date" has the meaning ascribed thereto in section
1.5;
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"Vivendi Holdings" has the meaning ascribed thereto in the Share
Provisions;
"Vivendi Meeting" means a meeting of shareholders of Vivendi at which
holders of Vivendi Shares are entitled to vote;
"Vivendi Shares" means the ordinary shares in the capital of Vivendi,
nominal value Euro -;
"Vivendi Successor" has the meaning ascribed thereto in section
8.1(a);
"Vivendi Voting Right" means an "action en nue propriete" under French
law, which, among other things, represents one vote on the same basis and
in the same circumstances as one Vivendi Share;
"Vivendi's Statuts" means the Articles of Incorporation of Vivendi;
and
"Voting Instruction Card" has the meaning ascribed thereto in section
3.1(a).
1.2. Interpretation not Affected by Headings, etc. The division of this
Agreement into Articles, sections and other portions and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. Unless otherwise indicated,
all references to an "Article" or "section" followed by a number and/or a letter
refer to the specified Article or section of this Agreement. The terms "this
Agreement", "hereof", "herein" and "hereunder" and similar expressions refer to
this Agreement and not to any particular Article, section or other portion
hereof and include any agreement or instrument supplementary or ancillary
hereto.
1.3. Number, Gender, etc. Unless the content otherwise requires, words
importing the singular shall include the plural and vice versa. Words importing
any gender include all genders.
1.4. Date for any Action. In the event that any date on which any action
is required to be taken under this Agreement by any person is not a Business
Day, such action shall be required to be taken on the next succeeding day that
is a Business Day.
1.5. Fixing of Record Date. Whenever any distribution, including any
distribution of additional Vivendi Voting Rights, shall be made with respect to
the Vivendi Voting Rights, or whenever the Custodian shall receive notice of any
meeting of holders of Vivendi Shares, the Custodian shall fix a record date
(which shall be the same as the record date set for determining the holders of
Vivendi ADSs entitled to such distribution or to exercise such voting rights
(the "Vivendi ADS Record Date"), and Vivendi shall give the Custodian notice of
such record date on the same date that such notice is provided to the
Depositary) for the determination of the Holders who shall be entitled to
receive such distribution or to give instructions for the exercise of Vivendi
Voting Rights at any Vivendi Meeting, subject to section 3.1.
ARTICLE 2
VIVENDI VOTING RIGHTS
2.1. Deposit of the Vivendi Voting Rights. The parties acknowledge that
under the Plan of Arrangement Vivendi has deposited with the Custodian, directly
or through the Accredited Intermediary, for the benefit of the Holders in
accordance with the provisions of this Agreement, a number of Vivendi Voting
Rights equal to the number of Exchangeable Shares issued pursuant to the Plan of
Arrangement. During the term of this Agreement and subject to the terms and
conditions of this Agreement, the Custodian shall:
(a) hold the Vivendi Voting Rights directly or through the Accredited
Intermediary as custodian solely for and on behalf of the Holders in
accordance with the provisions of this Agreement; and
(b) except as specifically authorized by this Agreement, have no power
or authority to sell, transfer, vote or otherwise deal in or with the
Vivendi Voting Rights, or any preferential subscription rights distributed
to holders of Vivendi Voting Rights, or to exercise any such preferential
subscription rights, and the Vivendi Voting Rights shall not be exercised
or disposed of by the Custodian for any purpose other than the purposes
specified in this Agreement.
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2.2. Legended Share Certificates. Vivendi Exchangeco will cause each
certificate representing Exchangeable Shares to bear an appropriate legend
notifying the Holders of their right to instruct the Custodian with respect to
the exercise of the Vivendi Voting Rights corresponding to the number of
Exchangeable Shares held by such Holders.
ARTICLE 3
VOTING RIGHTS
3.1. Voting of Vivendi Voting Rights. (a) Upon receipt of notice of any
Vivendi Meeting sent by Vivendi at least (30) days prior to the date of the
meeting, the Custodian shall, as soon as practicable thereafter, mail to the
Holders who were Holders at the close of business on the date of the receipt of
such notice by the Custodian: (i) a summary in English or an English version of
the notice of such meeting sent by Vivendi to the Custodian, (ii) a statement in
a form provided by Vivendi that the Holders as of close of business on a record
date established pursuant to section 1.5 will be entitled, subject to any
applicable provisions of French law, Vivendi's Statuts and the Vivendi Voting
Rights (which provisions, if any, shall be summarized in pertinent part in such
statement), to exercise such voting rights (subject to the restrictions detailed
below), (iii) summaries in English of any materials or other documents provided
by Vivendi for the purpose of enabling such Holders to exercise such voting
rights, by means of voting by mail (formulaire de vote par correspondance), by
proxy (procuration) or in person, (iv) a statement as to the manner in which
such instructions may be given to the Custodian, including the date established
by the Custodian for the receipt of such instructions (the "Receipt Date"), and
(v) a voting instruction card (including a formulaire de vote par correspondance
and procuration (a signed voting instructions card which does not set forth
specific voting instructions shall constitute a procuration en blanc and shall
be counted as a vote in favour of resolutions approved by the Board of Directors
and all other information, authorizations and certification required under
French law to allow Holders to vote Vivendi Voting Rights in registered form and
in bearer form)) to be prepared by Vivendi in consultation with the Custodian (a
"Voting Instruction Card"). Vivendi shall deliver the notice to the Custodian
contemporaneously with the equivalent notice given to the Depositary.
(b) In accordance with French law in effect on the date of this Agreement
and Vivendi's Statuts, a precondition for exercising any voting right attached
to shares, whether or not in nue propriete, is that, in the case of a holder of
shares in registered form, such holder be registered in the share register of
the company at least five (5) calendar days prior to the date of the Vivendi
Meeting or, in the case of a holder of shares in bearer form, such holder shall
request its accredited financial intermediary to issue a certificat
d'immobilisation de titres au porteur evidencing the immobilization of its
shares until the time fixed for the meeting, at least five (5) calendar days
prior to the date of the meeting. The provisions of this Agreement shall be
amended or supplemented in accordance with section 9.2(b) of this Agreement upon
any change in applicable French law or Vivendi's Statuts relating to the
requirements or procedures for the exercise of voting rights to the extent
necessary to preserve, as nearly as practicable in the circumstances, the rights
of Holders to exercise voting rights.
(c) Pursuant to the requirements of French law, in order for any Holder
that desires to exercise its Vivendi Voting Rights at a Vivendi Meeting either
by mail, by proxy or in person, such Holder will be required to instruct the
Custodian to, and the Custodian must, either: (i) block the transfer of such
Holder's Exchangeable Shares; or (ii) arrange for the transfer of such Holder's
Exchangeable Shares into a blocked account, in each case until the completion of
such meeting; and (iii) take any and all other steps necessary to permit the
exercise of the Vivendi Voting Rights by the Holder, including, without
limitation, the steps set out below.
In the case of Exchangeable Shares representing a Holder's Vivendi Voting
Rights that are held in registered form, the Custodian must register, or cause
to be registered, the name and address of such Holder on the share register of
Vivendi at least five (5) calendar days prior to the date of the Vivendi
Meeting, and if the Holder does not plan to attend the meeting personally,
deposit, or cause to be deposited, the formulaire de
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vote par correspondance, or the procuration with Vivendi at least three (3)
calendar days prior to the date of the Vivendi Meeting.
In the case of Exchangeable Shares representing a Holder's Vivendi Voting
Rights that are held in bearer form, the Custodian must, (i) furnish Vivendi
with the name and address of such Holder, the number of Exchangeable Shares held
by such Holder and any other information required in accordance with French law
or Vivendi's Statuts, (ii) notify Vivendi that the transfer of such Exchangeable
Shares has been blocked, (iii) issue, or cause to be issued, a certificat
d'immobilisation de titres au porteur with respect to such Exchangeable Shares,
and (iv) deposit such certificat and, if the Holder does not plan to attend the
meeting personally, the formulaire de vote par correspondance, or the
procuration, with Vivendi at least three (3) calendar days prior to the date of
the Vivendi Meeting and give notice to Vivendi of such Holder's intention to
vote.
(d) If a Holder does not plan to attend the Vivendi Meeting in person, then
such Holder shall complete the Voting Instruction Card, which provides, among
other things, for certifications by the Holder as follows: (i) setting forth
such Holder's full name, address and number of Exchangeable Shares owned and any
other information required in accordance with French law or Vivendi's Statuts,
(ii) instructing the Custodian not to permit any transfers of any Exchangeable
Shares for a period beginning on the date of the receipt of such Voting
Instruction Card by the Custodian (which shall be at least five (5) calendar
days prior to the date the Vivendi Meeting set forth in the notice described in
(a) in the first paragraph of this paragraph 3.1 and ending at the end of the
day of the date of such meeting (the "Blocked Period"), and (iv) authorizing the
Custodian (x) to cause the name and address of such Holder and any other
information required in accordance with French law or Vivendi's Statuts to be
registered in the share register of Vivendi during the Blocked Period in respect
of the number of Vivendi Voting Rights equal to the number of such Holder's
Exchangeable Shares, if such Vivendi Voting Rights are held in registered form,
or authorizing the Custodian to issue, or cause to be issued, certificat
d'immobilisation de titres au porteur during the Blocked Period in respect of
the number of Vivendi Voting Rights equal to the number of such Holder's
Exchangeable Shares, if such Vivendi Voting Rights are held in bearer form and
(y) to deposit the formulaire de vote par correspondance, or the procuration
with Vivendi, at least three (3) calendar days prior to the date of the Vivendi
Meeting.
(e) Immediately following any Vivendi Meeting, any Vivendi Voting Rights
that have been registered in the name of any person other than the Custodian or
the Accredited Intermediary shall be reregistered in the name of the Accredited
Intermediary, and the foregoing shall constitute the irrevocable authorization
of the Holders to such reregistration.
According to French law, voting rights may not be exercised in respect of
fractional shares.
Upon receipt by the Custodian of a properly completed Voting Instruction
Card, on or before the Receipt Date, insofar as practicable and permitted under
any applicable provisions of French law, Vivendi's Statuts and the Vivendi
Voting Rights (including instructing the Custodian to perform all applicable
duties set forth in the Voting Instruction Card and in this section 3.1 and
restricting transfer of Exchangeable Shares as set forth in the Voting
Instruction Card and in this section 3.1, the Custodian shall cause the Vivendi
Voting Rights to be voted in accordance with any instructions set forth in such
request. The Custodian shall not vote, or cause to be voted, or attempt to
exercise the right to vote that attaches to the Vivendi Voting Rights other than
in accordance with such instructions. The Custodian agrees not to vote or cause
to be voted the Vivendi Voting Rights of a Holder if it does not receive the
Voting Instruction Card from the Holder in accordance with this section 3.1.
Under French law, shareholders at ordinary and extraordinary shareholders'
meetings may modify the resolutions presented to the shareholders for their
approval by the Board of Directors. In such case, Holders who have given prior
instructions to vote on such resolutions shall be deemed to have voted against
the revised resolutions; provided, however, that in the event such revised
resolutions have been approved by the Board of Directors of Vivendi during a
suspension of the Vivendi Meeting, Holders who have sent a proxy in blank form
(procuration en blanc) shall be deemed to have voted in favour of such revised
resolutions approved by the Board of Directors.
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The Custodian will not charge any fees to the Holder in connection with the
foregoing transactions to enable any Holder to exercise its voting rights under
this section 3.1.
Subject to section 4.13:
(a) the Custodian shall exercise, or cause to be exercised, the Voting
Rights only on the basis of instructions received under this Article 3 from
Holders entitled to instruct the Custodian as to the voting thereof at the
time at which the Vivendi Meeting is held; and
(b) to the extent that no instructions are received from a Holder with
respect to the Voting Rights to which such Holder is entitled, the
Custodian shall not exercise or permit the exercise of such Voting Rights
or attend the Vivendi Meeting in respect thereof.
3.2. Number of Votes. With respect to all Vivendi Meetings, each Holder
shall be entitled, in accordance with section 3.1 to cast and exercise one of
the Vivendi Voting Rights for each Exchangeable Share owned of record by such
Holder on the record date established pursuant to section 1.5 (the "Holder
Votes"), in respect of each matter, question, proposal or proposition to be
voted on at such Vivendi Meeting.
3.3. Copies of Shareholder Information. Subject to section 3.9, Vivendi
will deliver to the Custodian copies of all proxy materials, including notices
of Vivendi Meetings, information statements, reports (including without
limitation, all interim and annual financial statements) and other written
communications (including any such documents that are distributed on behalf of
third parties, such as dissident proxy and information circulars, tender offer
and exchange offer circulars, together with all related information and
material) that, in each case, are to be distributed from time to time to holders
of Vivendi ADSs (including any English language translations or summaries
thereof) in sufficient quantities and in sufficient time so as to enable the
Custodian to send those materials to each Holder at the same time as such
materials are first sent to holders of Vivendi ADSs. The Custodian will mail or
otherwise send to each Holder, at the expense of Vivendi, copies of all such
materials (and all materials specifically directed to the Holders or to the
Custodian for the benefit of the Holders by Vivendi) received by the Custodian
from Vivendi contemporaneously with the sending of such materials to holders of
Vivendi ADSs. The Custodian will also make available for inspection by any
Holder at the Custodian's principal corporate office in -- all proxy materials,
information statements, reports and other written communications that are:
(a) received by the Custodian or the Accredited Intermediary and made
available by Vivendi generally to the holders of Vivendi ADSs; or
(b) specifically directed to the Holders, the Custodian or the Accredited
Intermediary for the benefit of the Holders by Vivendi.
3.4. Voting by Custodian, and Attendance of Custodian Representative at
Meeting. (a) As long as the Custodian remains appointed as such pursuant to
this Deposit Agreement, the Custodian shall ensure that at least one Vivendi
Share is owned by it and registered in its name.
(b) In connection with each Vivendi Meeting, the Custodian shall exercise,
or cause to be exercised, either in person or by proxy, to the extent permitted
under French law, in accordance with the instructions received from a Holder
under section 3.1, the Holder Votes as to which such Holder is entitled to
direct the vote (or any lesser number thereof as may be set forth in the
instructions) for which such Holder has given a proxy to the Custodian;
provided, however, that such written instructions are received by the Custodian
from the Holder on or prior to the Receipt Date.
3.5. Distribution of Written Materials. Subject to section 3.9, any
written materials distributed by the Custodian under this Agreement shall be
sent by mail (or, subject to applicable regulatory requirements, otherwise
communicated in the same manner as Vivendi utilizes in communications to holders
of Vivendi ADSs) to each Holder at its address as shown on the books of Vivendi
Exchangeco. Vivendi agrees not to communicate with holders of Vivendi ADSs with
respect to such written materials otherwise than by mail unless such method of
communication is also reasonably available to the Custodian to communicate with
the
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Holders. Vivendi Exchangeco shall provide or cause to be provided to the
Custodian for this purpose, on a timely basis and without charge or other
expense:
(a) a current list of holders of Vivendi Voting Rights at the close of
business on the date of such request; and
(b) upon the request of the Custodian, mailing labels to enable the
Custodian to carry out its duties under this Agreement.
3.6. Distribution of Other Rights. In the event that Vivendi distributes
to the holders of the Vivendi Shares any preferential subscription rights to
subscribe for Vivendi capital increases, the Custodian shall not transmit such
rights or any notice received on behalf of such Holder and the Custodian shall
not exercise, and shall direct the Accredited Intermediary not to exercise, any
such preemptive subscription rights except in accordance with this section 3.9.
If the Holder wishes to exercise any preferential subscription right pursuant to
the Holder's Vivendi Preemptive Rights, the Holder shall provide a notice (the
"Exchange Notice") to the Custodian and Vivendi Exchangeco not later than the
fifth business day prior to the termination of any period for exercising such
preferential subscription rights. The Custodian shall not exercise, and shall
cause the Accredited Intermediary not to exercise, the preemptive subscription
right pursuant to the Exchange Notice prior to the fourth business day following
the receipt by the Custodian and Vivendi Exchangeco of the Exchange Notice.
Any notice sent by a Holder to the Custodian seeking to exercise such
preferential subscription rights will be deemed to be delivery to Vivendi of an
irrevocable Retraction Request for that number of Exchangeable Shares held by
such Holder that is equal to the number of Vivendi Voting Rights in respect of
which the holder is seeking such preferential subscription rights.
The Custodian hereby irrevocably directs Vivendi to pay directly to the
Holders any monies (in the case of a liquidation), Vivendi Voting Rights or
other property distributable by Vivendi on the liquidation of Vivendi or as a
distribution of premium if such monies (in the case of a liquidation), Vivendi
Voting Rights, or other property would otherwise be distributable to or on
behalf of the Custodian or the Accredited Intermediary. Vivendi acknowledges
such direction and agrees to act in accordance therewith.
3.7. Termination of Voting Rights and Other Rights. All of the rights of
a Holder under this Agreement, including with respect to the Holder Votes
exercisable by such Holder, and the right to instruct the Custodian as to the
voting of or to vote personally such Holder Votes, and all other rights attached
to the Vivendi Voting Rights shall be deemed to be surrendered by the Holder to
Vivendi and the Custodian shall transfer, or cause to be transferred, to Vivendi
such Vivendi Voting Rights upon the delivery by the Holder to the trustee under
the Exchange Trust Agreement of the certificates representing such Exchangeable
Shares in connection with the exercise by the Holder of the Exchange Right or
the occurrence of the automatic exchange of Exchangeable Shares for Vivendi
Shares, as specified in section 4.12 of the Exchange Trust Agreement (unless, in
either case, Vivendi Holdings shall not have delivered the requisite Vivendi
ADSs issuable in exchange therefor to the trustee under the Exchange Trust
Agreement for delivery to the Holders), or upon the redemption of Exchangeable
Shares under Articles 6 or 7 of the Share Provisions, or upon the effective date
of the liquidation, dissolution or winding-up of Vivendi Exchangeco under
Article 5 of the Share Provisions, or upon the purchase of Exchangeable Shares
from the holder thereof by Vivendi Holdings under the exercise by Vivendi
Holdings of the Retraction Call Right, the Redemption Call Right or the
Liquidation Call Right.
3.8. Vivendi will not without the prior approval of Vivendi Exchangeco and
the prior approval of the Holders given in accordance with section 10.2 of the
Share Provisions, take or authorize, approve or permit to be taken, any action
that would cause or result in any variation (whether an increase or decrease) in
the rights of the actions en nue proprietes comprising the Vivendi Voting
Rights, or the allocation of rights between them and the corresponding usufruct.
Without limitation, unless such prior approval has been obtained, the Board of
Directors of Vivendi shall not propose, approve or endorse any amendment to any
provisions of the Articles of Incorporation or By-laws of Vivendi that would
have such result.
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ARTICLE 4
CONCERNING THE CUSTODIAN
4.1. Powers and Duties of the Custodian. The rights, powers, duties and
authorities of the Custodian under this Agreement, in its capacity as custodian,
shall include:
(a) receipt of the Vivendi Voting Rights, directly or through the
Accredited Intermediary, for and on behalf of the Holders in accordance
with the provisions of the Plan of Arrangement;
(b) distributing materials to Holders as provided in this Agreement;
(c) holding, directly or through the Accredited Intermediary, the
Vivendi Voting Rights for and on behalf of the Holders in accordance with
the provisions of this Agreement;
(d) voting or causing to be voted the Voting Rights in accordance with
the instructions of the Holder pursuant to the terms of this Agreement;
(e) taking action on its own initiative or at the direction of a
Holder or Holders to enforce the obligations of Vivendi and Vivendi
Exchangeco under this Agreement; and
(f) taking such other actions and doing such other things as are
specifically provided in this Agreement.
In the exercise of such rights, powers, duties and authorities the
Custodian shall have (and is granted) such incidental and additional rights,
powers, duties and authority not in conflict with any of the provisions of this
Agreement as the Custodian, acting in good faith and in the reasonable exercise
of its discretion, may deem necessary, appropriate or desirable to carry out its
obligations under this Agreement. Any exercise of such discretionary rights,
powers, duties and authorities by the Custodian shall be final, conclusive and
binding upon all persons.
The Custodian 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 Holders and shall exercise the care, diligence and skill that a
reasonably prudent custodian would exercise in comparable circumstances.
The Custodian shall not be bound to give notice or do or take any act,
action or proceeding by virtue of the powers conferred on it hereby unless and
until it shall be specifically required to do so under the terms hereof; nor
shall the Custodian 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 Custodian, and in the absence of such notice the Custodian
may for all purposes of this Agreement conclusively assume that no default or
breach has been made in the observance or performance of any of the
representations, warranties, covenants, agreements or conditions contained
herein.
4.2. No Conflict of Interest. The Custodian represents to Vivendi and
Vivendi Exchangeco that at the date of execution and delivery of this Agreement
there exists no conflict of interest in the role of the Custodian hereunder. The
Custodian shall, within 90 days after it becomes aware that such material
conflict of interest exists, either eliminate such conflict of interest or
resign in the manner and with the effect specified in Article 7. If,
notwithstanding the foregoing provisions of this section 4.2, the Custodian has
such a conflict of interest, the validity and enforceability of this Agreement
shall not be affected in any manner whatsoever by reason only of the existence
of such conflict of interest. If the Custodian contravenes the foregoing
provisions of this section 4.2, any interested party may apply to the Superior
Court of Justice (Ontario) for an order that the Custodian be replaced as
Custodian hereunder.
4.3. Dealings with Transfer Agents, Registrars, etc. Vivendi and Vivendi
Exchangeco irrevocably authorize the Custodian, 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, Vivendi Shares and Vivendi
ADSs; and
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(b) requisition, from time to time, from any such registrar or
transfer agent any information readily available from the records
maintained by it that the Custodian may reasonably require for the
discharge of its duties and responsibilities under this Agreement.
Vivendi and Vivendi Exchangeco irrevocably authorize their respective
registrars and transfer agents to comply with all such requests.
4.4. Books and Records. The Custodian shall keep available for inspection
by Vivendi and Vivendi Exchangeco at the Custodian's principal office in
-correct and complete books and records of account relating to the performance
of its obligations under this Agreement, including without limitation, all
relevant data relating to mailings and instructions to and from Holders. On or
before January 15, 2001, and on or before January 15th in every year thereafter,
the Custodian shall transmit to Vivendi and Vivendi Exchangeco a brief report,
dated as of the preceding December 31st, with respect to:
(a) the number of Vivendi Voting Rights held by it on behalf of
holders of Exchangeable Shares on that date;
(b) the number of Vivendi Voting Rights transferred to Vivendi during
the calendar year ended on such December 3lst;
(c) any monies (in the case of a liquidation), Vivendi Voting Rights
or other property received on the Vivendi Voting Rights and distributed by
the Custodian to the Holders; and
(d) any action taken by the Custodian in the performance of its duties
under this Agreement that it had not previously reported and that, in the
Custodian's opinion, materially affects the Vivendi Voting Rights.
4.5. Indemnification Before Certain Actions by Custodian. The Custodian
shall exercise any or all of the rights, duties, powers or authorities vested in
it by this Agreement at the request, order or direction of any Holder upon such
Holder furnishing to the Custodian reasonable funding, security or indemnity
against the costs, expenses and liabilities that may be incurred by the
Custodian therein or thereby, provided that no Holder shall be obligated to
furnish to the Custodian any such security or indemnity in connection with the
exercise by the Custodian of any of its rights, duties, powers and authorities
with respect to the Vivendi Voting Rights pursuant to Article 3, subject to
section 4.13.
None of the provisions contained in this Agreement shall require the
Custodian to expend or risk its own funds or otherwise incur financial liability
in the exercise of any of its rights, powers, duties, or authorities unless
funded, given security and indemnified as aforesaid.
4.6. Action of Holders. No Holder shall have the right to institute any
action, suit or proceeding or to exercise any other remedy authorized by this
Agreement for the purpose of enforcing any of its rights or for the execution of
any power hereunder unless the Holder has requested the Custodian to take or
institute such action, suit or proceeding and furnished the Custodian with the
funding, security or indemnity referred to in section 4.5 and the Custodian
shall have failed to act within a reasonable time thereafter. In such case, but
not otherwise, the Holder shall be entitled to take proceedings in any court of
competent jurisdiction such as the Custodian might have taken; it being
understood and intended that no one or more 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 hereunder
shall be exercised and all proceedings at law shall be instituted, had and
maintained by the Custodian, except only as herein provided, and in any event
for the equal benefit of all Holders.
4.7. Reliance Upon Declarations. The Custodian shall not be considered to
be in contravention of any of its rights, powers, duties and authorities
hereunder if, when required, it acts and relies in good faith upon statutory
declarations, certificates, opinions or reports furnished under the provisions
hereof or required by the Custodian to be furnished to it in the exercise of its
rights, powers, duties and authorities hereunder if such statutory declarations,
certificates, opinions or reports comply with the provisions of section 4.8, if
applicable, and with any other applicable provisions of this Agreement.
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4.8. Evidence and Authority to Custodian. Vivendi and/or Vivendi
Exchangeco shall furnish to the Custodian evidence of compliance with the
conditions provided for in this Agreement relating to any action or step
required or permitted to be taken by Vivendi and/or Vivendi Exchangeco or the
Custodian under this Agreement or as a result of any obligation imposed under
this Agreement, including, without limitation, in respect of the Voting Rights,
and the taking of any other action to be taken by the Custodian at the request
of or on the application of Vivendi and/or Vivendi Exchangeco promptly if and
when:
(a) such evidence is required by any other section of this Agreement
to be furnished to the Custodian in accordance with the terms of this
section 4.8; or
(b) the Custodian, in the exercise of its rights, powers, duties and
authorities under this Agreement, gives Vivendi and/or Vivendi Exchangeco
written notice requiring it to furnish such evidence in relation to any
particular action or obligation specified in such notice.
Whenever such evidence consists of a matter other than the Vivendi Voting
Rights, such evidence shall consist of an Officer's Certificate of Vivendi
and/or Vivendi Exchangeco or a statutory declaration or a certificate made by
persons entitled to sign an Officer's Certificate stating that any such
condition has been complied with in accordance with the terms of this Agreement.
Except as otherwise specifically provided herein, such evidence may consist
of a report or opinion of any solicitor, attorney, auditor, accountant,
appraiser, evaluator, 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 Vivendi
and/or Vivendi Exchangeco it shall be in the form of an Officer's Certificate or
a statutory declaration.
Each statutory declaration, Officer's Certificate, opinion or report
furnished to the Custodian as evidence of compliance with a condition provided
for in this Agreement shall include a statement by the person giving the
evidence:
(c) declaring that he has read and understands the provisions of this
Agreement relating to the condition in question;
(d) describing the nature and scope of the examination or
investigation upon which he based the statutory declaration, certificate,
statement or opinion; and
(e) 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.
4.9. Experts, Advisers and Agents. The Custodian may:
(a) in relation to these presents act and rely on the opinion or
advice of or information obtained from any solicitor, attorney, auditor,
accountant, appraiser, evaluator, engineer or other expert, whether
retained by the Custodian or by Vivendi and/or Vivendi Exchangeco or
otherwise, and may retain or employ such assistants as may be necessary to
the proper discharge of its powers and duties and determination of its
rights hereunder and may pay proper and reasonable compensation for all
such legal and other advice or assistance as aforesaid; and
(b) employ such agents and other assistants as it may reasonably
require for the proper determination and discharge of its powers and duties
hereunder, and may pay reasonable remuneration for all services performed
for it (and shall be entitled to receive reasonable remuneration for all
services performed by it) in the discharge of its powers and duties hereof
and compensation for all disbursements, costs and expenses made or incurred
by it in the discharge of its duties hereunder.
4.10. Custodian Not Required to Give Security. The Custodian shall not be
required to give any bond or security in respect of the execution of the rights,
duties, powers and authorities of this Agreement or otherwise in respect of the
premises.
4.11. Custodian Not Bound to Act on Request. Except as in this Agreement
otherwise specifically provided, the Custodian shall not be bound to act in
accordance with any direction or request of Vivendi
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and/or Vivendi Exchangeco 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 Custodian, and the Custodian shall be empowered to
act upon any such copy purporting to be authenticated and believed by the
Custodian to be genuine.
4.12. Authority to Carry on Business. The Custodian represents to Vivendi
and Vivendi Exchangeco that at the date of execution and delivery by it of this
Agreement it is authorized to carry on business in each of the provinces of
Canada but if, notwithstanding the provisions of this section 4.12, it ceases to
be so authorized to carry on business, the validity and enforceability of this
Agreement shall not be affected in any manner whatsoever by reason only of such
event but the Custodian shall, within 90 days after ceasing to be authorized to
carry on business in any province of Canada, either become so authorized or
resign in the manner and with the effect specified in Article 7.
4.13. Conflicting Claims. If conflicting claims or demands are made or
asserted with respect to any interest of any Holder in any Vivendi Voting
Rights, including any disagreement between the heirs, representatives,
successors or assigns succeeding to all or any part of the interest of any
Holder in any Vivendi Voting Rights, resulting in conflicting claims or demands
being made in connection with such interest, then the Custodian shall be
entitled, at its sole discretion, to refuse to recognize or to comply with any
such claims or demands. In so refusing, the Custodian may elect not to exercise
any Voting Rights subject to such conflicting claims or demands and, in so
doing, the Custodian 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 Custodian 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 Vivendi
Voting Rights subject to such conflicting claims or demands have been
adjudicated by a final judgment of a court of competent jurisdiction and
all rights of appeal therefrom have expired; or
(b) all differences with respect to the Vivendi Voting 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
Custodian shall have been furnished with an executed copy of such agreement
certified to be in full force and effect.
If the Custodian 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
Custodian as it shall deem appropriate to fully indemnify it as between all
conflicting claims or demands.
4.14. Custodian Not a Trustee. The relationship between the Holder and
the Custodian under this Agreement is that of principal and agent only and not
that of beneficiary and trustee and under no circumstances shall this Agreement
be construed to create any trust relationship between the Custodian and the
Holder.
4.15. Custodian Not Liable for Taxes. The Custodian shall not be liable
for any taxes, duties or governmental charges or expenses that may become
payable by or on behalf of a Holder in respect of any Vivendi Voting Rights
whether under any present or future fiscal or other laws or regulations.
Accordingly, if the Custodian shall receive a demand for or be obliged to
withhold and pay any such tax, duty, governmental charge or expense then the
Custodian shall, if it is not presented with satisfactory proof of payment by
the Holder, deduct the amount of same from any monies received on behalf of that
Holder and remit the amount withheld to the relevant government authority as and
when required by law.
ARTICLE 5
COMPENSATION
5.1. Fees and Expenses of the Custodian. Vivendi and Vivendi Exchangeco
jointly and severally agree to pay the Custodian reasonable compensation for all
of the services rendered by it under this Agreement and will reimburse the
Custodian for all reasonable expenses (including, but not limited to, fees and
expenses of
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the Accredited Intermediary, fees paid to legal counsel and other experts and
advisors and travel expenses) and disbursements, including the cost and expense
of any suit or litigation of any character and any proceedings before any
governmental agency reasonably incurred by the Custodian in connection with its
duties under this Agreement; provided that Vivendi and Vivendi Exchangeco shall
have no obligation to reimburse the Custodian for any expenses or disbursements
paid, incurred or suffered by the Custodian in any suit or litigation in which
the Custodian is determined to have acted in bad faith or with negligence,
recklessness or wilful misconduct.
ARTICLE 6
INDEMNIFICATION AND LIMITATION OF LIABILITY
6.1. Indemnification of the Custodian. Vivendi and Vivendi Exchangeco
jointly and severally agree to indemnify and hold harmless the Custodian and
each of its directors, officers, employees and agents appointed and acting in
accordance with this Agreement (collectively, the "Indemnified Parties") against
all claims, losses, damages, reasonable costs, penalties, fines and reasonable
expenses (including reasonable expenses of the Custodian's legal counsel) which,
without fraud, negligence, wilful misconduct or bad faith on the part of such
Indemnified Party, may be paid, incurred or suffered by the Indemnified Party by
reason or as a result of the Custodian's compliance with its duties set forth in
this Agreement, or any written or oral instruction delivered to the Custodian by
Vivendi or Vivendi Exchangeco under this Agreement.
In no case shall Vivendi or Vivendi Exchangeco be liable under this
indemnity for any claim against any of the Indemnified Parties unless Vivendi
and Vivendi Exchangeco shall be notified by the Custodian 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, Vivendi and Vivendi Exchangeco shall be entitled to
participate at their own expense in the defense and, if Vivendi and Vivendi
Exchangeco so elect at any time after receipt of such notice, either of them may
assume the defense of any suit brought to enforce any such claim. The Custodian
shall have the right to employ separate counsel in any such suit and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of the Custodian unless: (i) the employment of such counsel has been
authorized by Vivendi or Vivendi Exchangeco; or (ii) the named parties to any
such suit include both the Custodian and Vivendi or Vivendi Exchangeco and the
Custodian shall have been advised by counsel acceptable to Vivendi or Vivendi
Exchangeco that there may be one or more legal defenses available to the
Custodian that are different from or in addition to those available to Vivendi
or Vivendi Exchangeco and that, in the judgment of such counsel, would present a
conflict of interest were a joint representation to be undertaken (in which case
Vivendi and Vivendi Exchangeco shall not have the right to assume the defense of
such suit on behalf of the Custodian but shall be liable to pay the reasonable
fees and expenses of counsel for the Custodian). This indemnity shall survive
the termination of this Agreement and the resignation or removal of the
Custodian.
6.2. Limitation of Liability. The Custodian shall not be held liable for
any loss which may occur by reason of depreciation of the value of any part of
the properties received under this Agreement or any loss incurred on any
investment of funds under this Agreement, except to the extent that such loss is
attributable to the fraud, negligence, recklessness, wilful misconduct or bad
faith on the part of the Custodian.
ARTICLE 7
CUSTODIAN AND ACCREDITED INTERMEDIARY
7.1. Resignation. The Custodian, or any Custodian hereafter appointed,
may at any time resign by giving written notice of such resignation to Vivendi
and Vivendi Exchangeco specifying the date on which it desires to resign,
provided that such notice shall not be given less than thirty (30) days before
such desired resignation date unless Vivendi and Vivendi Exchangeco otherwise
agree and provided further that such resignation shall not take effect until the
date of the appointment of a successor Custodian and the acceptance
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of such appointment by the successor Custodian. Upon receiving such notice of
resignation, Vivendi and Vivendi Exchangeco shall promptly appoint a successor
Custodian, which shall be a corporation organized and existing under the laws of
Canada or a province and be authorized to carry on the business of a trust
company in the province of Ontario and have net assets in excess of $50,000,000,
by written instrument in duplicate, one copy of which shall be delivered to the
resigning Custodian and one copy to the successor Custodian. Failing the
appointment and acceptance of a successor Custodian, a successor Custodian may
be appointed by order of a court of competent jurisdiction upon application of
one or more of the parties to this Agreement. If the retiring Custodian is the
party initiating an application for the appointment of a successor Custodian by
order of a court of competent jurisdiction, Vivendi and Vivendi Exchangeco shall
be jointly and severally liable to reimburse the retiring Custodian for its
legal costs and expenses in connection with same. Vivendi covenants that the
Custodian shall at all times also be the transfer agent for the Exchangeable
Shares.
7.2. Removal. The Custodian, or any Custodian hereafter appointed, may
(provided a successor Custodian is appointed) be removed at any time on not less
than 30 days' prior notice by written instrument executed by Vivendi and Vivendi
Exchangeco, in duplicate, one copy of which shall be delivered to the Custodian
so removed and one copy to the successor Custodian.
7.3. Successor Custodian. Any successor Custodian appointed as provided
under this Agreement shall execute, acknowledge and deliver to Vivendi and
Vivendi Exchangeco and to its predecessor Custodian an instrument accepting such
appointment. Thereupon the resignation or removal of the predecessor Custodian
shall become effective and such successor Custodian, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with the like effect as if
originally named as Custodian in this Agreement. However, on the written request
of Vivendi and Vivendi Exchangeco or of the successor Custodian, the Custodian
ceasing to act shall, upon payment of any amounts then due it under the
provisions of this Agreement, execute and deliver an instrument transferring to
such successor Custodian all the rights and powers of the Custodian so ceasing
to act. Upon the request of any such successor Custodian, Vivendi, Vivendi
Exchangeco and such predecessor Custodian shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor Custodian all such rights and powers.
7.4. Notice of Successor Custodian. Upon acceptance of appointment by a
successor Custodian as provided herein, Vivendi and Vivendi Exchangeco shall
cause to be mailed notice of the succession of such Custodian hereunder to each
Holder. If Vivendi or Vivendi Exchangeco shall fail to cause such notice to be
mailed within 10 days after acceptance of appointment by the successor
Custodian, the successor Custodian shall cause such notice to be mailed at the
expense of Vivendi and Vivendi Exchangeco.
7.5. Accredited Intermediary. The Custodian has initially
appointed-(Paris) as agent of the Custodian to act as the Accredited
Intermediary for the purposes of this Agreement. The Accredited Intermediary in
acting hereunder shall be subject at all times and in all respects to the
direction of the Custodian and shall be responsible solely to it and Vivendi.
The Accredited Intermediary may resign and be discharged from its duties
hereunder by notice of such resignation delivered to the Custodian and Vivendi
at least 30 days prior to the date on which such resignation is to become
effective. The Custodian shall, promptly after receiving such notice, appoint a
substitute intermediary, after consultation with Vivendi, which shall thereafter
be the Accredited Intermediary hereunder. Whenever Vivendi determines that it is
in the best interest of the Holders to do so, it may cause the appointment of a
substitute or an additional intermediary, after consultation with the Custodian,
which shall thereafter be the Accredited Intermediary hereunder. Upon demand of
the Custodian or Vivendi, the Accredited Intermediary shall deliver such of the
Vivendi Voting Rights held by it as are requested of it to any other Accredited
Intermediary or such substitute or additional intermediary or intermediaries.
Each such substitute or additional intermediary shall deliver to the Custodian
forthwith upon its appointment, an acceptance of such appointment satisfactory
in form and substance to the Custodian and Vivendi. Immediately upon any such
change, the Custodian shall give notice thereof in writing to all Holders.
Upon the appointment of any successor Custodian hereunder, any Accredited
Intermediary then acting hereunder shall forthwith become, without any further
act or writing, the agent hereunder of such successor Custodian and the
appointment of such successor custodian shall in no way impair the authority of
each
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Accredited Intermediary hereunder; but the successor Custodian so appointed
shall, nevertheless, on the written request of any Accredited Intermediary,
execute and deliver to such Accredited Intermediary all such instruments as may
be proper to give to such Accredited Intermediary full and complete power and
authority as agent hereunder of such successor Custodian.
The Accredited Intermediary is, and any successor thereto or replacement
thereof shall be, an entity qualifying as an accredited intermediary eligible to
hold securities of Vivendi in bearer form under French law. The Accredited
Intermediary shall be the registered holder of the Vivendi Voting Rights in any
circumstances so required by French law, or considered desirable by Vivendi or
the Custodian. The Custodian shall require the Accredited Intermediary to agree,
as a condition of its appointment as such, that it shall hold the Vivendi Voting
Rights only as nominee.
ARTICLE 8
VIVENDI SUCCESSORS
8.1. Certain Requirements in Respect of Combination, Etc. Vivendi agrees
not to consummate 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 (herein called the
"Vivendi Successor"), by operation of law, becomes, without more, bound by
the terms and provisions of this Agreement or, if not so bound, executes,
before or contemporaneously with the consummation of such transaction, an
agreement supplemental hereto and such other instruments (if any) as are
satisfactory to the Custodian, acting reasonably, and in the opinion of
legal counsel to the Custodian are reasonably necessary or advisable to
evidence the assumption by the Vivendi Successor of liability for any
moneys payable and property deliverable hereunder by Vivendi and the
covenant of such Vivendi 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 Vivendi under this Agreement; and
(b) such transaction shall, to the satisfaction of the Custodian,
acting reasonably, and in the opinion of legal counsel to the Custodian, be
upon such terms and conditions as substantially to preserve and not to
impair in any material respect any of the rights, duties, powers and
authorities of the Custodian or of the Holders hereunder.
8.2. Vesting of Powers in Successor. Whenever the conditions of section
8.1 have been duly observed and performed, the Custodian, Vivendi Successor,
Seagram and Vivendi, as applicable, shall, if required by section 8.1, execute
and deliver the supplemental trust agreement provided for in Article 9 and
thereupon Vivendi Successor shall possess and from time to time may exercise
each and every right and power of Vivendi under this Agreement in the name of
Vivendi or otherwise and any act or proceeding by any provision of this
Agreement required to be done or performed by the Board of Directors of Vivendi
or any officers of Vivendi may be done and performed with like force and effect
by the directors or officers of such Vivendi Successor.
8.3. Wholly-Owned Subsidiaries. Nothing herein shall be construed as
preventing (i) the amalgamation or merger of any wholly-owned direct or indirect
subsidiary of Vivendi (other than Vivendi Exchangeco or Vivendi Holdings) with
or into Vivendi, (ii) the winding-up, liquidation or dissolution of any
wholly-owned direct or indirect subsidiary of Vivendi (other than Vivendi
Exchangeco or Vivendi Holdings) provided that all of the assets of such
subsidiary are transferred to Vivendi or another wholly-owned direct or indirect
subsidiary of Vivendi, or (iii) any other distribution of the assets of any
wholly-owned direct or indirect subsidiary of Vivendi (other than Vivendi
Exchangeco or Vivendi Holdings) among the shareholders of such subsidiary for
the purpose of winding up its affairs, and any such transactions are expressly
permitted by this Article 8.
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ARTICLE 9
AMENDMENTS AND SUPPLEMENTAL CUSTODY AGREEMENTS
9.1. Amendments, Modifications, etc. Subject to sections 8.2, 8.4 and
10.1, this Agreement may not be amended or modified except by an agreement in
writing executed by Vivendi, Vivendi Exchangeco and the Custodian and approved
by the Holders in accordance with section 10.2 of the Share Provisions.
9.2. Ministerial Amendments. Notwithstanding the provisions of section
9.1, the parties to this Agreement may in writing, at any time and from time to
time, without the approval of the Holders, amend or modify this Agreement for
the purposes of:
(a) adding to the covenants of any or all parties hereto for the
protection of the Holders hereunder provided that the Board of Directors of
each of Vivendi Exchangeco and Vivendi shall be of the good faith opinion
that such additions will not be prejudicial to the rights or interests of
the Holders;
(b) making such amendments or modifications not inconsistent with this
Agreement as may be necessary or desirable with respect to matters or
questions which, in the good faith opinion of the Board of Directors of
each of Vivendi and Vivendi Exchangeco and in the opinion of the Custodian,
having in mind the best interests of the Holders, it may be expedient to
make, including without limitation those referred to in section 3.1(b),
provided that such Boards of Directors and the Custodian, acting on the
advice of counsel, shall be of the opinion that such amendments and
modifications will not be prejudicial to the interests of the Holders; or
(c) making such changes or corrections which, on the advice of counsel
to Vivendi, Vivendi Exchangeco and the Custodian, 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 Custodian, acting on the advice of counsel, and the Board of Directors
of each of Vivendi and Vivendi Exchangeco shall be of the opinion that such
changes or corrections will not be prejudicial to the rights and interests
of the Holders.
9.3. Meeting to Consider Amendments. Vivendi Exchangeco, at the request
of Vivendi, shall call a meeting or meetings of the Holders for the purpose of
considering any proposed amendment or modification requiring approval under this
Agreement. Any such meeting or meetings shall be called and held in accordance
with the by-laws of Vivendi Exchangeco, the Share Provisions and all applicable
laws.
9.4. Changes in Capital of Vivendi and Vivendi Exchangeco. At all times
after the occurrence of any event contemplated under section 2.7 or 2.8 of the
Support Agreement or otherwise, as a result of which the Vivendi Shares, Vivendi
Voting Rights or the Exchangeable Shares are in any way changed, this Agreement
shall forthwith be amended and modified as necessary in order that it shall
apply with full force and effect, mutatis mutandis, to all new securities into
which the Vivendi Shares, the Vivendi Voting Rights or the Exchangeable Shares
are so changed and the parties hereto shall execute and deliver a supplemental
agreement giving effect to and evidencing such necessary amendments and
modifications.
9.5. Execution of Supplemental Custody Agreements. From time to time
Vivendi Exchangeco (when authorized by a resolution of its Board of Directors),
Vivendi (when authorized by a resolution of its Board of Directors) and the
Custodian may, subject to the provisions of these presents, and they shall, when
so directed by these presents, execute and deliver by their proper officers,
agreements or other instruments supplemental hereto, which thereafter shall form
part hereof, for any one or more of the following purposes:
(a) evidencing the successors of any successor Custodian in accordance
with the provisions of Article 7;
(b) making any additions to, deletions from or alterations of the
provisions of this Agreement which, in the opinion of the Custodian, acting
on the advice of counsel, will not be prejudicial to the interests of the
Holders or are, in the opinion of counsel to the Custodian, necessary or
advisable in order to incorporate, reflect or comply with any legislation
the provisions of which apply to Vivendi, Vivendi Exchangeco, the Custodian
or this Agreement; and
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(c) for any other purposes not inconsistent with the provisions of
this Agreement, including without limitation, to make or evidence any
amendment or modification to this Agreement as contemplated hereby,
provided that, in the opinion of the Custodian, the rights of the Custodian
and Holders will not be prejudiced thereby.
ARTICLE 10
TERMINATION
10.1. Term. This Agreement shall continue until the earliest to occur of
the following events:
(a) no outstanding Exchangeable Shares are held by a Holder; and
(b) each of Vivendi and Vivendi Exchangeco elects in writing to
terminate this Agreement and such termination is approved by the Holders in
accordance with section 10.2 of the Share Provisions.
The provisions of Articles 5 and 6 shall survive any termination of this
Agreement.
ARTICLE 11
GENERAL
11.1. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule or law, or public
policy, all other conditions and provisions of this Agreement 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 Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
11.2. Enurement. This Agreement shall be binding upon and enure to the
benefit of the parties hereto and their respective successors and permitted
assigns and to the benefit of the Holders.
11.3. 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 Vivendi or Vivendi Exchangeco, at:
c/o Vivendi
[ ]
Paris, France
Attention: [ ]
Telecopier No.: [ ]
(b) if to the Custodian, at:
[ ]
[ ]
[ ]
Toronto, Ontario,
Canada
Attention: [ ]
Telecopier No.: (416) [ ]
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
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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.
11.4. Notice to Holders. Any and all notices to be given and any
documents to be sent to any Holders 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 Vivendi Exchangeco 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.
11.5. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
11.6. Jurisdiction. This Agreement shall be construed and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
11.7. Responsibility of Custodian. The Custodian shall be responsible for
any acts or omissions of an Accredited Intermediary that are inconsistent with
the terms of this Agreement or that in any manner prejudice the rights of any
holder of Vivendi Voting Rights provided for herein.
11.8. Attornment. Each of the Custodian, Vivendi and Vivendi Exchangeco
agrees that any action or proceeding arising out of or relating to this
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 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 Vivendi hereby appoint Vivendi Exchangeco
at its registered office in the Province of Ontario as attorney for service of
process.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
VIVENDI
By:
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Name:
Title:
3744531 CANADA INC.
By:
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Name:
Title:
[CUSTODIAN]
By:
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Name:
Title:
By:
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Name:
Title:
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