Exhibit 9.1
VOTING AND EXCHANGE TRUST AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 11th day of June, 2003.
AMONG:
THE HOCKEY COMPANY, a corporation
existing under the laws of the State of Delaware
(hereinafter referred to as "THC");
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THE HOCKEY COMPANY HOLDINGS INC.,
a corporation existing under the laws of Canada
(hereinafter referred to as "HOLDINGS");
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COMPUTERSHARE TRUST COMPANY OF CANADA,
a trust company incorporated under the laws of Canada
(hereinafter referred to as "TRUSTEE");
WHEREAS pursuant to an Agreement and Plan of Merger (the "MERGER
AGREEMENT") dated as of April 2, 2003 by and among THC, Holdings and Hockey
Merger Co., a wholly-owned subsidiary of Holdings, each of the stockholders of
THC will receive in exchange for each share of voting common stock, par value
$.01 per share, one (1) share of non-voting exchangeable common stock, par value
$.01 per share, in THC (the "EXCHANGEABLE SHARES");
AND WHEREAS the Merger Agreement will become effective concurrently with
the closing of the initial public offering ("IPO") of Holdings by way of a
supplemented PREP prospectus dated June 5, 2003 and is conditional upon the
closing of the IPO;
AND WHEREAS pursuant to the Merger Agreement, THC and Holdings have agreed
to execute a voting and exchange trust agreement substantially in the form of
this trust agreement;
AND WHEREAS the above recitals are made as statements of fact by THC and
Holdings, and not by the Trustee;
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this trust agreement and for other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), the parties
hereto covenant and agree as follows:
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
Each term denoted herein by initial capital letters and not otherwise
defined herein shall have the meaning ascribed thereto in the rights,
privileges, restrictions and conditions (collectively, the "SHARE PROVISIONS")
attaching to the Exchangeable Shares attached as Exhibit A to the Amended and
Restated Certificate of Incorporation of THC, which is attached as Exhibit A to
the Merger Agreement, unless the context requires otherwise.
1.2 DEFINITIONS
In this trust agreement, the following terms shall have the following
meanings:
"ASSIGNEE" has the meaning ascribed to that term in Section 12.3.
"AUTHORIZED PERSON" has the meaning ascribed to that term in Section 6.17.
"AUTOMATIC EXCHANGE RIGHT" means the benefit of the obligation of Holdings
to effect the automatic exchange of Exchangeable Shares for Holdings Common
Shares pursuant to Article 5.
"BENEFICIARIES" means the registered holders from time to time of
Exchangeable Shares, other than Holdings and Holdings Affiliates.
"BENEFICIARY VOTES" has the meaning ascribed to that term in Section 4.2.
"COURT" means the Superior Court of Quebec.
"HOLDINGS MEETING" has the meaning ascribed to that term in Section 4.2.
"HOLDINGS SPECIAL VOTING SHARES" means the special voting shares of
Holdings which entitle the holder of record of such shares, at meetings of
holders of Holdings Common Shares, to one (1) vote per Exchangeable Share
held by a Beneficiary from time to time (other than Exchangeable Shares
held by Holdings and Holdings Affiliates), which shares are to be issued
to, deposited with, and voted by, the Trustee as described herein.
"HOLDINGS SUCCESSOR" has the meaning ascribed to that term in
Section 10.1.
"INDEMNIFIED PARTIES" has the meaning ascribed to that term in
Section 8.1.
"INSOLVENCY EVENT" means the institution by Holdings or THC, as the case
may be, of any proceeding to be adjudicated a bankrupt or insolvent or to
be wound up, or the consent of Holdings or THC, as the case may be, to the
institution of bankruptcy, insolvency or winding-up proceedings against
Holdings or THC, as the case may be, or the filing of a petition, answer or
consent seeking dissolution or winding-up under any
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bankruptcy, insolvency or analogous laws, including without limitation the
COMPANIES CREDITORS' ARRANGEMENT ACT (Canada), the BANKRUPTCY AND
INSOLVENCY ACT (Canada) and the BANKRUPTCY REFORM ACT OF 1978, as
heretofore and hereinafter amended, as codified at 11 U.S.C. Section 101 et
seq., and the failure by Holdings or THC, as the case may be, to contest in
good faith any such proceedings commenced in respect of Holdings or THC, as
the case may be, within 30 days of becoming aware thereof, or the consent
by Holdings or THC, as the case may be, to the filing of any such petition
or to the appointment of a receiver, or the making by Holdings or THC, as
the case may be, of a general assignment for the benefit of creditors.
"INSOLVENCY EVENT EFFECTIVE DATE" has the meaning ascribed to that term in
Section 5.6(c).
"LIST" has the meaning ascribed to that term in Section 4.6.
"OFFICER'S CERTIFICATE" means, with respect to Holdings or THC, as the case
may be, a certificate signed by any one of the authorized signatories of
Holdings or THC, as the case may be.
"PUT RIGHT" means the put right granted to each holder of Exchangeable
Shares pursuant to Article 6 of the Share Provisions.
"TRUST" means the trust created by this trust agreement under the laws of
the Province of Quebec.
"TRUST ESTATE" means the Holdings Special Voting Shares, any other
securities, the Automatic Exchange Right and any money or other property
which may be held by the Trustee from time to time pursuant to this trust
agreement.
"TRUSTEE" means Computershare Trust Company of Canada or such other trust
company or other Entity that Holdings may, in its reasonable discretion,
choose and, subject to the provisions of Article 9, includes any successor
trustee.
"VOTING RIGHTS" means the voting rights attached to the Holdings Special
Voting Shares as set forth in Article 4.
1.3 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this trust agreement into Articles, sections and other
portions and the insertion of headings are for convenience of reference only and
should not affect the construction or interpretation of this trust 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
trust agreement. The terms "THIS TRUST AGREEMENT", "HEREOF", "HEREIN" and
"HEREUNDER" and similar expressions refer to this trust agreement and not to any
particular Article, section or other portion hereof and include any agreement or
instrument supplementary or ancillary hereto.
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1.4 NUMBER, GENDER, ETC.
Words importing the singular number only shall include the plural and VICE
VERSA. Words importing any gender shall include all genders.
1.5 DATE FOR ANY ACTION
If any date on which any action is required to be taken under this trust
agreement is not a Business Day, such action shall be required to be taken on
the next succeeding Business Day.
ARTICLE 2
PURPOSE OF AGREEMENT
2.1 ESTABLISHMENT OF TRUST
The purpose of this trust agreement is to create the Trust for the benefit
of the Beneficiaries, as herein provided. The Trustee will hold the Holdings
Special Voting Shares in order to enable the Trustee to execute the Voting
Rights and will hold the Automatic Exchange Right in order to enable the Trustee
to exercise such right, in each case as trustee for and on behalf of the
Beneficiaries as provided in this trust agreement.
2.2 ADMINISTRATION OF THE PROPERTY OF OTHERS
Title VII of the Civil Code of Quebec, regarding the administration of the
property of others, shall not apply to the provisions of this trust agreement,
the Trustee, the Beneficiaries, Holdings, THC, the administrator of the Trust,
the Trust Estate or any other property held by the Trust; furthermore, the
obligations and duties of the Trustee shall be solely as set forth herein.
ARTICLE 3
HOLDINGS SPECIAL VOTING SHARES
3.1 ISSUE AND OWNERSHIP OF THE HOLDINGS SPECIAL VOTING SHARES
On the date hereof, Holdings hereby issues to, and deposits with the
Trustee, a number of Holdings Special Voting Shares equal to the number of
Exchangeable Shares to be issued on the date hereof to be hereafter held of
record by the Trustee as trustee for and on behalf of, and for the use and
benefit of, the Beneficiaries and in accordance with the provisions of this
trust agreement. Holdings hereby acknowledges receipt from the Trustee, as
trustee for and on behalf of the Beneficiaries, of good and valuable
consideration (and the adequacy thereof) for the issuance of the Holdings
Special Voting Shares by Holdings to the Trustee. After the date hereof, (i)
Holdings shall issue to, and deposit with the Trustee, one (1) Holdings Special
Voting Share upon the issuance of an Exchangeable Share to any current or new
Beneficiary and (ii) Holdings shall cancel, and the Trustee shall return to
Holdings, one (1) Holdings Special Voting Share upon the exercise of the Put
Right by a holder of Exchangeable Shares pursuant to Article 6 of
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the Share Provisions or upon the exercise of the Call Right by Holdings
pursuant to Article 7 of the Share Provisions, with respect to the Exchangeable
Share to which such Holdings Special Voting Share relates.
During the term of the Trust and subject to the terms and conditions of
this trust agreement, the Trustee shall possess and be vested with all rights in
respect of the Holdings Special Voting Shares and shall be entitled to exercise
all of the rights and powers of an owner with respect to the Holdings Special
Voting Shares provided that the Trustee shall:
(a) hold the Holdings Special Voting Shares and all the rights related
thereto as trustee solely for the use and benefit of the Beneficiaries
in accordance with the provisions of this trust agreement; and
(b) except as specifically authorized by this trust agreement, have no
power or authority to sell, transfer, vote or otherwise deal in or
with the Holdings Special Voting Shares and the Holdings Special
Voting Shares shall not be used or disposed of by the Trustee for any
purpose other than the purposes for which this Trust is created
pursuant to this trust agreement.
3.2 LEGENDED SHARE CERTIFICATES
THC will cause each certificate representing Exchangeable Shares to bear an
appropriate legend notifying the Beneficiaries of their right to instruct the
Trustee with respect to the exercise of the Voting Rights in respect of the
Exchangeable Shares of the Beneficiaries.
3.3 SAFE KEEPING OF CERTIFICATES
The certificates representing the Holdings Special Voting Shares shall at
all times be held in safe keeping by the Trustee or its duly authorized agent.
ARTICLE 4
EXERCISE OF VOTING RIGHTS
4.1 VOTING RIGHTS
The Trustee, as the holder of record of the Holdings Special Voting Shares,
shall be entitled to all the Voting Rights and to vote in person or by proxy the
Holdings Special Voting Shares on any matters, questions, proposals or
propositions whatsoever that may properly come before the shareholders of
Holdings at a Holdings Meeting. The Voting Rights shall be and remain vested in
and exercised by the Trustee. Subject to Section 6.15:
(a) the Trustee shall exercise the Voting Rights only on the basis of
instructions received in accordance with this Article 4 from
Beneficiaries entitled to instruct the Trustee as to the voting
thereof at the time at which the Holdings Meeting is held; and
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(b) to the extent that no instructions are received from a Beneficiary
with respect to the Voting Rights to which such Beneficiary is
entitled, the Trustee shall not exercise or permit the exercise of
such Voting Rights.
4.2 NUMBER OF VOTES
With respect to all meetings of shareholders of Holdings at which holders
of Holdings Common Shares are entitled to vote (each, a "HOLDINGS MEETING"),
each Beneficiary shall be entitled to instruct the Trustee to cast and exercise,
through the corresponding Holdings Special Voting Share, one (1) vote for each
Exchangeable Share owned of record by such Beneficiary on the record date
established by Holdings or by applicable law for such Holdings Meeting (the
"BENEFICIARY VOTES"), in respect of each matter, question, proposal or
proposition to be voted on at such Holdings Meeting.
4.3 MAILINGS TO SHAREHOLDERS
With respect to each Holdings Meeting, the Trustee will use its reasonable
efforts promptly to mail or cause to be mailed (or otherwise communicate in the
same manner as Holdings utilizes in communications to holders of Holdings Common
Shares subject to the Trustee being advised in writing of that method and its
ability to provide that method of communication) to each of the Beneficiaries
named in the List referred to in Section 4.6, the following materials (such
mailing or communication to commence on the same day as the mailing (or other
communication) is commenced by Holdings to its shareholders or, if later,
promptly after receipt by the Trustee of such materials):
(a) a copy of the notice of such Holdings Meeting, together with any
related materials, including, without limitation, any circular or
information statement, to be provided to shareholders of Holdings;
(b) a statement that such Beneficiary is entitled to instruct the Trustee
as to the exercise of the Beneficiary Votes with respect to such
Holdings Meeting or, pursuant to Section 4.7, to attend such Holdings
Meeting and to exercise personally the Beneficiary Votes thereat;
(c) a statement as to the manner in which such instructions may be given
to the Trustee, including an express indication that instructions may
be given to the Trustee to give:
(i) a proxy to such Beneficiary or his designee to exercise
personally the Beneficiary Votes; or
(ii) a proxy to a designated agent or other representative of the
management of Holdings to exercise such Beneficiary Votes;
(d) a statement that if no such instructions are received from the
Beneficiary, the Beneficiary Votes to which such Beneficiary is
entitled will not be exercised;
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(e) a form of direction whereby the Beneficiary may instruct the Trustee
as to voting and otherwise 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 Holdings Meeting, shall be not later than the close of
business on the fourth (4th) Business Day prior to such meeting, and
of the method for revoking or amending such instructions.
For the purpose of determining Beneficiary Votes to which a Beneficiary is
entitled in respect of any Holdings Meeting, the number of Exchangeable Shares
owned of record by the Beneficiary shall be determined at the close of business
on the record date established by Holdings or by applicable law for purposes of
determining shareholders entitled to vote at such Holdings Meeting. Holdings
will notify the Trustee of any decision of the Board of Directors of Holdings
with respect to the calling of any Holdings Meeting and shall provide all
necessary information and materials to the Trustee in each case promptly and in
any event in sufficient time to enable the Trustee to perform its obligations
contemplated by this Section 4.3.
4.4 COPIES OF SHAREHOLDER INFORMATION
Holdings will deliver to the Trustee copies of all proxy materials
(including notices of Holdings Meetings but excluding proxies to vote Holdings
Common Shares), information statements, reports (including without limitation,
all interim and annual financial statements) and other written communications
that, in each case, are to be distributed from time to time to holders of
Holdings Common Shares in sufficient quantities and in sufficient time so as to
enable the Trustee to send those materials to each Beneficiary at the same time
as such materials are first sent to holders of Holdings Common Shares. The
Trustee will mail or otherwise send to each Beneficiary, at the expense of
Holdings, copies of all such materials (and all materials specifically directed
to the Beneficiaries or to the Trustee for the benefit of the Beneficiaries by
Holdings) received by the Trustee from Holdings and will use its best efforts to
mail or otherwise send such materials contemporaneously with the sending by
Holdings or its designee of such materials to holders of Holdings Common Shares.
The Trustee will also make available for inspection by any Beneficiary at the
Trustee's principal corporate trust office in the City of Montreal during the
regular business hours of the Trustee all proxy materials, information
statements, reports and other written communications that are:
(a) received by the Trustee as the registered holder of the Holdings
Special Voting Shares and made available by Holdings generally to the
holders of Holdings Common Shares; or
(b) specifically directed to the Beneficiaries or to the Trustee for the
benefit of the Beneficiaries by Holdings.
4.5 OTHER MATERIALS
As soon as reasonably practicable after receipt by Holdings or shareholders
of Holdings (if such receipt is known by Holdings) of any material sent or given
by or on behalf of a third
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party to holders of Holdings Common Shares generally, including without
limitation, dissident proxy and information circulars (and related information
and material) and tender and exchange offer circulars (and related information
and material), Holdings 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
Beneficiaries by such third party) to each Beneficiary as soon as possible
thereafter. As soon as reasonably practicable after receipt thereof, the Trustee
will mail or otherwise send to each Beneficiary, at the expense of Holdings,
copies of all such materials received by the Trustee from Holdings. The Trustee
will also make available for inspection by any Beneficiary at the Trustee's
principal corporate trust office in the City of Montreal during the regular
business hours of the Trustee copies of all such materials.
4.6 LIST OF PERSONS ENTITLED TO VOTE
THC shall, (a) prior to each annual general and special Holdings Meeting
and (b) forthwith upon each request made at any time by the Trustee in writing,
prepare or cause to be prepared a list (a "LIST") of the names and addresses of
the Beneficiaries arranged in alphabetical order (and, if requested, arranged by
jurisdiction of residence) and showing the number of Exchangeable Shares held of
record by each such Beneficiary, in each case at the close of business on the
date specified by the Trustee in such request or, in the case of a List prepared
in connection with a Holdings Meeting, at the close of business on the record
date established by Holdings or pursuant to applicable law for determining the
holders of Holdings Common Shares entitled to receive notice of and/or to vote
at such Holdings Meeting. Each such List shall be delivered to the Trustee as
promptly as practicable after receipt by THC 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 to enable the Trustee to perform its obligations under
this trust agreement. Holdings agrees to give THC notice (with a copy to the
Trustee) of the calling of any Holdings Meeting, 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 THC to perform its obligations under
this Section 4.6.
4.7 ENTITLEMENT TO DIRECT VOTES
Any Beneficiary named in a List prepared in connection with any Holdings
Meeting will be entitled (a) to instruct the Trustee in the manner described in
Section 4.3 with respect to the exercise of the Beneficiary Votes to which such
Beneficiary is entitled or (b) to attend such meeting and personally exercise
thereat, as the proxy of the Trustee, the Beneficiary Votes to which such
Beneficiary is entitled.
4.8 VOTING BY TRUSTEE, AND ATTENDANCE OF TRUSTEE REPRESENTATIVE AT MEETING
(a) In connection with each Holdings Meeting, the Trustee shall exercise,
either in person or by proxy, in accordance with the instructions
received from a Beneficiary pursuant to Section 4.3, the Beneficiary
Votes as to which such Beneficiary is entitled to direct the vote (or
any lesser number thereof as may be set forth in the instructions);
provided, however, that such written instructions are received by the
Trustee from the Beneficiary prior to the time and date fixed by
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the Trustee for receipt of such instruction in the notice given by the
Trustee to the Beneficiary pursuant to Section 4.3.
(b) Subject to the timely receipt of instructions as contemplated in
Section 4.3(f), 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 Holdings Meeting. Upon submission by
a Beneficiary (or its designee) of identification satisfactory to the
Trustee's representative, and at the Beneficiary's request, such
representative shall sign and deliver to such Beneficiary (or its
designee) a proxy to exercise personally the Beneficiary Votes as to
which such Beneficiary is otherwise entitled hereunder to direct the
vote, if such Beneficiary either (i) has not previously given the
Trustee instructions pursuant to Section 4.3 in respect of such
meeting or (ii) submits to such representative written revocation of
any such previous instructions. At such meeting, the Beneficiary
exercising such Beneficiary Votes shall have the same rights as the
Trustee to speak at the meeting in favour of any matter, question,
proposal or proposition, to vote by way of ballot at the meeting in
respect of any matter, question, proposal or proposition, and to vote
at such meeting by way of a show of hands in respect of any matter,
question or proposition.
4.9 DISTRIBUTION OF WRITTEN MATERIALS
Any written materials distributed by the Trustee pursuant to this trust
agreement shall be sent by mail (or otherwise communicated in the same manner as
Holdings utilizes in communications to holders of Holdings Common Shares subject
to the Trustee being advised in writing of that method of communication and its
ability to provide that method of communication) to each Beneficiary at its
address as shown on the books of THC. THC 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) upon the request of the Trustee, mailing labels to enable the Trustee
to carry out its duties under this trust agreement.
4.10 TERMINATION OF VOTING RIGHTS
All of the rights of a Beneficiary with respect to the Beneficiary Votes
exercisable in respect of the Exchangeable Shares held by such Beneficiary,
including the right to instruct the Trustee as to the voting of or to vote
personally such Beneficiary Votes, shall be deemed to be surrendered by the
Beneficiary to Holdings and such Beneficiary Votes and the Voting Rights
represented thereby shall cease immediately upon the delivery by such holder to
the Trustee of the certificates representing such Exchangeable Shares, upon the
exercise by the Trustee of the Automatic Exchange Right, upon the exercise of
the Put Right by a holder of Exchangeable Shares pursuant to Article 6 of the
Share Provisions or upon the exercise of the Call Right by Holdings pursuant to
Article 7 of the Share Provisions, and the Holdings Special Voting Shares
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corresponding to such Exchangeable Shares shall be canceled by Holdings and
the Trustee shall return to Holdings such Holdings Special Voting Shares.
ARTICLE 5
AUTOMATIC EXCHANGE RIGHT
5.1 GRANT AND OWNERSHIP OF THE AUTOMATIC EXCHANGE RIGHT
Holdings hereby grants to the Trustee as trustee for and on behalf of, and
for the use and benefit of, the Beneficiaries the Automatic Exchange Right, in
accordance with the provisions of this trust agreement. Holdings hereby
acknowledges receipt from the Trustee as trustee for and on behalf of the
Beneficiaries of good and valuable consideration (and the adequacy thereof) for
the grant of the Automatic Exchange Right by Holdings to the Trustee. During the
term of the Trust and subject to the terms and conditions of this trust
agreement, the Trustee shall be entitled to exercise all of the rights and
powers related to the Automatic Exchange Right, provided that the Trustee shall:
(a) hold the Automatic Exchange Right as trustee solely for the use and
benefit of the Beneficiaries in accordance with the provisions of this
trust agreement; and
(b) except as specifically authorized by this trust agreement, have no
power or authority to exercise or otherwise deal in or with the
Automatic Exchange Right, and the Trustee shall not exercise any such
rights for any purpose other than the purposes for which the Trust is
created pursuant to this trust agreement.
5.2 OBLIGATIONS OF HOLDINGS
The obligations of Holdings to deliver Holdings Common Shares pursuant to
the Automatic Exchange Right are subject to all applicable laws and regulatory
or stock exchange requirements.
5.3 LEGENDED SHARE CERTIFICATES
THC will cause each certificate representing Exchangeable Shares to bear an
appropriate legend notifying the Beneficiaries of the Automatic Exchange Right.
5.4 QUALIFICATION OF HOLDINGS COMMON SHARES
Holdings covenants that if any Holdings Common Shares to be issued and
delivered pursuant to the Automatic Exchange Right require registration or
qualification with or approval of or the filing of any document, including any
prospectus, registration statement or similar document, or the taking of any
proceeding with or the obtaining of any order, ruling or consent from any
governmental 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 fulfilment of any other Canadian
or United States federal, provincial or state legal requirement before such
shares may be issued and delivered by Holdings to the initial
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holder thereof or in order that such shares may be freely traded thereafter
(other than any restrictions of general application on transfer by reason of a
holder being a "CONTROL PERSON" of Holdings for purposes of Canadian provincial
securities law or an "AFFILIATE" of Holdings for purposes of United States
federal or state securities law), Holdings will in good faith expeditiously take
all such reasonable actions and do all such reasonable things as are necessary
or desirable to cause such Holdings Common Shares to be and remain duly
registered, qualified or approved. Holdings will in good faith expeditiously
take all such reasonable actions and do all such reasonable things as are
necessary or desirable to cause all Holdings Common Shares to be delivered
pursuant to the Automatic Exchange Right to be listed, quoted or posted for
trading on all stock exchanges and quotation systems on which outstanding
Holdings Common Shares have been listed by Holdings and remain listed and are
quoted or posted for trading at such time.
5.5 HOLDINGS COMMON SHARES
Holdings hereby represents, warrants and covenants that the Holdings Common
Shares issuable as described herein will be duly authorized and validly issued
as fully paid and non-assessable and shall be free and clear of any lien, claim
or encumbrance.
5.6 AUTOMATIC EXCHANGE ON INSOLVENCY EVENT
(a) As soon as practicable following the occurrence of an Insolvency Event
or any event that with the giving of notice or the passage of time or
both would be an Insolvency Event, THC and/or Holdings, as the case
may be, shall give written notice thereof to the Trustee.
(b) As soon as practicable following receipt by the Trustee from Holdings
and/or THC, as the case may be, of notice of any Insolvency Event, the
Trustee will give notice thereof to the Beneficiaries. Such notice
shall include a brief description of the automatic exchange of
Exchangeable Shares for Holdings Common Shares provided for in Section
5.6(c).
(c) Immediately prior to the effective date of any Insolvency Event (the
"INSOLVENCY EVENT EFFECTIVE DATE") all of the then outstanding
Exchangeable Shares shall be automatically exchanged for Holdings
Common Shares on the basis of one (1) Holdings Common Share for each
Exchangeable Share which shall serve the purpose of, with respect to
an Insolvency Event of THC, the Trustee effectively exercising the Put
Rights of all holders of Exchangeable Shares pursuant to Article 6 of
the Share Provisions and, with respect to an Insolvency Event of
Holdings, the Trustee effectively exercising the Call Right pursuant
to Article 7 of the Share Provisions.
Immediately prior to the Insolvency Event Effective Date, the exchange
contemplated by the automatic exchange of Exchangeable Shares for Holdings
Common Shares shall be deemed to have occurred, and each Beneficiary shall be
deemed to have transferred to Holdings all of the Beneficiary's right, title and
interest in and to such Beneficiary's Exchangeable Shares and the related
interest in the Trust Estate and shall cease to be a holder of such Exchangeable
Shares and Holdings shall cause to be delivered to the Beneficiary the Holdings
Common Shares
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issuable upon the automatic exchange of Exchangeable Shares for Holdings
Common Shares. Concurrently with such Beneficiary ceasing to be a holder of
Exchangeable Shares, the Beneficiary shall be considered and deemed for all
purposes to be the holder of the Holdings Common Shares issued pursuant to the
automatic exchange of Exchangeable Shares for Holdings Common Shares and the
certificates held by the Beneficiary previously representing the Exchangeable
Shares exchanged by the Beneficiary with Holdings pursuant to such automatic
exchange shall thereafter be deemed to represent Holdings Common Shares issued
to the Beneficiary by Holdings pursuant to such automatic exchange. Upon the
request of a Beneficiary and the surrender by the Beneficiary of Exchangeable
Share certificates deemed to represent Holdings Common Shares, duly endorsed in
blank and accompanied by such instruments of transfer as Holdings may reasonably
require, Holdings shall deliver or cause to be delivered to the Beneficiary
certificates representing Holdings Common Shares of which the Beneficiary is the
holder.
ARTICLE 6
CONCERNING THE TRUSTEE
6.1 POWERS AND DUTIES OF THE TRUSTEE
The rights, powers, duties and authorities of the Trustee under this trust
agreement, in its capacity as Trustee of the Trust, shall include:
(a) receipt and deposit of the Holdings Special Voting Shares from
Holdings as Trustee for and on behalf of the Beneficiaries in
accordance with the provisions of this trust agreement;
(b) granting proxies and distributing materials to Beneficiaries as
provided in this trust agreement;
(c) voting the Beneficiary Votes in accordance with the provisions of this
trust agreement;
(d) receiving the grant of the Automatic Exchange Right from Holdings as
Trustee for and on behalf of the Beneficiaries in accordance with the
provisions of this trust agreement;
(e) enforcing the benefit of the Automatic Exchange Right in accordance
with the provisions of this trust agreement, and in connection
therewith receiving from Beneficiaries the Exchangeable Shares and
other requisite documents and causing to be delivered to such
Beneficiaries Holdings Common Shares to which such Beneficiaries are
entitled pursuant to the Automatic Exchange Right;
(f) holding title to the Trust Estate;
(g) investing any moneys forming, from time to time, a part of the Trust
Estate as provided in this trust agreement;
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(h) taking action at the written direction of a Beneficiary or
Beneficiaries to enforce the obligations of Holdings and THC under
this trust agreement;
(i) taking such other actions and doing such other things as are
specifically provided in this trust agreement; and
(j) receiving, as Trustee for and on behalf of the Beneficiaries, such
documents as may be required to be delivered by Holdings as a
condition of the exercise by Holdings of the Call Right.
In the exercise of such rights, powers, duties and authorities the Trustee
shall have (and is granted) such incidental and additional rights, powers,
duties and authority not in conflict with any of the provisions of this trust
agreement as the Trustee, acting in good faith and in the reasonable exercise of
its discretion, may deem necessary, appropriate or desirable to effect the
purpose of the Trust. Any exercise of such discretionary rights, powers, duties
and authorities by the Trustee shall be final, conclusive and binding upon all
Persons.
The Trustee in exercising its rights, powers, duties and authorities
hereunder shall act honestly and in good faith and with a view to the best
interests of the Beneficiaries and shall exercise the care, diligence and skill
that a reasonably prudent trustee would exercise in comparable circumstances.
The duties and obligations of the Trustee shall be determined by the
provisions hereof and by the provisions of applicable law and, accordingly, the
Trustee shall only be responsible for the performance of such duties and
obligations as it has undertaken herein or as required by applicable law. Where
the provision of documentation to the Trustee is contemplated by this trust
agreement, the Trustee shall retain the right not to act and shall be held not
to be liable for refusing to act unless it has received such documentation in a
clear and reasonable form that complies with the terms of this trust agreement.
Such documentation must not require the exercise of any discretion or
independent judgment on the part of the Trustee except as provided herein.
6.2 NO CONFLICT OF INTEREST
The Trustee represents to Holdings and THC that at the date of execution
and delivery of this trust agreement there exists no material conflict of
interest in the role of the Trustee as a fiduciary hereunder and the role of the
Trustee in any other capacity. The Trustee shall, within 90 days after it
becomes aware that such material conflict of interest exists, either eliminate
such material conflict of interest or resign in the manner and with the effect
specified in Article 8. If, notwithstanding the foregoing provisions of this
Section 6.2, the Trustee has such a material conflict of interest, the validity
and enforceability of this trust agreement shall not be affected in any manner
whatsoever by reason only of the existence of such material conflict of
interest. If the Trustee contravenes the foregoing provisions of this Section
6.2, any interested party may apply to the Court for an order that the Trustee
be replaced as Trustee hereunder.
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6.3 DEALINGS WITH TRANSFER AGENTS, REGISTRARS, ETC.
Holdings and THC 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 Holdings Common Shares;
and
(b) requisition, from time to time, from any such registrar or transfer
agent any information readily available from the records maintained by
it which the Trustee may reasonably require for the discharge of its
duties and responsibilities under this trust agreement.
Holdings and THC irrevocably authorize their respective registrars and
transfer agents to comply with all such requests.
6.4 BOOKS AND RECORDS
The Trustee shall keep available for inspection by Holdings and THC at the
Trustee's principal corporate trust office in the City of Montreal correct and
complete books and records of account relating to the Trust created by this
trust agreement, including without limitation, all relevant data relating to
mailings and instructions to and from Beneficiaries. On or before March 31,
2004, and on or before March 31 in every year thereafter, so long as the
Holdings Special Voting Shares are on deposit with the Trustee, the Trustee
shall transmit to Holdings and THC a brief report, dated as of the preceding
December 31, with respect to:
(a) the property and funds comprising the Trust Estate as of that date;
and
(b) any action taken by the Trustee in the performance of its duties under
this trust agreement which it had not previously reported.
6.5 INCOME TAX RETURNS AND REPORTS
The Trustee shall, to the extent necessary, prepare and file on behalf of
the Trust appropriate Canadian income tax returns and any other returns or
reports as may be required by applicable law and in connection therewith may
obtain the advice of and assistance from such experts as the Trustee may
reasonably consider necessary or advisable. If requested by the Trustee,
Holdings shall retain such experts for providing such advice or assistance to
the Trustee.
6.6 INDEMNIFICATION PRIOR TO CERTAIN ACTIONS BY TRUSTEE
The Trustee shall exercise any or all of the rights, duties, powers or
authorities vested in it by this trust agreement at the request, order or
direction of any Beneficiary upon such Beneficiary furnishing to the Trustee
reasonable security, funding or indemnity, satisfactory to the Trustee, acting
reasonably, against the costs, expenses and liabilities which may be incurred by
the Trustee therein or thereby, provided that no Beneficiary shall be obligated
to furnish to the Trustee any such security, funding or indemnity in connection
with the exercise by the Trustee of any of its rights, duties, powers and
authorities, with respect to the Holdings Special Voting
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Shares pursuant to Article 4, subject to Section 6.15 and, with respect to
the Automatic Exchange Right pursuant to Article 5, subject to Section 6.15.
None of the provisions contained in this trust agreement shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the exercise of any of its rights, powers, duties, or authorities unless
funded, given security or indemnified as aforesaid.
6.7 ACTION OF BENEFICIARIES
No Beneficiary shall have the right to institute any action, suit or
proceeding or to exercise any other remedy authorized by this trust agreement
for the purpose of enforcing any of its rights or for the execution of any trust
or power hereunder unless the Beneficiary has requested the Trustee to take or
institute such action, suit or proceeding and furnished the Trustee with the
security, funding or indemnity referred to in Section 6.6 and the Trustee shall
have failed to act within a reasonable time thereafter. In such case, but not
otherwise, the Beneficiary shall be entitled to take proceedings in any court of
competent jurisdiction such as the Trustee might have taken; it being understood
and intended that no one or more Beneficiaries shall have any right in any
manner whatsoever to affect, disturb or prejudice the rights hereby created by
any such action, or to enforce any right hereunder or the Voting Rights or the
Automatic Exchange Right except subject to the conditions and in the manner
herein provided, and that all powers and trusts hereunder shall be exercised and
all proceedings at law shall be instituted, had and maintained by the Trustee,
except only as herein provided, and in any event for the equal benefit of all
Beneficiaries.
6.8 RELIANCE UPON DECLARATIONS
The Trustee shall not be considered to be in contravention of any its
rights, powers, duties and authorities hereunder if, when required, it acts and
relies in good faith upon statutory declarations, certificates, opinions, lists,
mailing labels, or reports or other papers or documents furnished pursuant to
the provisions hereof or required by the Trustee to be furnished to it in the
exercise of its rights, powers, duties and authorities hereunder if such
statutory declarations, certificates, opinions, lists, mailing labels or reports
or other papers or documents comply with the provisions of Section 6.9, if
applicable, and with any other applicable provisions of this trust agreement.
6.9 EVIDENCE AND AUTHORITY TO TRUSTEE
Holdings and/or THC shall furnish to the Trustee evidence of compliance
with the conditions provided for in this trust agreement relating to any action
or step required or permitted to be taken by Holdings and/or THC or the Trustee
under this trust agreement or as a result of any obligation imposed under this
trust agreement, including, without limitation, in respect of the Voting Rights
or the Automatic Exchange Right and the taking of any other action to be taken
by the Trustee at the request of or on the application of Holdings and/or THC
promptly if and when:
(a) such evidence is required by any other section of this trust agreement
to be furnished to the Trustee in accordance with the terms of this
Section 6.9; or
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(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this trust agreement, gives Holdings and/or THC
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 Holdings and/or
THC or a statutory declaration or a certificate made by Persons entitled to sign
an Officer's Certificate stating that any such condition has been complied with
in accordance with the terms of this trust agreement.
Whenever such evidence relates to a matter other than the Voting Rights or
the Automatic Exchange Right or the taking of any other action to be taken by
the Trustee at the request or on the application of Holdings and/or THC, and
except as otherwise specifically provided herein, such evidence may consist of a
report or opinion of any solicitor, attorney, auditor, accountant, appraiser,
valuer, engineer or other expert or any other Person whose qualifications give
authority to a statement made by him, provided that if such report or opinion is
furnished by a director, officer or employee of Holdings and/or THC 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 trust agreement shall include a statement by the Person giving the
evidence:
(a) declaring that he has read and understands the provisions of this
trust agreement relating to the condition in question;
(b) describing the nature and scope of the examination or investigation
upon which he based the statutory declaration, certificate, statement
or opinion; and
(c) declaring that he has made such examination or investigation as he
believes is necessary to enable him to make the statements or give the
opinions contained or expressed therein.
6.10 EXPERTS, ADVISERS AND AGENTS
The Trustee may:
(a) in relation to these presents act and rely on the opinion or advice of
or information obtained from any solicitor, attorney, auditor,
accountant, appraiser, valuer, engineer or other expert, whether
retained by the Trustee or by Holdings and/or THC or otherwise, and
may employ such assistants as may be necessary to the proper discharge
of its powers and duties and determination of its rights hereunder and
may pay proper and reasonable compensation for all such legal and
other advice or assistance as aforesaid; and
(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
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to receive reasonable remuneration for all services performed by it)
in the discharge of the trusts hereof and compensation for all
disbursements, costs and expenses made or incurred by it in the
discharge of its duties hereunder and in the management of the Trust.
6.11 INVESTMENT OF MONEYS HELD BY TRUSTEE
Unless otherwise provided in this trust agreement, any moneys held by or on
behalf of the Trustee which under the terms of this trust agreement may or ought
to be invested or which may be on deposit with the Trustee or which may be in
the hands of the Trustee may be invested and reinvested in the name or under the
control of the Trustee in securities in which, under the laws of the Province of
Quebec, 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
THC. 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 THC, 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.
6.12 TRUSTEE NOT REQUIRED TO GIVE SECURITY
The Trustee shall not be required to give any bond or security in respect
of the execution of the trusts, rights, duties, powers and authorities of this
trust agreement or otherwise in respect of the premises.
6.13 TRUSTEE NOT BOUND TO ACT ON REQUEST
Except as in this trust agreement otherwise specifically provided, the
Trustee shall not be bound to act in accordance with any direction or request of
Holdings and/or THC or of the directors thereof until a duly authenticated copy
of the instrument or resolution containing such direction or request shall have
been delivered to the Trustee, and the Trustee shall be empowered to act upon
any such copy purporting to be authenticated and believed by the Trustee to be
genuine.
6.14 AUTHORITY TO CARRY ON BUSINESS
The Trustee represents to Holdings and THC that at the date of execution
and delivery by it of this trust agreement it is authorized to carry on the
business of a trust company in each of the Provinces of Canada but if,
notwithstanding the provisions of this Section 6.14, it ceases to be so
authorized to carry on business, the validity and enforceability of this trust
agreement and the Voting Rights shall not be affected in any manner whatsoever
by reason only of such event but the Trustee shall, within 90 days after ceasing
to be authorized to carry on the business of a trust company in any Province of
Canada, either become so authorized or resign in the manner and with the effect
specified in Article 9.
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6.15 CONFLICTING CLAIMS
If conflicting claims or demands are made or asserted with respect to any
interest of any Beneficiary in any Exchangeable Shares, including any
disagreement between the heirs, representatives, successors or assigns
succeeding to all or any part of the interest of any Beneficiary in any
Exchangeable Shares, resulting in conflicting claims or demands being made in
connection with such interest, then the Trustee shall be entitled, at its sole
discretion, to refuse to recognize or to comply with any such claims or demands.
In so refusing, the Trustee may elect not to exercise any Voting 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
or the Automatic Exchange Right 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 have expired; or
(b) all differences with respect to the 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
Trustee shall have been furnished with an executed copy of such
agreement certified to be in full force and effect.
If the Trustee elects to recognize any claim or comply with any demand made
by any such adverse claimant, it may in its discretion require such claimant to
furnish such surety bond or other security satisfactory to the Trustee as it
shall deem appropriate to fully indemnify it as between all conflicting claims
or demands.
6.16 ACCEPTANCE OF TRUST
The Trustee hereby accepts the Trust created and provided for by and in
this trust agreement and agrees to perform the same upon the terms and
conditions herein set forth and to hold all rights, privileges and benefits
conferred hereby and by law in trust for the various Persons who shall from time
to time be Beneficiaries, subject to all the terms and conditions herein set
forth.
6.17 INCUMBENCY CERTIFICATE
Each of Holdings and THC shall file with the Trustee a certificate of
incumbency setting forth the names of the individuals authorized to give
instructions, directions or other instruments to the Trustee (each an
"AUTHORIZED PERSON"), together with specimen signatures of such persons, and the
Trustee shall be entitled to rely on the latest certificate of incumbency filed
with it unless it receives notice, in accordance with Section 13.3 of this trust
agreement, of a change in the Authorized Persons with updated specimen
signatures.
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ARTICLE 7
COMPENSATION
7.1 FEES AND EXPENSES OF THE TRUSTEE
Holdings and THC, jointly and severally, agree to pay the Trustee
reasonable compensation for all of the services rendered by it under this trust
agreement and will reimburse the Trustee for all reasonable expenses (including
taxes other than taxes based on the net income of the Trustee) and disbursements
(including reasonable travel expenses incurred by the Trustee in connection with
its duties hereunder and reasonable compensation and reasonable remuneration
paid by the Trustee in connection with the retainer or employment of experts,
advisors and agents under Sections 6.5 and 6.10), 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
duties under this trust agreement; provided that Holdings and THC shall have no
obligation to reimburse the Trustee for any expenses or disbursements paid,
incurred or suffered by the Trustee in any suit or litigation in which the
Trustee is determined to have acted in bad faith or with negligence,
recklessness or wilful misconduct. Invoices for services rendered by the Trustee
hereunder shall be provided to Holdings, on behalf of Holdings and THC, at the
address of the Holdings set forth in Section 13.3 of this trust agreement. Any
amount owing or unpaid after 30 days from the invoice date will bear interest at
a rate per annum, from the expiration of such 30 day period, equal to the then
current rate charged by the Trustee and shall be payable on demand. The
obligation of Holdings and THC under this Section 7.1 shall survive the
resignation or removal of the Trustee.
ARTICLE 8
INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 INDEMNIFICATION OF THE TRUSTEE
Holdings and THC, jointly and severally, agree to indemnify and hold
harmless the Trustee and each of its directors, officers and agents appointed
and acting in accordance with this trust agreement (collectively, the
"INDEMNIFIED PARTIES") against all claims, losses, damages, reasonable costs,
penalties, fines and reasonable expenses (including reasonable expenses of the
Trustee's legal counsel) which, without fraud, negligence, recklessness, 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
Trustee's acceptance or administration of the Trust, its compliance with its
duties set forth in this trust agreement, or any written or oral instruction
delivered to the Trustee by Holdings or THC pursuant hereto.
In no case shall Holdings or THC be liable under this indemnity for any
claim against any of the Indemnified Parties unless Holdings and THC 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
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to the nature and basis of the claim. Subject to (ii) below, Holdings and
THC shall be entitled to participate at their own expense in the defence and, if
Holdings and THC so elect at any time after receipt of such notice, either of
them may assume the defence of any suit brought to enforce any such claim. The
Trustee shall have the right to employ separate counsel in any such suit and
participate, in the defence thereof but the fees and expenses of such counsel
shall be at the expense of the Trustee unless: (i) the employment of such
counsel has been authorized by Holdings or THC; or (ii) the named parties to any
such suit include both the Trustee and Holdings or THC and the Trustee shall
have been advised by counsel acceptable to Holdings or THC that there may be one
or more legal defences available to the Trustee that are different from or in
addition to those available to Holdings or THC and that, in the judgment of such
counsel, would present a conflict of interest were a joint representation to be
undertaken (in which case Holdings and THC shall not have the right to assume
the defence of such suit on behalf of the Trustee but shall be liable to pay the
reasonable fees and expenses of counsel for the Trustee).
For certainty, the indemnity provided for in this Section 8.1 shall survive
the termination of the trust agreement.
8.2 LIMITATION OF LIABILITY
The Trustee shall not be held liable for any loss which may occur by reason
of depreciation of the value of any part of the Trust Estate or any loss
incurred on any investment of funds pursuant to this trust 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 Trustee.
ARTICLE 9
CHANGE OF TRUSTEE
9.1 RESIGNATION
The Trustee, or any trustee hereafter appointed, may at any time resign by
giving written notice of such resignation to Holdings and THC specifying the
date on which it desires to resign, provided that such notice shall not be given
less than one month before such desired resignation date unless Holdings and THC
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, Holdings and THC 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 of such appointment, a successor trustee may be appointed by
an order of a court of competent jurisdiction upon application of one or more of
the parties hereto, at the expense of Holdings and THC.
9.2 REMOVAL
The Trustee, or any trustee hereafter appointed, may (provided a successor
trustee is appointed) be removed at any time on not less than 30 days' prior
notice by written instrument
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executed by Holdings and THC, in duplicate, one copy of which shall be
delivered to the trustee so removed and one copy to the successor trustee.
9.3 SUCCESSOR TRUSTEE
Any successor trustee appointed as provided under this trust agreement
shall execute, acknowledge and deliver to Holdings and THC and to its
predecessor trustee an instrument accepting such appointment. Thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor under this trust agreement, with the like effect as if originally
named as trustee in this trust agreement. However, on the written request of
Holdings and THC or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amounts then due to it pursuant to the provisions of this
trust agreement, execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the trustee so ceasing to act.
Upon the request of any such successor trustee, Holdings, THC 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.
9.4 NOTICE OF SUCCESSOR TRUSTEE
Upon acceptance of appointment by a successor trustee as provided herein,
Holdings and THC shall cause to be mailed notice of the succession of such
trustee hereunder to each Beneficiary specified in a List. If Holdings or THC
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 Holdings and THC.
ARTICLE 10
HOLDINGS SUCCESSORS
10.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
Holdings shall not 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 such other
Person or continuing corporation (herein called the "HOLDINGS SUCCESSOR"), by
operation of law, becomes, without more, bound by the terms and provisions of
this trust agreement or, if not so bound, executes, prior to or
contemporaneously with the consummation of such transaction, a trust agreement
supplemental hereto to evidence the assumption by the Holdings Successor of
liability for all moneys payable and property deliverable hereunder and the
covenant of such Holdings 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 Holdings under this trust agreement.
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10.2 VESTING OF POWERS IN SUCCESSOR
Whenever the conditions of Section 10.1 have been duly observed and
performed, the Trustee and, if required by Section 10.1, Holdings Successor and
THC shall execute and deliver the supplemental trust agreement provided for in
Article 10 and thereupon Holdings Successor shall possess and from time to time
may exercise each and every right and power of Holdings under this trust
agreement in the name of Holdings or otherwise and any act or proceeding by any
provision of this trust agreement required to be done or performed by the Board
of Directors of Holdings or any officers of Holdings may be done and performed
with like force and effect by the directors or officers of such Holdings
Successor.
10.3 WHOLLY-OWNED SUBSIDIARIES
Nothing herein shall be construed as preventing the amalgamation or merger
of any wholly-owned direct or indirect subsidiary of Holdings with or into
Holdings or the winding-up, liquidation or dissolution of any wholly-owned
subsidiary of Holdings provided that all of the assets of such subsidiary are
transferred to Holdings or another wholly-owned direct or indirect subsidiary of
Holdings and any such transactions are expressly permitted by this Article 10.
ARTICLE 11
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
11.1 AMENDMENTS, MODIFICATIONS, ETC.
This trust agreement may not be amended or modified except by an agreement
in writing executed by Holdings, THC and the Trustee and approved by the
Beneficiaries in accordance with the Share Provisions and all applicable laws.
11.2 MINISTERIAL AMENDMENTS
Notwithstanding the provisions of Section 11.1, the parties to this trust
agreement may in writing, at any time and from time to time, without the
approval of the Beneficiaries, amend or modify this trust agreement for the
purposes of:
(a) adding to the covenants of any or all parties hereto for the
protection of the Beneficiaries hereunder provided that the Board of
Directors of each of THC and Holdings shall be of the good faith
opinion that such additions will not be prejudicial to the rights or
interests of the Beneficiaries;
(b) making such amendments or modifications not inconsistent with this
trust 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 Holdings and THC and in the opinion of the
Trustee (which may, for this purpose, rely on the opinion of counsel),
having in mind the best interests of the Beneficiaries, it may be
expedient to make, provided that such Boards of Directors and the
Trustee
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shall be of the opinion that such amendments and modifications will
not be prejudicial to the interests of the Beneficiaries; or
(c) making such changes or corrections which, on the advice of counsel to
Holdings, THC 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 in the
opinion of the Trustee (which may, for this purpose, rely on the
opinion of counsel) and the Board of Directors of each of Holdings and
THC such changes or corrections will not be prejudicial to the rights
and interests of the Beneficiaries.
11.3 MEETING TO CONSIDER AMENDMENTS
THC, at the request of Holdings, shall call a meeting or meetings of the
Beneficiaries for the purpose of considering any proposed amendment or
modification requiring approval pursuant hereto. Any such meeting or meetings
shall be called and held in accordance with the by-laws of THC, the Share
Provisions and all applicable laws.
11.4 CHANGES IN CAPITAL OF HOLDINGS AND THC
At all times after the occurrence of any event contemplated pursuant to
Section 2.6 of the Exchangeable Share Support Agreement or otherwise, as a
result of which either Holdings Common Shares or the Exchangeable Shares or both
are in any way changed, this trust agreement shall forthwith be amended and
modified as necessary in order that it shall apply with full force and effect,
MUTATIS MUTANDIS, to all new securities into which Holdings Common Shares or the
Exchangeable Shares or both are so changed and the parties hereto shall execute
and deliver a supplemental trust agreement giving effect to and evidencing such
necessary amendments and modifications.
11.5 EXECUTION OF SUPPLEMENTAL TRUST AGREEMENTS
No amendment to or modification or waiver of any of the provisions of this
trust agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by all of the parties hereto. From time to time THC (when
authorized by a resolution of its Board of Directors), Holdings (when authorized
by a resolution of its Board of Directors) and the Trustee may, subject to the
provisions of these presents, and they shall, when so directed by these
presents, execute and deliver by their proper officers, trust agreements or
other instruments supplemental hereto, which thereafter shall form part hereof,
for any one or more of the following purposes:
(a) evidencing the succession of Holdings Successors and the covenants of
and obligations assumed by each such Holdings Successor in accordance
with the provisions of Article 10 and any successor trustee in
accordance with the provisions of Article 9 and Section 12.3;
(b) making any additions to, deletions from or alterations of the
provisions of this trust agreement or the Voting Rights which, in the
opinion of the Trustee (which
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may, for this purpose, rely on the opinion of counsel), will not be
prejudicial to the interests of the Beneficiaries or are, in the
opinion of counsel to the Trustee, necessary or advisable in order to
incorporate, reflect or comply with any legislation the provisions of
which apply to Holdings, THC, the Trustee or this trust agreement; and
(c) for any other purposes not inconsistent with the provisions of this
trust agreement, including without limitation, to make or evidence any
amendment or modification to this trust agreement as contemplated
hereby, provided that, in the opinion of the Trustee (which may, for
this purpose, rely on the opinion of counsel), the rights of the
Trustee and Beneficiaries will not be prejudiced thereby.
ARTICLE 12
TERMINATION AND ASSIGNMENT
12.1 TERM
The Trust created by this trust agreement shall continue until the earliest
to occur of the following events:
(a) no outstanding Exchangeable Shares (or securities or rights
convertible into or exchangeable for or carrying rights to acquire
Exchangeable Shares) are held by a Beneficiary (other than Holdings
and the Holdings Affiliates); and
(b) each of Holdings and THC elects in writing to terminate the Trust and
such termination is approved by the Beneficiaries in accordance with
the Share Provisions and all applicable laws.
12.2 SURVIVAL OF AGREEMENT
This trust agreement shall survive any termination of the Trust and shall
continue until there are no Exchangeable Shares outstanding held by a
Beneficiary; provided, however, that the provisions of Article 7 and Article 8
shall survive any such termination of this trust agreement.
12.3 ASSIGNMENT BY TRUSTEE
This trust agreement may not be assigned by the Trustee without the prior
written consent of Holdings and THC, not to be unreasonably withheld; provided,
however, that this trust agreement may be assigned by the Trustee to an
Affiliate (the "ASSIGNEE") if (a) the Assignee executes, acknowledges and
delivers to Holdings and THC a trust agreement or other instrument(s)
supplemental hereto as provided in Article 11 to evidence the appointment of it
as successor trustee and the acceptance by it of such appointment and the
assumption by it of all the duties and obligations of the predecessor trustee
hereunder without further amendment hereto, and (b) Holdings and THC are
provided with a certificate of a senior officer of the Assignee in form
satisfactory to them, acting reasonably, certifying that the Assignee is
authorized to carry on the business of a trust company in each of the Provinces
of Canada and is free of any material
- 25 -
conflict of interest in its role as fiduciary under this trust agreement
and in its role in any other capacity.
ARTICLE 13
GENERAL
13.1 SEVERABILITY
If any provision of this trust agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder of this
trust agreement shall not in any way be affected or impaired thereby and the
agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
13.2 ENUREMENT
This trust agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns and to the
benefit of the Beneficiaries.
13.3 NOTICES TO PARTIES
All notices and other communications required or permitted to be delivered
to a party under this Agreement shall be in writing and shall be deemed to have
been properly delivered, given or received upon receipt when delivered by hand
or two Business Days after being sent by registered mail or by courier or by
express delivery service or by facsimile, provided that in each case the notice
or communication is sent to the address or a facsimile telephone number set
forth beneath the name of such party below:
(a) if to THC:
The Hockey Company
0000 xx Xxxxxxxxxxx Xxxx. Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxxxx X. X'Xxxxx, President and CEO
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(b) if to Holdings:
The Hockey Company Holdings Inc.
0000 xx Xxxxxxxxxxx Xxxx. Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxxxx X. X'Xxxxx, President and CEO
(c) if to the Trustee:
Computershare Trust Company of Canada
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: General Manager, Corporate Trust Services
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.
13.4 NOTICE TO BENEFICIARIES
Any and all notices to be given and any documents to be sent to any
Beneficiaries may be given or sent to the address of such Beneficiary shown on
the register of holders of Exchangeable Shares in any manner permitted by the
by-laws of THC from time to time in force in respect of notices to shareholders
and shall be deemed to be received (if given or sent in such manner) at the time
specified in such by-laws, the provisions of which by-laws shall apply MUTATIS
MUTANDIS to notices or documents as aforesaid sent to such Beneficiaries.
13.5 RISK OF PAYMENTS BY POST
Whenever payments are to be made or documents are to be sent to any
Beneficiary by the Trustee or by Beneficiary to the Trustee, the making of such
payment or sending of such document sent through the post shall be at risk of
the Holdings and THC, in the case of payments made or documents sent by the
Trustee, and at the risk of the Beneficiary, in the case of payments made or
documents sent by the Beneficiary.
13.6 COUNTERPARTS
This trust agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which taken together shall constitute one and
the same instrument.
- 27 -
13.7 JURISDICTION
This trust agreement shall be construed and enforced in accordance with the
laws of the Province of Quebec and the laws of Canada applicable therein.
IN WITNESS WHEREOF the parties hereto have caused this trust agreement to
be duly executed as of the date first above written.
THE HOCKEY COMPANY
Per: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer and Vice President,
Finance and Administration
THE HOCKEY COMPANY HOLDINGS INC.
Per: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer and Vice President,
Finance and Administration
COMPUTERSHARE TRUST COMPANY OF CANADA
Per: /s/ Xxxxx-Xxxxxxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxxx-Xxxxxxxx Xxxxxxxx
Title: Corporate Trust Officer
Per: /s/ Xxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Administrator
