EXHIBIT 2
ALCATEL
00 XXX XX XXXXXX, XXXXX, XXXXXX 00000
February 6, 2003
CONFIDENTIAL
Name of Shareholder: Whitecastle Investments Limited (the "Shareholder")
Address: 00 Xx. Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx Xxxxxx
X0X 253
Telecopier No.: (000) 000-0000
Dear Sirs:
This letter agreement (the "Agreement") is entered into in
consideration of the mutual covenants and agreements of the parties hereunder
and as an inducement to and in consideration of Alcatel (the "Purchaser")
entering into an arrangement agreement dated of even date herewith (the
"Arrangement Agreement", as it may be amended in accordance with the terms
thereof and hereof) with ImagicTV Inc. (the "Company") pursuant to which the
Company and the Purchaser have agreed to enter into a transaction to be
accomplished through a plan of arrangement (the "Arrangement", as it may be
amended from time to time in accordance with the terms thereof or of the
Arrangement Agreement and hereof) under section 192 of the Canada Business
Corporations Act (the "CBCA") as a result of which, among other things, the
shares of the Company will be exchanged for securities of the Purchaser. The
Shareholder understands that the Purchaser ADSs being issued in the Arrangement
will be issued in compliance with section 3(a)(10) of the 1933 Act.
This Agreement sets out the terms and conditions of the agreement by
the Shareholder to, among other things, irrevocably and unconditionally (subject
only to the terms and conditions hereof) vote his or its 2,464,927 common shares
(the "Securities") (and, if applicable, up to N/A common shares covered by his
options (the "Options") to acquire common shares from treasury) of the Company
in favour of the Arrangement. Capitalized terms used herein and not otherwise
defined shall have the respective meanings assigned to them in the Arrangement
Agreement as of this date without taking into account any subsequent amendments
thereto, and references to provisions and sections of the Arrangement Agreement
shall be references to the Arrangement Agreement in the form signed on the date
hereof.
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ARTICLE 1
THE ARRANGEMENT
SECTION 1.1 THE ARRANGEMENT; TERMINATION.
(1) The Purchaser will take all actions and fulfill all covenants required
by it under the Arrangement Agreement, including sections 2.7 and
4.4(a)(iii) thereof.
(2) Notwithstanding any provision of the Arrangement Agreement or the Plan
of Arrangement, the Purchaser shall not, without the prior written
consent of the Shareholder at any time prior to the Effective Date,
amend the Arrangement Agreement or the terms of the Plan of
Arrangement: (a) to reduce or alter the form of the consideration to be
paid per Company Common Share pursuant to the Arrangement, (b) to amend
section 2.7 or section 4.4(a)(iii) of the Arrangement Agreement, or (c)
to extend the Outside Date (as defined in the Arrangement Agreement).
(3) Notwithstanding anything to the contrary contained herein, the
Purchaser may elect not to proceed with or complete the Arrangement
where it is permitted to do so under the terms of the Arrangement
Agreement, in which case, for greater certainty, this Agreement shall
terminate (without prejudice to any liability for prior non-compliance
and except for those provisions which survive in accordance with the
terms hereof).
(4) This Agreement and the parties' obligations hereunder:
(a) shall be automatically terminated (without prejudice to any
liability of either party for prior non-compliance and except
for those provisions which survive in accordance with the
terms hereof) on the earliest to occur of:
(i) May 31, 2003, if the Arrangement or an alternative
transaction contemplated in Section 3.2 hereof has
not been completed by May 30, 2003;
(ii) the business day following the date on which the
Company's board of directors has, as permitted by
section 4.6(2) of the Arrangement Agreement,
approved, recommended, accepted or entered into an
agreement, arrangement or understanding with respect
to a Superior Proposal (as defined in the Arrangement
Agreement) that is also an Acceptable Offer (as
defined in Section 5.1 hereof), but for greater
certainty the provisions of Section 5.1 shall survive
such termination;
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(iii) the date on which the Arrangement Agreement is
terminated in accordance with its terms (unless the
termination is by the Purchaser as a result of a
material breach by the Company and prior to such
termination the Purchaser has notified the
Shareholder in writing that it intends to proceed
with a take-over bid on terms (taking into account
the tax treatment to the Shareholder) which are not
less favourable to the Shareholder than the terms of
the Arrangement from a financial point of view, which
are subject to no greater restrictions on resale than
would apply under the Arrangement from a Canadian or
U.S. securities law perspective, and which do not
delay the expiry date beyond the Outside Date, in
which case the provisions of Section 3.2 hereof shall
apply); and
(iv) the business day following the date on which, in the
event of an alternative transaction under Section
3.2, the Shareholder exercises its right to withdraw
its Securities under Section 3.2 hereof, but for
greater certainty the provisions of Section 5.1 shall
survive such termination; or
(b) may be terminated by the Shareholder (without prejudice to any
liability of either party for prior non-compliance and except
for those provisions which survive in accordance with the
terms hereof) in the event that the Purchaser is in material
default of the Arrangement Agreement or this Agreement,
provided that the Company or the Shareholder, as applicable,
has delivered a written notice to the Purchaser specifying in
reasonable detail such default and the Purchaser has not cured
such default prior to the earlier of May 30, 2003 and the
expiration of a period of 30 days from such notice; or
(c) may be terminated by the Purchaser (without prejudice to any
liability of either party for prior non-compliance and except
for those provisions which survive in accordance with the
terms hereof) in the event that the Shareholder is in material
default of this Agreement, provided that the Purchaser has
delivered a written notice to the Shareholder specifying in
reasonable detail such default and the Shareholder has not
cured such default prior to the earlier of May 30, 2003 and
the expiration of a period of 30 days from such notice.
(5) Despite any termination of this Agreement in accordance with its terms:
(a) the provisions of Section 5.1(1) hereof shall survive
indefinitely;
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(b) the provisions of Section 5.1(2) hereof shall survive until
three months following the date of such termination and, if an
Acquisition Proposal is made during such period and completed
within thirty (30) days following the completion of such three
month period, until five (5) business days following
completion of the Acquisition Proposal;
(c) the Shareholder's obligations under Section 3.1(3) hereof
shall survive as provided therein;
(d) the Shareholder's obligations under Section 2.1 hereof shall
survive as contemplated in Section 6.1 hereof; and
(e) the Purchaser's obligation to fulfill the covenant contained
in section 4.4(a)(iii) of the Arrangement Agreement shall
survive following the Effective Date for the period stipulated
therein;
provided that termination of this Agreement or of any survival period
herein shall be without prejudice to any liability of either party for
prior non-compliance, including for greater certainty non-compliance by
the Shareholder with any payment obligation under Section 5.1, which
liability shall survive indefinitely.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER.
(1) The Shareholder hereby represents and warrants that:
(a) if the Shareholder is a corporation, the execution and
delivery of this Agreement and the consummation by the
Shareholder of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action
on the part of the Shareholder;
(b) no other proceedings on the part of the Shareholder are
necessary to authorize this Agreement or to consummate the
transactions contemplated hereby;
(c) the Shareholder has all necessary power and authority to
execute and deliver this Agreement and to perform the
Shareholder's obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Shareholder and,
assuming the due authorization, execution and delivery of this
Agreement by each of the other parties hereto,
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constitutes the legal, valid and binding obligation of the
Shareholder, enforceable against the Shareholder in accordance
with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors' rights generally, to the
limitation on Canadian courts awarding judgments in foreign
currencies, and to general principles of equity;
(d) intentionally deleted;
(e) this Agreement does not violate any decree, judgement, order
or agreement to which the Shareholder is a party or by which
the Shareholder is bound, and the Shareholder has not
previously granted or agreed to grant any proxy or other right
to vote the Securities (or Options, if applicable) or entered
into any other voting trust, pooling agreement or other
agreement affecting its right to vote the Securities (or
Options, if applicable) as contemplated by this Agreement;
(f) the Shareholder has the exclusive right to vote and dispose of
the Securities (and Options, if applicable) as provided in
this Agreement;
(g) the Securities (and the Options, if applicable) represent all
of the shares of the Company, or options or rights thereto
(including any securities or obligations of any kind
convertible into or exchangeable for any shares of the
Company), directly or indirectly owned or controlled by the
Shareholder, and they are owned by the Shareholder
beneficially and of record with good and marketable title,
free and clear of any and all mortgages, liens, charges,
encumbrances and adverse claims;
(h) the Securities to be acquired by the Purchaser from the
Shareholder pursuant to the Arrangement will be acquired with
good and marketable title, free and clear of any and all
mortgages, liens, charges, encumbrances and adverse claims;
and
(i) the Shareholder is not a non-resident of Canada for purposes
of the Income Tax Act (Canada).
ARTICLE 3
COVENANTS OF THE SHAREHOLDER
SECTION 3.1 GENERAL.
(1) Except as otherwise expressly provided herein, the Shareholder hereby
covenants that until the earlier of the Effective Date and, for greater
certainty, the date on which this Agreement is terminated, the
Shareholder will:
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(a) not, directly or indirectly, take or support any action of any
kind which could reasonably be expected to reduce the
likelihood of success of or delay the completion of the
Arrangement, provided that the foregoing shall not prevent any
director or officer of the Company from taking actions which
he or she is permitted to take in accordance with the
Arrangement Agreement;
(b) not, directly or indirectly, initiate, solicit or knowingly
encourage, or otherwise facilitate (including by way of
furnishing information to or entering into any form of
agreement, arrangement or understanding with respect to) any
other Acquisition Proposal (as defined in the Arrangement
Agreement) involving the Company or any of its subsidiaries or
their businesses, or any inquiries or proposals that could
reasonably be expected to lead to such an Acquisition
Proposal, provided that the foregoing shall not prevent any
director or officer of the Company from taking actions which
he or she is permitted to take in accordance with the
Arrangement Agreement;
(c) not dissent from the Arrangement; and
(d) upon request of the Purchaser, use his or its commercially
reasonable efforts to assist the Purchaser and the Company to
successfully complete the Arrangement, provided that the
foregoing shall not require any director or officer of the
Company to take actions that are contrary to his or her
fiduciary duties and that for greater certainty are also not
required to be taken in accordance with the Arrangement
Agreement.
(2) Except as otherwise expressly provided herein or as otherwise agreed to
by the Purchaser in writing on or prior to the date hereof, the
Shareholder hereby covenants that until the earlier of the Effective
Date and, for greater certainty, the date on which this Agreement is
terminated, the Shareholder shall not directly or indirectly (x) sell,
assign, transfer, encumber, pledge, hedge or enter into derivative
transactions in respect of, or otherwise dispose of any of the
Securities (or Options, if applicable) or any rights therein (including
without limitation any voting rights), (y) enter into any contract,
option or other arrangement or undertaking with respect to the actions
described in (x), or (z) grant any proxies in respect of such
Securities (or Options, if applicable), except for the purposes of
complying with this Agreement. Notwithstanding the foregoing, the
Shareholder may transfer some or all of the Securities to related
persons of the Shareholder (including affiliates, trusts and/or family
members), provided that (a) the Shareholder obtains the prior written
consent thereto of the Purchaser, not to be unreasonably withheld or
delayed following the receipt of reasonable
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particulars, (b) such transfer does not adversely affect the Purchaser
or the Company, including without limitation from a tax perspective or
by causing any delay, and (c) the transferee executes and delivers an
agreement in the same form as this Agreement to the Purchaser prior to
the transfer; but the Shareholder shall be responsible for any default
by the transferee.
(3) In the event that the Shareholder now has, or obtains at any time, any
non-public information from the Company or its subsidiaries or their
representatives concerning the Company or its subsidiaries or their
affairs, including without limitation regarding their technology and/or
business plans ("Confidential Information"), it will hold such
information in strict confidence for as long as the information remains
non-public and not disclose it to any other person (except the Company)
or use it for any purposes whatsoever unless authorized to do so by the
Company. For greater certainty, plans and analyses prepared by the
Shareholder concerning the Company and not otherwise containing
Confidential Information shall not be considered Confidential
Information for the purposes of this Section 3.1(3). This Section
3.1(3) shall survive the termination of this Agreement in accordance
with its terms for a period of three years following the completion of
the Arrangement or any alternative transaction contemplated in Section
3.2 hereof, assuming that either occurs prior to May 31, 2003.
Otherwise, this Section 3.1(3) shall terminate upon the termination of
this Agreement in accordance with its terms.
(4) Intentionally deleted.
SECTION 3.2 ALTERNATIVE TRANSACTION.
In the event that, in lieu of the Arrangement, the Purchaser seeks to
complete, prior to the Outside Date, the acquisition of all of the shares of the
Company or of the Company and its subsidiaries, taken as a whole, (i) pursuant
to Section 6.2 of the Arrangement Agreement, by some other means, such as a
take-over bid or another form of merger, amalgamation, arrangement,
consolidation and/or recapitalization, or (ii) by way of take-over bid as
contemplated in Section 1.1(4)(a)(iii) hereof, in each case on terms (taking
into account the tax treatment to the Shareholder) which are not less favourable
to the Shareholder from a financial point of view than the Arrangement, which
are subject to no greater restrictions on resale than would apply under the
Arrangement from a Canadian or U.S. securities law perspective, and which do not
delay closing beyond the Outside Date, the Shareholder shall, for greater
certainty during the term of this Agreement, upon request, use its commercially
reasonable efforts to assist the Purchaser to successfully complete such
transaction, including without limitation by (a) depositing its Securities into
a take-over bid and not withdrawing them, (b) not supporting, or entering into
any agreement with any person regarding, any Acquisition Proposal, and/or (c)
voting
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or causing to be voted all of the Securities (and Options, if applicable)
in favour of, and not dissenting from, such transaction, provided however that
the Shareholder shall be permitted to withdraw its Securities tendered to a
take-over bid which is made as contemplated pursuant to Section 1.1(4)(a)(iii)
hereof in the event that an Acquisition Proposal is made providing for a per
Company Common Share value, at the date that the Acquisition Proposal is made,
in excess of U.S. $1.38, and for greater certainty the provisions of section 5.1
shall survive termination of this Agreement. The foregoing shall not prevent any
director or officer of the Company from taking actions which he or she is
permitted to take in accordance with the Arrangement Agreement.
SECTION 3.3 US SECURITIES LAW MATTERS.
The Shareholder hereby acknowledges that since he/it may be deemed to
be an affiliate (as the term is defined for purposes of Rule 145 of the rules
and regulations of the SEC under the 0000 Xxx) of the Company, the Shareholder
represents, warrants and covenants that with respect to any Purchaser Shares or
Purchaser ADSs received in the Arrangement, the Shareholder:
(a) will not offer, sell, transfer, pledge, hypothecate or
otherwise dispose of, or reduce the undersigned's interest in
or risk relative to, any of the Purchaser Shares or Purchaser
ADSs issued to the undersigned in the Arrangement unless at
such time either (i) such transaction shall be permitted
pursuant to the provisions of Rule 145 under the 1933 Act;
(ii) the undersigned shall have furnished to the Purchaser an
opinion of counsel, satisfactory to the Purchaser, to the
effect that no registration under the 1933 Act would be
required in connection with the proposed offer, sale,
transfer, pledge, hypothecation or other disposition; or (iii)
a registration statement under the 1933 Act covering the
proposed offer, sale, transfer, pledge, hypothecation or other
disposition shall be effective under the Securities Act;
(b) understands that the Purchaser is under no obligation to
register the sale, transfer or other disposition of Purchaser
Shares or Purchaser ADS by the Shareholder or on his/its
behalf under the 1933 Act;
(c) understands that there will be placed on the certificates for
such Purchaser ADSs or Purchaser Shares issued to him or it,
or any substitutions therefor, a legend stating in substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN
A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE
SECURITIES ACT OF 1933 APPLIES."
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(d) understands that unless the transfer by him/it of his/its
Purchaser Shares or Purchaser ADSs has been registered under
the 1933 Act or is a sale made in conformity with the
provisions of Rule 145, the Purchaser reserves the right to
put the following legend on the certificates issued to any
transferee:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED
FROM A PERSON WHO RECEIVED SUCH SHARES IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933
APPLIES. "
It is understood and agreed that the legends set forth in paragraph (c) and (d)
above shall be removed by delivery of substitute certificates without such
legend if the Shareholder or his/its transferee shall have delivered to the
Purchaser a copy of a letter of the staff of the SEC, or an opinion of counsel
in form and substance satisfactory to the Purchaser, to the effect that such
legend is not required for purposes of the 1933 Act.
SECTION 3.4 INSURANCE MATTERS.
Following the Effective Date, the Purchaser shall not, and shall cause
the Company not to, cancel the directors' and officer's liability insurance
referred to in section 4.9(3) of the Arrangement Agreement. This covenant shall
survive the termination of this Agreement.
ARTICLE 4
VOTING
SECTION 4.1 VOTING.
(1) Without limiting any other provision of this Agreement, the Shareholder
hereby irrevocably and unconditionally agrees:
(a) to vote (or cause to be voted) all of the Securities (and
Options, if applicable) at any meeting of shareholders or
securityholders of the Company and in any action by written
consent, in favour of the Arrangement and against any
Acquisition Proposal other than the Arrangement;
(b) to vote (or cause to be voted) all of the Securities (and
Options, if applicable) at any meeting of shareholders or
securityholders of the Company and in any action by written
consent, against any action that could reasonably be expected
to impede, interfere with or delay the Arrangement;
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(c) not without the prior written consent of the Purchaser to
requisition or join in any requisition of any meeting of
shareholders or securityholders of the Company; and
(d) not without the prior written consent of the Purchaser to make
or join in any proposal (as contemplated in section 137 of the
CBCA).
SECTION 4.2 VALUATION WAIVER AND MINORITY APPROVAL COUNTING.
(1) Intentionally deleted.
(2) The Shareholder hereby confirms that he or it is not acting jointly or
in concert with the Purchaser in respect of the Arrangement or any
alternative transaction referred to in Section 3.2, and that the entry
into this Agreement was a condition imposed by the Purchaser to
proceeding with the Arrangement. The Shareholder consents to being
treated, and confirms that he or it will support his or its treatment,
as part of the minority for the purposes of the minority approval
requirement under OSC Rule 61-501 (or equivalent provisions in other
jurisdictions) in any regulatory or court proceedings.
ARTICLE 5
OTHER TRANSACTIONS, ETC.
SECTION 5.1 ACCEPTABLE OFFER, ACQUISITION PROPOSAL, ETC.
(1) Except as provided below, in the event that the Company's board of
directors has, as permitted by section 4.6(2) of the Arrangement
Agreement, approved, recommended, accepted or entered into an
agreement, arrangement or understanding with respect to a Superior
Proposal (as defined in the Arrangement Agreement) that is also an
Acceptable Offer (as defined in Section 5.1 hereof), then,
notwithstanding the prior termination of this Agreement as a result
thereof, the Shareholder shall be required to pay to the Purchaser an
amount in cash equal to the excess, if any, of the per Company Common
Share value under such Acceptable Offer (as agreed between the
Purchaser and the Shareholder or, failing such agreement, as determined
by a mutually agreed appraiser or valuator) on the date of completion
of such Acceptable Offer over U.S. $1.20, such payment to be made
forthwith upon the payment of the consideration under such Acceptable
Offer, by wire transfer of immediately available funds to an account
specified by the Purchaser. No payment will be required under this
Section 5.1(1) in the event that the Purchaser has breached any
representation, warranty or covenant in the Arrangement Agreement or
this Agreement provided that the Company or the Shareholder, as
applicable, has delivered a written notice to the Purchaser specifying
in reasonable detail such default and the Purchaser has
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not cured such default prior to the earlier of May 30, 2003 and the
expiration of a period of 30 days from such notice.
For the purposes hereof, "Acceptable Offer" means a Superior Proposal
(as defined in the Arrangement Agreement) providing for a per Company
Common Share value, at the date the Superior Proposal is made, in
excess of U.S. $1.38.
(2) In the event that, within three (3) months following any termination of
this Agreement, an Acquisition Proposal (as defined in the Arrangement
Agreement) is made, other than an Acquisition Proposal by the
Purchaser, in which the Shareholder is entitled to participate and
which is completed within four (4) months of the termination of this
Agreement, then the Shareholder shall be required to pay to the
Purchaser an amount in cash equal to the excess, if any, of the per
Company Common Share value (such value in each case as agreed between
the Purchaser and the Shareholder or, failing such agreement, as
determined by a mutually agreed appraiser or valuator) (a) under such
Acquisition Proposal or (b) via any sale or transfer after the first
public announcement thereof and prior to the first public announcement
of the termination or withdrawal thereof, over U.S. $1.20 per share,
for each of the Securities owned or controlled by the Shareholder at
the date of the first public announcement regarding such Acquisition
Proposal, such payment to be made forthwith upon the payment of the
consideration under such Acquisition Proposal, by wire transfer of
immediately available funds to an account specified by the Purchaser.
For greater certainty, no payment shall be required in respect of any
Securities which are sold or transferred by the Shareholder (i) via an
arm's length bona fide transaction prior to the date of the first
public announcement of an Acquisition Proposal, in a transaction which
is not itself an Acquisition Proposal, or after the first public
announcement of the termination or withdrawal of such Acquisition
Proposal, or (ii) via an ordinary course arm's length bona fide
transaction through the facilities of the Toronto Stock Exchange or the
Nasdaq SmallCap Market prior to the date of the first public
announcement regarding an Acquisition Proposal or after the date of the
first public announcement of the termination or withdrawal of such
Acquisition Proposal.
(3) For greater certainty, this Section 5.1 shall survive as provided in
Section 1.1 hereof.
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ARTICLE 6
GENERAL
SECTION 6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
Except as expressly otherwise provided herein, the representations and
warranties made by the Shareholder herein shall survive for the applicable
limitation period under applicable laws. No investigations made by or on behalf
of the Purchaser or any of its authorized agents at any time shall have the
effect of waiving, diminishing the scope of or otherwise affecting any
representation, warranty or covenant made by the Shareholder herein or pursuant
hereto.
SECTION 6.2 ASSIGNMENT.
The Purchaser may assign all or any part of its rights under this
Agreement to an affiliate of the Purchaser, provided that any such assignment
shall not relieve the Purchaser of any of its obligations hereunder. Except as
expressly permitted in Section 3.1(2), this Agreement shall not otherwise be
assignable by any party without the consent of the others.
SECTION 6.3 TIME.
Time shall be of the essence of this Agreement.
SECTION 6.4 CURRENCY.
Unless otherwise expressly provided herein, all sums of money referred
to in this Agreement shall mean U.S. funds. Section 7.9 (Judgement Currency) of
the Arrangement Agreement shall apply to this Agreement, mutatis mutandis.
SECTION 6.5 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and of Canada applicable therein.
SECTION 6.6 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement and understanding
between the parties pertaining to the subject matter of this Agreement.
SECTION 6.7 AMENDMENTS.
This Agreement may not be amended except by written agreement signed by
the parties to this Agreement.
SECTION 6.8 SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS.
The Shareholder recognizes and acknowledges that this Agreement is an
integral part of the Arrangement, and that the Purchaser would not contemplate
proceeding with the Arrangement unless this Agreement was executed, and that a
breach by the Shareholder of any covenants or other commitments contained in
this
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Agreement will cause the Purchaser to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, the Shareholder
agrees that, in the event of any such breach, the Purchaser shall be entitled to
the remedy of specific performance of such covenants or commitments and
preliminary and permanent injunctive and other equitable relief in addition to
any other remedy to which it may be entitled, at law or in equity, and the
Shareholder further agrees to waive any requirement for the securing or posting
of any bond in connection with the obtaining of any such injunctive or other
equitable relief.
SECTION 6.9 NOTICES.
Any notice, request, consent, agreement or approval which may or is
required to be given pursuant to this Agreement shall be in writing and shall be
sufficiently given or made if delivered, or sent by telecopier, in the case of:
(a) the Purchaser, addressed as follows:
00 Xxx Xx Xxxxxx
00000 Xxxxx Xxxxxx
Attention: General Counsel
Telecopier No.: 011-331-4076-1435
with a copy to:
Stikeman Xxxxxxx XXX
Xxx 00, Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxx Xxxxxx and Xxxx Xxxxx
Telecopier No.: (000) 000-0000
(b) the Shareholder, addressed as follows:
------------------------------
------------------------------
------------------------------
------------------------------
Attention: ------------------------------
Telecopier No.: ------------------------------
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with a copy to:
------------------------------
------------------------------
------------------------------
------------------------------
Attention: ------------------------------
Telecopier No.: ------------------------------
or at such other address of which either party may, from time to time, advise
the other party by notice in writing given in accordance with the foregoing. The
date of receipt of any such notice shall be deemed to be the business day next
following the date of delivery or telecopying thereof.
SECTION 6.10 EXPENSES.
Each of the parties shall pay his or its legal, financial advisory and
accounting costs and expenses incurred in connection with the preparation,
execution and delivery of this Agreement and all documents and instruments
executed or prepared pursuant to this Agreement and any other costs and expenses
whatsoever and howsoever incurred. The Company shall not be responsible for or
pay any of the Shareholder's costs or expenses.
Despite the foregoing, all directors and officers of the Company who
are parties to this Agreement or an agreement in substantially the same form as
this Agreement may have up to Cdn. $25,000 in aggregate (for all such directors
and officers) of their out-of-pocket legal fees related thereto reimbursed by
the Company, to be allocated among them as they may direct the Company jointly
in writing.
SECTION 6.11 BUSINESS DAY.
A business day for the purpose of this Agreement shall mean any day on
which major banks in the cities of Toronto, New York and Paris are open for
business.
SECTION 6.12 2002 DIVIDEND.
The Shareholder acknowledges and confirms the provisions of section 2.4
of the Arrangement Agreement.
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SECTION 6.13 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, which
together shall be deemed to constitute one valid and binding agreement, and
delivery of the counterparts may be effected by means of a telecopy
transmission.
--------------------------------
If the terms and conditions of this letter are acceptable to you,
please so indicate by executing and returning the enclosed copy hereof to the
undersigned prior to 5:00 p.m. (Paris time), on February ___, 2003, failing
which this letter shall be null and void.
Yours truly,
ALCATEL
By: /s/ AL Scaillierez
----------------------------------
Name: AL Scaillierez
Title: VP Financial Operations
By:
----------------------------------
Name:
Title:
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Agreed and accepted this 6th day of February, 2003.
If a corporation: SHAREHOLDER:
WHITECASTLE INVESTMENTS LIMITED
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By: /s/ X.X. Xxxxxxx
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Authorized Signing Officer
X. X. Xxxxxxx
Chairman
If an individual:
Shareholder name: ---------------------------------
Shareholder signature: ---------------------------------
Witness name: ---------------------------------
Witness signature: ---------------------------------
