EXHIBIT 99.1
[CONFORMED COPY]
PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 13th day of September, 0000
X X X X X X X:
XXXXXX COMMUNICATIONS INC., a corporation incorporated
under the laws of British Columbia,
("RCI")
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JVII GENERAL PARTNERSHIP, a partnership constituted
under the laws of the State of Delaware,
("JVII")--
RECITALS:
A. JVII owns 27,647,888 Class A Multiple Voting Shares (the "Class A
Shares") and 20,946,284 Class B Restricted Voting Shares (the "Class B
Shares") of Xxxxxx Wireless Communications Inc., a corporation
incorporated under the laws of Canada ("RWCI"); and
B. JVII wishes to sell the Class A Shares and the Class B Shares to RCI and
RCI wishes to purchase such shares on and subject to the terms and
conditions of this Agreement.
NOW THEREFORE in consideration of the covenants and agreements
contained in this Agreement and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto
agree as follows:
ARTICLE 1.
PURCHASE OF SHARES
1.1 PURCHASE PRICE
RCI shall purchase from JVII and JVII shall sell to RCI all, but not
less than all, of the Class A Shares and the Class B Shares for a cash
purchase price per share of (Cdn)$36.37, being an aggregate cash purchase
price of (Cdn)$1,767,370,035.64 (the "Purchase Price").
1.2 CONVERSION OF CLASS A SHARES
JVII shall on or prior to the Closing Date (as defined below)
convert the Class A Shares into Class B Restricted Voting Shares of RWCI (the
"Converted Shares"). For purposes of this Agreement, the "Purchased Shares"
shall mean the 48,594,172 Class B Restricted Voting Shares of RWCI owned by
JVII following such conversion consisting of the Class B Shares and the
Converted Shares.
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1.3 PAYMENT OF PURCHASE PRICE AND CLOSING
The purchase and sale contemplated by this Agreement shall be
completed on October 13, 2004, or on such earlier date to which the closing is
accelerated pursuant to this Section 1.3 (the "Closing Date") at 10 a.m. at
RCI's head office in Toronto, Ontario when RCI shall pay the Purchase Price to
JVII by wire transfer of funds to the account specified by JVII by written
notice to RCI given not later than two business days prior to the proposed
Closing Date, and, on the Closing Date, the parties shall make the respective
deliveries described in Sections 3.1 and 3.2 of this Agreement. RCI shall be
entitled to accelerate the Closing Date to any day that is a business day upon
written notice to JVII given no less than three business days prior to the
proposed Closing Date. For purposes of this paragraph, "business day" means a
day that is not a weekend or statutory holiday in Toronto.
ARTICLE 2.
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF JVII
JVII represents, warrants and covenants to and in favour of RCI, and
acknowledges that RCI is relying on such representations, warranties and
covenants in entering into this Agreement, as follows:
2.1.1 STATUS OF JVII. JVII is duly organized and validly existing
under the laws of its jurisdiction of formation.
2.1.2 POWER, DUE AUTHORIZATION AND ENFORCEABILITY. JVII has the power
and capacity to enter into, and to perform its obligations under,
this Agreement. The execution, delivery and performance of this
Agreement, the consummation of the transactions to be performed by or
on behalf of JVII hereunder and compliance by JVII with the
provisions hereof, have been duly authorized by all necessary action
on the part of JVII and no other proceedings or actions are necessary
to authorize the execution and delivery of this Agreement by JVII, to
consummate the transactions to be performed by or on behalf of JVII
hereunder or to comply with the terms hereof applicable to JVII. This
Agreement has been duly executed and delivered by JVII and
constitutes a valid and binding obligation of JVII enforceable
against it in accordance with its terms subject only to (a)
applicable bankruptcy, insolvency, moratorium and other similar laws
at the time in effect affecting the rights of creditors generally,
and (b) the fact that equitable remedies such as injunctions and
specific performance may only be granted in the discretion of the
court before which they are sought.
2.1.3 OWNERSHIP. JVII is the sole registered and beneficial owner of
the Purchased Shares and it is not acting as nominee, agent, trustee,
executor, administrator or other legal representative in respect of
the Purchased Shares and upon closing of the purchase of the
Purchased Shares, RCI will acquire good and marketable title to the
Purchased Shares free of any mortgage, lien, charge, encumbrance or
adverse or other interest of any nature whatsoever.
2.1.4 NO OTHER AGREEMENTS. Other than the Shareholders Agreement (as
defined in Section 4.1 hereof), there are no shareholders agreements,
pooling agreements, voting trusts or other agreements or
understandings entered into by JVII or any partner of JVII with
respect to the voting of the Purchased Shares or which are
inconsistent with the
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completion of the purchase of the Purchased Shares in accordance with
this Agreement. Other than the Shareholders Agreement and the
Registration Rights Agreement, there are no agreements, options,
warrants, rights of conversion or other rights whatsoever pursuant to
which JVII is, or may become, obligated to sell, transfer or assign
to any person any of the Purchased Shares or any interest or right in
the Purchased Shares and there are no securities or rights
outstanding that are convertible or exchangeable, directly or
indirectly, into any of the Purchased Shares.
2.1.5 NO CONSENTS REQUIRED. No consent, approval, authorization,
filing, notice or other action is required by JVII in connection with
(a) the execution, delivery and performance by JVII of its
obligations under this Agreement, or (b) the sale of the Purchased
Shares to RCI, other than applicable securities disclosure filing
requirements with which JVII agrees to comply.
2.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF RCI
RCI represents, warrants and covenants to and in favour of JVII, and
acknowledges that JVII is relying on such representations, warranties and
covenants in entering into this Agreement, as follows:
2.2.1 INCORPORATION AND STATUS OF RCI. RCI is duly incorporated and
validly existing under the laws of its jurisdiction of incorporation.
2.2.2 CORPORATE POWER, DUE AUTHORIZATION AND ENFORCEABILITY. RCI has
the corporate power and capacity to enter into, and to perform its
obligations, under this Agreement. The execution, delivery and
performance of this Agreement, the consummation of the transactions
to be performed by or on behalf of RCI hereunder and compliance by
RCI with the provisions hereof, have been duly authorized by all
necessary corporate action on the part of RCI and no other corporate
proceedings or actions are necessary to authorize the execution and
delivery of this Agreement by RCI, to consummate the transactions to
be performed by or on behalf of RCI hereunder or to comply with the
terms hereof that are applicable to RCI. This Agreement has been duly
executed and delivered by RCI and constitutes a valid and binding
obligation enforceable against RCI in accordance with its terms
subject only to (a) applicable bankruptcy, insolvency, moratorium and
other similar laws at the time in effect affecting the rights of
creditors generally, and (b) the fact that equitable remedies such as
injunctions and specific performance may only be granted in the
discretion of the court before which they are sought.
2.2.3 NO AGREEMENTS. There are no agreements, arrangements or
understandings entered into by RCI or any person associated with RCI
that are inconsistent with the completion by RCI of the purchase of
the Purchased Shares in accordance with this Agreement.
2.2.4 LISTING. Following conversion of the Class A Shares, the
Converted Shares (as defined in Section 1.2 hereof) will be listed on
the Toronto Stock Exchange.
2.2.5 NO CONSENTS REQUIRED. No consent, approval, authorization,
filing, notice or other action is required by RCI in connection with
(a) the execution, delivery and performance by RCI of its
obligations under this Agreement, or (b) the purchase of the
Purchased Shares by RCI, other than the following filings required
in connection with the
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entering into of this Agreement and the purchase of the Purchased
Shares, which filings RCI agrees to make in accordance with the
applicable legal requirement:
(i) issue and filing of a news release and material change
report;
(ii) amendment of the prospectus under which Class B
Non-Voting Shares of RCI are currently in
distribution;
(iii) amendment of RCI's most recent report under Section
101 of the Securities Act (Ontario) and under similar
Canadian securities law requirements;
(iv) filing of xxxxxxx xxxxxxx reports;
(v) filing under Section 120 of the Securities Act
(Quebec); and
(vi) filings with the United States Securities and Exchange
Commission and the New York Stock Exchange in respect
of the foregoing Canadian filings.
2.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties made in this Agreement shall
survive the execution and delivery of this Agreement and the purchase and sale
of the Purchased Shares.
ARTICLE 3.
CLOSING
3.1 DELIVERIES BY RCI
At closing on the Closing Date, RCI shall, subject to performance by
JVII of its obligations under this Agreement:
3.1.1 cause the payment to JVII of the Purchase Price as contemplated by
Section 1.3 of this Agreement;
3.1.2 deliver to JVII:
(i) a receipt for the endorsed share certificates representing
the Purchased Shares delivered by JVII under Section 3.2.1,
(ii) a certificate signed by two senior officers of RCI, one of
whom shall be a senior legal officer of RCI, to the effect
that the representations and warranties of RCI contained in
this Agreement are true and correct as if made on and as of
the Closing Date, and
(iii) a full and final release of any and all claims by RCI or
RWCI against JVII and the partners of JVII in respect of any
matter or thing arising prior to the Closing Date under or
in connection with the Shareholders Agreement.
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3.2 DELIVERIES BY JVII
At closing on the Closing Date, JVII shall deliver to RCI, subject to
performance by RCI of its obligations under this Agreement:
3.2.1 share certificates representing all of the Purchased Shares
duly endorsed for transfer in blank with signatures guaranteed to the
satisfaction of RWCI's transfer agent and such other documentation as
the transfer agent reasonably requires to effect the transfer of the
Purchased Shares to RCI;
3.2.2 evidence of JVII's due authorization for the sale of the
Purchased Shares to RCI;
3.2.3 a certificate signed by two senior officers of JVII, one of
whom shall be a senior legal officer of AT&T Wireless Services, Inc.,
to the effect that the representations and warranties of JVII
contained in this Agreement are true and correct as if made on and as
of the Closing Date;
3.2.4 signed resignations of JVII's nominees as directors of RWCI;
3.2.5 a full and final release of any and all claims by JVII or the
partners of JVII against RCI or RWCI in respect of any matter or
thing arising prior to the Closing Date under or in connection with
the Shareholders Agreement, provided, for greater certainty, that the
foregoing release shall not apply to any claim by the nominees of
JVII on the board of directors of RWCI or on the board of directors
of Xxxxxx Wireless Inc. for indemnification by RWCI and/or Xxxxxx
Wireless Inc. of those directors under the applicable by-laws of RWCI
and/or of Xxxxxx Wireless Inc., applicable law or otherwise; and
3.2.6 a signed receipt for the Purchase Price.
3.3 DEFAULT BY RCI
If RCI does not complete the purchase of the Purchased Shares by
complying with section 3.1 of this Agreement (other than by reason of a
default by JVII under this Agreement), JVII may, during the 30 day period
following such default, sell all, but not less than all, of the Purchased
Shares in a Private Sale (as defined in the letter agreement dated September
3, 2004 between RCI and JVII (and which was signed by RWCI for certain limited
purposes(the "Letter Agreement")), provided the terms and conditions of the
Letter Agreement (other than section 4 thereof) shall apply to JVII in respect
of any Private Sale, except that the deadline in Section 2 shall be adjusted
accordingly.
3.4 DEFAULT BY JVII
If JVII does not complete delivery to RCI of each of the documents
set forth in Section 3.2 (other than by reason of a default by RCI under this
Agreement), RCI shall be entitled to rely, with necessary changes, on Section
10.1(d) of the Shareholders Agreement and to complete the purchase and sale of
the Purchased Shares in accordance with the terms of that section.
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3.5 EXERCISE OF RIGHTS UNDER THE SHAREHOLDERS AGREEMENT
JVII agrees that neither RCI nor RWCI shall be required to comply
with or obtain the prior written approval of JVII under Section 3.1(e) of the
Shareholders Agreement in respect of any offer for, or purchase of, shares or
assets of Microcell Telecommunications Inc.
3.6 NO ACTIONS INCONSISTENT
Each of the parties agrees that from the date hereof to the Closing
Date, it shall not take any step or action or enter into any agreement,
understanding or transaction that would interfere with the ability of such
party to comply fully with its obligations under this Agreement or to complete
the transactions contemplated hereby.
3.7 TERMINATION OF AGREEMENTS
For greater certainty, upon the purchase by RCI of the Purchased
Shares pursuant to this Agreement, the Shareholders Agreement and the
Registration Rights Agreement shall terminate and shall be deemed to be
terminated as of the Closing Date.
ARTICLE 4.
MISCELLANEOUS
4.1 INTERPRETATION
For purposes of this Agreement, the "Shareholders Agreement" means
the shareholders agreement, as amended, dated August 16, 1999 entered into
among RCI, JVII and RWCI. All capitalized terms used in this Agreement that
are not otherwise defined herein, are used as defined in the Shareholders
Agreement.
4.2 PUBLIC DISCLOSURE
The parties hereto acknowledge and agree that, upon signing this
Agreement, public disclosure must be made with respect to this Agreement
including the public filing of this Agreement. The parties agree to consult
with each other prior to making such disclosure and to use their reasonable
efforts to agree upon the language for any such disclosure.
4.3 COSTS AND EXPENSES/FINDER'S FEES
All costs and expenses of or incidental to the purchase and sale
hereunder shall be borne solely by the party incurring such cost or expense.
Each of the parties hereto represents and warrants to the other party that it
has not taken, and agrees that it will not take, any action that would cause
the other party to become liable to any claim or demand for a brokerage
commission, finder's fee or other similar payment in connection with the
transactions contemplated hereby.
4.4 ASSIGNMENT
RCI shall be entitled to transfer and assign its rights under this
Agreement to any wholly-owned subsidiary of RCI (other than, for greater
certainty, RWCI or a subsidiary of RWCI), provided that such transfer and
assignment shall not (i) reasonably be expected to have the effect of delaying
the Closing Date, or (ii) release RCI from any of its obligations or
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liabilities under this Agreement, or (iii) be to a non-Canadian for Investment
Canada Act purposes or pursuant to any applicable telecommunications or radio
communications laws.
4.5 ENUREMENT
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and assigns.
4.6 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
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 in connection with the subject matter hereof except as
specifically set forth in this Agreement.
4.7 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of Ontario and the laws of Canada applicable therein. RCI and JVII
agree that any suit, action or proceeding arising out of or relating to this
Agreement may be brought in any court in the Province of Ontario having
jurisdiction over the subject matter of any such suit, action or proceeding,
and the parties hereby irrevocably and unconditionally attorn and submit to
the non-exclusive jurisdiction of such courts.
4.8 TIME OF ESSENCE
Time is of the essence of this Agreement.
4.9 FURTHER ASSURANCES
4.9.1 JVII shall from time to time after the Closing Date, at the
written request of RCI, take all such other and additional steps and
actions, execute and deliver all such other documents and do all such
other acts and things as may be necessary or desirable and within the
power of JVII to comply fully with its obligations under this
Agreement and to vest in RCI full and unencumbered title in the
Purchased Shares.
4.9.2 RCI shall from time to time after the Closing Date, at the
written request of JVII, take all such other and additional steps and
actions, execute and deliver all such other documents and do all such
other acts and things as may be necessary or desirable and within the
power of RCI to comply fully with its obligations under this
Agreement and to facilitate the conversion of the Class A Shares into
Class B Restricted Voting Shares of RWCI and the issuance of new
share certificate(s) for the Class B Restricted Voting Shares upon
such conversion.
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4.10 NOTICES
All notices given by either party under this Agreement shall be given
in accordance with the provisions of Section 12.3 of the Shareholders
Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement.
XXXXXX COMMUNICATIONS INC.
By: "Xxxxxx X. Xxxxxx, O.C."
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By: "Xxxx X. Xxxx"
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JVII GENERAL PARTNERSHIP
BY ITS GENERAL PARTNERS
AT&T WIRELESS SERVICES, INC.
By: "Xxxxxx Xxxxxx"
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MMM HOLDINGS, INC.
By: "Xxxxxx Xxxxxx"
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