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EXHIBIT 9.1
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (this "Agreement") is entered into as of
February 10, 1999, by and between The Men's Wearhouse, Inc., a Texas corporation
("TMW"), Golden Moores Company, a Nova Scotia unlimited liability company and
wholly owned subsidiary of TMW ("Canco"), Xxxxxx Retail Group Inc., a New
Brunswick corporation ("MG"), and The Trust Company of Bank of Montreal, a
Canadian trust company ("Trustee").
WHEREAS, pursuant to a Combination Agreement dated as of November 18,
1998, by and between TMW, Canco, MG and the Shareholders of MG signatory thereto
(collectively, the "Shareholders") (such agreement as it may be amended or
restated is hereinafter referred to as the "Combination Agreement") the parties
agreed that on the Effective Date (as defined in the Combination Agreement), TMW
and MG would execute and deliver a Voting Trust Agreement containing the terms
and conditions set forth in Exhibit O to the Combination Agreement together with
such other terms and conditions as may be agreed to by the parties to the
Combination Agreement acting reasonably.
WHEREAS, pursuant to a share restructuring (the "Share Restructuring")
effected by an Article of Amendment giving effect to the share restructuring
plan (the "Share Restructuring Plan") filed pursuant to the Business
Corporations Act (New Brunswick) (or any successor or other corporate statute by
which MG may in the future be governed) (the "Act"), each issued and outstanding
Common Share, Class B Share, Class C Share and Class D Share of MG (a "MG Common
Share") and each option to purchase MG Shares was exchanged for issued and
outstanding Exchangeable Shares of MG (the "Exchangeable Shares"), and
thereafter, MG's sole issued and outstanding Preferred Share was exchanged by
the holder thereof for one hundred issued and outstanding MG Common Shares.
WHEREAS, the above-mentioned Share Restructuring Plan sets forth the
rights, privileges, restrictions and conditions attaching to the Exchangeable
Shares (collectively, the "Exchangeable Share Provisions").
WHEREAS, TMW is to provide voting rights in TMW to each holder (other
than TMW and its Subsidiaries) from time to time of Exchangeable Shares, such
voting rights per Exchangeable Share to be equivalent to the voting rights per
share of TMW Common Stock.
WHEREAS, the parties desire to make appropriate provision and to
establish a procedure whereby voting rights in TMW shall be exercisable by
holders (other than TMW and its Subsidiaries) from time to time of Exchangeable
Shares by and through the Trustee, which will hold legal title to one share of
TMW Series A Special Voting Preferred Stock (the "TMW Series A Special Voting
Preferred Stock") to which voting rights attach for the benefit of such holders.
WHEREAS, these recitals and any statements of fact in this Agreement
are made by TMW, Canco and MG and not by the Trustee.
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NOW, THEREFORE, in consideration of the respective covenants and
agreements provided in this Agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement, the following terms shall have the
following meanings:
"AGGREGATE EQUIVALENT VOTE AMOUNT" means, with respect to any matter,
proposition or question on which holders of TMW Common Stock are entitled to
vote, consent or otherwise act, the product of (i) the number of Exchangeable
Shares issued and outstanding and held by Holders multiplied by (ii) the number
of votes to which a holder of one share of TMW Common Stock is entitled with
respect to such matter, proposition or question.
"AUTHORIZED PERSONS" has the meaning provided in Section 7.20 hereof.
"BOARD OF DIRECTORS" means the Board of Directors of MG.
"BUSINESS DAY" has the meaning provided in the Exchangeable Share
Provisions;
"EQUIVALENT VOTE AMOUNT" means, with respect to any matter, proposition
or question on which holders of TMW Common Stock are entitled to vote, consent
or otherwise act, the number of votes to which a holder of one share of TMW
Common Stock is entitled with respect to such matter, proposition or question.
"EXCHANGEABLE SHARE CONSIDERATION" has the meaning provided in the
Exchangeable Share Provisions.
"EXCHANGEABLE SHARE PROVISIONS" has the meaning provided in the
recitals hereto.
"EXCHANGEABLE SHARES" has the meaning provided in the recitals hereto.
"HOLDER VOTES" has the meaning provided in Section 4.2 hereof.
"HOLDERS" means the registered holders from time to time of
Exchangeable Shares, other than TMW and its Subsidiaries.
"LIST" has the meaning provided in Section 4.6 hereof.
"MG COMMON SHARES" has the meaning provided in the recitals hereto.
"NOTICE EVENT" has the meaning provided in Section 7.17 hereof.
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"OFFICER'S CERTIFICATE" means, with respect to TMW, Canco or MG, as the
case may be, a certificate signed by any one of the Chairman of the Board, the
Vice-Chairman of the Board (if there be one), the President or any
Vice-President of TMW, Canco or MG, as the case may be.
"PERSON" includes an individual, body corporate, partnership, limited
liability partnership, company, limited liability company, unincorporated
syndicate or organization, trust, trustee, executor, administrator and other
legal representative.
"SHARE RESTRUCTURING" has the meaning provided in the recitals hereto.
"SHARE RESTRUCTURING PLAN" has the meaning provided in the recitals
hereto.
"SUBSIDIARY" has the meaning provided in the Exchangeable Share
Provisions.
"SUPPORT AGREEMENT" means that certain support agreement made as of
even date hereof by and between TMW, Canco, MG and the Shareholders signatory
thereto.
"TMW COMMON STOCK" has the meaning provided in the Exchangeable Share
Provisions.
"TMW CONSENT" has the meaning provided in Section 4.2 hereof.
"TMW MEETING" has the meaning provided in Section 4.2 hereof.
"TMW SERIES A SPECIAL VOTING PREFERRED STOCK" has the meaning provided
in the recitals hereto.
"TMW SUCCESSOR" has the meaning provided in subsection 11.1(a) hereof.
"TRUST" means the trust created by this Agreement.
"TRUST ESTATE" means the Voting Share, any other securities and any
money or other property which may be held by the Trustee from time to time
pursuant to this Agreement.
"TRUSTEE" means The Trust Company of Bank of Montreal and, subject to
the provisions of Article X hereof, includes any successor trustee or permitted
assigns.
"VOTING RIGHTS" means the voting rights attached to the Voting Share.
"VOTING SHARE" means the one share of TMW Series A Special Voting
Preferred Stock, U.S. $0.01 par value, issued by TMW to and deposited with the
Trustee, which entitles the holder of record to a number of votes at meetings of
holders of TMW Common Stock equal to the Aggregate Equivalent Vote Amount.
1.2 Interpretation Not Affected by Headings, Etc. The division of this
Agreement into articles, sections and paragraphs and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
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1.3 Number, Gender, Etc. Words importing the singular number only shall
include the plural and vice versa. Words importing the use of any gender shall
include all genders.
1.4 Date for Any Action. If any date on which any action is required to
be taken under this Agreement is not a Business Day, such action shall be
required to be taken on the next succeeding Business Day.
ARTICLE II
PURPOSE OF AGREEMENT
The purpose of this Agreement is to create the Trust for the benefit of
the Holders, as herein provided. The Trustee will hold the Voting Share in order
to enable the Trustee to exercise the Voting Rights, as trustee for and on
behalf of the Holders as provided in this Agreement.
ARTICLE III
VOTING SHARE
3.1 Issuance and Ownership of the Voting Share. TMW hereby issues to
and deposits with the Trustee the Voting Share to be hereafter held of record by
the Trustee as trustee for and on behalf of, and for the use and benefit of, the
Holders and in accordance with the provisions of this Agreement. TMW hereby
acknowledges receipt from the Trustee as trustee for and on behalf of the
Holders of good and valuable consideration (and the adequacy thereof) for the
issuance of the Voting Share by TMW to the Trustee. During the term of the Trust
and subject to the terms and conditions of this Agreement, the Trustee shall
possess and be vested with full legal ownership of the Voting Share and shall be
entitled to exercise all of the rights and powers of an owner with respect to
the Voting Share, provided that the Trustee shall:
(a) hold the Voting Share and the legal title thereto as
trustee solely for the use and benefit of the Holders
in accordance with the provisions of this Agreement;
and
(b) except as specifically authorized by this Agreement,
have no power or authority to sell, transfer, vote or
otherwise deal in or with the Voting Share, and the
Voting Share shall not be used or disposed of by the
Trustee for any purpose other than the purposes for
which this Trust is created pursuant to this
Agreement.
3.2 Legended Share Certificates. MG will cause each certificate
representing Exchangeable Shares to bear an appropriate legend notifying the
Holders of their right to instruct the Trustee with respect to the exercise of
the Holder Votes.
3.3 Safe Keeping of Certificate. The certificate representing the
Voting Share shall at all times be held in safe keeping by the Trustee or its
agent.
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ARTICLE IV
EXERCISE OF VOTING RIGHTS
4.1 Voting Rights. The Trustee, as the holder of record of the Voting
Share, shall be entitled to all of the Voting Rights, including the right to
consent to or to vote in person or by proxy the Voting Share, on any matter,
question or proposition whatsoever that may properly come before the
stockholders of TMW at a TMW Meeting or in connection with a TMW Consent (in
each case, as hereinafter defined). The Voting Rights shall be and remain vested
in and exercised by the Trustee. Subject to Section 7.15 hereof, the Trustee
shall exercise the Voting Rights only on the basis of instructions received
pursuant to this Article IV from Holders entitled to instruct the Trustee as to
the voting thereof at the time at which a TMW Consent is sought or a TMW Meeting
is held. To the extent that no instructions are received from a Holder with
respect to the Holder Votes to which such Holder is entitled, the Trustee shall
not exercise or permit the exercise of such Holder Votes.
4.2 Number of Votes. With respect to all meetings of stockholders of
TMW at which holders of shares of TMW Common Stock are entitled to vote (a "TMW
Meeting") and with respect to all written consents sought by TMW from its
stockholders, including the holders of shares of TMW Common Stock (a "TMW
Consent"), each Holder shall be entitled to instruct the Trustee to cast and
exercise, in the manner instructed, a number of votes equal to the Equivalent
Vote Amount for each Exchangeable Share owned of record by such Holder on the
record date established by TMW or by applicable law for such TMW Meeting or TMW
Consent, as the case may be (the "Holder Votes"), in respect of each matter,
question or proposition to be voted on at such TMW Meeting or to be consented to
in connection with such TMW Consent.
4.3 Mailings to Shareholders. With respect to each TMW Meeting and TMW
Consent, the Trustee will mail or cause to be mailed (or otherwise communicate
in the same manner as TMW utilizes in communications to holders of TMW Common
Stock, subject to the Trustee's ability to provide such method of communication
and upon being advised in writing of such method) to each of the Holders named
in the List on the same day as the initial mailing or notice (or other
communication) with respect thereto is given by TMW to its stockholders:
(a) a copy of such notice, together with any proxy or
information statement and related materials to be
provided to stockholders of TMW;
(b) a statement that such Holder is entitled to instruct
the Trustee as to the exercise of the Holder Votes
with respect to such TMW Meeting or TMW Consent, as
the case may be, or, pursuant to Section 4.7 hereof,
to attend such TMW Meeting and to exercise personally
the Holder Votes thereat;
(c) a statement as to the manner in which such
instructions may be given to the Trustee, including
an express indication that instructions may be given
to the Trustee to give:
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(i) a proxy to such Holder or his designee to
exercise personally the Holder Votes; or
(ii) a proxy to a designated agent or other
representative of the management of TMW to
exercise such Holder Votes;
(d) a statement that if no such instructions are received
from the Holder, the Holder Votes to which such
Holder is entitled will not be exercised;
(e) a form of direction whereby the Holder may so direct
and instruct the Trustee as contemplated herein; and
(f) a statement of (i) the time and date by which such
instructions must be received by the Trustee in order
to be binding upon it, which in the case of a TMW
Meeting shall not be earlier than the close of
business on the second Business Day prior to such
meeting, and (ii) the method for revoking or amending
such instructions.
The materials referred to above are to be provided by TMW to the
Trustee, but shall be subject to review and comment by the Trustee.
For the purpose of determining Holder Votes to which a Holder is
entitled in respect of any such TMW Meeting or TMW Consent, the number of
Exchangeable Shares owned of record by the Holder shall be determined at the
close of business on the record date established by TMW or by applicable law for
purposes of determining stockholders entitled to vote at such TMW Meeting or to
give written consent in connection with such TMW Consent. TMW will notify the
Trustee in writing of any decision of the board of directors of TMW with respect
to the calling of any such TMW Meeting or the seeking of any such TMW Consent
and shall provide all necessary information and materials to the Trustee in each
case promptly and in any event in sufficient time to enable the Trustee to
perform its obligations contemplated by this Section 4.3.
4.4 Copies of Stockholder Information. TMW will deliver to the Trustee
copies of all proxy materials, (including notices of TMW Meetings, but excluding
proxies to vote shares of TMW Common Stock), information statements, reports
(including without limitation all interim and annual financial statements) and
other written communications that are to be distributed from time to time to
holders of TMW Common Stock in sufficient quantities and in sufficient time so
as to enable the Trustee to send those materials to each Holder at the same time
as such materials are first sent to holders of TMW Common Stock (but in any
event, no later than one Business Day before the day on which materials are
first sent to holders of TMW Common Stock). The Trustee will mail or otherwise
send to each Holder, at the expense of TMW, copies of all such materials (and
all materials specifically directed to the Holders or to the Trustee for the
benefit of the Holders by TMW) received by the Trustee from TMW at the same time
as such materials are first sent to holders of TMW Common Stock. The Trustee
will make copies of all such materials available for inspection by any Holder at
the Trustee's principal corporate trust office in the city of Toronto.
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4.5 Other Materials. Immediately after receipt by TMW or any
stockholder of TMW of any material sent or given generally to the holders of TMW
Common Stock by or on behalf of a third party, including without limitation
dissident proxy and information circulars (and related information and material)
and tender and exchange offer circulars (and related information and material),
TMW shall use all reasonable commercial efforts to obtain and deliver to the
Trustee copies thereof in sufficient quantities so as to enable the Trustee to
forward such material (unless the same has been provided directly to Holders by
such third party) to each Holder as soon as possible thereafter. As soon as
practicable after receipt thereof, the Trustee will mail or otherwise send to
each Holder, at the expense of TMW, copies of all such materials received by the
Trustee from TMW. The Trustee will also make copies of all such materials
available for inspection by any Holder at the Trustee's principal corporate
trust office in the city of Toronto. It shall be a condition precedent to the
Trustee's obligations under this Agreement including, in particular, under
Sections 4.3, 4.4 and 4.9, that TMW or MG, as the case may be, prepare the
applicable material, List and mailing labels and provide the Trustee with a
sufficient quantity thereof in a timely fashion.
4.6 List of Persons Entitled to Vote. MG shall, (i) prior to each
annual, general and special TMW Meeting or the seeking of any TMW Consent and
(ii) forthwith upon each request made at any time by the Trustee in writing,
prepare or cause to be prepared a list (a "List") of the names and addresses of
the Holders arranged in alphabetical order and showing the number of
Exchangeable Shares held of record by each such Holder, in each case at the
close of business on the date specified by the Trustee in such request or, in
the case of a List prepared in connection with a TMW Meeting or a TMW Consent,
at the close of business on the record date established by TMW or pursuant to
applicable law for determining the holders of TMW Common Stock entitled to
receive notice of and/or to vote at such TMW Meeting or to give consent in
connection with such TMW Consent. Each such List shall be delivered to the
Trustee promptly after receipt by MG of such request or the record date for such
meeting or seeking of consent, as the case may be, and in any event within
sufficient time as to enable the Trustee to perform its obligations under this
Agreement. TMW agrees to give MG written notice (with a copy to the Trustee) of
the calling of any TMW Meeting or the seeking of any TMW Consent, together with
the record dates therefor, sufficiently prior to the date of the calling of such
meeting or seeking of such consent so as to enable MG to perform its obligations
under this Section 4.6.
4.7 Entitlement to Direct Votes. Any Holder named in a List prepared in
connection with any TMW Meeting or any TMW Consent will be entitled (i) to
instruct the Trustee in the manner described in Section 4.3 hereof with respect
to the exercise of the Holder Votes to which such Holder is entitled or (ii) to
attend such meeting and personally to exercise thereat (or to exercise with
respect to any written consent), as the proxy of the Trustee, the Holder Votes
to which such Holder is entitled; provided, that such Holder has obtained a
valid proxy from the Trustee to vote the Holder Votes which the Holder desires
to vote by proxy.
4.8 Voting by Trustee, and Attendance of Trustee Representative, at
Meeting.
(a) In connection with each TMW Meeting and TMW Consent,
the Trustee shall exercise, either in person or by
proxy, in accordance with the instructions received
from a Holder pursuant to Section 4.3 hereof, the
Holder Votes as to which such Holder is entitled to
direct
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the vote (or any lesser number thereof as may be set
forth in the instructions); provided, however, that
such written instructions are received by the Trustee
from the Holder prior to the time and date fixed by
it for receipt of such instructions in the notice
given by the Trustee to the Holder pursuant to
Section 4.3 hereof.
(b) The Trustee shall cause such representatives as are
empowered by it to sign and deliver, on behalf of the
Trustee, proxies for Voting Rights to attend each TMW
Meeting. Upon submission by a Holder (or its
designee) of identification satisfactory to the
Trustee's representatives, and at the Holder's
request, such representatives shall sign and deliver
to such Holder (or its designee) a proxy to exercise
personally the Holder Votes as to which such Holder
is otherwise entitled hereunder to direct the vote,
if such Holder either:
(i) has not previously given the Trustee
instructions pursuant to Section 4.3 hereof
in respect of such meeting, or
(ii) submits to the Trustee's representatives
written revocation of any such previous
instructions.
At such meeting, the Holder exercising such Holder Votes pursuant to a
proxy provided in accordance with Section 4.8(b) shall have the same rights as
the Trustee to speak at the meeting in respect of any matter, question or
proposition, to vote by way of ballot at the meeting in respect of any matter,
question or proposition and to vote at such meeting by way of a show of hands in
respect of any matter, question or proposition.
4.9 Distribution of Written Materials. Any written materials to be
distributed by the Trustee to the Holders pursuant to this Agreement shall be
delivered or sent by mail (or otherwise communicated in the same manner as TMW
utilizes in communications to holders of TMW Common Stock) to each Holder at its
address as shown on the books of MG. MG shall provide or cause to be provided to
the Trustee for this purpose, on a timely basis and without charge or other
expense:
(a) current lists of the Holders; and
(b) mailing labels to enable the Trustee to carry out its
duties under this Agreement.
The materials referred to above are to be provided by MG to the
Trustee, but shall be subject to review and comment by the Trustee.
4.10 Termination of Voting Rights. Except as otherwise provided herein
or in the Exchangeable Share Provisions, all of the rights of a Holder with
respect to the Holder Votes exercisable in respect of the Exchangeable Shares
held by such Holder, including the right to instruct the Trustee as to the
voting of or to vote personally such Holder Votes, shall be deemed to be
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surrendered by the Holder to TMW, and such Holder Votes and the Voting Rights
represented thereby shall cease immediately, upon the delivery by such Holder to
TMW, Canco or MG of the certificates representing such Exchangeable Shares in
connection with the exchange of Exchangeable Shares for shares of TMW Common
Stock pursuant to the Share Restructuring Plan, the Exchangeable Share
Provisions or the Support Agreement (unless in any case TMW, Canco or MG shall
not have delivered the Exchangeable Share Consideration deliverable in exchange
therefor to the Holders).
ARTICLE V
[INTENTIONALLY OMITTED]
ARTICLE VI
RESTRICTIONS ON ISSUANCE OF TMW SERIES A
SPECIAL VOTING PREFERRED STOCK
During the term of this Agreement, TMW will not issue any shares of TMW
Series A Special Voting Preferred Stock in addition to the Voting Share.
ARTICLE VII
CONCERNING THE TRUSTEE
7.1 Powers and Duties of the Trustee. The rights, powers and
authorities of the Trustee under this Agreement, in its capacity as trustee of
the Trust, shall include:
(a) receipt and holding of the Voting Share from TMW as
trustee for and on behalf of the Holders in
accordance with the provisions of this Agreement;
(b) granting proxies and distributing materials to
Holders as provided in this Agreement;
(c) voting the Holder Votes in accordance with the
provisions of this Agreement;
(d) holding title to the Trust Estate;
(e) taking action at the direction of a Holder or Holders
to enforce the obligations of TMW, Canco and MG under
this Agreement; and
(f) taking such other actions and doing such other things
as are specifically provided in this Agreement.
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In the exercise of such rights, powers and authorities the Trustee
shall have (and is granted) such incidental and additional rights, powers and
authority not in conflict with any of the provisions of this Agreement as the
Trustee, acting in good faith and in the reasonable exercise of its discretion,
may deem necessary, appropriate or desirable to effect the purpose of the Trust.
Any exercise of such discretionary rights, powers and authorities by the Trustee
shall be final, conclusive and binding upon all persons. For greater certainty,
the Trustee shall have only those duties as are set out specifically in this
Agreement. In particular, the Trustee shall have no liability or responsibility
arising under any agreement or instrument, including the Exchangeable Share
Provisions or any other agreement or instrument referred to in this Agreement,
to which the Trustee is not a party and shall not be bound by any notice of a
claim or demand with respect thereto. The Trustee in exercising its rights,
powers, duties and authorities hereunder shall act honestly and in good faith
with a view to the best interests of the Holders and shall exercise the care,
diligence and skill that a reasonably prudent trustee would exercise in
comparable circumstances. The Trustee shall not be bound to give any notice or
do or take any act, action or proceeding by virtue of the powers conferred on it
hereby unless and until it shall be specifically required to do so under the
terms hereof; nor shall the Trustee be required to take any notice of, or to do
or to take any act, action or proceeding as a result of any default or breach of
any provision hereunder, unless and until notified in writing of such default or
breach, which notices shall distinctly specify the default or breach desired to
be brought to the attention of the Trustee and in the absence of such notice the
Trustee may for all purposes of this Agreement conclusively assume that no
default or breach has been made in the observance or performance of any of the
representations, warranties, covenants, agreements or conditions contained
herein.
7.2 No Conflict of Interest. The Trustee represents to MG and TMW that
at the date of execution and delivery of this Agreement there exists no material
conflict of interest in the role of the Trustee as a fiduciary hereunder and the
role of the Trustee in any other capacity. The Trustee shall, within 90 days
after it becomes aware that such a material conflict of interest exists, either
eliminate such material conflict of interest or resign in the manner and with
the effect specified in Article X hereof. If, notwithstanding the foregoing
provisions of this Section 7.2, the Trustee has such a material conflict of
interest, the validity and enforceability of this Agreement shall not be
affected in any manner whatsoever by reason only of the existence of such
material conflict of interest. If the Trustee contravenes the foregoing
provisions of this Section 7.2, any interested party may apply to the superior
court of the province in which MG has its registered office for an order that
the Trustee be replaced as trustee hereunder.
7.3 Dealings with Transfer Agents, Registrars, Etc. TMW, Canco and MG
irrevocably authorize the Trustee, from time to time, to:
(a) consult, communicate and otherwise deal with the
respective registrars and transfer agents, and with
any such subsequent registrar or transfer agent, of
the Exchangeable Shares and TMW Common Stock; and
(b) requisition, from time to time, from any such
registrar or transfer agent any information readily
available from the records maintained by it which the
Trustee may reasonably require for the discharge of
its duties and responsibilities under this Agreement.
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MG and TMW irrevocably authorize their respective registrars and
transfer agents to comply with all such requests.
7.4 Books and Records. The Trustee shall keep available for inspection
by TMW and MG, at the Trustee's principal corporate trust office in Toronto,
correct and complete books and records of account relating to the Trustee's
actions under this Agreement, including without limitation all information
relating to mailings and instructions to and from Holders and all transactions
pursuant to the Voting Rights for the term of this Agreement. On or before March
31, 1999, and on or before March 31 in every year thereafter, so long as the
Voting Share is on deposit with the Trustee, the Trustee shall transmit to TMW
and MG a brief report, dated as of the preceding December 31, with respect to:
(a) property and funds comprising the Trust Estate as of
that date; and
(b) all other actions taken by the Trustee in the
performance of its duties under this Agreement which
it had not previously reported.
7.5 [Intentionally Omitted].
7.6 Indemnification Prior to Certain Actions by Trustee. The Trustee
shall exercise any or all of the rights, duties, powers or authorities vested in
it by this Agreement at the request, order or direction of any Holder upon such
Holder's furnishing to the Trustee reasonable funding, security and indemnity
against the costs, expenses and liabilities which may be incurred by the Trustee
therein or thereby; provided that no Holder shall be obligated to furnish to the
Trustee any such funding, security or indemnity in connection with the exercise
by the Trustee of any of its rights, duties, powers and authorities with respect
to the Voting Share pursuant to Article IV hereof, subject to Section 7.15
hereof. None of the provisions contained in this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the exercise of any of its rights, powers, duties or authorities unless
funded, given funds, security and indemnified as aforesaid.
7.7 Actions by Holders. No Holder shall have the right to institute any
action, suit or proceeding or to exercise any other remedy authorized by this
Agreement for the purpose of enforcing any of its rights or for the execution of
any trust or power hereunder unless the Holder has requested the Trustee to take
or institute such action, suit or proceeding and furnished the Trustee with the
funding, security and indemnity referred to in Section 7.6 hereof and the
Trustee shall have failed to act within a reasonable time thereafter. In such
case, but not otherwise, the Holder shall be entitled to take proceedings in any
court of competent jurisdiction such as the Trustee might have taken; it being
understood and intended that no one or more Holders shall have any right in any
manner whatsoever to affect, disturb or prejudice the rights hereby created by
any such action, or to enforce any right hereunder or under the Voting Rights
except subject to the conditions and in the manner herein provided, and that all
powers and trusts hereunder shall be exercised and all proceedings at law shall
be instituted, had and maintained by the Trustee, except only as herein
provided, and in any event for the equal benefit of all Holders.
7.8 Reliance upon Declarations. The Trustee shall not be considered to
be in contravention of any of its rights, powers, duties and authorities
hereunder if, when required, it acts
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and relies in good faith upon lists, mailing labels, notices, statutory
declarations, certificates, opinions, reports or other papers or documents
furnished pursuant to the provisions hereof or required by the Trustee to be
furnished to it in the exercise of its rights, powers, duties and authorities
hereunder, and such lists, mailing labels, notices, statutory declarations,
certificates, opinions, reports or other papers or documents comply with the
provisions of Section 7.9 hereof, if applicable, and with any other applicable
provisions of this Agreement.
7.9 Evidence and Authority to Trustee. TMW, Canco and/or MG shall
furnish to the Trustee evidence of compliance with the conditions provided for
in this Agreement relating to any action or step required or permitted to be
taken by TMW, Canco and/or MG or the Trustee under this Agreement or as a result
of any obligation imposed under this Agreement, including, without limitation,
in respect of the Voting Rights and the taking of any other action to be taken
by the Trustee at the request of or on the application of TMW, Canco and/or MG
forthwith if and when:
(a) such evidence is required by any other section of
this Agreement to be furnished to the Trustee in
accordance with the terms of this Section 7.9; or
(b) the Trustee, in the exercise of its rights, powers,
duties and authorities under this Agreement, gives
TMW, Canco and/or MG written notice requiring it to
furnish such evidence in relation to any particular
action or obligation specified in such notice.
Such evidence shall consist of an Officer's Certificate of TMW, Canco
and/or MG or a statutory declaration or a certificate made by persons entitled
to sign an Officer's Certificate stating that any such condition has been
complied with in accordance with the terms of this Agreement.
Whenever such evidence relates to a matter other than the Voting Rights
and except as otherwise specifically provided herein, such evidence may consist
of a report or opinion of any solicitor, auditor, accountant, appraiser, valuer,
engineer or other expert or any other person whose qualifications give authority
to a statement made by him, provided that if such report or opinion is furnished
by a director, officer or employee of TMW, Canco and/or MG it shall be in the
form of an Officer's Certificate or a statutory declaration.
Each statutory declaration, certificate, opinion or report furnished to
the Trustee as evidence of compliance with a condition provided for in this
Agreement shall include a statement by the person giving the evidence:
(i) declaring that he has read and understands the
provisions of this Agreement relating to the
condition in question;
(ii) describing the nature and scope of the examination or
investigation upon which he based the statutory
declaration, certificate, statement or opinion; and
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(iii) declaring that he has made such examination or
investigation as he believes is necessary to enable
him to make the statements or give the opinions
contained or expressed therein.
7.10 Experts, Advisers and Agents. The Trustee may:
(a) in relation to these presents act and rely on the
opinion or advice of or information obtained from or
prepared by any solicitor, auditor, accountant,
appraiser, valuer, engineer or other expert, whether
retained by the Trustee or by TMW, Canco and/or MG or
otherwise, and may employ such assistants as may be
necessary to the proper determination and discharge
of its powers and duties and determination of its
rights hereunder and may pay proper and reasonable
compensation for all such legal and other advice or
assistance as aforesaid; and
(b) employ such agents and other assistants as it may
reasonably require for the proper determination and
discharge of its powers and duties hereunder, and may
pay reasonable remuneration for all services
performed for it (and shall be entitled to receive
reasonable remuneration for all services performed by
it) in the discharge of the trusts hereof and
compensation for all disbursements, costs and
expenses made or incurred by it in the determination
and discharge of its duties hereunder and in the
management of the Trust.
7.11 [Intentionally Omitted].
7.12 Trustee Not Required to Give Security. The Trustee shall not be
required to give any bond or security in respect of the execution of the trusts,
rights, duties, powers and authorities of this Agreement or otherwise in respect
of the premises.
7.13 Trustee Not Bound to Act on Request. Except as in this Agreement
otherwise specifically provided, the Trustee shall not be bound to act in
accordance with any direction or request of TMW, Canco and/or MG or of the
directors thereof until a duly authenticated copy of the instrument or
resolution containing such direction or request shall have been delivered to the
Trustee, and the Trustee shall be empowered to act and rely upon any such copy
purporting to be authenticated and believed by the Trustee to be genuine.
7.14 Authority to Carry on Business. The Trustee represents to TMW,
Canco and MG that at the date of execution and delivery by it of this Agreement
it is authorized to carry on the business of a trust company in the Province of
Ontario but if, notwithstanding the provisions of this Section 7.14, it ceases
to be so authorized to carry on business, the validity and enforceability of
this Agreement and the Voting Rights shall not be affected in any manner
whatsoever by reason only of such event; provided, however, the Trustee shall,
within 90 days after ceasing to be authorized to carry on the business of a
trust company in the Province of Ontario, either become so authorized or resign
in the manner and with the effect specified in Article X hereof.
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7.15 Conflicting Claims. If conflicting claims or demands are made or
asserted with respect to any interest of any Holder in any Exchangeable Shares,
including any disagreement between the heirs, representatives, successors or
assigns succeeding to all or any part of the interest of any Holder in any
Exchangeable Shares resulting in conflicting claims or demands being made in
connection with such interest, then the Trustee shall be entitled, at its sole
discretion, to refuse to recognize or to comply with any such claim or demand.
In so refusing, the Trustee may elect not to exercise any Voting Rights subject
to such conflicting claims or demands and, in so doing, the Trustee shall not be
or become liable to any person on account of such election or its failure or
refusal to comply with any such conflicting claims or demands. The Trustee shall
be entitled to continue to refrain from acting and to refuse to act until:
(a) the rights of all adverse claimants with respect to
the Voting Rights subject to such conflicting claims
or demands have been adjudicated by a final judgment
of a court of competent jurisdiction; or
(b) all differences with respect to the Voting Rights
subject to such conflicting claims or demands have
been conclusively settled by a valid written
agreement binding on all such adverse claimants, and
the Trustee shall have been furnished with an
executed copy of such agreement.
If the Trustee elects to recognize any claim or comply with any demand
made by any such adverse claimant, it may in its discretion require such
claimant to furnish such surety bond or other security satisfactory to the
Trustee as it shall deem appropriate fully to indemnify it as between all
conflicting claims or demands.
7.16 Acceptance of Trust. The Trustee hereby accepts the Trust created
and provided for by and in this Agreement and agrees to perform the same upon
the terms and conditions herein set forth and to hold all rights, privileges and
benefits conferred hereby and by law in trust for the various persons who shall
from time to time be Holders, subject to all the terms and conditions herein set
forth.
7.17 Notice to Trustee. The Trustee shall not be bound to give any
notice or do or take any act, action or proceeding by virtue of the powers
conferred on it hereby unless and until it shall have been required so to do
under the terms of this Agreement; nor shall the Trustee be required to take
notice of, be deemed to have actual or constructive notice or knowledge of any
matter under this Agreement, or take any action in connection with any notice of
any TMW Meeting or the seeking of any TMW Consent (each a "Notice Event"),
unless and until notified in writing of such Notice Event in accordance with
section 14.3 hereof which notice shall distinctly specify the Notice Event
desired to be brought to the attention of the Trustee and in the absence of any
such notice the Trustee may for all purposes of this Agreement conclusively
assume that no such Notice Event has occurred.
7.18 Merger or Consolidation of Trustee. Any corporation into or with
which the Trustee may be merged or consolidated or amalgamated, or any
corporation resulting therefrom to which the Trustee shall be a party, or any
corporation succeeding to the trust business of the Trustee shall be the
successor to the Trustee under this Agreement without any further act on its
part or any of the
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parties hereto, provided that such corporation would be eligible for appointment
as a successor trustee under the provisions of this Agreement.
7.19 No Personal Liability. In the exercise of the powers, authorities
or discretion conferred upon the Trustee under this Agreement, the Trustee is
and shall be conclusively deemed to be acting as trustee of the Trust and shall
not be subject to any personal liability for any liabilities, obligations,
claims, demands, judgments, costs or expenses against or with respect to the
Trust.
7.20 Incumbency Certificate. Each of TMW, Canco and MG shall file with
the Trustee a certificate of incumbency setting forth the names of the
individuals authorized to give instructions, directions or other instruments to
the Trustee ("Authorized Persons") together with specimen signatures of such
persons, and the Trustee shall be entitled to rely on the latest certificate of
incumbency filed with it unless it receives notice of a change in Authorized
Persons with updated specimen signatures.
ARTICLE VIII
COMPENSATION
TMW, Canco and MG jointly and severally agree to pay to the Trustee
reasonable compensation for all of the services rendered by it under this
Agreement and will reimburse the Trustee for all reasonable expenses (including
but not limited to taxes, compensation paid to experts, agents and advisors and
travel expenses) and disbursements, including the cost and expense of any suit
or litigation of any character and any proceedings before any governmental
agency, reasonably incurred by the Trustee in connection with its rights and
duties under this Agreement; provided that TMW, Canco and MG shall have no
obligation to reimburse the Trustee for any expenses or disbursements paid,
incurred or suffered by the Trustee in any suit or litigation in which the
Trustee is determined to have acted in bad faith or with negligence or willful
misconduct.
ARTICLE IX
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 Indemnification of the Trustee. TMW, Canco and MG jointly and
severally agree to indemnify and hold harmless the Trustee and each of its
directors, officers, employees and agents appointed and acting in accordance
with this Agreement (collectively, the "Indemnified Parties") against all
claims, losses, damages, costs, penalties, fines and reasonable expenses
(including reasonable expenses of the Trustee's legal counsel) which, without
fraud, negligence, willful misconduct or bad faith on the part of such
Indemnified Party, may be paid, incurred or suffered by the Indemnified Party by
reason of or as a result of the Trustee's acceptance or administration of the
Trust, its compliance with its duties set forth in this Agreement, or any
written or oral instructions delivered to the Trustee by TMW, Canco or MG
pursuant hereto. In no case shall TMW, Canco or MG be liable under this
indemnity for any claim against any of the Indemnified Parties unless TMW, Canco
and MG shall be notified by the Trustee of the written assertion of a claim or
of any action commenced against the Indemnified Parties, promptly after any of
the Indemnified Parties shall have received any such written assertion of a
claim or shall have been served with a summons or other first
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legal process giving information as to the nature and basis of the claim.
Subject to (i) below, TMW, Canco and MG shall be entitled to participate at
their own expense in the defense and, if TMW, Canco or MG so elect at any time
after receipt of such notice, either of them may assume the defense of any suit
brought to enforce any such claim. The Trustee shall have the right to employ
separate counsel in any such suit and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the Trustee
unless: (i) the employment of such counsel has been authorized by TMW, Canco or
MG; or (ii) the named parties to any such suit include both the Trustee and TMW,
Canco or MG and the Trustee shall have been advised by counsel acceptable to
TMW, Canco or MG that there may be one or more legal defenses available to the
Trustee that are different from or in addition to those available to TMW, Canco
or MG and that an actual or potential conflict of interest exists (in which case
TMW, Canco and MG shall not have the right to assume the defense of such suit on
behalf of the Trustee, but shall be liable to pay the reasonable fees and
expenses of counsel for the Trustee). This indemnity shall survive the
termination of this Agreement or the resignation or replacement of the Trustee.
9.2 Limitation of Liability. The Trustee shall not be held liable for
any loss which may occur by reason of depreciation of the value of any part of
the Trust Estate or any loss incurred on any investment of funds pursuant to
this Agreement, except to the extent that such loss is attributable to the
fraud, negligence, willful misconduct or bad faith on the part of the Trustee.
ARTICLE X
CHANGE OF TRUSTEE
10.1 Resignation. The Trustee, or any trustee hereafter appointed, may
at any time resign by giving written notice of such resignation to TMW, Canco
and MG specifying the date on which it desires to resign, provided that such
notice shall never be given less than 60 days before such desired resignation
date unless TMW, Canco and MG otherwise agree and provided further that such
resignation shall not take effect until the date of the appointment of a
successor trustee and the acceptance of such appointment by the successor
trustee. Upon receiving such notice of resignation, TMW, Canco and MG shall
promptly appoint a successor trustee by written instrument in duplicate, one
copy of which shall be delivered to the resigning trustee and one copy to the
successor trustee. Failing acceptance by a successor trustee, a successor
trustee may be appointed by an order of the superior court of the province in
which MG has its registered office upon application of one or more of the
parties hereto.
10.2 Removal. The Trustee, or any trustee hereafter appointed, may be
removed with or without cause, at any time on 60 days' prior notice by written
instrument executed by TMW, Canco and MG, in duplicate, one copy of which shall
be delivered to the trustee so removed and one copy to the successor trustee,
provided that, in connection with such removal, provision is made for a
replacement trustee similar to that contemplated in Section 10.1.
10.3 Successor Trustee. Any successor trustee appointed as provided
under this Agreement shall execute, acknowledge and deliver to TMW, Canco and MG
and to its predecessor trustee an instrument accepting such appointment.
Thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed
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or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as trustee in this Agreement. However, on the written request
of TMW, Canco and MG or of the successor trustee, the trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the provisions of
this Agreement, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon the
request of any such successor trustee, TMW, Canco, MG and such predecessor
trustee shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers.
10.4 Notice of Successor Trustee. Upon acceptance of appointment by a
successor trustee as provided herein, TMW, Canco and MG shall cause to be mailed
notice of the succession of such trustee hereunder to each Holder specified in a
List. If TMW, Canco or MG shall fail to cause such notice to be mailed within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of TMW, Canco and
MG.
ARTICLE XI
TMW SUCCESSORS
11.1 Certain Requirements in Respect of Combination, Etc. TMW shall not
enter into any transaction (whether by way of reconstruction, reorganization,
consolidation, merger, transfer, sale, lease or otherwise) whereby all or
substantially all of its undertaking, property and assets would become the
property of any other Person or, in the case of a merger, of the continuing
corporation resulting therefrom, but may do so if:
(a) such other Person or continuing corporation (the
"TMW Successor"), by operation of law, becomes,
without more, bound by the terms and provisions of
this Agreement or, if not so bound, executes, prior
to or contemporaneously with the consummation of such
transaction an agreement supplemental hereto and such
other instruments (if any) as are satisfactory to the
Trustee and in the opinion of legal counsel to the
Trustee are necessary or advisable to evidence the
assumption by the TMW Successor of liability for all
moneys payable and property deliverable hereunder,
the covenant of such TMW Successor to pay and deliver
or cause to be delivered the same and its agreement
to observe and perform all the covenants and
obligations of TMW under this Agreement; and
(b) such transaction shall, to the reasonable
satisfaction of the Trustee and in the opinion of
legal counsel to the Trustee, be upon such terms
which substantially preserve and do not impair in any
material respect any of the rights, duties, powers
and authorities of the Trustee or of the Holders
hereunder.
11.2 Vesting of Powers in Successor. Whenever the conditions of Section
11.1 hereof have been duly observed and performed, the Trustee, if required by
Section 11.1 hereof, the TMW
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Successor and MG shall execute and deliver the supplemental agreement provided
for in Article XII hereof, and thereupon the TMW Successor shall possess and
from time to time may exercise each and every right and power of TMW under this
Agreement in the name of TMW or otherwise and any act or proceeding by any
provision of this Agreement required to be done or performed by the board of
directors of TMW or any officers of TMW may be done and performed with like
force and effect by the directors or officers of such TMW Successor.
11.3 Wholly owned Subsidiaries. Nothing herein shall be construed as
preventing the amalgamation or merger of any wholly owned subsidiary of TMW with
or into TMW.
ARTICLE XII
AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
12.1 Amendments, Modifications, Etc. Subject to Section 12.4, this
Agreement may not be amended, modified or waived except by an agreement in
writing executed by TMW, Canco, MG and the Trustee and approved by the Holders
in accordance with Section 11.1 of the Exchangeable Share Provisions. No
amendment to or modification or waiver of any of the provisions of this
Agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by all of the parties hereto.
12.2 Ministerial Amendments. Notwithstanding the provisions of Section
12.1 hereof, the parties to this Agreement may in writing, at any time and from
time to time, without the approval of the Holders, amend or modify this
Agreement for the purposes of:
(a) adding to the covenants of any or all of the parties
hereto for the protection of the Holders hereunder;
provided that the Board of Directors shall be of the
opinion, after receipt of a written opinion of
outside counsel, that such covenants are not
prejudicial to the interests of the holders of the
Exchangeable Shares; or
(b) making such amendments or modifications not
inconsistent with this Agreement as may be necessary
or desirable with respect to matters or questions
which, in the opinion of the board of directors of
each of TMW, Canco and MG and in the opinion of the
Trustee and its counsel, having in mind the best
interests of the Holders as a whole, it may be
expedient to make; provided that such boards of
directors and the Trustee and its counsel shall be of
the opinion, after receipt of a written opinion of
outside counsel, that such amendments and
modifications will not be prejudicial to the
interests of the Holders as a whole; or
(c) making such changes or corrections which, on the
advice of counsel to TMW, Canco, MG and the Trustee,
are required for the purpose of curing or correcting
any ambiguity or defect or inconsistent provision or
clerical omission or mistake or manifest error;
provided
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that the Trustee and its counsel and the board of
directors of each of TMW, Canco and MG shall be of
the opinion, after receipt of a written opinion of
outside counsel, that such changes or corrections
will not be prejudicial to the interests of the
Holders as a whole.
MG shall send a written notice to the Holders notifying them of any
amendment made pursuant to this Section 12.2 and a copy of any written opinion
of counsel received in connection with any such amendment.
12.3 Meeting to Consider Amendments. MG, at the request of TMW or
Canco, shall call a meeting or meetings of the Holders for the purpose of
considering any proposed amendment or modification requiring approval pursuant
hereto. Any such meeting or meetings shall be called and held in accordance with
the by-laws of MG, the Exchangeable Share Provisions and all applicable laws.
12.4 Changes in Capital of TMW and MG. At all times after the
occurrence of any event effected pursuant to the Support Agreement, as a result
of which either TMW Common Stock or the Exchangeable Shares or both are in any
way changed, this Agreement shall forthwith be amended and modified as necessary
in order that it shall apply with full force and effect, mutatis mutandis, to
all new securities into which TMW Common Stock or the Exchangeable Shares or
both are so changed, and the parties hereto shall execute and deliver a
supplemental agreement giving effect to and evidencing such necessary amendments
and modifications.
12.5 Execution of Supplemental Agreements. From time to time MG (when
authorized by a resolution of its Board of Directors), TMW (when authorized by a
resolution of its board of directors), Canco (when authorized by a resolution of
its board of directors) and the Trustee may, subject to the provisions of these
presents, and they shall, when so directed by these presents, execute and
deliver by their proper officers, agreements or other instruments supplemental
hereto, which thereafter shall form part hereof, for any one or more of the
following purposes:
(a) evidencing the succession of any TMW Successors to
TMW and the covenants of and obligations assumed by
each such TMW Successor in accordance with the
provisions of Article XI and the successor of any
successor trustee in accordance with the provisions
of Article X;
(b) making any additions to, deletions from or
alterations of the provisions of this Agreement or
the Voting Rights which, in the opinion of the Board
of Directors of each of TMW, Canco and MG and in the
opinion of the Trustee and its counsel, after receipt
of a written opinion of outside counsel, will not be
prejudicial to the interests of the Holders as a
whole or are in the written opinion of counsel to the
Trustee necessary or advisable in order to
incorporate, reflect or comply with any legislation
the provisions of which apply to TMW, Canco, MG, the
Trustee or this Agreement; and
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(c) for any other purposes not inconsistent with the
provisions of this Agreement, including without
limitation to make or evidence any amendment or
modification to this Agreement as contemplated
hereby, provided that, in the opinion of the Board of
Directors of each of TMW, Canco and MG and in the
opinion of the Trustee and its counsel, after receipt
of a written opinion of outside counsel, the rights
of the Trustee and the Holders as a whole will not be
prejudiced thereby.
ARTICLE XIII
TERMINATION
13.1 Term. The Trust created by this Agreement shall continue until the
earliest to occur of the following events:
(a) no outstanding Exchangeable Shares are held by a
Holder;
(b) each of TMW, Canco and MG elects in writing to
terminate the Trust and such termination is approved
by the Holders of the Exchangeable Shares in
accordance with Section 11.1 of the Exchangeable
Share Provisions and notice of such termination is
provided to the Trustee; and
(c) 21 years after the death of the last survivor of the
descendants of His Majesty King Xxxxxx VI of the
United Kingdom of Great Britain and Northern Ireland
living on the date of the creation of the Trust.
13.2 Survival of Agreement. This Agreement shall survive any
termination of the Trust and shall continue until there are no Exchangeable
Shares outstanding held by a Holder; provided, however, that the provisions of
Articles VIII and IX hereof shall survive any such termination of this
Agreement.
ARTICLE XIV
GENERAL
14.1 Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remainder of this Agreement shall not in any way be affected or impaired
thereby, and the Agreement shall be carried out as nearly as possible in
accordance with its original terms and conditions.
14.2 Inurement; Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns and to the benefit of the Holders. The parties
hereto acknowledge and agree that the holders of the Exchangeable Shares are
intended to be third party beneficiaries of this Agreement and shall be
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entitled to all rights and benefits provided hereunder which affect such holders
and shall be entitled to enforce such rights and benefits as if they were a
party hereto.
14.3 Notices to Parties. All notices and other communications between
the parties hereunder shall be in writing and shall be deemed to have been given
if delivered personally or by confirmed telecopy to the parties at the following
addresses (or at such other address for such party as shall be specified in like
notice):
if to MG:
Xxxxxx Retail Group Inc.
0000, Xxx Xx. Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxxxx Xxxxxx
Facsimile: 514.274.4177
with a copy to:
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: 212.616.4120
if to TMW or Canco:
The Men's Wearhouse, Inc.
00000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Facsimile: 713.657.0872
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx, X.X.X. 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Facsimile: 713.651.5246
and
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Xxxxx Casgrain
0 Xxxxx Xxxxx-Xxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxx Mass
Facsimile: 514.866.2241
If to the Trustee:
The Trust Company of Bank of Montreal
Xxxxx 0000, Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Senior Trust Officer
Facsimile: 416.867.6264
Any notice or other communication given personally shall be deemed to
have been given and received upon delivery thereof, and if given by telecopy
shall be deemed to have been given and received on the date of receipt thereof
unless such day is not a Business Day in which case it shall be deemed to have
been given and received upon the immediately following Business Day.
14.4 Notice to Holders. Any and all notices to be given and any
documents to be sent to any Holders may be given or sent to the address of such
Holder shown on the register of Holders of Exchangeable Shares in any manner
permitted by the Exchangeable Share Provisions and shall be deemed to be
received (if given or sent in such manner) at the time specified in such
Exchangeable Share Provisions, the provisions of which Exchangeable Share
Provisions shall apply mutatis mutandis to notices or documents as aforesaid
sent to such Holders.
14.5 Risk of Payments by Post. Whenever payments are to be made or
documents are to be sent to any Holder by the Trustee, by MG or by TMW of Canco
or by such Holder to the Trustee or to TMW, Canco or MG, the making of such
payment or sending of such document sent through the post shall be at the risk
of TMW, Canco or MG in the case of payments made or documents sent by the
Trustee or TMW, Canco or MG, and the Holder, in the case of payments made or
documents sent by the Holder.
14.6 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
14.7 Jurisdiction. This Agreement shall be construed and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
14.8 Attornment. TMW agrees that any action or proceeding arising out
of or relating to this Agreement may be instituted in the courts of Ontario,
waives any objection which it may have now or hereafter to the venue of any such
action or proceeding, irrevocably submits to the jurisdiction of such courts in
any such action or proceeding, agrees to be bound by any judgment of such courts
and agrees not to seek, and hereby waives, any review of the merits of any such
judgment by the
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courts of any other jurisdiction and TMW hereby appoints Canco at its registered
office in the Province of Ontario as TMW's attorney for service of process.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed as of the date first above written.
THE MEN'S WEARHOUSE, INC.
By: /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President - Finance
GOLDEN MOORES COMPANY
By: /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Chief Accounting Officer
XXXXXX RETAIL GROUP INC.
By: /s/ XXXXXX XXXXXX
------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
THE TRUST COMPANY OF BANK OF
MONTREAL
By: /s/ XXXXXX XXXXXX
------------------------------
Name: Xxxxxx Xxxxxx
Title: Sr. Trust Officer
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