REGISTRATION RIGHTS AGREEMENT
JVII PARTNERSHIP
- and -
XXXXXX CANTEL MOBILE COMMUNICATIONS INC.
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REGISTRATION RIGHTS AGREEMENT
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August 16, 1999
TABLE OF CONTENTS
ARTICLE 1.
INTERPRETATION
1.1. Definitions.............................................. 2
1.2. Headings and Table of Contents........................... 4
1.3. Gender and Number........................................ 5
1.4. Currency................................................. 5
1.5. Invalidity of Provisions................................. 5
1.6. Entire Agreement......................................... 5
1.7. Waiver, Amendment........................................ 5
1.8. Governing Law............................................ 6
ARTICLE 2.
REGISTRATION RIGHTS
2.1. Application.............................................. 6
2.2. Distribution Initiated by RCMCI.......................... 6
2.3. Distribution at the Request of Holders................... 7
2.4. Limitations on Demand Distribution....................... 10
2.5. Qualification Procedures................................. 11
2.6. Registration Expenses.................................... 13
2.7. Indemnification.......................................... 13
2.8. Information by Holder.................................... 15
ARTICLE 3.
IPO FOLLOWING GOING PRIVATE TRANSACTION
3.1. Application.............................................. 15
3.2. IPO Initiated by RCMCI................................... 16
3.3. IPO at the Request of a Holder........................... 16
ARTICLE 4.
GENERAL PROVISIONS
4.1. Term..................................................... 16
4.2. Transfer of Rights....................................... 16
4.3. Amendment of Qualification Rights........................ 17
4.4. Arbitration.............................................. 17
4.5. Notices.................................................. 17
4.6. Time of Essence.......................................... 19
4.7. Counterparts............................................. 19
4.8. Enurement................................................ 19
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of the 16th day of August, 0000,
X X X X X X X:
JVII PARTNERSHIP, a general partnership formed under the laws of
Delaware
hereinafter called "JV")
- and -
XXXXXX CANTEL MOBILE COMMUNICATIONS INC., a corporation incorporated
under the laws of Canada
(hereinafter called "RCMCI")
RECITALS:
WHEREAS JV is the legal and beneficial owner of Convertible
Preference Shares, Series A of RCMCI convertible at the option of JV at any time
after one year from the date of issuance of such shares into Class A Multiple
Voting Shares in the capital of RCMCI (the "Class A Shares");
AND WHEREAS the Class A Shares are convertible at any time at
the option of the holder into Class B Restricted Voting Shares in the capital of
RCMCI (the "Class B Shares");
AND WHEREAS JV is the legal and beneficial owner of
Convertible Preference Shares, Series B of RCMCI convertible at the option of JV
at any time after one year from the date of issuance of such shares into Class B
Shares;
AND WHEREAS JV and RCMCI wish to set forth certain
registration rights with respect to the sale of Class B Shares by JV;
NOW THEREFORE in consideration of the mutual covenants and
agreements contained in this Agreement and other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged by each of the
parties), the parties hereto agree as follows:
ARTICLE 1.
INTERPRETATION
1.1. Definitions
In this Agreement,
"Affiliate" has the meaning set forth in the Shareholders'
Agreement;
"Agreement" means this agreement and all schedules, if any,
attached to this agreement, in each case as they may be
supplemented or amended from time to time, and the expressions
"hereof", "herein", "hereto", "hereunder", "hereby" and
similar expressions refer to this Agreement, and unless
otherwise indicated, references to Articles and sections are
to the specified Articles and sections in this Agreement;
"Business Day" means any day, other than Saturday, Sunday
or any statutory holiday in the Province of Ontario;
"Class A Shares" means Class A Multiple Voting Shares in the
capital of RCMCI;
"Class B Shares" means the Class B Restricted Voting Shares in
the capital of RCMCI which are issued and outstanding from
time to time and includes any shares or securities into which
the Class B Shares may be converted or changed or which result
from a consolidation, subdivision or reclassification or which
are received upon or as a result of any merger, amalgamation,
arrangement, consolidation, reorganization or similar
transaction of or involving RCMCI;
"diluted basis" means assuming the exercise by JV of the
conversion rights attaching to all of the outstanding
Preference Shares and Class A Shares owned by the Holders but,
for greater certainty, without assuming the exercise of any
conversion rights attaching to securities of RCMCI held by any
other Person;
"Distribution" means a distribution of Class B Shares to the
public by way of a Prospectus under securities legislation in
any applicable jurisdiction in Canada or in the United States;
"Going Private Date" has the meaning set forth in section 3.1;
"going private transaction" has the meaning set forth in
Policy 9.1;
"Holder" means JV and any other Person holding Class B Shares
or securities convertible, directly or indirectly, into Class
B Shares to whom the registration rights granted under this
Agreement have been transferred as permitted under section
4.2;
"Person" means any individual, partnership, limited
partnership, limited liability company, unlimited liability
company, joint venture, syndicate, sole proprietorship,
company or corporation with or without share capital,
unincorporated entity or association, trust, trustee,
executor, administrator or other legal personal
representative, regulatory body or agency, government or
governmental agency, authority or entity however designated or
constituted;
"Policy 9.1" means Policy Statement 9.1 of the Ontario
Securities Commission as the same may be amended from time to
time and any successor policy statement and/or rule;
"Preference Shares" means the Convertible Preference Shares,
Series A and the Convertible Preference Shares, Series B in
the capital of RCMCI;
"Prospectus" means, collectively:
(a) a "preliminary prospectus" and a "prospectus" as those
terms are used in the Securities Act;
(b) a "prospectus" as such term is used in the U.S. Act;
and
(c) a "registration statement" as such term is used in the
U.S. Act;
including in each case all amendments, supplements and
exhibits thereto;
"RCI" means Xxxxxx Communications Inc., a corporation
incorporated under the laws of British Columbia;
"RCMCI's Counsel" means the law firm of Tory Xxxx XxxXxxxxxxx
& Binnington of Toronto, Ontario, or such other counsel as
RCMCI may appoint with respect to this Agreement and the
matters contemplated hereby;
"Rogers Group" has the meaning set forth in the Shareholders'
Agreement;
"Securities Act" means the Securities Act (Ontario) and the
rules and regulations thereunder as the same may be amended
from time to time and any successor legislation;
"Shareholders' Agreement" means the shareholders' agreement
dated August 16, 1999 between RCI, JV and RCMCI;
"Standstill Period" has the meaning set forth in section 3.3;
"subsidiary" has the meaning set forth in the Securities Act;
"U.S. Act" means the United States Securities Act of 1933 as
the same may be amended from time to time and any successor
legislation;
"Valid Business Reason" has the meaning set forth in clause
2.4(a)(iii).
1.2. Headings and Table of Contents
The inclusion of headings and a table of contents in this
Agreement are for convenience of reference only and shall not affect the
construction or interpretation hereof.
1.3. Gender and Number
In this Agreement, unless the context otherwise requires,
words importing the singular include the plural and vice versa and words
importing gender include all genders.
1.4. Currency
Except as otherwise expressly provided in this Agreement, all
amounts in this Agreement are stated and shall be paid in Canadian currency.
1.5. Invalidity of Provisions
Each of the provisions contained in this Agreement is distinct
and severable and a declaration of invalidity or unenforceability of any such
provision by a court of competent jurisdiction shall not affect the validity or
enforceability of any other provision hereof.
1.6. Entire Agreement
This Agreement and the Shareholders' Agreement constitute the
entire agreement between the parties hereto pertaining to the subject matter
hereof. There are no other agreements between the parties in connection with the
subject matter hereof except as specifically set forth or referred to herein.
1.7. Waiver, Amendment
Except as expressly provided in this Agreement, no amendment,
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision nor shall any such
waiver constitute a continuing waiver unless otherwise expressly provided.
1.8. Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein and, subject to section 4.4, each of the parties hereby
submits to the exclusive jurisdiction of the courts of Ontario.
ARTICLE 2.
REGISTRATION RIGHTS
2.1. Application
At any time that RCMCI is a reporting issuer under the
Securities Act (and, in the case of a proposed Distribution in the United
States, is a reporting issuer under the U.S. Act) and provided the Holders hold
at that time at least 10% of the outstanding Class B Shares of RCMCI held by the
JV on the date hereof (calculated on a diluted basis), RCMCI agrees that each
Holder shall have the benefit of the covenants set forth in this Article 2.
2.2. Distribution Initiated by RCMCI
(a) If at any time, or from time to time, RCMCI shall determine to
make a Distribution of Class B Shares, either for its own
account or for the account of any other member of the Xxxxxx
Group, RCMCI will:
(i) promptly give to each Holder written notice thereof
(which shall include a list of the jurisdictions in
which RCMCI intends to make a Distribution of such
Class B Shares) and the intended method of
Distribution in connection therewith; and
(ii) subject to clause (b), include in such Distribution
and in any underwriting involved therein, all of the
Class B Shares specified in a written request by any
Holder or Holders made within ten (10) Business Days
after receipt of such written notice from RCMCI.
(b) If the Distribution of which RCMCI gives notice involves
an underwriting, RCMCI shall so advise the Holders as a part
of the written notice given pursuant to clause (a). All
Holders proposing to distribute Class B Shares through such
underwriting shall (together with RCMCI and the other Holders
distributing their Class B Shares through such underwriting)
enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting
by RCMCI. The Holders shall have no right to participate in
the selection of such underwriter(s). If any Holder
disapproves of the terms of the underwriting, the Holder may
elect to withdraw therefrom by written notice given promptly
to RCMCI and to the underwriter(s), such written notice to be
given in any event at least two Business Days prior to the
filing of the final Prospectus in respect of the Distribution.
The Class B Shares so withdrawn from the underwriting shall
also be withdrawn from the Distribution. Notwithstanding any
other provision of this section 2.2, if the underwriter
determines in good faith that marketing factors require a
limit on the number of Class B Shares to be underwritten, the
underwriter may limit the number of Class B Shares to be
included in the Distribution and underwriting, including a
limitation on the number of Class B Shares which may be
distributed as a secondary offering, and the number of Class B
Shares of the Holders which may be included in such
Distribution shall be determined on a fair and equitable basis
by the Board of Directors of RCMCI acting in good faith, it
being understood that the number of Class B Shares which a
particular Holder may sell pursuant to the secondary offering
shall be determined on a pro rata basis based on the total
number of Class B Shares which were originally to be included
by the Holders in the Distribution.
2.3. Distribution at the Request of Holders
(a) At any time after December 31, 1999, Holders may by notice in
writing given to RCMCI (a "Demand Notice") require RCMCI to
use its reasonable commercial endeavours to assist it in
making a Distribution in Canada and/or the United States (as
requested by the Holders) of all or a portion of the Holders'
Class B Shares on the terms and conditions of this section 2.3
and section 2.4.
(b) If any Distribution requested by Holders pursuant to this
section 2.3 involves an underwriting of the Class B Shares,
RCMCI shall have the right to approve the underwriter (which
approval shall not be unreasonably withheld).
(c) Promptly after receiving a Demand Notice from a Holder under
clause (a):
(i) RCMCI will give to each other Holder written notice
thereof (which shall include a list of the
jurisdictions in Canada and/or in the United States
in which RCMCI intends to attempt to qualify the
Class B Shares under applicable securities laws) and
the intended method of Distribution in connection
therewith; and
(ii) Subject to clause (d), RCMCI will include in such
Distribution and in any underwriting involved
therein, all of the Class B Shares specified in a
written request made by any Holder or Holders within
five (5) Business Days after receipt of such written
notice from RCMCI.
(d) If a Demand Notice relates to a Distribution which involves an
underwriting of the Class B Shares, the Holder delivering a
Demand Notice shall specify in the Demand Notice the price per
Class B Share at which the proposed underwriter or
underwriters is prepared to offer such shares to the public on
an underwritten basis (the "Underwritten Price") and the
Demand Notice shall be accompanied by a letter signed by such
underwriter or underwriters confirming its intention to effect
the Distribution at the Underwritten Price. Following the
expiry of the five (5) Business Day period referred to in
clause (c)(ii), RCMCI shall have the right by written notice
to the Holders who have elected to participate in the demand
Distribution to agree to purchase the number of Class B Shares
to be sold pursuant to the demand Distribution at the
Underwritten Price. Such written notice by RCMCI to be
effective shall be given within the period of five (5)
Business Days following the expiry of the five (5) Business
Day period referred to in clause (c)(ii). In the event that
RCMCI does not exercise such right, it shall be entitled, upon
the determination of the final price at which the underwriter
or underwriters are prepared to underwrite the Class B Shares
to be sold pursuant to the demand Distribution, in the event
that such final price is less than the Underwritten Price to
purchase such shares at the price so determined, such right to
purchase to be exercised by written notice given to the
Holders who have elected to participate in the demand
Distribution within 24 hours following notification to RCMCI
of the pricing information. RCMCI's right to purchase Class B
Shares under this clause (d) may be assigned by RCMCI to any
third party.
(e) If the demand Distribution of which RCMCI receives notice
involves an underwriting, the Holder shall so advise RCMCI as
part of the written notice given pursuant to clause (a). All
Holders proposing to distribute Class B Shares through such
underwriting shall (together with the other Holders
distributing Class B Shares through such underwriting) enter
into an underwriting agreement in customary form with the
underwriter or underwriters approved for such underwriting
pursuant to clause (b). If any Holder disapproves of the terms
of the underwriting, the Holder may elect to withdraw
therefrom by written notice given promptly to RCMCI and to the
underwriter, such written notice to be given in any event at
least two Business Days prior to the filing of the final
Prospectus. The Class B Shares so withdrawn shall also be
withdrawn from the Distribution. Notwithstanding any other
provision of this section 2.3, if the underwriter determines
that marketing factors require a limit on the number of
securities to be underwritten, the underwriter may limit the
number of Class B Shares to be included in the Distribution
and underwriting and the number of Class B Shares of the
Holders which may be included in the Distribution shall be
determined on a fair and equitable basis by the Board of
Directors of RCMCI acting in good faith, it being understood
that the number of Class B Shares which a particular Holder
may sell pursuant to the secondary offering shall be
determined on a pro rata basis based on the total number of
Class B Shares which were originally to be included by the
Holders in the Distribution.
2.4. Limitations on Demand Distribution
(a) The demand Distribution rights granted to the Holders in
section 2.3 are subject to the following limitations:
(i) the Holders shall be entitled to request a demand
Distribution under section 2.3 only two times in any
calendar year and each demand Distribution shall
relate to either all of the Holders' Class B Shares
or to a Distribution which would reasonably be
expected to give rise to gross proceeds of at least
$100 million, failing which RCMCI shall have no
obligation under section 2.3 with respect to the
particular demand Distribution;
(ii) RCMCI shall not be required to cause a demand
Distribution to be effected within a period of one
hundred and twenty (120) days after the date of any
receipt for a Prospectus of RCMCI filed in respect of
a Distribution of Class B Shares; provided that this
limitation shall not apply in the event that a Holder
elected under section 2.2 to participate in such
Distribution and was unable to participate to the
full extent set forth in its notice given under
section 2.2.(a)(ii);
(iii) If the Board of Directors of RCMCI acting in good
faith determines that any Distribution of the Class B
Shares should not be made at the particular time, or
continued, because such Distribution would materially
adversely affect any proposed financing, acquisition,
corporate reorganization, amalgamation, merger or
other transaction involving RCMCI or any of its
subsidiaries taken as a whole (such reason being
herein referred to as a "Valid Business Reason"),
RCMCI may advise the Holders in writing that it has
postponed the demand Distribution until such Valid
Business Reason ceases to exist or until the expiry
of one hundred and twenty (120) days after the date
of such Valid Business Reason whichever shall first
occur. RCMCI shall advise the Holders forthwith after
such valid Business Reason ceases to exist.
(b) Upon receipt of any notice from RCMCI that RCMCI has
determined to postpone a demand Distribution pursuant to
clause (a)(iii), each Holder shall immediately discontinue all
actions in furtherance of such Distribution and shall, if so
directed by RCMCI, deliver to RCMCI all copies then in its
possession of any Prospectus relating to such Distribution. If
RCMCI shall postpone a Demand Distribution under clause
(a)(iii), RCMCI shall, at such time as the Valid Business
Reason that gave rise to such postponement ceases to exist or
after the expiry of such one hundred and twenty (120) day
period, use its reasonable commercial efforts to effect
promptly thereafter the proposed demand Distribution in
accordance with this Article 2.
2.5. Qualification Procedures
In the case of each Distribution to be effected by RCMCI
pursuant to this Agreement, RCMCI shall keep each Holder reasonably informed as
to the terms and timing of such Distribution and shall permit a representative
of the Holders participating in the Distribution a reasonable opportunity to
participate in the process leading to the Distribution. In the event of any
underwriting as part of a Distribution, no Class B Shares shall be sold by a
Holder during the course of such Distribution except through such underwriting.
Subject to section 2.6, at its expense RCMCI will in connection with each
Distribution:
(a) as expeditiously as practicable prepare and file with the
appropriate securities regulatory authorities a Prospectus and
any other documents necessary or incidental thereto to permit
the Distribution of the Class B Shares and, in so doing, act
as expeditiously as may be practicable and in good faith to
settle all deficiencies and obtain such receipts and
clearances and provide such undertakings and commitments as
may be reasonably required by any securities regulatory
authority, all as may be necessary to permit the Distribution
of the Class B Shares in compliance with all applicable
securities laws;
(b) furnish such number of Prospectuses and other documents
incidental thereto as a Holder from time to time may
reasonably request in order to facilitate the Distribution of
Class B Shares owned by it;
(c) subject to applicable laws, keep the Prospectus effective
until the Holder or Holders have completed the Distribution
described in the Prospectus;
(d) in the event of any underwritten Distribution, enter into and
perform its obligations under an underwriting agreement, in
usual and customary form, with the lead underwriter of such
Distribution;
(e) cause all such Class B Shares to be Distributed to be listed
on each securities exchange on which the Class B Shares are
then listed and traded;
(f) provide a transfer agent and registrar for all Class B Shares
to be Distributed not later than the date of filing of the
final Prospectus; and
(g) use its reasonable commercial efforts to furnish, at the
request of any Holder participating in the Distribution, on
the date that such Class B Shares are delivered to the
underwriters for sale in connection with the Distribution
pursuant to section 2.3:
(i) an opinion, dated such date, of RCMCI's Counsel for
the purposes of such Distribution, in form and
substance as is customarily given to underwriters in
an underwritten public offering, addressed to the
underwriters, if any; and
(ii) a letter dated such date, from RCMCI's auditors, in
form and substance as is customarily given by
auditors to underwriters in an underwritten public
offering, addressed to the underwriters, if any.
2.6. Registration Expenses
(a) If the Distribution of Class B Shares as contemplated by this
Agreement is completed, all expenses of or incidental to the
offering, delivery and sale of the Class B Shares subject to
the Distribution and of or incidental to all other matters in
connection with the Distribution will be borne pro rata by the
Holders and RCMCI based on the number of Class B Shares of
each which are the subject of the Distribution, including,
without limitation, expenses payable in connection with the
qualification of the Class B Shares, the fees and expenses of
RCMCI's Counsel and auditors, the fees and expenses of the
Holders and their counsel and all costs incurred in connection
with the preparation, translation, printing and delivery of
the Prospectus.
(b) If the Distribution was initiated by RCMCI as contemplated in
section 2.2 and the Distribution is not completed, all
expenses of or incidental to matters in connection with the
Distribution shall be borne by RCMCI including the fees and
expenses of the Holders and their counsel which shall be borne
by the Holders in proportion to the number of Class B Shares
that each indicated that it wished to sell in the
Distribution.
(c) If the Distribution was initiated by a Holder by delivery of
the written notice contemplated in section 2.3 and the
Distribution is not completed, all expenses of or incidental
to matters in connection with the Distribution will be borne
by the Holders and RCMCI in proportion to the number of Class
B Shares that each indicated that it wished to sell in the
Distribution.
2.7. Indemnification
(a) In the event of any qualification of Class B Shares pursuant
to this Agreement, RCMCI will hold harmless and indemnify the
Holders and their respective officers, directors and employees
and, in respect of information furnished by and statements
made by the Holders, each Holder will hold harmless and
indemnify RCMCI and the underwriters, if any, and their
respective officers, directors and employees (collectively the
"Indemnified Parties"), to the full extent permitted by law,
from and against any losses (other than loss of profits),
claims, damages or liabilities to which the Indemnified
Parties may be subject under any applicable securities laws or
otherwise, insofar as those losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Prospectus
under which Class B Shares were distributed, or any document
incidental to the qualification of those Class B Shares, or
which arise out of or are based upon the omission or alleged
omission to state therein any material fact required to be
stated or necessary to make the statement not misleading, or
any violation by RCMCI or any Holder, as the case may be, of
any applicable securities laws in connection with the
qualification or sale of Class B Shares under such securities
laws; provided, however, that RCMCI will not be liable in any
case to the extent that any loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Prospectus or other document in reliance upon and in
conformity with information furnished in writing to RCMCI by
any Indemnified Party or its agent specifically for use in the
preparation of the Prospectus.
(b) If any claim contemplated by this section is asserted against
any of the Indemnified Parties, or if any potential claim
contemplated by this section comes to the knowledge of any of
the Indemnified Parties, the Indemnified Party concerned will
notify RCMCI or the Holder, as the case may be, as soon as
possible of the nature of the claim and RCMCI or the Holder,
as the case may be, will, subject as hereinafter provided, be
entitled (but not required) to assume the defence on behalf of
the Indemnified Party of any suit brought to enforce that
claim. Any defence will be through legal counsel acceptable to
the Indemnified Party and no admission of liability will be
made by RCMCI or the Holder, as the case may be, or the
Indemnified Party without, in each case, the consent of the
other party, which consent will not be unreasonably withheld.
An Indemnified Party will have the right to employ separate
counsel in any such suit and participate in the defence
thereof but the fees and expenses of counsel will be at the
expense of the Indemnified Party unless (i) RCMCI or the
Holder, as the case may be, fails to assume the defence of the
suit on behalf of the Indemnified Party within ten days of
receiving notice of the suit; or (ii) the employment of that
separate counsel has been authorized by RCMCI or the Holder,
as the case may be or (iii) the employment of such counsel is
required due to a reasonable apprehension of conflict on the
part of counsel employed in such suit (in each of which cases
RCMCI or the Holder, as the case may be, will not have the
right to assume the defence of the suit on behalf of the
Indemnified Party but will be liable to pay the reasonable
fees and expenses of counsel for the Indemnified Party).
2.8. Information by Holder
The Holder or Holders of Class B Shares included in any
Distribution shall furnish to RCMCI such information regarding such Holder or
Holders and the Distribution proposed by such Holder or Holders as RCMCI may
request in writing and as shall be required in connection with any qualification
or compliance referred to in this Agreement.
ARTICLE 3.
IPO FOLLOWING GOING PRIVATE TRANSACTION
3.1. Application
If a going private transaction in relation to RCMCI is
completed by RCI and/or RCMCI as contemplated in section 4.3(a) of the
Shareholders' Agreement (the effective date of such completion being referred
herein to as the "Going Private Date") and provided the Holders hold at least
10% of the outstanding Class B Shares of RCMCI held by the JV on the date hereof
(calculated on a diluted basis), and without limiting the Holders' right to
satisfactory liquidity in accordance with such section 4.3(a), RCMCI agrees that
the Holders shall have the benefit of the covenants set forth in this Article 3.
3.2. IPO Initiated by RCMCI
If at any time after the Going Private Date, RCMCI determines
to make a Distribution of Class B Shares, either for its own account or for the
account of any other member of the Xxxxxx Group, the provisions of sections 2.2,
2.5, 2.6, 2.7, and 2.8 shall apply, mutatis mutandis, to such Distribution.
3.3. IPO at the Request of a Holder
At any time 180 days after the Going Private Date, the Holders
may require RCMCI to use its reasonable commercial endeavours to assist it in
making a Distribution in Canada or the United States of not less than 10% of the
Holders' Class B Shares. The provisions of clauses 2.3(b), (c), (d) and (e) and
sections 2.4(a)(iii), 2.4(b), 2.5, 2.6, 2.7 and 2.8 shall apply, mutatis
mutandis, to the Distribution. It is agreed that upon completion of a
Distribution under this section 3.3, the Holders shall be entitled to the
benefits of section 2 as if RCMCI had not ceased to be a reporting issuer under
the Securities Act or the U.S. Act, as the case may be.
ARTICLE 4.
GENERAL PROVISIONS
4.1. Term
Provided the Class B Shares are trading on a liquid public
market, this Agreement shall automatically terminate on the date that the
Holders cease to own at least 10% of the number of Class B Shares held by the JV
on the date hereof (calculated on a diluted basis).
4.2. Transfer of Rights
The right to cause RCMCI to qualify Class B Shares granted by
RCMCI under this Agreement may be assigned to a transferee of not less than 5%
of the number of Class B Shares then outstanding, provided that, in each case,
the transferee agrees in writing to be bound by the provisions of this Agreement
and RCMCI is given written notice at the time of or within a reasonable time
after the transfer, stating the name and address of the transferee and stating
the number of Class B Shares with respect to which such qualification rights are
being assigned.
4.3. Amendment of Qualification Rights
Any provision of this Agreement may be amended and the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of
RCMCI and the Holders of two-thirds of the total number of Class B Shares then
held by all Holders. Any amendment or waiver effected in accordance with this
section 4.3 shall be binding upon RCMCI and each present and future Holder of
Class B Shares.
4.4. Arbitration
Any dispute, difference or claim between the parties arising
to or related to the application, interpretation, compliance or default under
this Agreement shall be resolved exclusively by arbitration and the terms and
conditions of the Shareholders' Agreement related to arbitration shall apply,
mutatis mutandis, to arbitration under this Agreement.
4.5. Notices
Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be given by prepaid first-class
mail, by facsimile or other means of electronic communication or by
hand-delivery as hereinafter provided. If any notice or other communication
shall be given by a method other than facsimile or other means of electronic
communication, a copy of such notice or other communication will be delivered by
facsimile as outlined below but failure to do so will not constitute failure to
provide proper notice. Any such notice or other communication, if mailed by
prepaid first-class mail at any time other than during a general discontinuance
of postal service due to strike, lockout or otherwise, shall be deemed to have
been received on the third Business Day after the post-marked date thereof, or
if sent by facsimile or other means of electronic communication, shall be deemed
to have been received on the day received if received prior to 5:00 p.m. (local
time) on a Business Day, otherwise on the following day that is a Business Day,
or if delivered by hand shall be deemed to have been received at the time it is
delivered to the applicable address noted below either to the individual
designated below or to an individual at such address having apparent authority
to accept deliveries on behalf of the addressee. Notice of change of address
shall also be governed by this section. In the event of a general discontinuance
of postal service due to strike, lockout or otherwise, notices or other
communications shall be delivered by hand or sent by facsimile or other means of
electronic communication and shall be deemed to have been received in accordance
with this section. Notices and other communications shall be addressed as
follows:
(a) if to RCMCI:
Xxxxxx Cantel Mobile Communications Inc.
000 Xxxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx Cantel Mobile Communications Inc.
000 Xxxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Chairman of the Board of Directors
Telecopier: (000) 000-0000
and with a copy to:
Tory Xxxx XxxXxxxxxxx & Xxxxxxxxxx
Suite 3000
Xxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx-Xxxxxxxx Xxxxxx
00 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx X.X. Xxxxxx
Telecopier: (000) 000-0000
(b) if to JV:
JVII
c/o AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Secretary, Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000
and:
c/o British Telecommunications plc
00 Xxxxxxx Xxxxxx
Xxxxxx, X.X. XX0X 0XX
Attention: Secretary
Telecopier: 00-000-000-0000
with a copy to:
Fasken, Campbell, Xxxxxxx
XX Xxxx Xxxxx
X.X. Xxx 00
Xxxxxxx-Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: X.X. Xxxxxx
Telecopier number: (000) 000-0000
and to:
Xxxxxxx, Xxxxxxxx & Xxxxxxxx
Suite 2400
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxx X. Xxxxxxxx
Telecopier number: (000) 000-0000
4.6. Time of Essence
Time is of the essence of this Agreement.
4.7. Counterparts
This Agreement may be signed in counterparts and each of such
counterparts shall constitute an original document and such counterparts, taken
together, shall constitute one and the same instrument.
4.8. Enurement
This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns (including
transferees of any Class B Shares).
IN WITNESS WHEREOF the parties have executed this Agreement.
JVII PARTNERSHIP
/s/ Xxxxxx Xxxxxxxxx
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By: Xxxxxx Xxxxxxxxx
Title:
/s/ Xxxxx Xxxxxxx
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By: Xxxxx Xxxxxxx
Title:
XXXXXX CANTEL MOBILE COMMUNICATIONS INC.
/s/ Xxxxxx XxXxxxx
----------------------------------------
By: Xxxxxx XxXxxxx
Title:
/s/ Xxxxx Xxxxxx
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By: Xxxxx Xxxxxx
Title:
