EXHIBIT 99.2
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT is made as of the 13th day of October,
0000,
X X X X X X X:
XXXXXX COMMUNICATIONS INC., a corporation amalgamated
under the laws of the Province of British Columbia
(the "ASSIGNOR")
- and -
RWCI ACQUISITION INC., a corporation incorporated under
the laws of the Province of British Columbia
(the "ASSIGNEE")
RECITALS:
A. The Assignor entered into an agreement (the "PURCHASE AGREEMENT") made as
of September 13, 2004 with JVII General Partnership ("JVII") pursuant to
which the Assignor agreed to purchase 27,647,888 Class A Multiple Voting
Shares and 20,946,284 Class B Restricted Voting Shares of Xxxxxx Wireless
Communications Inc.;
B. The Assignor is entitled under the Purchase Agreement to assign its
rights under the Purchase Agreement to the Assignee provided, among other
conditions, the Assignor is not released from its obligations or
liabilities under the Purchase Agreement;
C. The Assignor wishes to assign to the Assignee the full benefit of the
Purchase Agreement, and the Assignee wishes to assume responsibility for
the performance of the obligations of the Assignor under the Purchase
Agreement, all as set forth herein;
D. The Assignor has subscribed for one (1) common share of the Assignee, the
consideration for which shall be the entering into and delivery of this
agreement;
NOW THEREFORE in consideration of the mutual covenants contained
herein and other good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged), the parties hereto agree as follows:
1. ASSIGNMENT
The Assignor hereby sells, transfers and assigns to the Assignee all the
Assignor's right, title and interest in and to the Purchase Agreement as and
from the date hereof.
2. ASSUMPTION
The Assignee agrees to assume, and shall observe and perform, all of the
Assignor's obligations under the Purchase Agreement which are to be observed
or performed thereunder as and from the date hereof. Notwithstanding the
foregoing, the Assignor shall deliver on the Closing Date (as defined in the
Purchase Agreement) the certificate and release to be provided by the Assignor
to JVII pursuant to sections 3.1.2(ii) and (iii) of the Purchase Agreement,
respectively.
3. INDEMNITY BY THE ASSIGNOR
The Assignor shall indemnify and save harmless the Assignee against and
from any and all losses, costs and damages (including legal fees and
disbursements) which the Assignee may suffer or incur in connection with any
non-observance by the Assignor of any of the provisions of this agreement.
4. INDEMNITY BY THE ASSIGNEE
The Assignee shall indemnify and save harmless the Assignor against and
from any and all losses, costs and damages (including legal fees and
disbursements) which the Assignor may suffer or incur in connection with any
non-observance by the Assignee of any of the provisions of this agreement.
5. CO-OPERATION BY THE ASSIGNOR
If, by operation of law or otherwise, it becomes necessary or desirable
for the Assignee, in order to effectively pursue any remedy to secure the
enjoyment of, or to enforce the benefit of, the Purchase Agreement, to pursue
such remedy in the name, or with the concurrence, of the Assignor, the
Assignor shall cooperate with the Assignee and shall facilitate the pursuit of
such remedy by joining in such proceeding or by giving its concurrence, as the
Assignee may require in the circumstances. If the Assignor fails to cooperate,
the Assignee may pursue such remedy in the name of the Assignor and for such
purpose the Assignor hereby appoints the Assignee and the Assignee's
successors and assigns, as the Assignor's attorneys, with full power of
substitution, in the name of the Assignor but on behalf of and for the benefit
and at the expense of the Assignee, its successors and assigns, to execute and
do any deeds, transfers, conveyances, assignments, assurances and things which
the Assignor ought to do pursuant to the provisions hereof. This appointment,
coupled with an interest, is irrevocable by the Assignor and
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shall not be revoked by the insolvency or bankruptcy of the Assignor or by the
dissolution, liquidation or other termination of the existence of the Assignor
or for any other reason.
6. FURTHER ASSURANCES
Each of the parties hereto shall promptly do, make, execute or deliver,
or cause to be done, made, executed or delivered, all such further acts,
documents and things as the other party hereto may reasonably require from
time to time for the purpose of giving effect to this agreement and shall use
its best efforts and take all such steps as may be reasonably within its power
to implement to their full extent the provisions of this agreement.
7. ELECTIONS
The parties hereto will elect and file elections pursuant to subsection
85(1) of the Income Tax Act (Canada) and any equivalent provisions under
provincial law (collectively, the "TAX LEGISLATION") with respect to the
assignment and assumption hereunder, specifying such elected amounts as are
determined by the Assignor. Such elections shall be filed in the manner and
time required by the applicable Tax Legislation. The parties hereto shall do
all things necessary to ensure such elections are validly made.
8. NOTICE
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by prepaid mail, by facsimile
or other means of electronic communication or by hand-delivery as hereinafter
provided. Any such notice or other communication, if mailed by prepaid mail at
any time other than during a general discontinuance of postal service due to
strike, lockout or otherwise, shall be deemed to have been received on the
fourth Business Day after the post-marked date thereof, or if sent by
facsimile or other means of electronic communication, shall be deemed to have
been received on the Business Day following the sending, or if delivered by
hand shall be deemed to have been received at the time it is delivered to the
applicable address noted below either to the individual designated below or to
an individual at such address having apparent authority to accept deliveries
on behalf of the addressee. Notice of change of address shall also be governed
by this section. In the event of a general discontinuance of postal service
due to strike, lock-out or otherwise, notices or other communications shall be
delivered by hand or sent by facsimile or other means of electronic
communication and shall be deemed to have been received in accordance with the
foregoing. Notices and other communications shall be addressed as follows:
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(a) if to the Assignor:
Xxxxxx Communications Inc.
000 Xxxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx X. Xxxxxx
Facsimile number: 416.935.3548
(b) and if to the Assignee:
RWCI Acquisition Inc.
000 Xxxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxx X. XxXxxxx
Facsimile number: 416.935.2574
For the purposes hereof, "BUSINESS DAY" means any day, other than Saturday,
Sunday or any statutory holiday in Toronto.
9. ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof, and supersedes and replaces
all prior agreements, understandings or arrangements relating to the subject
matter hereof. There are no representations, warranties, agreements or
understandings between the parties hereto in connection with the subject
matter hereof except as specifically set forth in this agreement.
10. ASSIGNMENT
Neither party hereto may assign its rights or benefits under this
agreement without the prior written consent of the other party.
11. ENUREMENT
This agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
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12. GOVERNING LAW
This agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein.
IN WITNESS WHEREOF the parties hereto have executed this agreement.
XXXXXX COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Vice President, General Counsel and
Secretary
By: /s/ M. Xxxxxxxx Xxxx
-------------------------------------
M. Xxxxxxxx Xxxx
Vice President, Treasurer
RWCI ACQUISITION INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Vice President, General Counsel and
Secretary
By: /s/ M. Xxxxxxxx Xxxx
-------------------------------------
M. Xxxxxxxx Xxxx
Vice President, Treasurer
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