Exhibit
99.1
EXECUTION VERSION
BETWEEN
CTVGLOBEMEDIA INC.
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THE WOODBRIDGE COMPANY LIMITED
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WOODBRIDGE INVESTMENTS INC.
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ONTARIO TEACHERS’ PENSION PLAN BOARD
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TORSTAR CORPORATION
MADE AS OF
SEPTEMBER 10, 2010
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THIS AGREEMENT is made as of September 10, 2010 |
BETWEEN
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CTVGLOBEMEDIA INC., a corporation incorporated under the laws of the
Province of Ontario (the “Corporation”), |
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BCE INC., a corporation incorporated under the laws of Canada
(together with any Affiliate to which this Agreement is assigned
pursuant to Section 8.09, the “Purchaser”), |
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THE WOODBRIDGE COMPANY LIMITED, a corporation incorporated under the
laws of the Province of Ontario (“Woodbridge Parent”), |
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1565117 ONTARIO LIMITED, a corporation incorporated under the laws
of the Province of Ontario (“Woodbridge Holdco”) |
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WOODBRIDGE INVESTMENTS INC., a corporation incorporated under the
laws of the Province of Ontario (“Woodbridge Investments”, and
together with Woodbridge Holdco and Woodbridge Parent, “Woodbridge”) |
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ONTARIO TEACHERS’ PENSION PLAN BOARD, a corporation continued and
existing under the Teachers’ Pension Act (Ontario) (“Teachers’”), |
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TORSTAR CORPORATION, a corporation incorporated under the laws of
the Province of Ontario (“Torstar”, and together with Woodbridge and
Teachers’, the “Vendors”) |
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AND WHEREAS Woodbridge Holdco, Teachers’ and Torstar desire to sell and the Purchaser desires
to purchase the Purchased Shares upon and subject to the terms and conditions set out in this
Agreement;
AND WHEREAS Woodbridge Investments desires to sell and the Purchaser desires to purchase the
Mezz Debt upon and subject to the terms and conditions set out in this Agreement;
In this Agreement, unless something in the subject matter or context is inconsistent
therewith:
“2011 Business Plan” means the Corporation’s Fiscal 2011 Business Plan as approved by its board of
directors, a true copy of which has been provided by the Corporation to the Purchaser, Woodbridge
Holdco, Teachers’ and Torstar on or prior to the date hereof and any successor or replacement
business plan of the Corporation approved by the Board of Directors of the Corporation and the
Purchaser, acting reasonably.
“Advance Ruling Certificate” means an advance ruling certificate issued by the Commissioner of
Competition pursuant to section 102 of the Competition Act with respect to the transactions
contemplated by this Agreement.
“Affiliate” means, with respect to any person, an affiliate within the meaning of the Canada
Business Corporations Act.
“Aggregate Share Purchase Price” means $1,296,250,000.
“Agreement” means this agreement, including its recitals and schedules, as amended from time to
time.
“Applicable Law” means all applicable laws, including common law, statutes, by-laws, rules,
regulations, orders, ordinances, protocols, codes, guidelines, treaties, policies, notices,
decrees, directions and judgments or other requirements of any Governmental Authority.
“ARC Request” has the meaning set out in Section 4.05(2)(a).
“BCE Disclosure Documents” means all documents filed by the Purchaser and publicly available on the
System for Electronic Document Analysis and Retrieval (SEDAR) website since September 1, 2009.
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“BCE Market Price” means the volume weighted average trading price of the BCE Shares on the TSX
over the 20 trading day period ending on the third Business Day preceding the Closing Date,
calculated by dividing the total value by the total volume of BCE Shares traded for that period.
“BCE Shares” means common shares of the Purchaser.
“Benefit Plans” means any and all employment benefits relating to disability or wage continuation
during a period of absence from work (including sick leave, short-term disability, long-term
disability and workers compensation), vacation and vacation pay, severance and termination pay,
separation from service benefits, hospitalization, health, medical or dental treatments or
expenses, life insurance, death or survivor’s benefits and supplementary employment insurance, in
each case regardless of whether or not such benefits are insured, self-insured, or administrative
services only.
“Books and Records” means all books and records of the Corporation and its Subsidiaries, including
financial, personnel, corporate, operations and sales books, books of account, sales and purchase
records, lists of suppliers and customers, formulae, business reports, plans and projections and
all other documents, surveys, plans, files, records, correspondence, and other data and
information, financial or otherwise including all data and information stored on computer-related
or other electronic media.
“Business Day” means a day other than a Saturday, Sunday or statutory or civic holiday in the
Provinces of Ontario or Quebec.
“Claim” means any actual or threatened civil, criminal, administrative, regulatory, arbitral or
investigative inquiry, action, suit, investigation or proceeding and any claim or demand resulting
therefrom or any other claim or demand of whatever nature or kind.
“Closing Date” means the date that is the first day of the month immediately following the month in
which the last of the conditions to the purchase and sale of the Purchased Shares and the Mezz Debt
set out in Sections 5.01 and 5.02 (other than those conditions that by their nature can only be
satisfied on the Closing Date) has been satisfied or waived, or such other date as may be agreed to
in writing by the Vendors and the Purchaser.
“Collective Agreements” means all collective agreements, letters of understanding, letters of
intent and similar agreements with any Union relating to any Employees by which the Corporation or
any of its Subsidiaries, is bound or which imposes any obligations upon the Corporation or any of
its Subsidiaries.
“Commissioner of Competition” means the Commissioner of Competition appointed pursuant to the
Competition Act and includes any person authorized by the Commissioner of Competition.
“Compensation Plans” means any and all employment benefits relating to bonus, incentive pay or
compensation, performance compensation, deferred compensation, profit sharing or deferred profit
sharing, share purchase, share option, stock appreciation, phantom stock, employee loans or any
other type of arrangement, other than a Pension Plan or Benefit Plan, providing for compensation or
benefits additional to base pay or salary.
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“Competition Act” means the Competition Act (Canada).
“Competition Act Compliance” means:
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the issuance of an Advance Ruling Certificate; |
(ii) |
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the Purchaser and the Corporation have given the notice required under section 114 of the
Competition Act with respect to the transactions contemplated by this Agreement and the
waiting period under section 123 of the Competition Act has expired or been waived in
accordance with the Competition Act; or |
(iii) |
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the obligation of the parties to give notice has been waived pursuant to subsection 113(c)
of the Competition Act |
and, in the case of (ii) or (iii), the Purchaser has been advised in writing by the Commissioner of
Competition that the Commissioner of Competition is of the view, at that time, that grounds do not
exist to initiate proceedings under the merger provisions of the Competition Act with respect to
the transactions contemplated by this Agreement and such advice has not been rescinded or amended.
“Contracts” means all contracts, licenses, leases, agreements, commitments, permits, entitlements
and engagements.
“Corporation Third Party Consents” means any consents, approvals, orders, authorizations,
notifications and filings required to be obtained in connection with the execution, delivery and
performance of this Agreement, or any of the other documents and agreements to be delivered
hereunder, by the Corporation.
“CRTC” means the Canadian Radio-television and Telecommunications Commission or any successor body
thereto.
“CRTC Application” means the application to the CRTC by the Purchaser on behalf of the Corporation
for approval of the transactions contemplated by this Agreement.
“CRTC Approval” means the approval of the CRTC of the transactions contemplated by this Agreement
on the terms set forth in the CRTC Application, which approval shall for purposes of this Agreement
be deemed to be effective upon the satisfaction of any conditions of approval which must, by their
nature, be satisfied prior to the Closing Date.
“CRTC Request” has the meaning attributed thereto in Section 4.04(6).
“CRTC Submission” has the meaning attributed thereto in Section 4.04(6).
“CTVglobemedia Publishing” means CTVglobemedia Publishing Inc.
“CTVglobemedia Publishing Assets” means the assets used primarily in operating and publishing the
print and electronic editions of The Globe and Mail newspaper and all print and electronic
publications related primarily thereto including, but not limited to, Report on
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Business, the assets used in operating businesses relating to CTVglobemedia Publishing, and all
rights, title and interest of the CTVglobemedia Group or the CTVglobemedia Publishing Group in the
names “The Globe and Mail”, the “Report on Business” and any other trade names, trademarks and
other intellectual property which are primarily used in the business of CTVglobemedia Publishing
(for example, xxx.xxxxxxxxxxxx.xxx) but, for greater certainty, excluding any assets related
primarily to the business of the Business News Network.
“CTVglobemedia Publishing Group” means collectively CTVglobemedia Publishing and all of its
Subsidiaries.
“CTVglobemedia Publishing Shares” means common shares of CTVglobemedia Publishing.
“CTVglobemedia Television Assets” means all assets of the Corporation and its Subsidiaries other
than the CTVglobemedia Publishing Assets.
“CTVglobemedia Television Group” means the Corporation and its Subsidiaries other than the
CTVglobemedia Publishing Group.
“D&O Insurance” has the meaning set out in Section 4.02(3).
“Defence Counsel” has the meaning set out in Section 7.04.
“Defence Notice” has the meaning set out in Section 7.04.
“Employee Plans” means all plans, arrangements, agreements, programs, policies, practices or
undertakings, whether oral or written, formal or informal, funded or unfunded, registered or
unregistered relating to any:
(i) |
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Pension Plans; |
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(ii) |
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Benefit Plans; or |
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(iii) |
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Compensation Plans, |
which the Corporation or any of its Subsidiaries is a party to or bound by or under which the
Corporation or any of its Subsidiaries has, or will have, any liability or contingent liability
with respect to any Employees or former Employees (or any dependants or beneficiaries of any such
Employees or former Employees), individuals working on contract or other individuals providing
services to the Corporation or any of its Subsidiaries of a kind normally provided by employees.
“Employees” means all individuals employed or retained by the Corporation or any of its
Subsidiaries including, for greater certainty, those employees of the Corporation or any of its
Subsidiaries on long-term disability leave or other absence.
“Encumbrances” means any pledge, lien, charge, security interest, lease, title retention agreement,
mortgage, restriction, development or similar agreement, easement, right-of-way, title defect,
option or adverse claim or encumbrance of any kind or character whatsoever.
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“Environment” means the environment or natural environment as defined in any Environmental Laws and
includes air, surface water, ground water, land surface, soil, subsurface strata, any sewer system
and the environment in the workplace.
“Environmental Approvals” means all legally binding permits, certificates, approvals, licenses,
authorizations, consents, agreements, instructions, directions, registrations or approvals issued,
granted, conferred or required by Governmental Authorities pursuant to Environmental Laws with
respect to the operations, business or assets of the Corporation or any of its Subsidiaries.
“Environmental Laws” means all Applicable Laws relating in full or in part to the Environment or
health and safety, and includes those Applicable Laws relating to the storage, generation, use,
handling, manufacture, processing, labelling, advertising, sale, display, transportation,
treatment, reuse, recycling, Release and disposal of Hazardous Substances.
“Environmental Reports” means all of the Phase I and Phase II environmental assessments in the
possession of the Corporation and its Subsidiaries relating to Real Property.
“Existing Shareholders Agreement” means the unanimous shareholder agreement dated as of August 30,
2006 between Woodbridge Parent, Woodbridge Holdco, the Purchaser, Teachers’ and Torstar.
“Financial Statements” means (i) the audited consolidated financial statements of the Corporation
for the fiscal year ended August 31, 2009, (ii) the unaudited consolidated financial statements of
the Corporation for the nine month period ended May 31, 2010, and (iii) the unaudited consolidated
financial reports of the Corporation for the months ended June 30, 2010 and July 31, 2010 and the
preliminary unaudited financial results for the month ended August 31, 2010, in each case true
copies of which have been provided by the Corporation to the Purchaser on or prior to the date
hereof.
“Fixed Assets” means the fixed assets, machinery, equipment, fixtures, furniture, furnishings,
vehicles, material handling equipment, implements and spare parts owned or used or held by the
Corporation or any of its Subsidiaries, including any which are in storage or in transit, and other
tangible property and facilities used by the Corporation or any of its Subsidiaries, whether
located in or on its premises or elsewhere.
“Funding Agreement” means the funding agreement made as of the 30th day of April, 2009
between the Corporation, the Purchaser, Woodbridge Parent, Teachers’ and Torstar.
“Governmental Authority” means any domestic or foreign legislative, executive, ministerial,
judicial or administrative body or person having or purporting to have jurisdiction in the relevant
circumstances.
“Governmental Authorizations” means all authorizations, approvals, orders, consents, directives,
notices, licenses (including licenses from the CRTC), permits, variances, registrations or similar
rights issued to, or required by, the Corporation or any of its Subsidiaries in connection with
their respective businesses by any Governmental Authority.
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“Hazardous Substance” means any pollutant, contaminant, waste of any nature, hazardous substance,
hazardous material, toxic substance, prohibited substance, dangerous substance or dangerous good as
defined, judicially interpreted or identified in any Environmental Laws, including any asbestos,
asbestos-containing materials, solvents and petroleum hydrocarbons.
“Indemnified Person” has the meaning set out in Section 4.02(3).
“Indemnitee” has the meaning set out in Section 7.04.
“Indemnitor” has the meaning set out in Section 7.04.
“Intellectual Property” means all material patents, copyrights, Trade-marks, and industrial designs
(including registrations of and applications for all of the foregoing in any jurisdiction and
renewals, divisions, extensions and reissues, where applicable, relating thereto), trade secrets,
confidential information, technology (including rights with respect to computer software) and all
other material intellectual property rights of any kind owned or used by the Corporation or any of
its Subsidiaries in connection with their respective businesses.
“Leased Real Property” means all material premises used by the Corporation or any of its
Subsidiaries in the operation of their respective businesses which are leased, subleased, licensed
or otherwise occupied, but not owned, by the Corporation or any of its Subsidiaries and the
interest of the Corporation or any of its Subsidiaries in all plants, buildings, structures,
fixtures, erections, improvements, easements, rights-of-way, spur tracks and other appurtenances
situate on or forming part of such premises.
“Losses” means all damages, fines, penalties, deficiencies, losses, liabilities (whether accrued,
actual, contingent, latent or otherwise), costs, fees and expenses (including interest, court costs
and reasonable fees and expenses of lawyers, accountants and other experts and professionals).
“Material Adverse Effect” means any event, change, circumstance or effect that is, or could
reasonably be expected to be, individually or in the aggregate, materially adverse to the financial
condition, assets, business, operations or results of operations of the Corporation and its
Subsidiaries on a consolidated basis.
“Material Contracts” means any Contract of the Corporation or any of its Subsidiaries that is
material to the Corporation and its Subsidiaries on a consolidated basis, including those material
Contracts relating to:
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long-term and bank indebtedness; |
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co-ownership, joint venture or partnership arrangements; |
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(iii) |
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program supply; |
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(iv) |
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distribution or carriage agreements; |
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(v) |
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printing; |
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(vi) |
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Real Property Leases; and |
(vii) |
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to the extent not disclosed in any of clause (i) to (vi) above, matters outside the ordinary
course of business of the Corporation or its Subsidiaries, as the case may be. |
“Mezz Debt” means all indebtedness owing by the Corporation to Woodbridge Investments pursuant to
the Mezz Debt Agreements, together with all of the rights of Woodbridge Investments under the Mezz
Debt Agreements.
“Mezz Debt Agreements” means the amended and restated mezzanine facility credit agreement dated
April 30, 2009 between the Corporation, as borrower, and Woodbridge Investments, as lender,
together with all of the Loan Documents (as defined therein).
“Non-Transferred Asset” has the meaning set out in Section 4.09(2).
“Occupational Health and Safety Laws” means the Occupational Health and Safety Act (Ontario), the
Workplace Safety and Insurance Act (Ontario), or such other similar federal or provincial
legislation relating in full or in part to the protection of employee health and safety as may be
applicable.
“Outside Date” means June 30, 2011, subject to the right of either the Purchaser or the Vendors to
postpone on no more than two occasions the Outside Date by a period of 60 days on each occasion if
CRTC Approval or Competition Act Compliance has not been obtained, provided that the party so
electing is then in compliance in all material respects with its obligations under this Agreement
and all other conditions of closing set out in Section 5.01 have been satisfied or waived (other
than those conditions that by their nature can only be satisfied on the Closing Date), provided
that the Outside Date may only be extended if the party so extending the Outside Date reasonably
believes that CRTC Approval, and/or Competition Act Compliance, as applicable, are capable of being
obtained prior to the Outside Date, as it may be so extended.
“Owned Real Property” means all freehold lands which are owned or purported to be owned, in fee
simple, by the Corporation or any of its Subsidiaries, including all plants, buildings, structures,
fixtures, erections, improvements, easements, rights-of-way, spur tracks and other appurtenances
situate on or forming part of such lands.
“Part IX Filings” has the meaning set out in Section 4.05(2)(b).
“Pension Plans” means any and all benefits relating to retirement or retirement savings including
pension plans (whether or not such plans are registered or unregistered, funded or unfunded),
pensions or supplemental pensions, “registered retirement savings plans” (as defined in the Tax
Act), “registered pension plans” (as defined in the Tax Act) and “retirement compensation
arrangements” (as defined in the Tax Act).
“Permitted Encumbrances” means the Encumbrances disclosed in writing by the Corporation to each
other party on or prior to the date hereof.
“Pre-Acquisition Reorganizations” has the meaning set out in Section 4.07.
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“Premium Cap” has the meaning set out in Section 4.02(3).
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Print Agreement” means the
transaction agreement in respect of CTVglobemedia Publishing dated as
of the date hereof between CTVglobemedia, CTVglobemedia Publishing, the Purchaser, Woodbridge,
Teachers’ and Torstar, as amended from time to time in accordance with the terms thereof.
“Pro Rata Share” means the percentage that the applicable Vendor’s Purchased Shares represent of
all of the Purchased Shares immediately prior to the Time of Closing.
“Purchased Shares” means the Woodbridge Shares, the Teachers’ Shares and the Torstar Shares,
collectively.
“Purchaser Indemnitees” has the meaning set out in Section 7.02.
“Put Agreement” means the put agreement dated April 30, 2009 between the Toronto-Dominion Bank, as
agent, the financial institutions party thereto, as lenders, Woodbridge Parent, Teachers’, Torstar
and BCE.
“Real Property” means the Owned Real Property and the Leased Real Property.
“Real Property Leases” means those agreements to lease, leases, subleases or licenses or other
agreements or rights pursuant to which the Corporation or any of its Subsidiaries uses or occupies
any Leased Real Property.
“Release” has the meaning attributed thereto in any Environmental Laws and includes any sudden,
intermittent or gradual release, spill, leak, pumping, addition, pouring, emission, emptying,
discharge, injection, escape, leaching, disposal, dumping, deposit, spraying, burial, abandonment,
incineration, seepage, placement or introduction, whether accidental or intentional.
“Required Number” means the quotient obtained by dividing $750,000,000 by the BCE Market Price;
provided, however, that the Required Number will not be less than 21,729,239 nor greater than
24,016,527.
“Senior Debt Facility” means the credit facility contemplated by the amended and restated senior
secured credit agreement made April 30, 2009 between the Corporation, the Toronto-Dominion Bank,
the financial institutions identified on the signature pages thereto, TD Securities, The Bank of
Nova Scotia, Bank of Montreal, Credit Suisse, Toronto Branch and Royal Bank of Canada.
“Subsidiary” means, with respect to any person, a subsidiary within the meaning of the Canada
Business Corporations Act; when used without reference to a particular person, “Subsidiary” means a
Subsidiary of the Corporation.
“Tax Act” means the Income Tax Act (Canada).
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“Tax Returns” means, all returns, reports, declarations, elections, notices, filings, information
returns and statements filed or required to be filed in respect of Taxes.
“Taxes” includes, all taxes, duties, fees, premiums, assessments, imposts, levies and other charges
of any kind whatsoever imposed by any Governmental Authority, together with all interest,
penalties, fines, additions to tax or other additional amounts imposed in respect thereof,
including those levied on, or measured by, or referred to as income, gross receipts, profits,
capital, transfer, land transfer, sales, goods and services, harmonized sales, use, value-added,
excise, stamp, withholding, business, franchising, property, employer health, payroll, employment,
health, social services, education and social security taxes, all surtaxes, all customs duties and
import and export taxes, all license, franchise and registration fees and all employment insurance,
health insurance and Canada, Quebec and other government pension plan premiums or contributions.
“Teachers’ Share Purchase Price” means an amount equal to Teachers’ Pro Rata Share of the Aggregate
Share Purchase Price.
“Teachers’ Shares” means the 1,333,334,041 Class A common shares of the Corporation registered in
the name of Teachers’.
“Third Party Claim” means a Claim made against any person entitled to indemnification under this
Agreement by any person who is not a party to this Agreement.
“Third Party Proceedings” has the meaning set out in Section 7.04.
“Time of Closing” means 8:30 a.m. (Toronto time) on the Closing Date.
“Torstar Share Purchase Price” means Torstar’s Pro Rata Share of the Aggregate Share Purchase
Price.
“Torstar Shares” means the 1,066,667,134 Class A common shares of the Corporation registered in the
name of Torstar.
“Trade-marks” means trade-marks, brand names, internet domain names, trade names, slogans, URLs,
designs, graphics, logos and other indicia of origin, whether or not registered and the goodwill
associated therewith.
“Tranche 1 Required Number of BCE Shares” means the Required Number of BCE Shares multiplied by a
fraction A/B where (A) is the Woodbridge Share Purchase Price and (B) is $750,000,000.
“Tranche 2 Required Number of BCE Shares” means the Required Number of BCE Shares less the Tranche
1 Required Number of BCE Shares.
“Transaction Approvals” means, collectively:
(i) |
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Competition Act Compliance; |
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(iii) |
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TSX Listing Approval |
“TSX” means the Toronto Stock Exchange.
“TSX Listing Approval” means the approval of the TSX to the listing on the TSX of the BCE Shares
issuable pursuant to Sections 2.02(a) and 2.02(b).
“Union” means any union, trade union or association that may qualify as a union or trade union
pursuant to the terms of the Labour Relations Act (Ontario), or any other similar provincial or
federal legislation relating in full or in part to union activity as may be applicable.
“Vendor Indemnitees” has the meaning set out in Section 7.03(1).
“Woodbridge Cash Portion” means the sum of the Woodbridge Mezz Debt Purchase Price and the
Woodbridge Share Purchase Price less $750,000,000.
“Woodbridge Group” means the group consisting of Woodbridge Parent and its Affiliates.
“Woodbridge Mezz Debt Purchase Price” means $354,963,158.27 plus all capitalized interest since
April 30, 2009 (less any principal repayments made from such date) and unpaid interest accrued to
but excluding the Closing Date as determined in accordance with the Mezz Debt Agreements.
“Woodbridge Share Purchase Price” means Woodbridge Holdco’s Pro Rata Share of the Aggregate Share
Purchase Price.
“Woodbridge Shares” means the 2,133,334,267 Class A common shares of the Corporation registered in
the name of Woodbridge Holdco.
The division of this Agreement into Articles and Sections and the insertion of a table of
contents and headings are for convenience of reference only and do not affect the construction or
interpretation of this Agreement. The terms “hereof”, “hereunder” and similar expressions refer to
this Agreement and not to any particular Article, Section or other portion hereof. Unless
something in the subject matter or context is inconsistent therewith, references herein to
Articles, Sections and Schedules are to Articles and Sections of and Schedules to this Agreement.
In this Agreement words importing the singular number only include the plural and vice versa,
words importing any gender include all genders and words importing persons include individuals,
corporations, limited and unlimited liability companies, general and limited partnerships,
associations, trusts, unincorporated organizations, joint ventures and Governmental Authorities.
The term “including” means “including without limiting the generality of the
foregoing” and the term “third party” means any person other than the Vendors, the Corporation
and the Purchaser.
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In this Agreement, unless something in the subject matter or context is inconsistent therewith
or unless otherwise herein provided, a reference to any statute is to that statute as now enacted
or as the same may from time to time be amended, re-enacted or replaced and includes any
regulations made thereunder.
Except where expressly stated otherwise in this Agreement, any reference in this Agreement to
a calculation to be made or an action to be taken in accordance with generally accepted accounting
principles, such reference will be deemed to be to the generally accepted accounting principles
from time to time approved by the Canadian Institute of Chartered Accountants, or any successor
institute, applicable as at the date on which such calculation or action is made or taken or
required to be made or taken.
All references to currency herein are to lawful money of Canada.
The parties agree that they will take no actions pursuant to this Agreement which require the
prior approval of the CRTC unless and until such approval has been obtained.
The Vendors and the Purchaser will each cause, to the extent of its respective legal rights,
the Corporation to execute all documents and to take all actions as are necessary to satisfy and
fulfill the obligations, conditions and covenants required to be satisfied or fulfilled by the
Corporation under this Agreement. The Corporation will cause its wholly-owned Subsidiaries and, to
the extent of its legal rights, its other Subsidiaries, to execute all documents and take all
actions as are necessary to satisfy and fulfill the obligations, conditions and covenants required
to be satisfied or fulfilled by Subsidiaries of the Corporation under this Agreement.
All of the obligations and liabilities of Woodbridge hereunder and under any instrument or
document delivered pursuant to this Agreement, including the representations and warranties
contained herein, and in any such other instrument or document, are and will be deemed to be, joint
and several obligations and liabilities of Woodbridge Parent, Woodbridge Holdco and Woodbridge
Investments.
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Subject to Section 1.09, all of the obligations and liabilities of each of the Vendors
hereunder and under any instrument or document delivered pursuant to this Agreement, including the
representations and warranties contained herein, and in any such other instrument or document
delivered by any Vendor, are and will be deemed to be several, and not joint, obligations and
liabilities of the respective Vendor.
Any reference to the knowledge of any party will mean to the best of the knowledge,
information and belief of the senior officers of such party, including the senior officers of its
Subsidiaries, who are primarily responsible for the matter.
The following is a Schedule to this Agreement:
Schedule 3.01(b) — Ownership of Purchased Shares
Upon and subject to the terms and conditions hereof, as of the Time of Closing on the Closing
Date:
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(a) |
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Woodbridge Holdco will sell the Woodbridge Shares to the Purchaser and the
Purchaser will purchase the Woodbridge Shares from Woodbridge Holdco for the Woodbridge
Share Purchase Price; |
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(b) |
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Woodbridge Investments will sell the Mezz Debt to the Purchaser and the
Purchaser will purchase the Mezz Debt from Woodbridge Investments for the Woodbridge
Mezz Debt Purchase Price; |
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(c) |
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Teachers’ will sell the Teachers’ Shares to the Purchaser and the Purchaser
will purchase the Teachers’ Shares from Teachers’ for the Teachers’ Share Purchase
Price; and |
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(d) |
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Torstar will sell the Torstar Shares to the Purchaser and the Purchaser will
purchase the Torstar Shares from Torstar for the Torstar Share Purchase Price. |
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The Woodbridge Mezz Debt Purchase Price, Woodbridge Share Purchase Price, Teachers’ Share
Purchase Price and Torstar Share Purchase Price will be payable at the Time of Closing as follows: |
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(a) |
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in respect of the purchase and sale contemplated by Section 2.01(a), by the
delivery to Woodbridge Holdco of the Tranche 1 Required Number of BCE Shares, evidenced
by certificates duly registered in the name of Woodbridge Holdco (or to such other
member of the Woodbridge Group as Woodbridge Holdco may direct (provided such other
person enters into a written agreement with the Purchaser agreeing to be bound by the
restrictions set forth in Section 4.06)); |
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(b) |
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in respect of the purchase and sale contemplated by Section 2.01(b), (x) by the
delivery to Woodbridge Investments of certificates representing the Tranche 2 Required
Number of BCE Shares duly registered in the name of Woodbridge Investments or to such
other member of the Woodbridge Group as Woodbridge Holdco may direct (provided such
other person enters into a written agreement with the Purchaser agreeing to be bound by
the restrictions set forth in Section 4.06), and (y) by the wire transfer of
immediately available funds in an amount equal to the Woodbridge Cash Portion to an
account specified by Woodbridge Investments; |
|
(c) |
|
in respect of the purchase and sale contemplated by Section 2.01(c), by the
wire transfer of immediately available funds in an amount equal to the Teachers’ Share
Purchase Price to an account specified by Teachers’; and |
|
(d) |
|
in respect of the purchase and sale contemplated by Section 2.01(d), by the
wire transfer of immediately available funds in an amount equal to the Torstar Share
Purchase Price to an account specified by Torstar. |
(1) The Purchaser will, at the request of Woodbridge, execute an income tax election under
subsection 85(1) of the Tax Act with respect to the sale of the Woodbridge Shares. Such election
will be prepared by Woodbridge, acting reasonably, in accordance with the provisions of subsection
85(1) of the Tax Act, and provided to the Purchaser for execution. The Purchaser will execute and
return the election within 60 days following receipt. The Purchaser will not be responsible for
the proper completion of any election form or any Taxes, interest or penalties resulting from the
failure of Woodbridge Holdco to properly complete or file such election in the form and manner and
within the time prescribed by the Tax Act.
(2) The Purchaser will, at the request of Woodbridge and to the extent necessary under and
subject to the Applicable Law of the relevant province, jointly elect with Woodbridge Holdco under
corresponding provisions of applicable provincial income tax legislation with respect to the sale
of the Woodbridge Shares. The provisions of Section 2.03(1) will apply to the making of any such
provincial elections, with necessary changes.
- 15 -
|
|
|
3.01 |
|
Vendors’ Representations and Warranties |
Each of the Vendors represents and warrants to and in favour of the Purchaser the matters set
out below in respect of itself only and acknowledges that the Purchaser is relying upon such
representations and warranties in connection with the transactions contemplated by this Agreement:
|
(a) |
|
In the case of each Vendor other than Teachers’, the Vendor is a corporation
duly incorporated, organized and subsisting under the laws of its jurisdiction of
incorporation with the corporate power to own its assets and to carry on its business.
Teachers’ is a corporation without share capital continued and existing under the
Teachers’ Pension Act (Ontario) and has full power and authority to administer the
pension fund established to provide benefits thereunder. |
|
(b) |
|
The Vendor is the beneficial and registered owner of the Purchased Shares set
opposite its name on Schedule 3.01(b) free and clear of all Encumbrances, subject to
the restrictions on transfer set out in the Corporation’s articles and the terms of the
Existing Shareholders Agreement and the Funding Agreement. |
|
(c) |
|
In the case of Woodbridge Investments, Woodbridge Investments is the owner of
the Mezz Debt free and clear of all Encumbrances. |
|
(d) |
|
The Vendor has the corporate power and authority to enter into and deliver this
Agreement and to complete the transactions to be completed by the Vendor contemplated
hereunder, including to transfer the legal and beneficial title and ownership of the
Purchased Shares set opposite its name on Schedule 3.01(b) (or, in the case of
Woodbridge Investments, to transfer ownership of the Mezz Debt) to the Purchaser free
and clear of all Encumbrances, subject to the restrictions on transfer set out in the
Corporation’s articles and the terms of the Existing Shareholders Agreement and the
Funding Agreement. |
|
(e) |
|
This Agreement constitutes a valid and legally binding obligation of the
Vendor, enforceable against the Vendor in accordance with its terms subject to
applicable bankruptcy, insolvency, reorganization and other laws of general application
limiting the enforcement of creditors’ rights generally and to the fact that specific
performance is an equitable remedy available only in the discretion of the court. |
|
(f) |
|
There is no Contract, option or any other right of another binding upon or
which at any time in the future may become binding upon the Vendor to sell, transfer,
assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the
Purchased Shares set opposite its name on Schedule 3.01(b) (or, in the case of
Woodbridge Investments, the Mezz Debt) other than pursuant to the provisions of this
Agreement, the Existing Shareholders Agreement and the Funding Agreement and, in the
case of Torstar, other than pursuant to Contracts with the lenders of Torstar under
which in certain circumstances Torstar could be required
to provide security on its assets (in which case Torstar would obtain a release of
such security at or prior to the Closing Time). |
- 16 -
|
(g) |
|
Neither the entering into nor the delivery of this Agreement nor the completion
of the transactions contemplated by this Agreement by the Vendor will result in the
violation of: |
|
(i) |
|
any of the provisions of the constating documents or by-laws of
the Vendor; |
|
(ii) |
|
subject only to the consent of lenders of Torstar (which
consent will be obtained by Torstar at or prior to the Closing Time) and the
Existing Shareholders Agreement, any agreement or other instrument to which the
Vendor is a party or by which the Vendor is bound, where the violation would
reasonably be expected to delay or materially adversely affect the consummation
of the transactions contemplated by this Agreement; or |
|
(iii) |
|
subject to Competition Act Compliance and receipt of CRTC
Approval, any Applicable Law in respect of which the Vendor must comply where
the failure to so comply would reasonably be expected to delay or materially
adversely affect the consummation of the transactions contemplated by this
Agreement. |
|
(h) |
|
Subject to receipt of the Transaction Approvals, the Corporation Third Party
Consents and to the consent of lenders of Torstar, which consent will be obtained by
Torstar at or prior to the Closing Time, no notices, reports or other filings are
required to be made by the Vendor with, nor are any consents, registrations, approvals,
permits, or authorizations required to be obtained by the Vendor from, any Governmental
Authority or any third party in connection with the execution, delivery or performance
of this Agreement by the Vendor or the consummation by the Vendor of the transactions
contemplated by this Agreement where the failure to so obtain would reasonably be
expected to delay or materially adversely affect the consummation of the transactions
contemplated by this Agreement. |
|
(i) |
|
There is no suit, action, litigation, investigation, claim, complaint,
grievance or proceeding, including appeals and applications for review, in progress,
or, to the knowledge of the Vendor, pending or threatened before any Governmental
Authority or arbitration panel which if determined adversely to the Vendor would
enjoin, restrict or prohibit the transactions contemplated by this Agreement or prevent
the Vendor from fulfilling all of its obligations set out in or arising from this
Agreement. |
|
(j) |
|
The Vendor is not a non-resident of Canada or a partnership other than a
Canadian partnership within the meaning of the Tax Act. |
- 17 -
|
|
|
3.02 |
|
Additional Representations and Warranties of Woodbridge |
Woodbridge represents and warrants to and in favour of the Purchaser the matters set out below
and acknowledges that the Purchaser is relying on such representations and warranties in connection
with the transactions contemplated thereby:
|
(a) |
|
Each of Woodbridge Holdco and Woodbridge Investments is resident in the
Province of Ontario, is acquiring the BCE Shares issuable to it pursuant to Sections
2.02(a) and 2.02(b) as principal for its own account and is an “accredited investor”
within the meaning of National Instrument 45-106 (Prospectus and Registration
Exemptions) of the Canadian Securities Administrators. |
|
|
|
3.03 |
|
Purchaser’s Representations and Warranties |
The Purchaser represents and warrants to and in favour of the Vendors the matters set out
below and acknowledges that the Vendors are relying on such representations and warranties in
connection with the transactions contemplated by this Agreement:
|
(a) |
|
The Purchaser is a corporation duly incorporated, organized and subsisting
under the laws of Canada with the corporate power to own its assets and to carry on its
business. |
|
(b) |
|
The Purchaser has the corporate power and authority to enter into and deliver
this Agreement and to complete the transactions to be completed by the Purchaser
contemplated hereunder. |
|
(c) |
|
This Agreement constitutes a valid and legally binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms subject to
applicable bankruptcy, insolvency, reorganization and other laws of general application
limiting the enforcement of creditors’ rights generally and to the fact that specific
performance is an equitable remedy available only in the discretion of the court. |
|
(d) |
|
Neither the entering into nor the delivery of this Agreement nor the completion
of the transactions contemplated by this Agreement by the Purchaser will result in a
violation of: |
|
(i) |
|
any of the provisions of the constating documents or by-laws of
the Purchaser; |
|
(ii) |
|
any agreement or other instrument to which the Purchaser is a
party or by which the Purchaser is bound, where the violation would reasonably
be expected to delay or materially adversely affect the consummation of the
transactions contemplated by this Agreement; or |
|
(iii) |
|
subject to Competition Act Compliance and receipt of CRTC
Approval, any Applicable Law in respect of which the Purchaser must comply
where the failure to so comply would reasonably be expected to delay or
materially adversely affect the consummation of the transactions
contemplated by this Agreement. |
- 18 -
|
(e) |
|
Subject to receipt of the Transaction Approvals, the Corporation Third Party
Consents and the truth and accuracy of the representation and warranty of Woodbridge in
Section 3.02(a), no notices, reports or other filings are required to be made by the
Purchaser with, nor are any consents, registrations, approvals, permits, or
authorizations required to be obtained by the Purchaser from, any Governmental
Authority or any third party in connection with the execution, delivery or performance
of this Agreement by the Purchaser or the consummation by the Purchaser of the
transactions contemplated by this Agreement where the failure to so obtain would
reasonably be expected to delay or materially adversely affect the consummation of the
transactions contemplated by this Agreement. |
|
(f) |
|
There is no suit, action, litigation, investigation, claim, complaint,
grievance or proceeding, including appeals and applications for review, in progress,
or, to the knowledge of the Purchaser, pending or threatened before any Governmental
Authority or arbitration panel which if determined adversely to the Purchaser would
enjoin, restrict or prohibit the transactions contemplated by this Agreement or prevent
the Purchaser from fulfilling all of its obligations set out in or arising from this
Agreement. |
|
(g) |
|
The Purchaser is not a non-Canadian within the meaning of the Investment Canada
Act. |
The Purchaser represents and warrants to and in favour of Woodbridge the matters set out below
and acknowledges that Woodbridge is relying on such representations and warranties in connection
with the transactions contemplated by this Agreement:
|
(a) |
|
The Purchaser is in compliance with its continuous disclosure obligations under
Applicable Laws, including disclosure of any material changes in the affairs of the
Purchaser in accordance with Applicable Laws. |
|
(b) |
|
The BCE Disclosure Documents comply in all material respects with the
requirements of Applicable Laws and, after giving effect to all subsequent filings in
relation to matters covered in earlier filings, do not contain any misrepresentation
(as defined in Applicable Laws). |
|
(c) |
|
The Purchaser has not filed any confidential material change reports with any
securities regulatory authority, stock exchange or self-regulatory organization. |
|
(d) |
|
The Purchaser has taken all necessary corporate action to authorize the
issuance of the BCE Shares pursuant to Sections 2.02(a) and 2.02(b) and on receipt by
the Purchaser of the consideration for such shares, they will be issued as fully paid
and non-assessable. |
- 19 -
|
(e) |
|
No securities commission or any similar regulatory authority in any
jurisdiction has issued any order which is currently outstanding preventing or
suspending trading in the securities of the Purchaser and no such proceeding is, to the
knowledge of the Purchaser, pending, contemplated or threatened. |
Except as disclosed in writing to the Purchaser on or prior to the date hereof, the
Corporation represents and warrants to and in favour of the Purchaser the matters set out below and
acknowledges that the Purchaser is relying upon such representations and warranties in connection
with the transactions contemplated by this Agreement:
|
(a) |
|
The Corporation has provided to the Purchaser an accurate description of the
authorized and issued capital of the Corporation. |
|
(b) |
|
All of the outstanding Class A common shares of the Corporation have been duly
authorized and validly issued and are fully paid and non-assessable. |
|
(c) |
|
Except as provided for in this Agreement, the Funding Agreement and the
Existing Shareholders Agreement, there are no authorized, issued or outstanding
options, warrants or other rights to purchase shares or other securities of the
Corporation, no authorized, issued or outstanding securities or obligations convertible
into or exchangeable for shares or other securities of the Corporation and no
agreements, understandings or commitments (contingent or otherwise) to authorize or
issue such options, warrants, rights, securities or obligations. |
|
(d) |
|
No holder of securities issued by the Corporation has any right to compel the
Corporation to register or otherwise qualify such securities for public sale in Canada
or the United States. |
|
(a) |
|
The Corporation has provided to the Purchaser an accurate list of the
Subsidiaries of the Corporation and partnerships in which the Corporation or a
Subsidiary is a partner and does not have any other Subsidiaries and is not a partner
in any other partnerships. |
|
(b) |
|
The Corporation has provided to the Purchaser an accurate list of the equity
investments of the Corporation and its Subsidiaries with a book value of $250,000 or
more. |
|
(a) |
|
Each Subsidiary of the Corporation has been duly incorporated, is validly
subsisting and has full corporate power and authority to own its properties and conduct
its business as currently owned and conducted. |
- 20 -
|
(a) |
|
The Corporation has provided to the Purchaser an accurate description of the
authorized and issued capital of the Subsidiaries of the Corporation. There are no
authorized, issued or outstanding options, warrants or other rights to purchase shares
or other securities of Subsidiaries of the Corporation, no authorized, issued or
outstanding securities or obligations convertible into or exchangeable for shares or
other securities of Subsidiaries of the Corporation and no agreements, understandings
or commitments (contingent or otherwise) to authorize or issue such options, warrants,
rights, securities or obligations. |
|
(b) |
|
All of the outstanding shares of the Subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable. |
|
(c) |
|
The Corporation has provided to the Purchaser an accurate description of the
Corporation’s direct and indirect ownership interest in each of its Subsidiaries. |
|
(d) |
|
No holder of securities issued by a Subsidiary of the Corporation has any right
to compel such Subsidiary to register or otherwise qualify such securities for public
sale in Canada or the United States. |
|
(a) |
|
The Financial Statements have been prepared in accordance with generally
accepted accounting principles, subject, in the case of any unaudited financial
statements, to the absence of notes and to customary year-end adjustments. |
|
(b) |
|
The Financial Statements present fairly, in all material respects, the
consolidated financial position and results of operations and cash flows of the
Corporation and its Subsidiaries on a consolidated basis as of the dates thereof and
for the periods covered thereby, subject, in the case of any unaudited financial
statements, to customary year-end adjustments. The reserves and accrued liabilities
disclosed on or reflected in the Financial Statements are sufficient in all material
respects to provide for the liabilities in respect of which they have been established. |
|
(c) |
|
The Corporation has provided to the Purchaser a detailed list setting out all
outstanding indebtedness and other financing-related commitments (including obligations
under capital leases, guarantees, bankers acceptances, letters of credit, derivative or
hedging transactions and similar matters) of the Corporation and its Subsidiaries. |
|
(a) |
|
Between August 31, 2009 and the date of this Agreement, the business of the
Corporation and its Subsidiaries has been conducted only in the ordinary course of
business of such entity and there has not occurred any event that has had a Material
Adverse Effect. |
- 21 -
|
(a) |
|
Other than as disclosed in the Financial Statements or as contemplated by or
permitted under this Agreement, since August 31, 2009 the Corporation has not declared
or paid any dividend or made any distribution, whether in cash, in stock or in specie,
on any of its outstanding shares. |
|
(8) |
|
Absence of Undisclosed Liabilities |
|
(a) |
|
Other than as disclosed in the Financial Statements or as contemplated by or
permitted under this Agreement, since August 31, 2009 the Corporation and its
Subsidiaries have not incurred any liabilities (whether accrued, absolute, contingent
or otherwise) except liabilities incurred in the ordinary course of business that would
not have a Material Adverse Effect. |
|
(a) |
|
Except as contemplated by or permitted under this Agreement and except for
guarantees or indemnities made by the Corporation or any Subsidiary in respect of
another Subsidiary or the Corporation, neither the Corporation nor any of its
Subsidiaries has given or agreed to give, or is a party or bound by, any guarantee or
indemnity in respect of indebtedness or other financial obligations of any person or
any other commitment by which the Corporation or any Subsidiary is, or is contingently,
responsible for such indebtedness or other obligations. |
|
(a) |
|
The Corporation has made available to the Purchaser a complete and accurate
list of each license from the CRTC issued to the Corporation or any of its
Subsidiaries. |
|
(b) |
|
The Corporation and its Subsidiaries own, possess or have obtained and are in
material compliance with all Governmental Authorizations, including all licenses from
the CRTC, necessary to conduct their respective businesses as now conducted in
compliance with all Applicable Laws. |
|
(c) |
|
The Governmental Authorizations, including all necessary licenses from the
CRTC, are in full force and effect in accordance with their terms and there have been
no material violations thereof and no proceedings are pending (other than renewal
proceedings as a result of expirations in accordance with the terms thereof) or, to the
knowledge of the Corporation, threatened, which could result in their revocation or
limitation. |
|
(a) |
|
The Corporation has provided to the Purchaser a complete and accurate list of
the Material Contracts, all of which are in full force and effect unamended, except
where the failure to be in full force and effect and unamended would not have a
Material Adverse Effect. |
- 22 -
|
(b) |
|
The Corporation has made available to the Purchaser true and complete copies of
all Material Contracts other than (i) program supply Contracts that expire on or prior
to Xxxxxx 00, 0000, (xx) printing Contracts of the CTVglobemedia Publishing Group,
(iii) BDU Contracts, and (iv) Real Property Leases that are not material to the
Corporation. |
|
(c) |
|
No default exists (or, but for the passage of time or the giving of notice,
would exist) under any Material Contract on the part of the Corporation or any of its
Subsidiaries or, to the knowledge of the Corporation, on the part of any other party to
such Contracts other than defaults that would not have a Material Adverse Effect. |
|
(a) |
|
Each of the Corporation and its Subsidiaries is the sole beneficial owner of
all of its assets and interests in assets, real and personal, with good and valid
title, free and clear of all Encumbrances other than Permitted Encumbrances or
Encumbrances that would not have a Material Adverse Effect. |
|
(a) |
|
The Fixed Assets are in good condition, repair and (where applicable) working
order, having regard to their use and age. |
|
(a) |
|
The Corporation has provided to the Purchaser a complete and accurate list of
all Contracts relating to grants or other forms of financial assistance, including
loans with interest at below market rates, received by the Corporation or any of its
Subsidiaries from any Governmental Authority. |
|
(a) |
|
There is no suit, action, litigation, investigation, claim, complaint,
grievance or proceeding, including appeals and applications for review, in progress,
or, to the knowledge of the Corporation pending or threatened against or relating to
the Corporation or any of its Subsidiaries before any Governmental Authority or
arbitration panel, which, if determined adversely to the Corporation or Subsidiary
would: (i) have a Material Adverse Effect; (ii) enjoin, restrict or prohibit any of the
transactions contemplated by this Agreement; or (iii) prevent the Corporation from
fulfilling all of its obligations set out in or arising from this Agreement or any of
the other documents or agreements required by this Agreement to be delivered. |
- 23 -
|
(b) |
|
There is not presently outstanding against the Corporation or any of its
Subsidiaries any assessment, judgment, decree, injunction, rule or order of any
Governmental Authority or arbitrator that would have a Material Adverse Effect. |
|
(a) |
|
The Corporation has provided to the Purchaser a complete and accurate list of
the Owned Real Property and the Leased Real Property. |
|
(b) |
|
Except for Permitted Encumbrances: |
|
(i) |
|
the Corporation and its Subsidiaries are the beneficial owners
of the Owned Real Property in fee simple with good and marketable title thereto
free and clear of all Encumbrances; |
|
(ii) |
|
the buildings, structures, erections, improvements and fixtures
situate on or used in connection with the Owned Real Property are in good
condition, repair and (where applicable) working order, having regard to their
use and age and such assets have been regularly maintained and the Corporation
and its Subsidiaries have such rights of entry and exit to and from the Real
Properties as are reasonably necessary to carry on their respective businesses
thereon; |
|
(iii) |
|
there are no material agreements or understandings between any
landlord and tenant, or sublandlord and subtenant, other than as contained in
the Real Property Leases, pertaining to the rights and obligations of the
parties thereto; |
|
(iv) |
|
neither the Corporation nor any of its Subsidiaries has any
material option, right of first refusal or other similar contractual right
relating to the Leased Real Property other than as set forth in the Real
Property Leases; |
|
(v) |
|
neither the Corporation nor any of its Subsidiaries has waived,
or omitted to take any action in respect of any rights under any of the Real
Property Leases other than any waiver or omission that would not have a
Material Adverse Effect; |
|
(vi) |
|
no person has any right to purchase any of the Owned Real
Property, and no person other than the Corporation or any of its Subsidiaries
is using or has any right to use, as tenant, or is in possession or occupancy
of, any material part of the Real Property; |
|
(vii) |
|
neither the Corporation nor any of its Subsidiaries has
granted any option, right of first refusal or other similar contractual rights
with respect to any of the Owned Real Property or any part thereof; |
- 24 -
|
(viii) |
|
neither the Corporation nor any of its Subsidiaries has received any written
notice of non-compliance with current zoning regulations that would affect its
respective business in any material respect; and |
|
(ix) |
|
neither the Corporation nor any of its Subsidiaries has
received any written notice of any expropriation or condemnation or similar
proceeding pending or threatened against the Owned Real Property or any part
thereof that would affect its respective business in any material respect. |
|
(a) |
|
The Corporation has made available to the Purchaser a complete and accurate
list of each Environmental Report. |
|
(b) |
|
Except as expressly disclosed in the Environmental Reports and except for any
matters that would not have a Material Adverse Effect: |
|
(i) |
|
neither the Corporation nor any of its Subsidiaries nor any of
the Real Property is in violation of any Environmental Law which violation, to
the knowledge of the Corporation, requires or may reasonably be expected to
require any work, remediation, monitoring, repairs, construction, change in
business practices or operations, or expenditures; |
|
(ii) |
|
neither the Corporation nor any of its Subsidiaries has
received any written demand or written notice with respect to a breach of or
liability under, whether actual or alleged, any Environmental Laws; |
|
(iii) |
|
the Corporation has no knowledge of any change in the terms
and conditions of any Environmental Approvals or any renewal, modification,
revocation, reissuance, alteration, transfer or amendment of such Environmental
Approvals, or any review or issuance by, or approval of, any Governmental
Authority of such Environmental Approvals in connection with the execution or
delivery of this Agreement; and |
|
(iv) |
|
to the knowledge of the Corporation, there are no expenses,
penalties or costs to be incurred, or already accruing, by the Corporation or
any of its Subsidiaries or in connection with the Owned Real Property and there
is no reasonable basis for any claim against the Corporation or any of its
Subsidiaries, in each case under any Environmental Laws or with respect to any
Hazardous Substances. |
|
(c) |
|
The representations and warranties in this Section 3.05(17) are the only
representations and warranties applicable to environmental matters. |
|
(a) |
|
The Corporation and each of its Subsidiaries has timely filed all Tax Returns
required to be filed by it, has withheld Tax as required from all amounts paid or
payable by it and remitted such Tax to the appropriate Governmental Authority and
has timely paid, or caused to be timely paid, all amounts of Taxes due and payable
by it as of the date hereof. |
- 25 -
|
(b) |
|
Adequate provisions have been made in the Financial Statements for all Taxes
payable in respect of the business or assets of the Corporation and its Subsidiaries or
otherwise for all periods up to the date of the most recent balance sheet comprising
part of the Financial Statements. |
|
(c) |
|
Neither the Corporation nor any of its Subsidiaries has received any written
notification that any issues involving Taxes have been raised (and are currently
pending) by the Canada Revenue Agency or any other taxing authority in connection with
any Taxes payable by it or Tax Return filed or required to be filed by it that would
have a Material Adverse Effect. |
|
(d) |
|
The Corporation is not a public corporation for purposes of the Tax Act or any
applicable provincial corporate or income tax legislation. |
|
(a) |
|
There are no written or oral Contracts of employment entered into with any
Employees earning in excess of $250,000 per year other than Contracts which are
terminable on the giving of reasonable notice in accordance with Applicable Laws. |
|
(b) |
|
The Corporation and its Subsidiaries are being operated in material compliance
with all Applicable Laws relating to employees, including employment standards,
Occupational Health and Safety Laws, human rights, labour relations and pay equity. |
|
(c) |
|
The Corporation and its Subsidiaries are not required to make severance,
termination or similar payments to any employee as a result of the transactions
contemplated by this Agreement. |
|
(a) |
|
The Corporation has provided to the Purchaser a complete and accurate list of
all Collective Agreements. |
|
(b) |
|
The Corporation has made available to the Purchaser true and complete copies of
all material Collective Agreements. |
|
(c) |
|
There are no outstanding or, to the knowledge of the Corporation, threatened
labour tribunal proceedings of any kind, including any proceedings which could result
in certification of a trade union as bargaining agent for any Employees or dependent
contractors not already covered by a Collective Agreement. |
- 26 -
|
(d) |
|
To the knowledge of the Corporation, there are no threatened or apparent union
organizing activities involving any Employees or dependent contractors not already
covered by a Collective Agreement. |
|
(e) |
|
There is no strike or lock out occurring or, to the knowledge of the
Corporation, threatened affecting the Corporation or any of its Subsidiaries. |
|
(f) |
|
Neither the Corporation nor any of its Subsidiaries has any unresolved
grievances or pending arbitration cases outstanding or any labour problems that may
lead to an interruption of operations at any location other than unresolved grievances,
pending arbitration cases outstanding or labour problems that would not have a Material
Adverse Effect. |
|
(a) |
|
The Corporation has provided to the Purchaser a complete and accurate list of
all material Employee Plans or, where oral, written summaries of the material terms of
such Employee Plans. |
|
(b) |
|
The Employee Plans are established, registered (where required), qualified,
administered and invested, in material compliance with: (i) the terms thereof; (ii) all
Applicable Laws; and (iii) the applicable Collective Agreements. |
|
(c) |
|
All material obligations to or under the Employee Plans (whether pursuant to
the terms thereof, any Applicable Laws or the Collective Agreements) have been
satisfied and there are no outstanding defaults or violations thereunder by the
Corporation or any of its Subsidiaries other than defaults or violations that would not
have a Material Adverse Effect. |
|
(d) |
|
None of the Employee Plans provide for benefit increases or the acceleration of
funding obligations that are contingent upon or will be triggered by the entering into
of this Agreement or any of the other documents or agreements required by this
Agreement to be delivered or the completion of the transactions contemplated by this
Agreement. |
|
(e) |
|
All employer or employee payments, contributions or premiums required to be
remitted, paid to or in respect of each Employee Plan have been paid or remitted in
material compliance with the terms thereof, all Applicable Laws and the Collective
Agreements, and no Taxes, penalties or fees are owing under any Employee Plan. |
|
(f) |
|
No event has occurred with respect to any registered Employee Plan which would
result in the revocation of the registration of such Employee Plan or entitle any
person, without the consent of the Corporation or one of its Subsidiaries, to wind-up
or terminate any Employee Plan, in whole or in part, or which could otherwise
reasonably be expected to adversely affect the Tax status of any such plan. |
- 27 -
|
(g) |
|
Each Pension Plan is being funded in material compliance with the terms
thereof, all Applicable Laws and the Collective Agreements. |
|
(h) |
|
No material changes have occurred or have been promised in respect of any
Employee Plan since the date of the most recent financial, accounting, actuarial or
other report, as applicable, issued in connection with any Employee Plan, which could
reasonably be expected to materially adversely affect the relevant report (including
rendering it misleading in any material respect) except for changes in general economic
and market conditions. |
|
(i) |
|
There have been no withdrawals or transfers of assets from any Employee Plan
otherwise than in accordance with the terms of the applicable Employee Plan, Collective
Agreements and all Applicable Laws. |
|
(j) |
|
All benefits under any Employee Plan which provides benefits beyond retirement
or other termination of service to Employees or former Employees (or to the
beneficiaries or dependants of such Employees or former Employees) have been properly
accrued on the relevant Financial Statements in accordance with generally accepted
accounting principles. |
|
(k) |
|
None of the Employee Plans requires or permits a retroactive increase in
premiums or payments, and the level of insurance reserves, if any, under any insured
Employee Plan are reasonable and sufficient to provide for all incurred but unreported
claims. |
|
(a) |
|
Where any Intellectual Property owned by the Corporation or any of its
Subsidiaries is registered, all steps have been taken, including payment of fees and
filing of documentation, that are necessary to maintain such registrations in good
standing. |
|
(b) |
|
Neither the Corporation nor any of its Subsidiaries has received written
notice, that its use of any of the Intellectual Property infringes upon or breaches the
intellectual property rights of any other person, may result in a default or give rise
to a right of termination, cancellation or acceleration of any obligation or loss of
any benefit under any Material Contract. |
|
(c) |
|
There are no claims, oppositions, conflicts, proceedings, or investigations
against any person, or, to the knowledge of the Corporation, any breaches,
interferences, infringements, violations or appropriations by any person, relating to
any of the Intellectual Property. |
|
(d) |
|
The Corporation and its Subsidiaries have the right to use all of the
Intellectual Property which is necessary to conduct their respective businesses as
currently conducted in all material respects. |
- 28 -
|
(a) |
|
The content of the internet websites which form part of the Intellectual
Property complies with all Applicable Laws in all material respects. |
|
(b) |
|
No internet domain name which forms part of the Intellectual Property was
registered or acquired, or has been used, for an unlawful purpose or in bad faith,
including primarily for the purpose of: |
|
(i) |
|
disrupting the business of a competitor; |
|
(ii) |
|
selling or transferring the domain name to the owner of a
Trade-xxxx which is identical to or confusingly similar to the domain name
registration or to a competitor of such owner; |
|
(iii) |
|
preventing the owner of a Trade-xxxx from reflecting the
Trade-xxxx in a corresponding domain name registration; or |
|
(iv) |
|
attempting to attract, for commercial gain, internet users to a
particular website by creating a likelihood of confusion with the Trade-xxxx of
another person. |
|
(a) |
|
The Corporation and its Subsidiaries are being operated in compliance with all
Applicable Laws in all material respects. |
|
(a) |
|
The Corporation and its Subsidiaries are not party to or bound or affected by
any commitment, agreement or document containing any covenant expressly limiting its
ability to compete in any material respect in any line of business after the Closing
Date on substantially the same basis as presently carried on. |
|
(a) |
|
The Corporation and its Subsidiaries maintain such policies of insurance,
issued by responsible insurers, as are appropriate to its operations, property and
assets, in such amounts and against such risks as are prudent for owners of comparable
businesses, properties and assets. All such policies of insurance are in full force and
effect and neither the Corporation nor any of its Subsidiaries are in material default,
as to the payment of premium or otherwise, under the terms of any such policy. |
|
(a) |
|
Except for Contracts (i) made solely between the Corporation and any
Subsidiary, (ii) between any of the Subsidiaries of the Corporation, and (iii) to which
the Purchaser is a party, there are no Contracts between the Corporation or any of its
Subsidiaries and any person with whom the Corporation or any Subsidiary is not
dealing, at the date hereof, at arm’s length, other than Contracts entered into in
the ordinary course of business on terms no less favourable to the Corporation and
its Subsidiaries than are available from an arm’s length party. |
- 29 -
|
(a) |
|
All Books and Records fairly and correctly disclose in all material respects
the financial position of the Corporation and its Subsidiaries and all financial
transactions relating to the businesses carried on by the Corporation and its
Subsidiaries have been accurately recorded in such Books and Records. |
|
(a) |
|
The assets of the CTVglobemedia Television Group are sufficient for the
continued conduct of the business of the CTVglobemedia Television Group after the
completion of the transactions contemplated hereunder in substantially the same manner
as such business is currently conducted. |
|
|
|
4.01 |
|
Covenants of the Vendors |
Each of the Vendors will ensure:
|
(a) |
|
that the representations and warranties of such Vendor set out in Section
3.01 and 3.02 over which the Vendor has reasonable control are true and correct at
the Time of Closing; and |
|
(b) |
|
that the conditions of closing for the benefit of the Purchaser set out in
Section 5.01 over which such Vendor has reasonable control have been performed or
complied with by the Time of Closing. |
|
|
|
4.02 |
|
Covenants of the Purchaser |
|
(1) |
|
The Purchaser will ensure: |
|
(a) |
|
that the representations and warranties of the Purchaser set out in Section
3.03 and 3.04 over which the Purchaser has reasonable control are true and correct at
the Time of Closing; and |
|
(b) |
|
that the conditions of closing for the benefit of the Vendors set out in
Section 5.02 over which the Purchaser has reasonable control have been performed or
complied with by the Time of Closing. |
(2) At the Time of Closing, the Purchaser will cause the Corporation to repay all outstanding
indebtedness under the Senior Debt Facility and satisfy all obligations to the lenders thereunder.
- 30 -
(3) Prior to the Time of Closing, the Corporation will obtain, and fully pay the premium for
the extension of the directors’, officers’, trustees’ and employees’ liability coverage of the
Corporation’s and its Subsidiaries’ existing directors’, officers’, trustees’ and employees’
insurance policies for a claims reporting or run-off and extended reporting period and claims
reporting period of at least six years from and after the Time of Closing with respect to any claim
related to any period or time at or prior to the Time of Closing from an insurance carrier with the
same or better credit rating as the Corporation’s current insurance carriers with respect to
directors’, officers’, trustees’ and employees’ liability insurance (“D&O Insurance”), and with
terms, conditions, retentions and limits of liability that are no less advantageous (which can
reasonably be obtained in the insurance market) to each present and former director, officer and
employee of the Corporation and its Subsidiaries (each, an “Indemnified Person”) than the coverage
provided under the Corporation’s and its Subsidiaries’ existing policies with respect to any actual
or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any
matter claimed against a director, officer, trustee or employee of the Corporation or any of its
Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior
to the Time of Closing; provided, however, that the Corporation will not secure such D&O Insurance
except to the extent it can be provided at an annual cost of no greater than 225% of the most
recent annual premium paid by the Corporation prior to the date hereof (the “Premium Cap”); and
provided, further, that if such D&O Insurance cannot be obtained, or can be obtained only by paying
an annual premium in excess of the Premium Cap, the Corporation will only obtain as much coverage
as can be obtained by paying an annual premium equal to the Premium Cap. If the Corporation for
any reason fails to obtain such “run off” insurance policies as of the Time of Closing, the
Corporation will continue to maintain in effect for a period of at least six years from and after
the Time of Closing the D&O Insurance in place as of the date hereof with terms, conditions,
retentions and limits of liability that are no less advantageous in the aggregate than the coverage
provided under the Corporation’s and its Subsidiaries’ existing policies as of the date hereof, or
the Corporation will purchase comparable D&O Insurance for such six-year period with terms,
conditions, retentions and limits of liability that are at least as favourable to the Indemnified
Persons as provided in the Corporation’s existing policies as of the date hereof.
(4) The Purchaser will cause the articles of incorporation and by-laws of the Corporation or
any successor to the Corporation to contain provisions with respect to exculpation and
indemnification that are at least as favorable to the current directors and officers of the
Corporation as those contained in the articles and by-laws as in effect on the date hereof and in
the Existing Shareholder Agreement, which provisions will not be amended, repealed or otherwise
modified for a period of six years from the Time of Closing in any manner that would adversely
affect the rights of such individuals thereunder, unless such modification is required by
Applicable Law.
|
|
|
4.03 |
|
Covenants of the Corporation |
(1) Other than as contemplated by or permitted under this Agreement or the Print Agreement or
as contemplated in the 2011 Business Plan, at all times prior to the Closing Date, the Corporation
will, unless it obtains the prior written consent of the Purchaser, not to be unreasonably withheld
or delayed:
- 31 -
|
(a) |
|
permit the Purchaser and its representatives, without material interference to
the ordinary conduct of business of the Corporation and its Subsidiaries, to have
access during normal business hours to the Books and Records and the properties and
assets used by the Corporation and its Subsidiaries and to management of the
Corporation and its Subsidiaries (including for purposes of monthly financial and
operational performance reviews), solely to verify the matters warranted in Section
3.05 as they relate to the Corporation and its Subsidiaries, provided that the
Corporation and its Subsidiaries will not be required to disclose any information to
the Purchaser where prohibited by any Applicable Laws or agreement. If any consent of
any person or Governmental Authority is required to permit the Corporation or any of
its Subsidiaries to release any information to the Purchaser, the Corporation will make
commercially reasonable efforts to obtain, or to cause to be obtained, such consent as
soon as possible but will not be required to disclose such information prior to receipt
of such consent; |
|
(b) |
|
conduct the business of the Corporation and its Subsidiaries in all material
respects in the ordinary course of business on a basis consistent with past practice
(including maintaining capital expenditures, funding of pension plan obligations,
funding of outstanding CRTC benefits obligations and incurring programming costs) or in
accordance with the 2011 Business Plan; |
|
(c) |
|
maintain all of the material assets of the Corporation and its Subsidiaries in
good condition and maintain insurance upon the assets of the Corporation and its
Subsidiaries in the ordinary course of business on a basis consistent with past
practice; |
|
(d) |
|
maintain the Books and Records in the ordinary course of business on a basis
consistent with past practice; |
|
(e) |
|
not enter into any transactions, or permit any of its Subsidiaries to enter
into any transactions, with CTVglobemedia Publishing or any of its Subsidiaries except
in the ordinary course of business on a basis consistent with past practice or in
accordance with the 2011 Business Plan; and |
|
(f) |
|
refrain from taking any actions that would cause the representations and
warranties of the Corporation in Section 3.05 to be untrue or incorrect in any material
respect (provided that those representations and warranties that are qualified by
materiality qualifiers will remain true and correct) at the Time of Closing except to
the extent such arise from: |
|
(i) |
|
actions contemplated by or permitted under this Agreement; or |
|
(ii) |
|
the operation of the business of the Corporation and its
Subsidiaries in all material respects in the ordinary course of business on a
basis consistent with past practice. |
- 32 -
(2) At the request of the Purchaser, the Corporation will diligently pursue all of the
Corporation Third Party Consents. No party (other than the Corporation, as described below)
will be obligated to make any payment to any person or to pay any charge or fee or make or
incur any additional payment, guarantee or financial contribution or arrangement or to institute
legal, arbitration or other proceedings in connection therewith. All costs and expenses incurred
with respect to pursuing the Corporation Third Party Consents will be borne by the Corporation,
other than costs and expenses of any advisors, including legal counsel, retained by the Purchaser
or the Vendors, which will be for the account of the Purchaser or such Vendor, as the case may be.
(3) Other than (i) as contemplated by or permitted under this Agreement or the Print
Agreement, (ii) as contemplated in the 2011 Business Plan, (iii) subject to Section 4.03(1)(e),
transactions solely between the Corporation and any Subsidiary or between any of its Subsidiaries
in the ordinary course of business on a basis consistent with past practice, (iv) matters relating
solely to the CTVglobemedia Publishing Group that do not materially affect operating free cash flow
of the Corporation on a consolidated basis, or (v) except for Sections 4.03(3)(a) through (g),
inclusive, and Sections 4.03(3)(u) and (v) as they relate to Sections 4.03(3)(a) through (g), in
the ordinary course of business on a basis consistent with past practice, prior to the Closing
Date, without the prior written consent of the Purchaser (and, in the case of Section 4.03(3)(e),
the prior written consent of each of the Purchaser, Woodbridge, Teachers’ and Torstar) not to be
unreasonably withheld or delayed, the Corporation will not, directly or indirectly:
|
(a) |
|
take any initiative that would result in a material change in the business of
the Corporation and its Subsidiaries on a consolidated basis; |
|
(b) |
|
amend its articles, by-laws, constating documents or other organizational
documents; |
|
(c) |
|
declare or pay any dividend or make any distribution, whether in cash, in stock
or in specie, on any of its outstanding shares; |
|
(d) |
|
repurchase, redeem or otherwise acquire any of its securities; |
|
(e) |
|
issue, grant or sell any of its securities; |
|
(f) |
|
amalgamate, merge or combine with or into any other person; |
|
(g) |
|
take or institute any proceedings for winding-up, reorganizing or dissolving; |
|
(h) |
|
make or incur any single capital expenditure or group of related capital
expenditures in excess of $5 million or any capital expenditures that, in the
aggregate, are in excess of the amounts specified by the Corporation to the Purchaser
as of the date hereof, in any quarter; |
|
(i) |
|
incur any indebtedness or issue any debt securities or assume, guarantee,
endorse or otherwise as an accommodation become responsible for the obligations of any
other person, or make any loans or advances, except for extensions of existing
indebtedness and the issuance of letters of credit; |
- 33 -
|
(j) |
|
purchase or acquire, in any single transaction or series of related
transactions, assets or shares of, or other interests in, any other person (other than
any transaction in respect of which there is a binding written agreement existing on
the date hereof, a copy of which has been provided to the Purchaser, that has not yet
closed); |
|
(k) |
|
sell or dispose of, by conveyance, transfer, lease or otherwise, in any single
transaction or series of related transactions, assets, including shares of, or other
interests in, any of its Subsidiaries (other than any transaction in respect of which
there is a binding written agreement existing on the date hereof, a copy of which has
been provided to the Purchaser, that has not yet closed); |
|
(l) |
|
enter into any joint venture or strategic alliance in any single transaction or
series of related transactions; |
|
(m) |
|
terminate, cancel, renew or amend any Material Contract or enter into any
Contract that would have been a Material Contract if it had been entered into prior to
the date hereof; |
|
(n) |
|
enter into any non-arm’s length transactions, except transactions entered into
in the ordinary course of business on terms no less favourable to the Corporation than
are available from an arm’s length party; |
|
(o) |
|
adopt or amend any compensation plan in respect of its officers (including, for
greater certainty, all vice-presidents), employees or consultants or increase the
compensation or benefits payable to any such person, other than (i) where required by
Applicable Law, or (ii) in accordance with the terms of any written agreement (or
summaries of proposed agreements) made available to the Purchaser prior to the date
hereof; |
|
(p) |
|
increase any severance, change of control or termination payments that could
become payable to any of its directors, officers or employees or increase the benefits
payable under any severance, change of control or termination policies; |
|
(q) |
|
undertake any workforce reduction initiatives or similar programs designed to
reduce labour costs or terminate the employment of any member of senior management; |
|
(r) |
|
amend its accounting policies or adopt new accounting policies, in each case
except as may be required by generally accepted accounting principles; |
|
(s) |
|
terminate, cancel or amend or cause to lapse any of its insurance policies or
the coverage thereunder; |
|
(t) |
|
discuss the transactions contemplated by this Agreement with any Governmental
Authority without the Purchaser present unless specifically required by such
Governmental Authority in accordance with Applicable Law and the Purchaser is given
prior written notice of any such discussions; |
- 34 -
|
(u) |
|
do indirectly, including through any of its Subsidiaries, anything which would
not be permitted to be done directly pursuant to this Section 4.03; or |
|
(v) |
|
make any commitment or agreement to do any of the foregoing. |
(4) The Corporation will ensure that the representations and warranties of the Corporation set
out in Section 3.05 over which the Corporation has reasonable control are true and correct at the
Time of Closing and that the conditions of closing for the benefit of the Purchaser set out in
Section 5.01 and the Vendors in Section 5.02 over which the Corporation has reasonable control
have been performed or complied with by the Time of Closing.
(1) The Purchaser and the Corporation will promptly and expeditiously take all steps required
to obtain the CRTC Approval so as to permit the closing of the transactions contemplated by this
Agreement to occur by the Outside Date (including satisfying any significant conditions of
approval), and in so doing will cooperate with each other; provided, however, that nothing in this
Agreement will require the Purchaser to agree to any conditions of approval which would (a) be
material and adverse to the Purchaser, and (b) treat the Purchaser differently from its integrated
competitors. The Vendors will provide their full cooperation to the Purchaser and the Corporation
in obtaining CRTC Approval, provided that in so doing no Vendor will be required to pay any amount
of money or agree to any terms and conditions of any nature.
(2) Subject to Section 4.04(3), the Purchaser will, as soon as reasonably practicable after
the date hereof, prepare and file the CRTC Application. Notwithstanding Section 4.04(1), the
Purchaser will have ultimate responsibility over the CRTC Application, including the drafting and
the presentation of the CRTC Application at any public hearing held to consider it. At the
Purchaser’s request, the Corporation will make available any of its executives or senior managers
to attend any public hearing with the Purchaser.
(3) The Purchaser will provide a draft copy of and consult with, and consider in good faith
any suggestions made by, the other parties with respect to the CRTC Application and any
documentation relating thereto. Each other party will be entitled to participate in any meeting
between any of the parties for the preparation of the CRTC Application. Subject to issues of
relevance and confidentiality, each party will promptly furnish to the Purchaser or its counsel
such information and assistance as the Purchaser may reasonably request in order to prepare the
documentation relating to the CRTC Application.
(4) The Purchaser will diligently pursue the CRTC Approval on the terms set forth in the CRTC
Application which will be consistent with the terms of this Agreement. To the extent that a public
hearing is held, the Purchaser will request the earliest possible hearing date for the
consideration of the CRTC Application.
(5) The Purchaser will inform the other parties or their respective counsel on a regular basis
as to the status of the CRTC’s processing of the CRTC Application and will promptly provide the
other parties or their respective counsel with copies of any correspondence from or to the CRTC.
- 35 -
(6) The Corporation and the Vendors will promptly provide each of the other parties or their
respective counsel with copies of any correspondence from or to the CRTC as it relates to the
transactions contemplated herein. The Corporation and the Vendors will promptly furnish to the
CRTC any additional information required or reasonably requested by the CRTC (a “CRTC Request”).
No later than five Business Days prior to any date upon which a filing, submission or response (a
“CRTC Submission”) is required pursuant to any CRTC Request or, where less than five Business Days’
notice of the requirement or opportunity for such CRTC Submission is given, as soon as reasonably
practicable, the party making the CRTC Submission will provide a copy of any proposed CRTC
Submission to the Purchaser, and will consult with the Purchaser as to the content of the CRTC
Submission and will consider in good faith any suggestions made by the Purchaser concerning such
CRTC Submission. The Corporation and the Vendors agree that any such CRTC Submission will be
consistent with their objective of obtaining CRTC Approval.
(1) The Purchaser and the Corporation will promptly and expeditiously take all steps required
to obtain Competition Act Compliance so as to permit the closing of the transactions contemplated
by this Agreement to occur by the Outside Date, and in so doing will cooperate with each other.
The Vendors will provide their full cooperation to the Purchaser and the Corporation in obtaining
Competition Act Compliance, provided that in so doing no Vendor will be required to pay any amount
of money or agree to any terms and conditions of any nature.
|
(2) |
|
As soon as reasonably practicable following the date hereof: |
|
(a) |
|
the Purchaser will prepare and submit to the Commissioner of Competition an
application and submissions for an Advance Ruling Certificate (the “ARC Request”), or
in the alternative, a no action letter; and |
|
(b) |
|
if considered appropriate by the parties, the Purchaser and the Corporation
will file pre-merger notifications pursuant to Part IX of the Competition Act (the
“Part IX Filings”). |
(3) The Corporation and the Vendors will promptly furnish to the Purchaser or its counsel such
information, documents and assistance as the Purchaser may reasonably request in order to prepare
the application and submissions for an Advance Ruling Certificate, or any other submissions to the
Commissioner of Competition.
(4) The Purchaser, the Corporation and the Vendors will promptly furnish any additional
information or documents requested by the Commissioner of Competition.
(5) The Purchaser will provide advance drafts of all written submissions to the Commissioner
of Competition (including the ARC Request) to the Corporation and the Vendors, and will consider in
good faith any suggestions made by the Corporation and the Vendors concerning such application and
submissions. The Purchaser, the Corporation and the Vendors will keep each other apprised of all
substantive communications with the Commissioner of Competition or her staff and will not
participate in such communications without giving the others the opportunity to participate
therein.
- 36 -
(6) The Purchaser will pay the filing fees and applicable taxes required in connection with
Competition Act Compliance.
(7) The Purchaser will promptly and expeditiously make all reasonable commercial efforts to
obtain Competition Act Compliance so as to permit the closing of the transactions contemplated by
this Agreement to occur by the Outside Date; provided, however, that nothing in this Agreement will
require the Purchaser, the Corporation or their respective Affiliates to agree to any conditions
requested by the Commissioner of Competition that are material and adverse to the Purchaser.
Woodbridge agrees that, for the period commencing on the Closing Date and ending on the second
anniversary of the Closing Date, Woodbridge will not, directly or indirectly, offer, sell, enter
into an agreement to sell, pledge (other than as security for a bona fide loan from a major bank or
financial institution), grant any option to purchase, make any short sale, monetize or otherwise
dispose of any BCE Shares without the prior written consent of the Purchaser; provided, however,
that Woodbridge will be entitled to so transfer BCE Shares to any other member of the Woodbridge
Group without the prior written consent of the Purchaser if such other member of the Woodbridge
Group enters into an agreement with the Purchaser agreeing to be bound by the restrictions set
forth in this Section 4.06.
The Corporation, the Purchaser and the Vendors each agree that, upon request of the Purchaser,
the Corporation will, and will cause each of its Subsidiaries to, at the expense of Purchaser, (i)
effect such reorganizations of its business, financing, operations and assets and the integration
of other affiliated businesses as the Purchaser may request, acting reasonably (each a
“Pre-Acquisition Reorganization”) and (ii) cooperate with the Purchaser and its advisors to
determine the nature of the Pre-Acquisition Reorganizations that might be undertaken and the manner
in which they may most effectively be undertaken. The Purchaser and the Corporation will, at the
expense of the Purchaser, work cooperatively and use commercially reasonable efforts to prepare
prior to the Time of Closing all documentation necessary and do such other acts and things as are
necessary to give effect to any Pre-Acquisition Reorganization. Notwithstanding the foregoing, no
such Pre-Acquisition Reorganization will be made effective unless such Pre-Acquisition
Reorganization (x) can be reversed or unwound without adversely affecting the Corporation or its
Subsidiaries in the event the transactions contemplated by this Agreement are not completed and
this Agreement is terminated, (y) does not adversely affect any Vendor, and (z) does not adversely
affect or delay Competition Act Compliance or the obtaining of CRTC Approval or the satisfaction of
any other condition set out in Section 5.01 or 5.02. No Pre-Acquisition Reorganization will be
considered in determining whether a representation, warranty or covenant of the Corporation or any
Vendor hereunder has been breached. If the transactions contemplated by this Agreement are not
completed and this Agreement is terminated, the Purchaser will promptly reimburse the Corporation
for all reasonable fees and expenses (including any professional fees and expenses) incurred by the
Corporation and its Subsidiaries in effecting a Pre-Acquisition Reorganization and will be
responsible for any costs of the Corporation and its Subsidiaries in reversing or unwinding any Pre-Acquisition
Reorganization.
- 37 -
The parties acknowledge and agree that each of the Funding Agreement and the Existing
Shareholders Agreement will be terminated and of no further force and effect (other than Section
11.6 of the Existing Shareholders Agreement) as of the Time of Closing (or, if the Purchaser does
not purchase all the Purchased Shares, the Existing Shareholders Agreement will be terminated and
of no further force and effect with respect to each Vendor whose Purchased Shares are purchased at
the Time of Closing).
(1) The parties acknowledge that it is their intention that as of the Time of Closing the
CTVglobemedia Television Assets will be owned by the CTVglobemedia Television Group and not by the
CTVglobemedia Publishing Group.
(2) If any member of the CTVglobemedia Publishing Group or the CTVglobemedia Television Group
discovers after the Time of Closing that the CTVglobemedia Publishing Group has title to, or an
interest in, a CTVglobemedia Television Asset (in either case, a
“Non‑Transferred Asset”),
CTVglobemedia Publishing shall (and shall cause its applicable Subsidiary to) cooperate and use
commercially reasonable efforts to promptly transfer such title or interest to the Corporation (or
a Subsidiary of the Corporation designated by it) on a tax efficient basis, including obtaining any
necessary consents or approvals or taking any other actions necessary to effect such transfers.
(3) If an attempted assignment of a Non-Transferred Asset would be ineffective or would impair
the rights of the CTVglobemedia Television Group with respect to such Non-Transferred Asset so that
the CTVglobemedia Television Group would not receive all such rights, then CTVglobemedia Publishing
shall use commercially reasonable efforts to provide to, or cause to be provided to, the
CTVglobemedia Television Group, to the extent permitted by law, rights related to such
Non-Transferred Asset and take such other actions as may reasonably be requested by the Corporation
in order to place it, insofar as reasonably possible, in the same position as if such
Non-Transferred Asset had been transferred as contemplated hereby. In connection therewith, (i) the
member of the CTVglobemedia Publishing Group with title to or an interest in such asset shall
promptly pass along to the member of the CTVglobemedia Television Group entitled to such asset when
received all benefits derived with respect to any such Non-Transferred Asset, and (ii) the member
of the CTVglobemedia Television Group entitled to such asset shall pay, perform and discharge on
behalf of such member of the CTVglobemedia Publishing Group all of the obligations with respect to
any such Non-Transferred Asset in a timely manner and in accordance with the terms thereof. If and
when such transfer may be effected without impairing the rights of the member of the CTVglobemedia
Television Group entitled to such asset, the Corporation and CTVglobemedia Publishing shall take
appropriate steps to effect the transfer of such Non-Transferred Asset.
- 38 -
Each of the Corporation and the Purchaser will use commercially reasonable efforts to obtain
customary release and termination documentation from The Toronto-Dominion Bank (“TD”) confirming
the termination and release of the Vendors and the Purchaser from their respective obligations
under (i) the put agreement dated April 30, 2009 between, among others, TD, Woodbridge Parent,
Teachers’, Torstar and the Purchaser, (ii) the sponsor subordination and intercreditor agreement
dated as of April 30, 2009 between, among others, the Corporation, Woodbridge Parent, Teachers’,
Torstar, the Purchaser and TD, and (iii) the sponsor assignment and assumption agreement dated as
of April 30, 2009 between, among others, TD, the Corporation, Woodbridge Parent, Teachers’, Torstar
and the Purchaser.
The sale by the Vendors and the purchase by the Purchaser of the Purchased Shares and the Mezz
Debt is subject to the following conditions, which are for the exclusive benefit of the Purchaser
and which are to be performed or complied with at or prior to the Time of Closing:
|
(a) |
|
all covenants of the Vendors and the Corporation under this Agreement to be
performed at or before the Time of Closing will have been duly performed by the Vendors
and the Corporation in all material respects, and the Purchaser will have received a
certificate of each of the Vendors and the Corporation addressed to the Purchaser and
dated the Closing Date, signed by a senior executive officer of each of the Vendors and
the Corporation (on the Vendors’ and the Corporation’s behalf and without personal
liability), confirming the same as at the Time of Closing; |
|
(b) |
|
the representations and warranties of the Corporation set forth in this
Agreement will be true and correct in all material respects (provided that those
representations and warranties that are qualified by materiality qualifiers will be
true and correct as so qualified) as though made at and as of the Time of Closing
(except for representations and warranties made as of a specified date, the accuracy of
which will be determined as of that specified date); provided that the Corporation will
have the right from time to time prior to the Closing Date to supplement or amend its
written disclosure relating to the representations and warranties set forth in Section
3.05 in respect of any matter arising after the date of this Agreement that, if
existing at the date of this Agreement, would have been required to be disclosed by the
Corporation in writing on or prior to the date hereof to make the applicable
representation and warranty true and correct provided that the need for any such
supplement or amendment arose solely as a result of an action taken by the Corporation
in compliance with its obligations under Section 4.03(1) or Section 4.03(3) of this
Agreement; any such supplement or amendment, upon written notice thereof will be
effective to modify this Agreement and the Corporation’s previously provided written
disclosure, to |
- 39 -
|
|
|
qualify the representations and warranties in Section 3.05 and to cure any
misrepresentation or inaccuracy in the representation and warranty that otherwise
might have existed under this Agreement for the purpose of the determination of the
satisfaction of the condition of closing set forth in this Section 5.01(b). The
Purchaser will have received a certificate of the Corporation addressed to the
Purchaser and dated the Closing Date, signed by a senior executive officer of the
Corporation (on the Corporation’s behalf and without personal liability), confirming
the above as at the Time of Closing. |
|
(c) |
|
the representations and warranties of the Vendors set forth in this Agreement
will be true and correct in all material respects, as though made at and as of the Time
of Closing (except for representations and warranties made as of a specified date, the
accuracy of which will be determined as of that specified date). The Purchaser will
have received a certificate of each of the Vendors addressed to the Purchaser and dated
the Closing Date, signed by a senior executive officer of each of the Vendors (on the
Vendors’ behalf and without personal liability), confirming the above as at the Time of
Closing; |
|
(d) |
|
Competition Act Compliance will have been obtained and remain in force; |
|
(e) |
|
CRTC Approval will have been obtained; |
|
(f) |
|
TSX Listing Approval will have been obtained; |
|
(g) |
|
no legislation (whether by statute, regulation, order-in-council, notice of
ways and means motion, by-law or otherwise) will have been enacted, introduced or
tabled which restricts or prohibits any of the transactions contemplated by this
Agreement in any material respect; |
|
(h) |
|
no action or proceeding in Canada will be pending by any person or pending or
threatened by any Governmental Authority to enjoin, restrict or prohibit: |
|
(i) |
|
the sale and purchase of the Purchased Shares or the Mezz Debt
contemplated by this Agreement; or |
|
(ii) |
|
the right of the Corporation and its Subsidiaries to conduct
their business; |
|
(i) |
|
all directors of the Corporation and its Subsidiaries specified by the
Purchaser will resign effective at the Time of Closing; |
|
(j) |
|
the Vendors and all directors of the Corporation and its Subsidiaries will
release the Corporation and its Subsidiaries from any and all possible Claims against
the Corporation and its Subsidiaries arising from any act, matter or thing arising at
or prior to the Time of Closing other than, in the case of the directors, Claims for
indemnification made in accordance with (i) the by-laws of the Corporation or its
Subsidiaries, (ii) indemnity agreements between any such director and the Corporation
and its Subsidiaries, or (iii) the Existing Shareholders Agreement; |
- 40 -
|
(k) |
|
the purchase and sale of the Woodbridge Shares, Teachers’ Shares, Torstar
Shares and the Mezz Debt will be concurrently completed; provided, however, that the
Purchaser will cease to have the benefit of this condition and may no longer rely upon
it if any Vendor elects not to sell its Purchased Shares or Mezz Debt in accordance
with Section 5.04(3); |
|
(l) |
|
the distribution or transfer of the CTVglobemedia Publishing Shares
contemplated by Section 2.01(a) of the Print Agreement will have been completed in
accordance with the terms thereof or any Modification (as defined in the Print
Agreement); |
|
(m) |
|
all necessary steps and proceedings will have been taken to permit the
Purchased Shares to be duly and regularly transferred to and registered in the name of
the Purchaser; |
|
(n) |
|
all necessary steps and proceedings will have been taken to provide for the
valid assignment to and assumption by the Purchaser of the Mezz Debt Agreements; |
|
(o) |
|
the Vendors will each have delivered to the Purchaser a favourable opinion of
such Vendor’s counsel in customary form for transactions of the nature contemplated by
this Agreement in form and substance satisfactory to the Purchaser’s counsel, acting
reasonably; and |
|
(p) |
|
Woodbridge Parent and Woodbridge Holdco will have executed a unanimous
shareholder agreement with the Purchaser with respect to CTVglobemedia Publishing on
terms satisfactory to Woodbridge Parent, Woodbridge Holdco and the Purchaser (which
agreement will be delivered in escrow pending completion of the transactions
contemplated by the Print Agreement). |
The sale by each of (i) Woodbridge of the Woodbridge Shares and the Mezz Debt, (ii) Teachers’
of the Teachers’ Shares, and (iii) Torstar of the Torstar Shares and the purchase thereof by the
Purchaser is subject to the following conditions, which are for the exclusive benefit of the
applicable Vendor and which are to be performed or complied with at or prior to the Time of
Closing:
|
(a) |
|
all covenants of the Purchaser under this Agreement to be performed at or
before the Time of Closing that relate to that Vendor or the Corporation will have been
duly performed by the Purchaser in all material respects, and the Vendor will have
received a certificate of the Purchaser addressed to the Vendor and dated the Closing
Date, signed on behalf of the Purchaser by a senior executive officer of the Purchaser
(on the Purchaser’s behalf and without personal liability), confirming the same as at
the Time of Closing; |
|
(b) |
|
the representations and warranties of the Purchaser set forth in Section 3.03
of this Agreement, in the case of Teachers’ and Torstar, or Section 3.03 and 3.04 in
the case of Woodbridge, will be true and correct in all material respects (provided
that |
- 41 -
|
|
|
those representations and warranties that are qualified by materiality qualifiers
will be true and correct as so qualified) as of the Time of Closing, as though made
at and as of the Time of Closing (except for representations and warranties made as
of a specified date, the accuracy of which will be determined as of that specified
date). The Vendor will have received a certificate of the Purchaser addressed to the
Vendor and dated the Closing Date, signed on behalf of the Purchaser by a senior
executive officer of the Purchaser (on the Purchaser’s behalf and without personal
liability), confirming the above as at the Time of Closing; |
|
(c) |
|
Competition Act Compliance will have been obtained and remain in force; |
|
(d) |
|
CRTC Approval will have been obtained; |
|
(e) |
|
TSX Listing Approval will have been obtained (provided that this condition will
only be for the benefit of and may only be relied upon by Woodbridge in connection with
the sale of the Woodbridge Shares and the Mezz Debt); |
|
(f) |
|
no legislation (whether by statute, regulation, order-in-council, notice of
ways and means motion, by-law or otherwise) will have been enacted, introduced or
tabled which restricts or prohibits any of the transactions contemplated by this
Agreement in any material respect; |
|
(g) |
|
no action or proceeding in Canada will be pending by any person or pending or
threatened by any Governmental Authority to enjoin, restrict or prohibit the sale and
purchase of the Purchased Shares or the Mezz Debt contemplated by this Agreement; |
|
(h) |
|
the Purchaser will have provided to the Vendors evidence satisfactory to the
Vendors, acting reasonably, that as at the Time of Closing (i) all indebtedness owing
under the Senior Debt Facility will have been repaid in full; (ii) all obligations of
the Corporation to the lenders under the Senior Debt Facility will have been satisfied;
and (iii) the Put Agreement will have been terminated and of no further force and
effect; |
|
(i) |
|
the Corporation will have released the Vendors and all current and former
directors of the Corporation and its Subsidiaries from any and all possible Claims
against them arising from any act, matter or thing arising at or prior to the Time of
Closing; |
|
(j) |
|
the Purchaser will have delivered to the Vendor a favourable opinion of the
Purchaser’s counsel in customary form for transactions of the nature contemplated by
this Agreement in form and substance satisfactory to such Vendor’s counsel, acting
reasonably; |
- 42 -
|
(k) |
|
the distribution or transfer of the CTVglobemedia Publishing Shares
contemplated by Section 2.01(a) of the Print Agreement will have been completed
in accordance with the terms thereof or any Modification (as defined in the Print
Agreement); and |
|
(l) |
|
the Purchaser will have executed a unanimous shareholder agreement with
Woodbridge Holdco and Woodbridge Parent with respect to CTVglobemedia Publishing on
terms satisfactory to Woodbridge Parent, Woodbridge Holdco and the Purchaser (which
agreement will be delivered in escrow pending completion of the transactions
contemplated by the Print Agreement). |
The Purchaser, in the case of a condition set out in Section 5.01, and each of the Vendors, in
the case of a condition set out in Section 5.02, will have the exclusive right to waive the
performance or compliance of such condition in whole or in part and on such terms as may be agreed
upon without prejudice to any of its rights in the event of non-performance of or non-compliance
with any other condition in whole or in part. Any such waiver will not constitute a waiver of any
other conditions in favour of the waiving party. Such waiving party will retain the right to
complete the applicable sale and purchase of the Purchased Shares and/or the Mezz Debt herein
contemplated and xxx the other party in accordance with and subject to Article 7 (the Purchaser if
the waiving party is Woodbridge, Teachers’ or Torstar, and Woodbridge, Teachers’ or Torstar, as
applicable, if the waiving party is the Purchaser) in respect of any breach of the other party’s
covenants, obligations or any inaccuracy or misrepresentation in a representation or warranty of
the other party which gave rise to the non-performance of or non-compliance with the condition so
waived.
(1) This Agreement may be terminated, by notice given prior to the completion of the sale and
purchase of the Purchased Shares and the Mezz Debt herein contemplated:
|
(a) |
|
by the Purchaser if a material breach of any covenant or obligation in this
Agreement has been committed by any of the Vendors or the Corporation and such breach
has not been waived or cured within 30 days following the date on which the Purchaser
notifies the Vendor of such breach; |
|
(b) |
|
by written agreement of the Purchaser and the Vendors; or |
|
(c) |
|
by the Vendors, collectively, on the one hand, or the Purchaser, on the other
hand, if the completion of the sale and purchase of the Purchased Shares and the Mezz
Debt herein contemplated has not occurred (other than through the failure of the party
seeking to terminate this Agreement to comply fully with its obligations under this
Agreement) on or before the Outside Date. |
(2) The Purchaser may elect not to purchase the Purchased Shares or Mezz Debt, as applicable,
from any Vendor by notice given to the Vendor prior to the completion of the sale and purchase of
the Purchased Shares and the Mezz Debt herein contemplated if the Vendor materially breaches any
covenant or obligation in this Agreement and such breach has not been
waived or cured within 30 days following the date on which the Purchaser notifies the Vendor
of such breach.
- 43 -
(3) Any Vendor may elect not to sell the Purchased Shares or Mezz Debt, as applicable, to the
Purchaser by notice given to the Purchaser prior to the completion of the sale and purchase of the
Purchased Shares and the Mezz Debt herein contemplated if the Purchaser materially breaches any
covenant or obligation in this Agreement and such breach has not been waived or cured within 30
days following the date on which the Vendor notifies the Purchaser of such breach.
Each party’s right of termination under Section 5.04 is in addition to any other rights it may
have under this Agreement or otherwise, and the exercise of a right of termination will not be an
election of remedies. If this Agreement is terminated pursuant to Section 5.04(1), all further
obligations of the parties under this Agreement will terminate, except that the obligations in
Sections 4.07 and 8.03 will survive; provided, however, that if this Agreement is terminated by a
party because of a material breach of any covenant or obligation in this Agreement by another party
or because one or more of the conditions to the terminating party’s obligations under this
Agreement is not satisfied as a result of another party’s failure to comply with its obligations
under this Agreement, the terminating party’s right to pursue all legal remedies with respect to
such breach will survive such termination unimpaired.
The sale and purchase of the Purchased Shares and the Mezz Debt will be completed at the Time
of Closing at the offices of XxXxxxxx Xxxxxxxx XXX, Xxxxx 0000, Xxxxxxx Xxxxxxxx Xxxx Xxxxx,
Xxxxxxx, Xxxxxxx.
All covenants, representations and warranties of the Vendors and the Purchaser contained in
this Agreement will survive the closing and will continue in full force and effect, subject to the
provisions of this Article 7. All covenants, representations and warranties of the Corporation
(other than Sections 4.02(3) and 4.02(4)) will expire and be terminated on the earlier of the Time
of Closing and the date on which this Agreement is terminated in accordance with its terms.
(1) Subject to the provisions of this Article 7, each of the Vendors will, severally and not
jointly, indemnify and save harmless the Purchaser and the directors, officers, employees and agents of the Purchaser (collectively, the “Purchaser Indemnitees”) from and against all
Claims asserted against and Losses incurred by any of them directly or indirectly arising out of or
resulting from:
- 44 -
|
(a) |
|
any inaccuracy or misrepresentation in any representation or warranty of such
Vendor in this Agreement; |
|
(b) |
|
any breach of any covenant of such Vendor in this Agreement. |
(2) Notwithstanding any of the other provisions of this Agreement, no Vendor will be liable to
any Purchaser Indemnitee in respect of:
|
(a) |
|
any Claim or Loss directly or indirectly arising out of or resulting from any
inaccuracy or misrepresentation in any representation or warranty of the Vendor in
Sections 3.01(g) through (j), inclusive, unless notice of any Claim by the Purchaser
against the Vendor with respect thereto is given to the Vendor by the Purchaser within
18 months after the Closing Date; or |
|
(b) |
|
any Claim or Loss directly or indirectly arising out of or resulting from any
inaccuracy or misrepresentation in any representation or warranty of the Vendor in this
Agreement or any breach by the Vendor of its covenant in Section 4.01(a) in excess of: |
|
(i) |
|
the Woodbridge Share Purchase Price and the Woodbridge Mezz
Debt Purchase Price, in the case of Woodbridge; |
|
(ii) |
|
the Teachers’ Share Purchase Price, in the case of Teachers’;
and |
|
(iii) |
|
the Torstar Share Purchase Price, in the case of Torstar, |
|
|
|
other than, in all cases, any Loss attributable to an inaccuracy or
misrepresentation pertaining to Sections 3.01(b), 3.01(c) or 3.01(f) or fraud. |
(1) Subject to the provisions of this Article 7, the Purchaser will indemnify and save
harmless the Vendors and the directors, officers, employees and agents of the Vendors (the “Vendor
Indemnitees”) from and against all Claims asserted against and Losses incurred by any of them
directly or indirectly arising out of or resulting from
|
(a) |
|
any inaccuracy or misrepresentation in any representation or warranty of the
Purchaser in this Agreement (Section 3.03 in the case of Teachers’ and Torstar and
Sections 3.03 and 3.04 in the case of Woodbridge), or |
|
(b) |
|
any breach of any covenant of the Purchaser in this Agreement. |
(2) Notwithstanding any of the other provisions of this Agreement, the Purchaser will not be
liable to the Vendor Indemnitees in respect of:
- 45 -
|
(a) |
|
any Claim or Loss directly or indirectly arising out of or resulting from any
inaccuracy or misrepresentation in any representation or warranty of the Purchaser in
Section 3.04 of this Agreement unless notice of any Claim by Woodbridge against the
Purchaser with respect thereto is given to the Purchaser by Woodbridge within 18 months
after the Closing Date; or |
|
(b) |
|
any Claim or Loss directly or indirectly arising out of or resulting from any
inaccuracy or misrepresentation in any representation or warranty of the Purchaser in
this Agreement or any breach by the Purchaser of its covenant in Section 4.02(1)(a) in
excess of: |
|
(i) |
|
the Woodbridge Share Purchase Price, in the case of Woodbridge; |
|
(ii) |
|
the Teachers’ Share Purchase Price, in the case of Teachers’;
and |
|
(iii) |
|
the Torstar Share Purchase Price, in the case of Torstar, |
|
|
|
other than, in all cases, any Loss attributable to fraud. |
Promptly after the assertion by any third party of any Third Party Claim (a “Third Party
Proceeding”) against any person entitled to indemnification under this Agreement (the “Indemnitee”)
that results or may result in the incurrence by such Indemnitee of any Claim or Loss for which such
Indemnitee would be entitled to indemnification pursuant to this Agreement, such Indemnitee will
promptly notify the party from whom such indemnification is or may be sought (the “Indemnitor”) of
such Third Party Proceeding. Such notice will also specify with reasonable detail (to the extent
the information is reasonably available) the factual basis for the Third Party Proceeding, the
amount claimed by the third party, or if such amount is not then determinable, a reasonable
estimate of the likely amount of the Third Party Claim. The failure to promptly provide such
notice will not relieve the Indemnitor of any obligation to indemnify the Indemnitee, except to the
extent such failure prejudices the Indemnitor. Thereupon, the Indemnitor will have the right, upon
written notice (the “Defence Notice”) to the Indemnitee within 30 days after receipt by the
Indemnitor of notice of the Third Party Proceeding (or sooner if such Third Party Proceeding so
requires) to conduct, at its own expense, the defence against the Third Party Proceeding in its own
name or, if necessary, in the name of the Indemnitee provided that: (a) the Indemnitor acknowledges
and agrees in the Defence Notice that as between the Indemnitor and the Indemnitee, it is liable to
pay for all Losses arising from or relating to such Third Party Proceeding and (b) the Indemnitor
provides to the Indemnitee adequate security (approved by the Indemnitee acting reasonably) from
time to time in respect of such Losses. The Defence Notice will specify the counsel the Indemnitor
will appoint to defend such Third Party Proceeding (the “Defence Counsel”), and the Indemnitee will
have the right to approve the Defence Counsel, which approval will not be unreasonably withheld or
delayed. Any Indemnitee will have the right to employ separate counsel in any Third Party
Proceeding and/or to participate in the defence thereof, but the fees and expenses of such counsel
will not be included as part of any Losses incurred by the Indemnitee unless (i) the Indemnitor
failed to give the Defence Notice, including the acknowledgement and agreement to be set out
therein within
- 46 -
the prescribed period, (ii) such Indemnitee has received an opinion of counsel, reasonably
acceptable to the Indemnitor, to the effect that the interests of the Indemnitee and the Indemnitor
with respect to the Third Party Proceeding are sufficiently adverse to prohibit the representation
by the same counsel of both parties under applicable ethical rules, or (iii) the employment of such
counsel at the expense of the Indemnitor has been specifically authorized by the Indemnitor. The
party conducting the defence of any Third Party Proceeding will keep the other party apprised of
all significant developments and will not enter into any settlement, compromise or consent to
judgment with respect to such Third Party Proceeding unless the Indemnitor and the Indemnitee
consent, which consent will not be unreasonably withheld or delayed.
From and after the completion of the sale and purchase of Purchased Shares and the Mezz Debt
herein contemplated, the rights of indemnity set forth in this Article 7 are the sole and exclusive
remedies of each party in respect of any inaccuracy or misrepresentation in any representation or
warranty, or breach of covenant or other obligation by another party under this Agreement.
Accordingly, the parties waive, from and after the Closing Date, any and all rights, remedies and
Claims that one party may have against another party, whether at law, under any statute or in
equity (including Claims for contribution or other rights of recovery, Claims for breach of
contract, breach of representation and warranty, negligent representation and all Claims for breach
of duty), or otherwise, directly or indirectly, relating to the provisions of this Agreement or the
transaction contemplated by this Agreement other than as expressly provided for in this Article 7
and other than those arising with respect to any fraud. This Article 7 will remain in full force
and effect in all circumstances and will not be terminated by any breach (fundamental, negligent or
otherwise) by any party of its representations, warranties, covenants or other obligations under
this Agreement or under any Closing document or by any termination or rescission of this Agreement
by any party.
In determining the amount of any Loss under this Article 7, such Loss will be increased (or
decreased) to take into account any net Tax cost (or net current or future Tax benefit) incurred or
enjoyed by the Indemnitee as a result of the matter giving rise to such Loss and the receipt of an
indemnity payment hereunder. For greater certainty, any net Tax cost will include any further cost
resulting from such increased payment.
All amounts payable by any Vendor to a Purchaser Indemnitee pursuant to Article 7 will be
deemed to be a decrease to the portion of the Aggregate Share Purchase Price paid to such Vendor.
All amounts payable by the Purchaser to a Vendor Indemnitee pursuant to Article 7 will be deemed to
be an increase to the portion of the Aggregate Share Purchase Price paid to such Vendor.
- 47 -
The Vendors, the Purchaser and the Corporation each will from time to time execute and deliver
all such further documents and instruments and do all acts and things as the other party may,
either before or after the Closing Date, reasonably require to effectively carry out or better
evidence or perfect the full intent and meaning of this Agreement.
Time is of the essence of this Agreement.
Subject to Sections 4.03(2) and 4.07, the Vendors, the Purchaser and the Corporation will each
pay its respective legal, accounting and other advisory costs and expenses incurred in connection
with the preparation, execution and delivery of this Agreement and all documents and instruments
executed pursuant to this Agreement and any other costs and expenses whatsoever and howsoever
incurred and will indemnify and save harmless the others from and against any Claim for or Loss
resulting from any broker’s, finder’s or placement fee or commission alleged to have been incurred
as a result of any action by it in connection with the transactions under this Agreement.
Until the termination of this Agreement in accordance with its terms, and with approval of the
Vendors not to be unreasonably withheld or delayed, the Corporation will appoint an individual
designated by the Purchaser (which individual must not owe any duties to the Purchaser) on written
notice to the Corporation as the Chief Operating Officer of the Corporation. The Chief Operating
Officer will at all times act for and as an officer of the Corporation, and he or she will have no
independent authority except as may be authorized and delegated by the Chief Executive Officer of
the Corporation. The Corporation will not terminate the employment of the Chief Operating Officer
so appointed without the prior written consent of the Purchaser, not to be unreasonably withheld or
delayed.
Except as required by law or the requirements of any applicable stock exchange, no public
announcement or press release concerning the sale and purchase of the Purchased Shares and the Mezz
Debt may be made by the Vendors, the Purchaser or the Corporation without the prior consent and
joint approval of the Vendors and the Purchaser, each acting reasonably.
This Agreement will enure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties hereto.
- 48 -
This Agreement constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and cancels and supersedes any prior understandings and agreements between
the parties hereto with respect thereto. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements, express, implied or statutory with respect to
the subject matter hereof, between the parties other than as expressly set forth in this Agreement.
No amendment to this Agreement will be valid or binding unless set forth in writing and duly
executed by each of the parties hereto. No waiver of any breach of any provision of this Agreement
will be effective or binding unless made in writing and signed by the party purporting to give the
same and, unless otherwise provided, will be limited to the specific breach waived.
This Agreement may not be assigned by the Vendors without the written consent of the Purchaser
but may be assigned by the Purchaser without the consent of the Vendors to an Affiliate of the
Purchaser, provided that such Affiliate enters into a written agreement with the Vendors and the
Corporation to be bound by the provisions of this Agreement in all respects and to the same extent
as the Purchaser is bound and provided that the Purchaser will continue to be bound by all the
obligations hereunder as if such assignment had not occurred and perform such obligations to the
extent that such Affiliate fails to do so.
Any demand, notice or other communication to be given in connection with this Agreement must
be given in writing and will be given by personal delivery, by registered mail or by facsimile
addressed to the recipient as follows:
|
|
|
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0 |
|
|
|
Fax No.: (000) 000-0000
Attention: President and CEO |
|
|
|
Fax No.: (000) 000-0000
Attention: EVP, Business and Legal Affairs and Corporate Secretary |
|
|
|
0, Xxxxxxxxx Xxxxxxxxx-Xxxxxx-Xxxx Xxxxxxxx X0
Xxxxxx, Xxxxxx X0X 0X0 |
- 49 -
|
|
|
Fax No.: (000) 000-0000
Attention: Corporate Secretary |
|
|
|
00 Xxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0 |
|
|
|
Fax No.: (000) 000-0000
Attention: Executive Vice President and Secretary |
|
|
|
Torys LLP:
00 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0 |
|
|
|
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx |
|
|
|
c/o Teachers’ Private Capital
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0 |
|
|
|
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxx |
- 50 -
|
|
|
Stikeman Elliott LLP
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
XX Xxx 00 Xxx. Xxxxxxxx Xxxxx
Xxxxxxx XX X0X 0X0 |
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Fax No.: (000) 000-0000
Attention: Xxxx Xxxxxx |
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0 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0 |
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Fax No.: (000) 000-0000
Attention: President and CEO
General Counsel |
or to such other street address, individual or facsimile number or address as may be designated by
notice given by either party to the other. Any demand, notice or other communication given by
personal delivery will be conclusively deemed to have been given on the day of actual delivery
thereof and, if given by registered mail, on the fifth Business Day following the deposit thereof
in the mail and, if given by facsimile, on the day of transmittal thereof if given during the
normal business hours of the recipient and on the Business Day during which such normal business
hours next occur if not given during such hours on any day. If the party giving any demand, notice
or other communication knows or ought reasonably to know of any difficulties with the postal system
that might affect the delivery of mail, any such demand, notice or other communication may not be
mailed but must be given by personal delivery or by facsimile.
The right and remedies of the parties under this Agreement are cumulative and are in addition
to, and not in substitution for, any other rights and remedies available at law or in equity or
otherwise. No single or partial exercise by a party of any right or remedy precludes or otherwise
affects the exercise of any other right or remedy to which that party may be entitled.
Except as provided in Section 8.06, this Agreement is solely for the benefit of :
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each of the Vendors, and its successors and permitted assigns, with respect to
the obligations of the Purchaser under this Agreement, and |
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(b) |
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the Purchaser, and its successors and permitted assigns, with respect to the
obligations of the Vendors under this Agreement; |
and this Agreement will not be deemed to confer upon or give to any other person any Claim or other
right or remedy. Each of the Vendors appoints the Purchaser as the trustee for the Purchaser
Indemnitees of the covenants of indemnification of the Vendors with respect to such Purchaser
Indemnitees as specified in this Agreement and the Purchaser accepts such appointment. The
Purchaser appoints each of the Vendors as the trustee for the Vendor Indemnitees of the covenants
of indemnification of the Purchaser with respect to such Vendor Indemnitees specified in this
Agreement and the Vendors accept such appointment.
This Agreement is governed by and will be construed in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein.
For the purpose of all legal proceedings this Agreement will be deemed to have been performed
in the Province of Ontario and the courts of the Province of Ontario will have jurisdiction to
entertain any action arising under this Agreement. The Vendors, the Purchaser and the Corporation
each attorns to the jurisdiction of the courts of the Province of Ontario in Toronto.
This Agreement may be executed in any number of counterparts, each of which will be deemed to
be an original and all of which taken together will be deemed to constitute one and the same
instrument.
Delivery of an executed signature page to this Agreement by any party by electronic
transmission will be as effective as delivery of a manually executed copy of this Agreement by such
party.
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CTVGLOBEMEDIA INC.
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Per: |
(signed) Xxxx Xxxxx
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President and Chief Executive Officer |
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Per: |
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BCE INC.
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Per: |
(signed) Xxxxxx X. Xxxx
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President and Chief Executive Officer |
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Per: |
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THE WOODBRIDGE COMPANY LIMITED
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Per: |
(signed) Xxxxx X. Xxxxx
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Executive Vice-President |
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Per: |
(signed) Xxxxx Xxxxxx
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Senior Counsel |
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565117 ONTARIO LIMITED
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Per: |
(signed) Xxxxx X. Xxxxx
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Executive Vice-President |
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Per: |
(signed) Xxxxx Xxxxxx
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Senior Counsel |
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WOODBRIDGE INVESTMENTS INC.
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Per: |
(signed) Xxxxx X. Xxxxx
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Executive Vice-President |
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Per: |
(signed) Xxxxx Xxxxxx
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Senior Counsel |
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ONTARIO TEACHERS’ PENSION PLAN BOARD
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Per: |
(signed) Xxxx Xxxxxxxxx
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Vice-President |
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Per: |
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TORSTAR CORPORATION
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Per: |
(signed) Xxxxx Xxxxxxx
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President and Chief Executive Officer |
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Per: |
(signed) Xxxxxxx XxXxxxxx
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Executive Vice President and
Chief Financial Officer |
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TABLE OF CONTENTS
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2 |
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2 |
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11 |
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11 |
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12 |
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12 |
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12 |
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12 |
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13 |
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14 |
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29 |
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29 |
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30 |
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34 |
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35 |
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37 |
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38 |
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42 |
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42 |
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43 |
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48 |
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50 |
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3.01(b)
Ownership of Purchased Shares
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Vendor |
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Number of Purchased Shares |
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The Purchaser |
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800,000,227 |
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Woodbridge Holdco |
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2,133,334,267 |
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Teachers’ |
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1,333,334,041 |
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Torstar |
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1,066,667,134 |
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