SHAREHOLDERS AGREEMENT
THIS AGREEMENT is made the 30th day of June, 0000
X X X X X X X:
BOEING CAPITAL SERVICES CORPORATION, a corporation incorporated under the
laws of the State of Delaware
(hereinafter referred to as "Boeing")
- and -
XXXXXXX XXXX XXXX, an individual resident in the Town of Ellicottville, in
the State of New York;
(hereinafter referred to as "Chew")
- and -
XXXXXXX X. XXXX, an individual resident in the Town of Getzville, in the
State of New York;
(hereinafter referred to as "Xxx")
- and -
XXXXXXXX X. XXXX, an individual resident in the Town of Getzville, in the
State of New York
(hereinafter referred to as "Xxxxxxxx")
- and -
XXXXX X. XXXXXXXX, an individual resident in the City of Toronto, in the
Province of Ontario
(hereinafter referred to as "Xxxxxxxx")
- and -
ROXBOROUGH HOLDINGS LIMITED, a corporation incorporated under the laws of
the Province of Ontario
(hereinafter referred to as "Roxborough")
- and -
RADIANT ENERGY CORPORATION, a corporation subsisting under the laws of
Canada
(hereinafter referred to as the "Corporation")
WHEREAS:
A. pursuant to a Subscription and Purchase Agreement dated June 30, 1999 between
Boeing and the Corporation (the "Subscription Agreement"), Boeing has agreed to
subscribe for and purchase 2,292,260 common shares and 653,145 options
(collectively, the "Securities") in the capital of the Corporation;
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B. pursuant to the Subscription Agreement, the Corporation has agreed that
Boeing shall be, among other things, entitled, from time to time, to designate
duly qualified nominees for election or appointment to the board of directors of
the Corporation in such number as is proportionate to the number of issued and
outstanding shares in the capital of the Corporation held by Boeing;
X. Xxxx, Tim, Kathleen, Xxxxxxxx and Roxborough (collectively, the "Major
Shareholders") are the beneficial, direct or indirect owners of an aggregate of
2,120,126 common shares in the capital of the Corporation in such proportions as
detailed in Schedule A hereto;
X. Xxxxxxxx is the sole shareholder of Roxborough; and
E. each of the Major Shareholders is of the opinion that he, she or it will, as
a direct or indirect shareholder of the Corporation, benefit from the purchase
of the Securities by Boeing and, therefore, wishes to enter into this Agreement
to facilitate the purchase of the Securities by Boeing.
NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the
respective covenants and agreements herein contained, other good and valuable
consideration and the sum of TEN DOLLARS ($10.00) now paid by each of the
parties to this Agreement to each of the other parties to this Agreement, the
receipt and sufficiency of which is hereby by each of the parties respectively
acknowledged, the parties to this Agreement hereby covenant and agree as
follows:
1. Voting.
Each of the Major Shareholders covenants and agrees with each other and
Boeing that:
(a) at all meetings of the shareholders of the Corporation called for
the purpose of electing directors, all of the common shares of the
Corporation then beneficially or directly held by such Major
Shareholder, or over which such Major Shareholder exercises
direction or control, shall be voted in favour of the nominee or
nominees that Boeing is entitled to designate pursuant to the terms
of the Subscription Agreement; and
(b) solely in its capacity as a direct or beneficial shareholder of the
Corporation, each of the Major Shareholders shall recommend to the
board of directors of the Corporation that such additional common
shares in the capital of the Corporation be issued and sold to
Boeing from time to time to permit Boeing to increase its
proportionate investment interest in common shares in the capital of
the Corporation to 25% of the then issued and outstanding common
shares in the capital of the Corporation ("Private Placements"), and
at all meetings of shareholders of the Corporation called for the
purpose of approving any such Private Placement vote all of the
common shares of the Corporation then beneficially or directly held
by such Major Shareholder or over which such Major Shareholder
exercises direction or control in favour of such Private Placement.
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2. Restrictions on Transfer.
(1) Except as otherwise provided in this section 2, the Major Shareholders
covenant and agree with each other and Boeing that they will not transfer any of
the common shares owned by them, or any of them, as at the date hereof to any
person unless Boeing has provided its prior written consent to such transfer,
which consent shall not be unreasonably withheld. For purposes of this section,
by way of example and not in limitation thereof, Boeing shall not be considered
to be unreasonably withholding its consent if Boeing determines, in its
discretion (acting reasonably), that the proposed transfer, by itself or
together with all previous transfers by a Major Shareholder, would have a
material adverse affect in the value of the Securities, business, assets,
operations or financial position of the Corporation or any of the rights granted
to Boeing under section 1 of this Agreement.
(2) Notwithstanding subsection 2(1),
(a) Chew shall be entitled on prior written notice to, but without the
consent of, Boeing, at any time and from time to time prior to the
termination of this Agreement to transfer and sell common shares
beneficially, directly or indirectly held by him, at a rate of no
more than 20,000 common shares per week, provided that he shall
continue to hold, directly, indirectly or beneficially, no fewer
than 500,000 common shares;
(b) Xxx and Xxxxxxxx shall be entitled on prior written notice to, but
without the consent of, Boeing, at any time and from time to time
prior to the termination of this Agreement to transfer and sell
common shares beneficially, directly or indirectly held by them, at
a rate of no more than 20,000 common shares per week, provided that
they shall continue to hold in the aggregate, directly, indirectly
or beneficially, no fewer than 500,000 common shares; and
(c) Xxxxxxxx and Roxborough shall be entitled on prior written notice
to, but without the consent of, Boeing, at any time and from time to
time prior to the termination of this Agreement to transfer and sell
common shares beneficially, directly or indirectly held by them, at
a rate of no more than 20,000 common shares per week, provided that
they shall continue to hold, directly, indirectly or beneficially,
no fewer than 700,000 common shares.
(3) Notwithstanding subsection 2(1), Boeing's consent to any transfer of common
shares owned beneficially, directly or indirectly, by a Major Shareholder shall
not be unreasonably withheld or delayed provided the transferee is a Permitted
Transferee and the Major Shareholder has delivered to Boeing an executed
counterpart copy of this Agreement or another document, satisfactory to Boeing
(acting reasonably) wherein the Permitted Transferee agrees to be bound by the
terms and conditions of this Agreement.
(4) For purposes of this section 2, a "transfer" shall not include a transfer by
way of pledge or other security interest in any of the common shares
beneficially held by a Major Shareholder to a bank, trust company or other
reputable financial institution as security for any bona fide debt incurred by a
Major Shareholder.
(5) For the purposes of this section 2,
(a) a "Permitted Transferee" shall include the following persons:
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(i) any one or more persons who are members of the Major
Shareholder's Immediate Family (as hereinafter defined),
provided that such Major Shareholder (whether by way of voting
trust or otherwise) shall retain the right to vote all of the
transferred common shares;
(ii) a trust the beneficiaries of which are one or more persons who
are members of the Major Shareholder's Immediate Family
provided that such Major Shareholder exercises control and
direction over the activities of such trust; and
(iii) a corporation, all of the voting securities of which are
directly, indirectly or beneficially owned by the Major
Shareholder either alone or together with any one or more
persons who are members of the Major Shareholder's Immediate
Family or any affiliate (as that term is defined in the Canada
Business Corporations Act) of the Major Shareholder; and
(b) "Immediate Family" means any one or more persons who are the Major
Shareholder's spouse (including common law spouse), the naturally
born and legally adopted children of such Major Shareholder, the
naturally born and legally adopted descendants of such children, the
spouse (including common law spouse) of each such child and the
spouse (including common law spouse) of each such descendant.
3. Representations and Warranties of the Parties
Each of the parties hereto hereby individually represents and warrants to
each of the other parties to this Agreement, in respect of itself only, as
follows:
(a) (i) in the case of Roxborough, the Corporation and Boeing, each
are corporations duly organized, validly subsisting and in
good standing under the laws of the Province of Ontario with
respect to Roxborough, the laws of Dominion of Canada with
respect to the Corporation and the State of Delaware with
respect to Boeing and each has all necessary power, capacity
and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions
contemplated hereby; the execution and delivery of this
Agreement by each of Roxborough, the Corporation and Boeing,
the performance by each of their respective obligations
hereunder and the consummation by each of the transactions
contemplated hereby have been duly authorized by all requisite
corporate action;
(ii) in the case of Xxxx, Xxx and Xxxxxxxx, each is an adult
citizen of the United States of America and is competent to
execute and deliver this Agreement, to perform his or her
respective obligations hereunder and to consummate the
transactions contemplated hereby;
(iii) in the case of Xxxxxxxx, is an adult citizen of Canada and is
competent to execute and deliver this Agreement, to perform
his obligations hereunder and to consummate the transactions
contemplated hereby; and
(iv) this Agreement has been duly executed and delivered by such
party and constitutes a legal, valid and binding obligation of
such party,
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enforceable against such party in accordance with its terms;
(b) the execution, delivery and performance of this Agreement by each
party does not and will not (i) in the case of the Corporation,
Boeing and Roxborough, violate, conflict with or result in the
breach of any provision of their respective charters or by-laws (or
similar organizational documents) or (ii) conflict with or violate
in any material respect any law or governmental order applicable to
each party; and
(c) the execution, delivery and performance of this Agreement by each
party does not and will not require any consent, approval,
authorization or other order of any juridical or governmental
authority.
4. Representations and Warranties of the Major Shareholders
Each of the Major Shareholders represents and warrants to Boeing that (i)
it is the beneficial shareholder, directly and indirectly, of exactly that
number of common shares set opposite such Major Shareholder's respective name on
Schedule A hereto (ii) such Major Shareholder does not beneficially own,
directly or indirectly, or exercise control or direction over any other shares
in the capital of the Corporation and (iii) except for the 64,889 common shares
of the Corporation pledged by each of Chew and Xxx and Xxxxxxxx as security for
payment pursuant to a settlement agreement dated April 20, 1992 between
Xxxxxxx-Xxxxxx, Inc., Xxxx, Xxx, Radiant Aviation Services, Inc. and the
Corporation, no person, firm, corporation or other entity has any agreement,
warrant, option, right or privilege being or capable of becoming an agreement
for the purchase and sale of any of the common shares beneficially owned,
directly or indirectly, by the Major Shareholders and set out opposite such
Major Shareholder's respective name on Schedule A hereto.
5. Covenant of the Corporation
The Corporation agrees that it will not register on the books of the
Corporation any transfer of common shares from the holdings of a Major
Shareholder, unless such transfer is permitted under the provisions of section 2
hereof.
6. Termination
This Agreement shall terminate at 5:00 p.m. on the day which is the later
of (a) the 120th day following the first anniversary of this Agreement, and (b)
the earlier of (i) the 120th day following the day on which Boeing ceases to
hold, directly, indirectly or beneficially, at least 15% of the then issued and
outstanding common shares in the capital of the Corporation, and (ii) June 30,
2001.
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7. Legal Advice
Each of the Major Shareholders represents and warrants to each other and
Boeing that the Major Shareholder has had an opportunity to seek and was not
prevented nor discouraged by the Corporation or any party to this Agreement from
seeking independent legal advice prior to the execution and delivery of this
Agreement and that, if the Major Shareholder did not take advantage of the
opportunity prior to signing this Agreement, the Major Shareholder did so
voluntarily without any undue pressure and agrees that the Major Shareholder's
failure to obtain independent legal advice shall not be used by the Major
Shareholder as a defence to the enforcement of the Major Shareholder's
obligations under this Agreement.
8. General.
(1) Notices. Any notice, direction or other instrument required or
permitted to be given under this Agreement shall be in writing and
given by delivering or sending it by telecopy or a reputable
overnight courier addressed:
(a) if to Boeing, at:
Boeing Capital Services Corporation
0000 Xxxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxx Xxxxx, XX 0000-0000
Attention: Vice President - Taxes & Associate General Counsel
Telecopier: (000) 000-0000
(b) if to Chew, at:
Xxxxxxx Xxxx Xxxx
X.X. Xxx 0000
000 Xxxxxxxx Xxxx
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
(c) if to Tim, Kathleen, or both, at
Xxxxxxx X. Xxxx / Xxxxxxxx X. Xxxx
000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
(d) if to Xxxxxxxx or Roxborough, at:
Roxborough Holdings Limited
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx X. Xxxxxxxx
President
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Telecopier: (000) 000-0000
(e) if to the Corporation, at:
Radiant Energy Corporation
00 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxx 00000
Attention: Chief Operating Officer
Telecopier: (000) 000-0000
Any notice, direction or other instrument given to a person in accordance with
this section shall be deemed to have been given, sent and delivered to, and
received by, such person on the first business day after transmission. Any party
may from time to time, by notice given in accordance with this section to the
other party, change any one or more of the address or telecopier number.
(2) Entire Agreement. This Agreement constitutes the entire agreement between
the parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. There are no representations, warranties, conditions or
other agreements, express or implied, statutory or otherwise, between the
parties in connection with the subject matter of this Agreement, except as
specifically set forth in this Agreement.
(3) Amendments. This Agreement may only be amended, modified or supplemented by
a written agreement signed by the parties.
(4) Severability. Any section, subsection or other subdivision of this Agreement
or any other provision of this Agreement which is, or becomes, illegal, invalid
or unenforceable shall be severed from this Agreement and be ineffective to the
extent of such illegality, invalidity or unenforceability and shall not affect
or impair the remaining provisions of this Agreement.
(5) Waiver. No waiver of any provision of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar), nor shall
such waiver constitute a waiver or continuing waiver unless otherwise expressly
provided in writing duly executed by the party to be bound thereby.
(6) Assignment. This Agreement shall not be assignable by any party without
prior written consent of the other parties hereto.
(7) Parties Bound. This Agreement shall enure to the benefit of and be binding
upon Boeing and Roxborough and their respective successors and permitted
assigns, and the Major Shareholders and their respective heirs, executors,
administrators, other legal representatives and permitted assigns.
(8) Time of the Essence. Time shall be of the essence of this Agreement.
(9) Gender and Number. Any reference in this Agreement to gender shall include
all genders, and words importing the singular number only shall include the
plural and vice versa.
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(10) Headings, etc. The division of this Agreement into sections and the
insertion of headings are for convenience of reference only and shall not affect
or be utilized in the construction or interpretation of this Agreement.
(11) Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the Province of Ontario and the federal laws of Canada
applicable therein. Each of the parties hereby irrevocably attorns to the
non-exclusive jurisdiction of the courts of the Province of Ontario with respect
to any matters arising out of this Agreement.
(12) Execution in Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same instrument.
[INTENTIONALLY LEFT BLANK]
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(13) Execution by Facsimile. This Agreement may be executed by any party by
facsimile and if so executed shall be legal, valid and binding on the party
executing in such manner.
IN WITNESS WHEREOF this Agreement has been executed by the parties as of
the date first above written.
BOEING CAPITAL SERVICES
CORPORATION
Per:
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
Per:
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President,-Operations
SIGNED, SEALED AND DELIVERED )
In the presence of: )
)
)
------------------------------------ ) ---------------------------------------
Witness ) Xxxxxxx Xxxx Xxxx
SIGNED, SEALED AND DELIVERED )
In the presence of: )
)
------------------------------------ ) ---------------------------------------
Witness ) Xxxxxxx X. Xxxx
SIGNED, SEALED AND DELIVERED )
In the presence of: )
)
------------------------------------ ) ---------------------------------------
Witness ) Xxxxxxxx X. Xxxx
SIGNED, SEALED AND DELIVERED )
In the presence of: )
)
------------------------------------ ) ---------------------------------------
Witness ) Xxxxx X. Xxxxxxxx
(Signatures are continued on the next page)
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(Signatures continued from the preceding page)
ROXBOROUGH HOLDINGS LIMITED
Per:
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
RADIANT ENERGY CORPORATION
Per:
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice-President, Engineering
Per:
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice-President, Sales
and Marketing
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SCHEDULE A
Percentage of
Name of Issued
Beneficial Number of and Outstanding
Name of Owner or Indirect Owner Shares Shares
------------ ----------------- --------- ---------------
Chew Chew 800,807 8.75
Xxx and
Xxxxxxxx, as
Xxx and Xxxxxxxx joint tenants 521,819 5.92
Roxborough Xxxxxxxx 280,000 3.06
Xxxxxxxx RRSP
Account #05727 Xxxxxxxx 517,500 5.66
