EXHIBIT 99.2
VOTING AND EXCHANGE TRUST AGREEMENT
THIS VOTING AND EXCHANGE TRUST AGREEMENT is entered into as of ,
1999, by and among PRI Automation, Inc., a corporation existing under laws of
the Commonwealth of Massachusetts ("Parent"), 1325949 Ontario Inc., a
corporation existing under the laws of Ontario and a wholly owned subsidiary of
Parent ("Subco"), Promis Systems Corporation Ltd., a corporation existing under
the laws of Canada (the "Company"), and Montreal Trust Company of Canada, a
trust company incorporated under the laws of Canada ("Trustee").
WHEREAS, pursuant to a Combination Agreement dated November 24, 1998 (the
"Combination Agreement"), by and among the Company, Parent and Subco, the
parties agreed that on the Effective Date (as defined in the Combination
Agreement), Parent, Subco, the Company and the Trustee would execute and deliver
a Voting and Exchange Trust Agreement substantially in the form of this
Agreement;
WHEREAS, pursuant to an arrangement (the "Arrangement") effected by the
Articles of Arrangement dated (the "Articles of Arrangement") filed
pursuant to the Canada Business Corporations Act (the "CBCA"), each issued and
outstanding common share (a "Common Share") of the Company (other than those
Common Shares held by dissenters who have exercised their dissenters' rights in
accordance with Section 190 of the CBCA and Section 3.1 of the plan of
arrangement (the "Plan of Arrangement") contained in the Articles of Arrangement
and who are ultimately entitled to be paid the fair value for such Common
Shares, and other than those Common Shares held by Parent or any of its
Subsidiaries) was exchanged for issued and outstanding Exchangeable
Shares of the Company (the "Exchangeable Shares"), and thereafter, the Company's
sole issued and outstanding Class X Preferred Share was exchanged by Subco for
one issued and outstanding Common Share;
WHEREAS, the above-mentioned Articles of Arrangement sets forth the rights,
privileges, restrictions and conditions attaching to the Exchangeable Shares
(collectively, the "Exchangeable Share Provisions");
WHEREAS, Parent is to provide voting rights in Parent to each holder (other
than Parent and its Subsidiaries) from time to time of Exchangeable Shares, such
voting rights per Exchangeable Share to be equivalent to the voting rights per
share of Parent Common Stock;
WHEREAS, Parent and Subco are to grant to and in favor of the holders (other
than Parent and its Subsidiaries) from time to time of Exchangeable Shares
certain rights, in the circumstances set forth herein, to require Parent and/or
Subco to purchase from each such holder all or any part of the Exchangeable
Shares held by the holder;
WHEREAS, the parties desire to make appropriate provision and to establish a
procedure whereby voting rights in Parent shall be exercisable by holders (other
than Parent and its Subsidiaries) from time to time of Exchangeable Shares by
and through the Trustee, which will hold legal title to one share of Special
Voting Stock of Parent, par value US$.01 (the "Parent Special Voting Stock") to
which voting rights attach for the benefit of such holders and whereby the
rights to require Subco to purchase Exchangeable Shares from the holders thereof
(other than Parent and its Subsidiaries) 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 rights for the benefit of such holders; and
WHEREAS, these recitals and any statements of fact in this Agreement are
made by Parent, Subco and the Company and not by the Trustee;
NOW, THEREFORE, in consideration of the respective covenants and agreements
provided in this Agreement and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties agree as
follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. In this Agreement, the following terms shall have the
following meanings:
"AGGREGATE EQUIVALENT VOTE AMOUNT" means, with respect to any matter,
proposition or question on which holders of Parent Common Stock are entitled to
vote, consent or otherwise act, the product of (a) the number of Exchangeable
Shares then issued and outstanding and held by Holders (as hereinafter defined)
multiplied by (b) the number of votes to which a holder of one share of Parent
Common Stock is entitled with respect to such matter, proposition or question.
"APPLICABLE LAWS" has the meaning provided in Section 5.11 hereof.
"ARRANGEMENT" has the meaning provided in the recitals hereto.
"ARTICLES OF ARRANGEMENT" has the meaning provided in the recitals hereto.
"AUTOMATIC EXCHANGE RIGHTS" means the benefit of the joint and several
obligation of Parent and Subco to effect the automatic exchange of shares of
Parent Common Stock for Exchangeable Shares pursuant to Section 5.13 hereof.
"BOARD OF DIRECTORS" means the board of directors of the Company.
"BUSINESS DAY" has the meaning provided in the Exchangeable Share
Provisions;
"COMMON SHARES" has the meaning provided in the recitals hereto.
"EQUIVALENT VOTE AMOUNT" means, with respect any matter, proposition or
question on which holders of Parent Common Stock are entitled to vote, consent
or otherwise act, the number of votes to which a holder of one share of Parent
Common Stock is entitled with respect to such matter, proposition or question.
"EXCHANGE PUT RIGHT" has the meaning provided in the Exchangeable Share
Provisions.
"EXCHANGE RIGHT" has the meaning provided in Section 5.1 hereof.
"EXCHANGEABLE SHARE CONSIDERATION" has the meaning provided in the
Exchangeable Share Provisions.
"EXCHANGEABLE SHARE PRICE" has the meaning provided in the Exchangeable
Share Provisions.
"EXCHANGEABLE SHARE PROVISIONS" has the meaning provided in the recitals
hereto.
"EXCHANGEABLE SHARES" has the meaning provided in the recitals hereto.
"HOLDER VOTES" has the meaning provided in Section 4.3 hereof.
"HOLDERS" means the registered holders from time to time of Exchangeable
Shares, other than Parent and its subsidiaries.
"INSOLVENCY EVENT" means the institution by the Company of any proceeding to
be adjudicated a bankrupt or insolvent or to be dissolved or wound-up, or the
consent of the Company 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 Company to contest in good faith any such proceedings commenced
in respect of the Company within 30 days of becoming aware thereof, or the
consent by the Company to the filing of any such petition or to the appointment
of a receiver, or the making by the Company of a general assignment for the
benefit of creditors, or the admission in writing by the Company of its
inability to pay its debts generally as they become due, or the Company not
being permitted, pursuant to liquidity or 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 provided in the Articles of
Arrangement.
"LIQUIDATION EVENT" has the meaning provided in subsection 5.13(b) hereof.
"LIQUIDATION EVENT EFFECTIVE TIME" has the meaning provided in subsection
5.13(c) hereof.
"LIST" has the meaning provided in Section 4.7 hereof.
"OFFICER'S CERTIFICATE" means, with respect to Parent or the Company, as the
case may be, a certificate signed by the Chief Executive Officer or Chief
Financial Officer of Parent or the Company, as the case may be and, with respect
to Subco, a certificate signed by the President or Treasurer of Subco.
"PARENT COMMON STOCK" means a share of common stock of Parent, par value
US$.01.
"PARENT CONSENT" has the meaning provided in Section 4.3 hereof.
"PARENT MEETING" has the meaning provided in Section 4.3 hereof.
"PARENT SPECIAL VOTING STOCK" has the meaning provided in the recitals
hereto.
"PARENT SUCCESSOR" has the meaning provided in subsection 11.1(a) hereof.
"PERSON" includes an individual, body corporate, partnership, company,
unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative.
"PLAN OF ARRANGEMENT" has the meaning provided in the recitals hereto.
"REDEMPTION CALL RIGHT" has the meaning provided in the Plan of Arrangement.
"RETRACTED SHARES" has the meaning provided in Section 5.8 hereof.
"RETRACTION CALL RIGHT" has the meaning provided in the Exchangeable Share
Provisions.
"SUBSIDIARY" has the meaning provided in the Exchangeable Share Provisions.
"SUPPORT AGREEMENT" means that certain support agreement made as of even
date hereof by and between Parent, Subco and the Company.
"TRUST" means the trust created by this Agreement.
"TRUST ESTATE" means the Voting Share, any other securities, the Exchange
Put Right, 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 Agreement.
"TRUSTEE" means Montreal Trust Company of Canada and, subject to the
provisions of Article 10 hereof, includes any successor trustee or permitted
assigns.
"VOTING RIGHTS" means the voting rights attached to the Voting Share.
"VOTING SHARE" means the one share of Parent Special Voting Stock issued by
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 Stock equal to the
Aggregate Equivalent Vote Amount.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this
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 Agreement. Unless otherwise indicated, all references to
an "Article" or "Section" followed by a number and/or a letter refer to the
specified Article or Section of this Agreement. The terms "this Agreement",
"hereof", "herein" and "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and
include any agreement or instrument supplementary or ancillary hereto.
1.3 NUMBER, GENDER, ETC. Words importing the singular number only shall
include the plural and vice versa. Words importing 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 Agreement is not a Business Day, such action shall be required
to be taken on the next succeeding Business Day.
ARTICLE 2
PURPOSE OF AGREEMENT
2.1 ESTABLISHMENT OF TRUST. The purpose of this Agreement is to create the
Trust for the benefit of the Holders, 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 Put Right, the Exchange Right and the Automatic
Exchange Rights in order to enable the Trustee to exercise such rights, in each
case as trustee for and on behalf of the Holders as provided in this Agreement.
ARTICLE 3
VOTING SHARE
3.1 ISSUANCE AND OWNERSHIP OF THE VOTING SHARE. 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
Holders and in accordance with the provisions of this Agreement. Parent hereby
acknowledges receipt from the Trustee as trustee for and on behalf of the
Holders of good and valuable consideration (and the adequacy thereof) for the
issuance of the Voting Share by Parent to the Trustee. During the term of the
Trust and subject to the terms and conditions of this Agreement, the Trustee
shall possess and be vested with full legal ownership of the 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 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 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 Agreement.
3.2 LEGENDED SHARE CERTIFICATES. The Company will cause each certificate
representing Exchangeable Shares to bear an appropriate legend notifying the
Holders of their right to instruct the Trustee with respect to the exercise of
the Voting Rights with respect to the Exchangeable Shares held by the Holders.
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 RIGHTS
4.1 VOTING RIGHTS. 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
stockholders of Parent at a Parent Meeting or in connection with a Parent
Consent. The Voting Rights shall be and remain vested in and exercised by the
Trustee. Subject to Section 7.15 hereof:
(a) the Trustee shall exercise the Voting Rights only on the basis of
instructions received pursuant to this Article 4 from Holders entitled to
instruct the Trustee as to the voting thereof at the time at which a
Parent Consent is sought or a Parent 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
Trustee shall not exercise or permit the exercise of such Holder's Voting
Rights.
The Trustee acknowledges that, in accordance with the terms of the Parent
Special Voting Stock, the holder of the Voting Share and the holders of shares
of Parent Common Stock shall vote or consent as a single class in respect of
each matter, question or proposition to be voted on at a Parent Meeting or being
consented to in connection with a Parent Consent, it being further acknowledged
that, in certain circumstances, the holder of the
Voting Share shall, in addition, have a further vote as a separate class or
series in respect of any particular matter, question or proposition.
4.2 CLASS MEETINGS OF VOTING SHARE. Provided that the holder of the Voting
Share is also entitled to vote with the holders of Parent Common Stock as a
single class in accordance with the terms of the Parent Special Voting Stock,
with respect to any vote proposed for consideration by the holder of the Voting
Share voting separately as a series or class, either at a Parent Meeting or by
Parent Consent, other than a vote which, if passed, would affect the Voting
Rights of each Holder, the clerk of Parent shall instruct the Trustee as to the
manner in which the votes attached to the Voting Share shall be cast in such
class or series vote. When the holder of the Voting Share is not entitled to
vote with the holders of Parent Common Stock as a single class in accordance
with the terms of the Parent Special Voting Stock, the Holders may instruct the
Trustee as to the exercise of the votes attached to the Voting Share in such
class or series vote.
4.3 NUMBER OF VOTES. With respect to all meetings of stockholders of
Parent at which holders of shares of Parent Common Stock are entitled to vote (a
"Parent Meeting") and with respect to all written consents sought by Parent from
its stockholders including the holders of shares of Parent Common Stock (a
"Parent Consent"), each Holder shall be entitled to instruct the Trustee to cast
and exercise, in the manner instructed, a number of votes equal to the
Equivalent Vote Amount for each Exchangeable Share owned of record by such
Holder on the record date established by Parent or by applicable law for such
Parent Meeting or Parent Consent, as the case may be, (the "Holder 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.
4.4 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 Parent utilizes in communications to holders
of Parent Common Stock) to each of the Holders named in the List on the same day
as the initial mailing or notice (or other communication) with respect thereto
is commenced or given by Parent to its stockholders:
(a) a copy of such notice, together with any related materials to be
provided to stockholders of Parent;
(b) a statement that such Holder is entitled to instruct the Trustee as to
the exercise of the Holder Votes with respect to such Parent Meeting or
Parent Consent, as the case may be, or, pursuant to Section 4.8 hereof,
to attend such Parent Meeting and to exercise personally the Holder 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 Holder or his designee to exercise personally the
Holder Votes; or
(ii) a proxy to a designated agent or other representative of the
management of Parent to exercise such Holder Votes;
(d) a statement that if no such instructions are received from the Holder,
the Holder Votes to which such Holder is entitled will not be exercised;
(e) a form of direction whereby the Holder 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 the method for
revoking or amending such instructions.
The materials referred to above are to be provided by Parent to the Trustee,
but shall be subject to review and comment by the Trustee.
For the purpose of determining Holder Votes to which a Holder is entitled in
respect of any such Parent Meeting or Parent Consent, the number of Exchangeable
Shares owned of record by the Holder shall be determined at the close of
business on the record date established by Parent or by applicable law for
purposes of determining stockholders entitled to vote at such Parent Meeting or
to give written consent in connection with
such Parent Consent. Parent will notify the Trustee of any decision of the board
of directors of 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 4.4.
4.5 COPIES OF STOCKHOLDER INFORMATION. Parent will deliver to the Trustee
copies of all proxy materials, (including notices of Parent Meetings, but
excluding proxies to vote shares of Parent Common Stock), 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 Stock in sufficient
quantities and in sufficient time so as to enable the Trustee to send those
materials to each Holder at the same time as such materials are first sent to
holders of Parent Common Stock. The Trustee will mail or otherwise send to each
Holder, at the expense of Parent, copies of all such materials (and all
materials specifically directed to the Holders or to the Trustee for the benefit
of the Holders by Parent) received by the Trustee from Parent at the same time
as such materials are first sent to holders of Parent Common Stock. The Trustee
will also make available for inspection by any Holder at the Trustee's principal
trust office in the city of Toronto all proxy materials, information statements,
reports and other written communications that are:
(a) received by the Trustee as the registered holder of the Parent Special
Voting Stock and made available by Parent generally to holders of Parent
Common Stock; or
(b) specifically directed to the Holders or to the Trustee for the benefit
of the Holders by Parent.
4.6 OTHER MATERIALS. As soon as reasonably practicable after receipt by
Parent or any stockholder of Parent (if such receipt is known by Parent) of any
material sent or given generally to the holders of Parent Common Stock 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), Parent shall
use its reasonable efforts to obtain and deliver to the Trustee copies thereof
in sufficient quantities so as to enable the Trustee to forward such material
(unless the same has been provided directly to Holders by such third party) to
each Holder as soon as possible thereafter. As soon as practicable after receipt
thereof, the Trustee will mail or otherwise send to each Holder, at the expense
of Parent, copies of all such materials received by the Trustee from Parent. The
Trustee will also make copies of all such materials available for inspection by
any Holder at the Trustee's principal trust office in the city of Toronto.
4.7 LIST OF PERSONS ENTITLED TO VOTE. The Company shall, (a) prior to each
annual 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
Holders arranged in alphabetical order and showing the number of Exchangeable
Shares held of record by each such Holder, 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 established by Parent or pursuant to applicable
law for determining the holders of Parent Common Stock 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 Company 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. Parent agrees to give the Company written 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
Company to perform its obligations under this Section 4.7.
4.8 ENTITLEMENT TO DIRECT VOTES. Any Holder 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 4.4 hereof with respect
to the exercise of the Holder Votes to which such Holder 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 Holder Votes
to which such Holder is entitled.
4.9 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 Holder pursuant to Section 4.4 hereof, 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); provided, however, that
such written instructions are received by the Trustee from the Holder prior to
the time and date fixed by the Trustee for receipt of such instructions in the
notice given by the Trustee to the Holder pursuant to Section 4.4 hereof.
(b) The Trustee shall cause a representative who is 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 Holder (or its designee) of identification
satisfactory to the Trustee's representative, and at the Holder's request, such
representative shall sign and deliver to such Holder (or its designee) a proxy
to exercise personally the Holder Votes as to which such Holder is otherwise
entitled hereunder to direct the vote, if such Holder either:
(i) has not previously given the Trustee instructions pursuant to Section
4.4 hereof in respect of such meeting, or
(ii) submits to the Trustee's representative written revocation of any such
previous instructions.
At such meeting, the Holder exercising such Holder 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.
4.10 DISTRIBUTION OF WRITTEN MATERIALS. Any written materials to be
distributed by the Trustee to the Holders pursuant to this Agreement shall be
sent by mail (or otherwise communicated in the same manner as Parent utilizes in
communications to holders of Parent Common Stock) to each Holder at its address
as shown on the books of the Company. The Company shall provide or cause to be
provided to the Trustee for this purpose, on a timely basis and without charge
or other expense:
(a) a current List; and
(b) on the request of the Trustee, mailing labels to enable the Trustee to
carry out its duties under this Agreement.
4.11 TERMINATION OF VOTING RIGHTS. Except as otherwise provided herein or
in the Exchangeable Share Provisions, all of the rights of a Holder with respect
to the Holder Votes exercisable in respect of the Exchangeable Shares held by
such Holder, including the right to instruct the Trustee as to the voting of or
to vote personally such Holder Votes, shall be deemed to be surrendered by the
Holder to Parent or Subco, as the case may be, and such Holder 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 Holder of the Exchange Put Right
or the Exchange Right or the occurrence of the automatic exchange of
Exchangeable Shares for shares of Parent Common Stock, as specified in Article 5
hereof (unless in any case Parent or Subco shall not have delivered the
Exchangeable Share Consideration deliverable in exchange therefor to the Trustee
for delivery to the Holders), 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 Company
or any other distribution of the assets of the Company among its shareholders
for the purpose of winding up its affairs pursuant to Article 5 of the
Exchangeable Share Provisions, or upon the purchase of Exchangeable Shares from
the holder thereof by Subco pursuant to the exercise by Subco of the Retraction
Call Right, the Redemption Call Right or the Liquidation Call Right.
ARTICLE 5
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
5.1 GRANT AND OWNERSHIP OF THE EXCHANGE RIGHT. Subco hereby grants to the
Trustee as trustee for and on behalf of, and for the use and benefit of, the
Holders (a) the Exchange Put Right and (b) the right (the
"Exchange Right"), upon the occurrence and during the continuance of an
Insolvency Event, to require Subco to purchase from each or any Holder all or
any part of the Exchangeable Shares held by the Holders, all in accordance with
the provisions of this Agreement and the Exchangeable Share Provisions, as the
case may be. Subco hereby acknowledges receipt from the Trustee as trustee for
and on behalf of the Holders of good and valuable consideration (and the
adequacy thereof) for the grant of the Exchange Put Right and the Exchange Right
by Subco to the Trustee. During the term of the Trust and subject to the terms
and conditions of this Agreement, the Trustee shall possess and be vested with
full legal ownership of the Exchange Put Right and the Exchange Right and shall
be entitled to exercise all of the rights and powers of an owner with respect to
the Exchange Put Right and the Exchange Right, provided that the Trustee shall:
(i) hold the Exchange Put Right and the Exchange Right and the legal title
thereto as trustee solely for the use and benefit of the Holders in
accordance with the provisions of this Agreement; and
(ii) except as specifically authorized by this Agreement, have no power or
authority to exercise or otherwise deal in or with the Exchange Put
Right or the Exchange Right, 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 Agreement.
5.2 GRANT AND OWNERSHIP OF THE AUTOMATIC EXCHANGE RIGHTS. Parent and Subco
hereby jointly and severally grant to the Trustee as trustee for and on behalf
of, and for the use and benefit of, the Holders the Automatic Exchange Rights in
accordance with the provisions of this Agreement. Parent and Subco hereby
acknowledge receipt from the Trustee as trustee for and on behalf of the Holders
of good and valuable consideration (and the adequacy thereof) for the grant of
the Automatic Exchange Rights by Parent and Subco to the Trustee. During the
term of the Trust and subject to the terms and conditions of this Agreement, the
Trustee shall possess and be vested with full legal ownership of the Automatic
Exchange Rights and shall be entitled to exercise all of the rights and powers
of an owner with respect to the Automatic Exchange Rights, provided that the
Trustee shall:
(a) hold the Automatic Exchange Rights and the legal title thereto as
trustee solely for the use and benefit 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 exercise or otherwise deal in or with the Automatic Exchange
Rights, and the Trustee shall not exercise such rights for any purpose
other than the purposes for which this Trust is created pursuant to this
Agreement.
5.3 LEGENDED SHARE CERTIFICATES. The Company will cause each certificate
representing Exchangeable Shares to bear an appropriate legend notifying the
Holders of:
(a) their right to instruct the Trustee with respect to the exercise of the
Exchange Put Right and the Exchange Right in respect of the Exchangeable
Shares held by a Holder, and
(b) the Automatic Exchange Rights.
5.4 GENERAL EXERCISE OF EXCHANGE PUT RIGHT AND EXCHANGE RIGHT. The
Exchange Put Right and the Exchange Right shall be and remain vested in and
exercised by the Trustee. Subject to Section 7.15 hereof, the Trustee shall
exercise the Exchange Put Right and the Exchange Right only on the basis of
instructions received pursuant to this Article 5 from Holders entitled to
instruct the Trustee as to the exercise thereof. To the extent that no
instructions are received from a Holder with respect to the Exchange Put Right
and the Exchange Right, the Trustee shall not exercise or permit the exercise of
the Exchange Put Right and the Exchange Right.
5.5 PURCHASE PRICE. The purchase price payable by Subco for each
Exchangeable Share to be purchased by Subco (a) under the Exchange Put Right
shall be the amount determined under the Exchangeable Share Provisions, and (b)
under the Exchange Right shall be an amount equal to the Exchangeable Share
Price on the last Business Day prior to the day of closing of the purchase and
sale of such Exchangeable Share under the Exchange Right. In connection with
each exercise of the Exchange Right, Subco will provide to the Trustee an
Officer's Certificate setting forth the calculation of the applicable
Exchangeable Share Price for each Exchangeable Share. The applicable
Exchangeable Share Price for each such Exchangeable Share so purchased may be
satisfied only by Subco's issuing and delivering or causing to be delivered to
the Trustee, on behalf of the
relevant Holder, the applicable Exchangeable Share Consideration representing
the total applicable Exchangeable Share Price (less any amounts withheld
pursuant to Section 5.14 hereof).
5.6 EXERCISE INSTRUCTIONS. Subject to the terms and conditions set forth
herein, a Holder 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 Holder on the books of the Company. To cause the
exercise of the Exchange Right by the Trustee, the Holder shall deliver to the
Trustee, in person or by certified or registered mail, at its principal 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 Holders, the certificates
representing the Exchangeable Shares which such Holder desires Subco 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 CBCA and the by-laws of the Company 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 Holder thereby instructs the Trustee to exercise the
Exchange Right so as to require Subco to purchase from the Holder
the number of Exchangeable Shares specified therein,
(ii) that such Holder has good title to and owns all such Exchangeable
Shares to be acquired by Subco free and clear of all liens, claims,
encumbrances, security interests and adverse claims or interests,
(iii) the names in which the certificates representing Parent Common
Stock issuable in connection with the exercise of the Exchange
Right are to be issued, and
(iv) the names and addresses of the persons to whom the Exchangeable
Share Consideration should be delivered; and
(b) payment (or evidence satisfactory to the Trustee, the Company and Subco
of payment) of the taxes (if any) payable as contemplated by Section 5.9
of this Agreement.
If only a part of the Exchangeable Shares represented by any certificate or
certificates delivered to the Trustee are to be purchased by Subco 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 Company.
5.7 DELIVERY OF EXCHANGEABLE SHARE CONSIDERATION; EFFECT OF
EXERCISE. Promptly after receipt of the certificates duly endorsed for transfer
to Subco representing the Exchangeable Shares which the Holder desires Subco to
purchase under the Exchange Put Right or the Exchange Right, together with such
documents and instruments of transfer and a duly completed form of notice of
exercise of the Exchange Put Right or the Exchange Right (and payment of taxes,
if any, payable as contemplated by Section 5.9 hereof), the Trustee shall notify
Subco and the Company of its receipt of the same, which notice to Subco and the
Company shall constitute exercise of the Exchange Put Right or the Exchange
Right by the Trustee on behalf of the Holder of such Exchangeable Shares, and
Subco shall immediately thereafter deliver or cause to be delivered to the
Trustee, for delivery to the Holder of such Exchangeable Shares (or to such
other persons, if any, properly designated by such Holder), the Exchangeable
Share Consideration deliverable in connection with the exercise of the Exchange
Put Right or the Exchange Right (less any amounts withheld pursuant to Section
5.14 hereof); provided, however, that no such delivery shall be made unless and
until the Holder requesting the same shall have paid (or provided evidence
satisfactory to the Trustee, the Company and Subco of the payment of) the taxes
(if any) payable as contemplated by Section 5.9 of this Agreement. Immediately
upon the giving of notice by the Trustee to Subco and the Company of the
exercise of the Exchange Put Right or the Exchange Right, as provided in this
Section 5.7, (a) the closing of the transaction of purchase and sale
contemplated by the Exchange Put Right or the Exchange Right shall be deemed to
have occurred, (b) Subco shall be required to take all action necessary to
permit it to occur, including delivery to the Trustee of the relevant
Exchangeable Share Consideration, no later than the close of business on the
fifth Business Day following the receipt by the Trustee of notice, certificates
and other documents as aforesaid and (c) the Holder of such Exchangeable Shares
shall be deemed to have transferred to Subco all of its right, title and
interest in and to such Exchangeable Shares and the related interest in the
Trust Estate, 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 such Exchangeable Share Consideration is not
delivered by Subco to the Trustee by the date specified above, in which case the
rights of the Holder shall remain unaffected until such Exchangeable Share
Consideration is delivered by Subco and any check included therein is paid.
Concurrently with such Holder ceasing to be a holder of Exchangeable Shares, the
Holder shall be considered and deemed for all purposes to be the holder of the
shares of Parent Common Stock delivered to it pursuant to the Exchange Put Right
or the Exchange Right. Notwithstanding the foregoing until the Exchangeable
Share Consideration is delivered to the Holder, the Holder shall be deemed to
still be a holder of the sold Exchangeable Shares for purposes of voting rights
with respect thereto under this Agreement.
5.8 EXERCISE OF EXCHANGE RIGHT SUBSEQUENT TO RETRACTION. In the event that
a Holder has exercised its right under Article 6 of the Exchangeable Share
Provisions to require the Company to redeem any or all of the Exchangeable
Shares held by the Holder (the "Retracted Shares") and is notified by the
Company pursuant to Section 6.6 of the Exchangeable Share Provisions that the
Company will not be permitted as a result of liquidity or solvency requirements
of applicable law to redeem all such Retracted Shares, subject to receipt by the
Trustee of written notice to that effect from the Company and provided that
Subco shall not have exercised the Retraction Call Right with respect to the
Retracted Shares and that the Holder has not revoked the retraction request
delivered by the Holder to the Company pursuant to Section 6.1 of the
Exchangeable Share Provisions, the retraction request will constitute and will
be deemed to constitute notice from the Holder to the Trustee instructing the
Trustee to exercise the Exchange Right with respect to those Retracted Shares
which the Company is unable to redeem. In any such event, the Company hereby
agrees with the Trustee and in favor of the Holder immediately to notify the
Trustee of such prohibition against the Company's redeeming all of the Retracted
Shares and immediately to forward or cause to be forwarded to the Trustee all
relevant materials delivered by the Holder to the Company 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 which the Company is not permitted to redeem and will require
Subco to purchase such shares in accordance with the provisions of this Article
5.
5.9 STAMP OR OTHER TRANSFER TAXES. Upon any sale of Exchangeable Shares to
Subco pursuant to the Exchange Put Right or the Exchange Right or any sale of
Exchangeable Shares to Parent or Subco pursuant to the Automatic Exchange
Rights, the share certificate or certificates representing Parent Common Stock
to be delivered in connection with the payment of the total purchase price
therefor shall be issued in the name of the Holder of the Exchangeable Shares so
sold or in such names as such Holder may otherwise direct in writing without
charge to the holder of the Exchangeable Shares so sold, provided, however, that
such Holder:
(a) shall pay (and none of Parent, Subco, the Company or the Trustee shall
be required to pay) any documentary, stamp, transfer or other taxes that
may be payable in respect of any transfer involved in the issuance or
delivery of such shares to a person other than such Holder, or
(b) shall have established to the satisfaction of the Trustee, Subco, Parent
(in the case of the sale of Exchangeable Shares to Parent pursuant to the
Automatic Exchange Rights) and the Company that such taxes, if any, have
been paid.
5.10 NOTICE OF INSOLVENCY EVENT. As soon as practicable following 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 Company and
Subco shall give written notice thereof to the Trustee. As soon as practicable
after receiving notice from the Company or Subco of the occurrence of an
Insolvency Event, the Trustee will mail to each Holder, at the expense of Subco,
a notice of such Insolvency Event in the form provided by Subco, which notice
shall contain a brief statement of the right of the Holders with respect to the
Exchange Right.
5.11 QUALIFICATION OF PARENT COMMON STOCK. Parent covenants that if any
shares of Parent Common Stock to be issued and delivered pursuant to the
Exchange Put Right, 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, the taking of any proceeding with
or the obtaining of any order, ruling 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
(collectively, the "Applicable Laws") before such shares may be issued and
delivered by Parent or Subco to the initial holder thereof (other than the
Company) or in order that such shares may be freely traded thereafter (other
than contractual restrictions and any restrictions on transfer by reason of a
holder being a "CONTROL PERSON" of Parent for purposes of Canadian federal or
provincial securities law or an "AFFILIATE" of Parent or the Company for
purposes of United States federal or state securities law), Parent will in good
faith expeditiously take all such actions and do all such things as are
necessary to cause such shares of Parent Common Stock to be and remain duly
registered, qualified or approved. Parent represents and warrants that it has in
good faith taken all actions and done all things as are necessary under
Applicable Laws as they exist on the date hereof to cause the shares of Parent
Common Stock to be issued and delivered pursuant to the Exchange Put Right, the
Exchange Right and the Automatic Exchange Rights and to be freely tradeable
thereafter (other than contractual restrictions and restrictions on transfer by
reason of a holder being a "CONTROL PERSON" of Parent for the purposes of
Canadian federal and provincial securities law or an "AFFILIATE" of Parent or
the Company for the purposes of United States federal or state securities law).
Parent will in good faith expeditiously take all such actions and do all such
things as are necessary to cause all shares of Parent Common Stock to be
delivered pursuant to the Exchange Put Right, 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 such shares are listed, quoted or
posted for trading at such time.
5.12 PARENT COMMON STOCK. Parent hereby represents, warrants and covenants
that the Parent Common Stock issuable and deliverable as described herein will
be duly authorized and validly issued as fully paid and non-assessable.
5.13 AUTOMATIC EXCHANGE ON LIQUIDATION OF PARENT.
(a) Parent will give the Trustee written notice of each of the following
events at the time set forth below:
(i) in the event of any determination by the board of directors of Parent to
institute voluntary liquidation, dissolution or winding-up proceedings
with respect to Parent or to effect any other distribution of assets of
Parent among its stockholders for the purpose of winding up its affairs,
at least 60 days prior to the proposed effective date of such
liquidation, dissolution, winding-up or other distribution; and
(ii) as soon as practicable following the earlier of:
(A) receipt by Parent of notice of and
(B) Parent's 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 Parent or to
effect any other distribution of assets of Parent among its
stockholders for the purpose of winding up its affairs, in each case
where Parent has failed to contest in good faith any such proceeding
commenced in respect of Parent within 30 days of becoming aware
thereof.
(b) Immediately following receipt by the Trustee from Parent of notice of
any event (a "Liquidation Event") contemplated by Section 5.13(a)(i) or
5.13(a)(ii) above, the Trustee will give notice thereof to the Holders. Such
notice shall include a brief description of the automatic exchange of
Exchangeable Shares for shares of Parent Common Stock provided for in Section
5.13(c).
(c) In order that the Holders will be able to participate on a pro rata
basis with the holders of Parent Common Stock in the distribution of assets of
Parent in connection with a Liquidation Event, immediately prior to the
effective time (the "Liquidation Event Effective Time") of a Liquidation Event,
all of the then outstanding Exchangeable Shares shall be automatically exchanged
for shares of Parent Common Stock. To effect such automatic exchange, Parent or
Subco, as determined by Parent and notified in writing to the Trustee, or upon
failure of such notice, Parent, shall be deemed to have purchased each
Exchangeable Share outstanding immediately prior to the Liquidation Event
Effective Time and held by Holders, and each Holder shall be deemed to have sold
the Exchangeable Shares held by it at such time, for a purchase price per share
equal to the Exchangeable Share Price applicable at such time. In connection
with such automatic exchange, Parent will provide to the Trustee an Officer's
Certificate setting forth the calculation of the purchase price for each
Exchangeable Share.
(d) The closing of the transaction of purchase and sale contemplated by
Section 5.13(c) above shall be deemed to have occurred immediately prior to the
Liquidation Event Effective Time, and each Holder of Exchangeable Shares shall
be deemed to have transferred to Parent or Subco, as the case may be, all of the
Holder's right, title and interest in and to such Exchangeable Shares and the
related interest in the Trust Estate and shall cease to be a holder of such
Exchangeable Shares, and Parent or Subco, as the case may be, shall deliver to
the Holder the Exchangeable Share Consideration deliverable upon the automatic
exchange of Exchangeable Shares (less any amounts withheld pursuant to Section
5.14 hereof). Concurrently with such Holder's ceasing to be a holder of
Exchangeable Shares, the Holder shall be considered and deemed for all purposes
to be the holder of the shares of Parent Common Stock delivered to it pursuant
to the automatic exchange of Exchangeable Shares for Parent Common Stock, and
the certificates held by the Holder previously representing the Exchangeable
Shares exchanged by the Holder with Parent or Subco, as the case may be,
pursuant to such automatic exchange shall thereafter be deemed to represent the
shares of Parent Common Stock delivered to the Holder pursuant to such automatic
exchange. Upon the request of a Holder and the surrender by the Holder of
Exchangeable Share certificates deemed to represent shares of Parent Common
Stock, duly endorsed in blank and accompanied by such instruments of transfer as
Parent or Subco, as the case may be, may reasonably require, Parent or Subco, as
the case may be, shall deliver or cause to be delivered to the Holder
certificates representing the shares of Parent Common Stock of which the Holder
is the holder. Notwithstanding the foregoing, until each Holder is actually
entered on the register of holders of Parent Common Stock, such Holder shall be
deemed to still be a holder of the transferred Exchangeable Shares for purposes
of all voting rights with respect thereto under this Agreement.
5.14 WITHHOLDING RIGHTS. Parent, Subco and the Trustee shall be entitled
to deduct and withhold from any consideration otherwise payable under this
Agreement to any holder of Exchangeable Shares or Parent Common Stock such
amounts as Parent, Subco or the Trustee is required or permitted to deduct and
withhold with respect to such payment under the Income Tax Act (Canada), the
United States Internal Revenue Code of 1986 or any provision of provincial,
state, local or foreign tax law, in each case as amended or succeeded. To the
extent that amounts are so withheld, such withheld amounts shall be treated for
all purposes as having been paid to the holder of the shares in respect of which
such deduction and withholding was made, provided that such withheld amounts are
actually remitted to the appropriate taxing authority. To the extent that the
amount so required or permitted to be deducted or withheld from any payment to a
holder exceeds the cash portion of the consideration otherwise payable to the
holder, Parent, Subco and the Trustee are hereby authorized to sell or otherwise
dispose of such portion of the consideration as is necessary to provide
sufficient funds to Parent, Subco or the Trustee, as the case may be, to enable
it to comply with such deduction or withholding requirement and Parent, Subco or
the Trustee shall notify the holder thereof and remit to such holder any
unapplied balance of the net proceeds of such sale.
ARTICLE 6
RESTRICTIONS ON ISSUANCE OF PARENT SPECIAL VOTING STOCK
During the term of this Agreement, Parent will not, without the consent of
the holders at the relevant time of the Exchangeable Shares given in accordance
with Article 10 of the Exchangeable Share Provisions, issue any shares of Parent
Special Voting Stock in addition to the Voting Share.
ARTICLE 7
CONCERNING THE TRUSTEE
7.1 POWERS AND DUTIES OF THE TRUSTEE. The rights, powers and authorities
of the Trustee under this Agreement, in its capacity as trustee of the Trust,
shall include:
(a) receipt and deposit of the Voting Share from Parent as trustee for and
on behalf of the Holders in accordance with the provisions of this
Agreement;
(b) granting proxies and distributing materials to Holders as provided in
this Agreement;
(c) voting the Holder Votes in accordance with the provisions of this
Agreement;
(d) receiving the grant of the Exchange Put Right and the Exchange Right
from Subco and receiving the grant of the Automatic Exchange Rights from
Parent and Subco as trustee for and on behalf of the Holders in
accordance with the provisions of this Agreement;
(e) exercising the Exchange Put Right and the Exchange Right and enforcing
the benefit of the Automatic Exchange Rights, in each case in accordance
with the provisions of this Agreement, and in connection therewith
receiving from Holders Exchangeable Shares and other requisite documents
and distributing to such Holders the shares of Parent Common Stock and
checks, if any, to which such Holders are entitled upon the exercise of
the Exchange Put Right and 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 Agreement;
(h) taking action at the direction of a Holder or Holders to enforce the
obligations of Parent, Subco and the Company under this Agreement; and
(i) taking such other actions and doing such other things as are
specifically provided in this Agreement.
In the exercise of such rights, powers 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 Agreement as the
Trustee, acting in good faith and in the reasonable exercise of its discretion,
may deem necessary, appropriate or desirable to effect the purpose of the Trust.
Any exercise of such discretionary rights, powers and authorities by the Trustee
shall be final, conclusive and binding upon all persons. The Trustee in
exercising its rights, powers, duties and authorities hereunder shall act
honestly and in good faith with a view to the best interests of the Holders 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 Company, Parent
and Subco that at the date of execution and delivery of this Agreement there
exists no material conflict of interest in the role of the Trustee as a
fiduciary hereunder and the role of the Trustee in any other capacity. The
Trustee shall within 60 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 hereof. 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
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 Company, Parent
and Subco 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 Parent Common Stock; and
(b) requisition, from time to time,
(i) from any such registrar or transfer agent any information readily
available from the records maintained by it which the Trustee may
reasonably require for the discharge of its duties and
responsibilities under this Agreement and
(ii) from the transfer agent of Parent Common Stock, and any subsequent
transfer agent of such shares, to complete the exercise from time
to time of the Exchange Put Right, the Exchange Right and the
Automatic Exchange Rights in the manner specified in Article 5
hereof, the share certificates issuable upon such exercise.
The Company, Parent and Subco irrevocably authorize their respective
registrars and transfer agents to comply with all such requests. 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 Put Right, the Exchange Right and the Automatic Exchange Rights, in
each case pursuant to Article 5 hereof.
7.4 BOOKS AND RECORDS. The Trustee shall keep available for inspection by
Parent, Subco and the Company, at the Trustee's principal trust office in
Xxxxxxx, Xxxxxxx, correct and complete books and records of account relating to
the Trustee's actions under this Agreement, including without limitation, all
information relating to mailings and instructions to and from Holders and all
transactions pursuant to the Voting Rights, the Exchange Put Right, the Exchange
Right and the Automatic Exchange Rights for the term of this Agreement. On or
before March 31, 2000, 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 Parent and the Company a brief report, dated as of the preceding
December 31, with respect to:
(a) property and funds comprising the Trust Estate as of that date;
(b) the number of exercises of the Exchange Put Right and the Exchange
Right, if any, and the aggregate number of Exchangeable Shares received
by the Trustee on behalf of Holders in consideration of the issue and
delivery by Parent of shares of Parent Common Stock in connection with
the Exchange Put Right and 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 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.
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 Agreement at the request, order or direction of any Holder upon such
Holder's 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 Holder 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
hereof, and with respect to the Exchange Put Right and the Exchange Right
pursuant to Article 5 hereof, subject to Section 7.15 hereof, and with respect
to the Automatic Exchange Rights pursuant to Article 5 hereof. None of the
provisions contained in this Agreement shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the exercise of any
of its rights, powers, duties or authorities unless funded, given funds,
security and indemnified as aforesaid.
7.7 ACTIONS BY 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 trust or power hereunder unless the Holder 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 hereof and the
Trustee 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 Trustee 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 or under the Voting Rights,
the Exchange Put Right, the Exchange Right 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 Holders.
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, and 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 Agreement.
7.9 EVIDENCE AND AUTHORITY TO TRUSTEE. The Company, Parent and Subco shall
furnish to the Trustee evidence of compliance with the conditions provided for
in this Agreement relating to any action or step required or permitted to be
taken by any of them or the Trustee under this Agreement or as a result of any
obligation imposed under this Agreement, including, without limitation, in
respect of the Voting Rights or the Exchange Put Right, 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 Company, Parent or
Subco forthwith if and when:
(a) such evidence is required by any other section of this Agreement to be
furnished to the Trustee in accordance with the terms of this Section
7.9; or
(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this Agreement, gives the Company, Parent or Subco
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 Company,
Parent or Subco or a statutory declaration or a certificate made by persons
entitled to sign an Officer's Certificate stating that any such condition has
been complied with in accordance with the terms of this Agreement.
Whenever such evidence relates to a matter other than the Voting Rights or
the Exchange Put Right, the Exchange Right or the Automatic Exchange Rights, 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 such person, provided that if such report or opinion is
furnished by a director, officer or employee of the Company, Parent or Subco it
shall be in the form of an Officer's Certificate or a statutory declaration.
Each statutory declaration, Officer's Certificate, opinion or report
furnished to the Trustee as evidence of compliance with a condition provided for
in this Agreement shall include a statement by the person giving the evidence:
(a) declaring that such person has read and understands the provisions of
this Agreement relating to the condition in question;
(b) describing the nature and scope of the examination or investigation upon
which such person based the statutory declaration, Officer's Certificate,
opinion or report; and
(c) declaring that such person has made such examination or investigation as
such person believes is necessary to enable such person 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 or prepared by any solicitor, auditor,
accountant, appraiser, valuer, engineer or other expert, whether retained
by the Trustee or by any of the Company, Parent and Subco or otherwise,
and may employ such assistants as may be necessary to the proper
determination and 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 the trusts hereof and
compensation for all disbursements, costs and expenses made or incurred
by it in the determination and 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 Agreement, any moneys held by or on behalf of the Trustee which under the
terms of this Agreement may or ought to be invested or which may be on deposit
with the Trustee or which may be in the hands of the Trustee, may be invested
and reinvested in the name or under the control of the Trustee in 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 Company. 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 Company,
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 Agreement or otherwise in respect
of the premises.
7.13 TRUSTEE NOT BOUND TO ACT ON REQUEST. Except as otherwise specifically
provided in this Agreement, the Trustee shall not be bound to act in accordance
with any direction or request of the Company, Parent or Subco 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
Company, Parent and Subco that at the date of execution and delivery by it of
this Agreement it is authorized to carry on the business of a trust company in
each of the Provinces of Canada 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 Agreement and the Voting Rights, the Exchange Put
Right, the Exchange Right and the Automatic Exchange Rights shall not be
affected in any manner whatsoever by reason only of such event; provided,
however, the Trustee shall within 60 days after ceasing to be authorized to
carry on the business of a trust company in any Province of Canada, either
become so authorized or resign in the manner and with the effect specified in
Article 10 hereof.
7.15 CONFLICTING CLAIMS. If conflicting claims or demands are made or
asserted with respect to any interest of any Holder in any Exchangeable Shares,
including any disagreement between the heirs, representatives, successors or
assigns succeeding to all or any part of the interest of any Holder in any
Exchangeable Shares resulting in conflicting claims or demands being made in
connection with such interest, then the Trustee shall be entitled, at its sole
discretion, to refuse to recognize or to comply with any such claim or demand.
In so refusing, the Trustee may elect not to exercise any Voting Rights,
Exchange Put Right, 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 Put Right, 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 Put Right,
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 indemnity 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 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 Holders, subject to all the terms and conditions herein set
forth.
ARTICLE 8
COMPENSATION
Parent, Subco and the Company jointly and severally agree to pay to the
Trustee reasonable compensation for all of the services rendered by it under
this Agreement and will reimburse the Trustee for all reasonable expenses
(including taxes other than taxes based on the net income of the Trustee) 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 Trustee in connection with its rights and duties under this
Agreement; provided that Parent, Subco and the Company 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 fraudulently or in bad faith or with negligence,
recklessness or willful misconduct.
ARTICLE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 INDEMNIFICATION OF THE TRUSTEE. Parent, Subco and the Company jointly
and severally agree to indemnity and hold harmless the Trustee and each of its
directors, officers and agents appointed and acting in accordance with this
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,
recklessness, 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 Agreement, or any written or oral
instructions delivered to the Trustee by Parent, Subco or the Company pursuant
hereto. In no case shall Parent, Subco or the Company be liable under this
indemnity for any claim against any of the Indemnified Parties unless Parent,
Subco and the Company 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, Parent, Subco and the Company shall be entitled to
participate at their own expense in the defense and, if Parent, Subco or the
Company so elect at any time after receipt of such notice, any of them may
assume the defense of any suit brought to enforce any such claim. The Trustee
shall have the right to employ separate counsel in any such suit and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of the Trustee unless: (i) the employment of such counsel has been
authorized by Parent, Subco or the Company; or (ii) the named parties to any
such suit include both the Trustee and Parent, Subco or the Company and the
Trustee shall have been advised by counsel acceptable to Parent, Subco or the
Company that there may be one or more legal defenses available to the Trustee
that are different from or in addition to those available to Parent, Subco or
the Company and that, in the judgement of such counsel, would present a conflict
of interest were a joint representation to be undertaken (in which case Parent,
Subco and the Company shall not have the right to assume the defense of such
suit on behalf of the Trustee, but shall be liable to pay the reasonable fees
and expenses of counsel for the Trustee).
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
Agreement, except to the extent that such loss is attributable to the fraud,
negligence, recklessness, willful 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 Parent, Subco
and the Company specifying the date on which it desires to resign, provided that
such notice shall never be given less than 60 days before such desired
resignation date unless Parent, Subco and the Company 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, Parent, Subco and
the Company 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. Failing acceptance by a successor trustee, a
successor trustee may be appointed by an order of the Ontario Court of Justice
(General Division) upon application of one or more of the parties hereto.
10.2 REMOVAL. The Trustee, or any trustee hereafter appointed, may be
removed with or without cause, at any time on not less than 30 days' prior
notice by written instrument executed by Parent, Subco and the Company, in
duplicate, one copy of which shall be delivered to the trustee so removed and
one copy to the successor trustee, provided that, in connection with such
removal, provision is made for a replacement trustee similar to that
contemplated in Section 10.1.
10.3 SUCCESSOR TRUSTEE. Any successor trustee appointed as provided under
this Agreement shall execute, acknowledge and deliver to Parent, Subco and the
Company and to its predecessor trustee an instrument accepting such appointment.
Thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as trustee in this Agreement. However, on the written request
of Parent, Subco and the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of this Agreement, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act. Upon the request of any such successor trustee, Parent, Subco, the Company
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.
10.4 NOTICE OF SUCCESSOR TRUSTEE. Upon acceptance of appointment by a
successor trustee as provided herein, Parent, Subco and the Company shall cause
to be mailed notice of the succession of such trustee hereunder to each Holder
specified in a List. If Parent, Subco or the Company 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 Parent, Subco and the Company.
ARTICLE 11
PARENT SUCCESSORS
11.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC. 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, but may do so if:
(a) such other Person or continuing corporation (the "Parent Successor"), by
operation of law, becomes, without more, bound by the terms and
provisions of this Agreement or, if not so bound, executes, prior to or
contemporaneously with the consummation of such transaction an Agreement
supplemental hereto and such other instruments (if any) as are
satisfactory to the Trustee, acting reasonably, and in the opinion of
legal counsel to the Trustee are necessary or advisable to evidence the
assumption by the Parent Successor of liability for all moneys payable
and property deliverable hereunder, 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 Parent under
this Agreement; and
(b) such transaction shall, to the satisfaction of the Trustee and in the
opinion of legal counsel to the Trustee, be upon such terms which
substantially preserve and do not impair in any material respect any of
the rights, duties, powers and authorities of the Trustee or of the
Holders hereunder.
11.2 VESTING OF POWERS IN PARENT 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, Subco and the Company
shall execute and deliver the supplemental agreement provided for in Article 12
hereof, and thereupon the Parent Successor shall possess and from time to time
may exercise each and every right and power of Parent under this Agreement in
the name of Parent 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
Parent or any officers of 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 Parent
with or into Parent or the winding-up, liquidation or dissolution of any
wholly-owned subsidiary of Parent provided that all of the assets of such
subsidiary are transferred to Parent or another wholly-owned subsidiary of
Parent, and any such transactions are expressly permitted by this Article 11.
ARTICLE 12
AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
12.1 AMENDMENTS, MODIFICATIONS, ETC. Subject to Section 12.4, this
Agreement may not be amended, modified or waived except by an agreement in
writing executed by the Company, Subco, Parent and the Trustee and approved by
the Holders in accordance with Section Article 10 of the Exchangeable Share
Provisions. No amendment to or modification or waiver of any of the provisions
of this Agreement otherwise permitted hereunder shall be effective unless made
in writing and signed by all of the parties hereto.
12.2 MINISTERIAL AMENDMENTS. Notwithstanding the provisions of Section
12.1 hereof, 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 of the parties hereto for the
protection of the Holders hereunder;
(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 opinion of the board of directors of each of
Parent, Subco and the Company and in the opinion of the Trustee and its
counsel, having in mind the best interests of the Holders 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 Holders as
a whole; or
(c) making such changes or corrections which, on the advice of counsel to
the Company, Subco, Parent and the Trustee, are required for the purpose
of curing or correcting any ambiguity or defect or inconsistent provision
or clerical omission or mistake or manifest error; provided that the
Trustee and its counsel and the board of directors of each of the
Company, Subco and Parent shall be of the opinion that such changes or
corrections will not be prejudicial to the interests of the Holders as a
whole.
12.3 MEETING TO CONSIDER AMENDMENTS. The Company, at the request of Parent
or Subco, shall call a meeting or meetings of the Holders for the purpose of
considering any proposed amendment or modification requiring approval pursuant
hereto. Any such meeting or meetings shall be called and held in accordance with
the by-laws of the Company, the Exchangeable Share Provisions and all applicable
laws.
12.4 CHANGES IN CAPITAL OF PARENT AND THE COMPANY. 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 Parent Common Stock or the
Exchangeable Shares or both are in any way changed, this Agreement shall
forthwith be amended and modified as necessary in order that it shall apply with
full force and effect, mutatis mutandis, to all new securities into which Parent
Common Stock or the Exchangeable Shares or both are so changed, and the parties
hereto shall execute and deliver a supplemental agreement giving effect to and
evidencing such necessary amendments and modifications.
12.5 EXECUTION OF SUPPLEMENTAL AGREEMENTS. From time to time the Company
(when authorized by a resolution of its Board of Directors), Parent (when
authorized by a vote of its board of directors), Subco (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, 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 any Parent Successors to Parent and the
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 Agreement or the Voting Rights, the Exchange Put Right, 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 Holders 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 Parent, Subco, the
Company, the Trustee or this Agreement; and
(c) for any other purposes not inconsistent with the provisions of this
Agreement, including, without limitation, to make or evidence any
amendment or modification to this Agreement as contemplated hereby,
provided that, in the opinion of the Trustee and its counsel, the rights
of the Trustee and the Holders as a whole will not be prejudiced thereby.
ARTICLE 13
TERMINATION
13.1 TERM. The Trust created by this Agreement shall continue until the
earliest to occur of the following events:
(a) no outstanding Exchangeable Shares are held by a Holder,
(b) each of the Company, Subco and Parent elects in writing to terminate the
Trust and such termination is approved by the Holders in accordance with
Article 10 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 Agreement shall survive any termination
of the Trust and shall continue until there are no Exchangeable Shares
outstanding held by a Holder, provided, however, that the provisions of Articles
8 and 9 hereof shall survive any such termination of this Agreement.
ARTICLE 14
GENERAL
14.2 SEVERABILITY. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remainder of this Agreement shall not in any way be affected or impaired
thereby, and the Agreement shall be carried out as nearly as possible in
accordance with its original terms and conditions.
14.3 INUREMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns and to the benefit of the Holders.
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):
TO PARENT OR SUBCO:
PRI Automation, Inc.
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
FACSIMILE NUMBER: (000) 000-0000
WITH COPIES TO:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
FACSIMILE NUMBER: (000) 000-0000
AND
Blake, Xxxxxxx & Xxxxxxx
Box 25, Commerce Court West
Toronto, Ontario X0X 0X0
XXXXXX
Attention: Xxxx X. Xxxxx, Esq.
FACSIMILE NUMBER: (000) 000-0000
TO THE COMPANY:
Promis Systems Corporation Ltd.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Attention: Chief Executive Officer
FACSIMILE NUMBER: (000) 000-0000
WITH A COPY TO:
Xxxxxxx, Xxxxx & Xxxxxxxxx
Scotia Plaza, Suite 2100
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Attention: Xxxxxxxx X. Xxxxxx, Esq.
FACSIMILE NUMBER: (000) 000-0000
TO THE TRUSTEE:
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 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 Exchangeable Share Provisions and shall be deemed to be received (if
given or sent in such manner) at the time specified in such Exchangeable Share
Provisions, the provisions of which Exchangeable Share Provisions shall apply
mutatis mutandis to notices or documents as aforesaid sent to such Holders.
14.5 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.
14.6 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.
14.7 ATTORNMENT. Parent 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 such courts in
any such action or proceeding, agrees to be bound by any judgment of such courts
and agrees 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 Company
at its registered office in the Province of Ontario as attorney for service of
process.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereby have caused this Voting and Exchange
Trust Agreement to be duly executed as of the date first above written.
PRI AUTOMATION, INC.
By:
------------------------------------------
Xxxxxxxx X. Xxxxx,
CHIEF EXECUTIVE OFFICER
1325949 ONTARIO INC.
By:
------------------------------------------
Xxxxxxxx X. Xxxxx,
CHIEF EXECUTIVE OFFICER
PROMIS SYSTEMS CORPORATION LTD.
By:
------------------------------------------
Xxx XxXxxxxx,
CHIEF EXECUTIVE OFFICER
MONTREAL TRUST COMPANY OF CANADA
By:
------------------------------------------
[name],
[TITLE]
By:
------------------------------------------
[name],
[TITLE]
