EXHIBIT 4.4
UNANIMOUS SHAREHOLDERS AGREEMENT
THIS AGREEMENT Dated For Reference the 1st day of December, 1998
BETWEEN:
WORLDWIDE FIBER COMMUNICATIONS LTD.
("WFCL")
AND:
LEDCOR INC.
("Ledcor")
AND:
LEDCOR INDUSTRIES LIMITED
("LIL")
AND:
LEDCOM HOLDINGS LTD.
(the "Corporation")
WHEREAS:
A. The Corporation is a corporation incorporated under the Act.
B. WFCL, Ledcor and LIL are the beneficial and registered owners of all the
issued and outstanding shares of the Corporation, holding the following
shares:
Ledcor, 50 Class "A" Common voting shares;
LIL, 1,000,000 Class "II" Preference shares; and
WFCL, 50 Class "A" Common voting shares.
C. The parties wish to enter into this Agreement for the purpose of
defining certain rights and obligations between each of them and between each
of them and the Corporation.
D. It is the intent of all of the parties that this Agreement operate and
be construed as a unanimous shareholders agreement for the purposes of the
Act.
IN CONSIDERATION of the mutual agreements in this Agreement and subject to
the terms and conditions specified in this Agreement, the parties agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
In this Agreement, including the recitals and the schedules, the following
words and expressions have the following meanings unless the context
otherwise requires:
"Act" means the BUSINESS CORPORATIONS ACT, S.A. 1981, c B-15.
"Affiliate" means, with respect to any Shareholder, any body corporate which
is directly or indirectly Controlled by such Shareholder or which Controls
such Shareholder.
"Articles" means the Articles of Incorporation of the Corporation as amended
from time to time.
"Board" means the Board of Directors of the Corporation.
"Bylaws" means any bylaw of the Corporation from time to time in force and
effect.
"Business Day" means a day on which Canadian chartered banks are open for the
transaction of business in Vancouver, British Columbia.
"Change of Control" means and shall be deemed to have occurred:
(a) in the case of WFCL, if the individuals who, as of the date of this
Agreement, constitute the Board of Directors of WFCL, together with
those individuals who first became directors subsequent to such
date and whose recommendation, election or nomination for election
to the Board of Directors of WFCL was approved by Ledcor, cease for
any reason to constitute a majority of the members of the Board of
Directors of WFCL; or
(b) in the case of Ledcor, if the individuals who, as of the date of
this Agreement, constitute the Board of Directors of Ledcor,
together with those who first become directors subsequent to such
date and whose recommendation, election or nomination for election
to the Board of Directors of Ledcor was approved by a vote of at
least a majority of the directors then still in office who either
were directors as of the date of the Agreement or whose
recommendation, election or nomination for election was previously
so approved, cease for any reason to constitute a majority of the
members of the Board of Directors of Ledcor.
"Control" or "Controlled" means "control" as defined in Section 2 of the Act.
"Directors" means the persons who are from time to time, in accordance with
the terms of this Agreement, duly elected or appointed Directors of the
Corporation.
"Encumber" or "Encumbrance" means any mortgage, pledge, hypothecation or
other encumbrance of shares having the result (directly or indirectly and
either immediately or subject to the happening of any contingency) of
potentially changing the identity of a Shareholder notwithstanding that such
encumbrance shall be voluntary or involuntary on the party of such
Shareholder.
"Escrow Agent" means the Escrow Agent under the Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement described in section 2.7.
"Exercise Notice" has the meaning provided in section 2.3.
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"Insolvency Event" means the institution of any proceedings or undertaking of
any act to effect the winding up or liquidation of a corporation, the
institution of such proceedings to seek protection from creditors pursuant to
the proposal provisions of the BANKRUPTCY AND INSOLVENCY ACT (Canada), or to
be adjudicated a bankrupt or insolvent under the BANKRUPTCY AND INSOLVENCY
ACT (Canada) or any analagous laws, the consenting to the institution of such
proceedings, the consenting to the filing of any petition under the
BANKRUPTCY AND INSOLVENCY ACT (Canada), or any relief flowing therefrom or
the appointment of a receiver or receiver manager, the institution of any act
or proceeding for the appointment of a receiver or receiver manager, the
making of a general assignment for the benefit of creditors, the seeking of
protection from creditors under the COMPANY CREDITORS ARRANGEMENT ACT, the
admission in writing of insolvency, the passing of a resolution by a
corporation for its winding-up or dissolution, or the dissolution of a
corporation, or the granting of any judgement against the corporation for an
amount exceeding $100,000 if enforcement of such judgement is not stayed
within 15 days of the granting thereof, or the seizure or attempted seizure
of any assets of the corporation by any claimant, including, without
limitation, any share owned by the corporation in the capital of the
Corporation.
"Offending Provision" has the meaning provided in section 8.11.
"Offered Shares" has the meaning provided in subsection 3.2(a).
"Offeree" has the meaning provided in subsection 3.2(a).
"Offeror" has the meaning provided in subsection 3.2(a).
"Option Holder" has the meaning provided in section 2.2.
"Person" means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture
or other entity or a foreign state or political subdivision thereof or any
agency of such state or subdivision.
"Plough Technology" means the "Rubber Tired Rail Plough" which is the subject
matter of United States patent No. 5,596,822 dated January 28, 1997 and
Canadian patent pending No. 2,131,588, which are owned by the Corporation,
and all information, designs, inventions, discoveries, modifications,
adaptations or improvements relating thereto, all patents, patent
applications, copyrights, integrated circuit topographies, industrial
designs, utility models, proprietary information and other intellectual
property rights, whether tangible or not.
"Purchased Shares" has the meaning provided in section 2.3.
"Shareholders" means collectively WFCL, Ledcor and LIL (or each individually
when the context so requires) and includes all future shareholders who are
deemed to be a party to the Agreement pursuant to the Act.
"Subject Shareholder" has the meaning provided in section 2.1.
"Third Party Offer" has the meaning provided in subsection 3.2(a).
"Transfer" means any transfer, sale, assignment, transmission, bequest,
inheritance, or other disposition of shares having the result (directly or
indirectly and either immediately or subject to the happening of any
contingency) of changing the identity of a shareholder notwithstanding that
such transfer shall be voluntary or involuntary on the part of such
shareholder.
"Transfer Notice" has the meaning provided in subsection 3.2(a).
"Triggering Event" has the meaning provided in section 2.1.
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1.2 CAPITALIZED WORDS
Capitalized words and phrases used in this Agreement and not defined herein
shall have the same meaning as are assigned to them in the Act.
1.3 REFERENCES TO ENACTMENT
References herein to any enactment of law shall, regardless if there is any
specific reference to an amendment or re-enactment of such law, be deemed in
any event to include reference to (i) such enactment as the same may be
amended or re-enacted from time to time and every statute that may be
substituted therefor, and in the case of any such amendment, re-enactment and
substitution, and reference to such enactment shall be read as referring to
the amended, re-enacted or substituted provisions therefor; and (ii)
regulations and by-laws, if any, made pursuant to such enactment.
ARTICLE 2
OPTION TO PURCHASE
ON INSOLVENCY OR CHANGE OF CONTROL
2.1 TRIGGERING EVENTS
In this Article 2, a triggering event (the "Triggering Event") shall be
deemed to have occurred in respect of either WFCL or Ledcor (the "Subject
Shareholder") if either of the following events occur:
(a) there is a Change of Control of the Subject Shareholder; or
(b) the Subject Shareholder commits or is the subject of an Insolvency
Event or, with respect to Ledcor, LIL commits or is the subject of
an Insolvency Event.
For the purposes of this Agreement, "Subject Shareholder" includes any
successor in title to WFCL or Ledcor, as the case may be, if any, which
arises either by operation of law or pursuant to the terms of this Agreement.
2.2 OPTION
Notwithstanding any other provision of this Agreement, upon the occurrence of
a Triggering Event in respect of a Subject Shareholder:
(a) if the Subject Shareholder is WFCL, then Ledcor (in such case,
herein called the "Option Holder") will have the option, exercisable
on or before that day which is six months after the Triggering
Event, to purchase from the Subject Shareholder all or any part of
the issued and outstanding shares in the Corporation then held by
the Subject Shareholder; or
(b) if the Subject Shareholder is Ledcor, then WFCL (in such case, herein
called the "Option Holder") will have the option, exercisable on or
before that day which is six months after the Triggering Event, to
purchase from the Subject Shareholder or LIL or both all or any part
of the issued and outstanding shares in the Corporation then held by
the Subject Shareholder or LIL or both;
at a purchase price equal to the fair market value of such shares. The fair
market value of such shares will be as determined as follows:
(c) If the Triggering Event is a change of control of the Subject
Shareholder, then the fair market value of such shares sill be
determined in good faith by agreement between Ledcor and WFCL or,
in the event that Ledcor and WFCL are for any reason unable to reach
agreement on the fair market value of the shares within 30 days,
then Ledcor and WFCL will identify and retain a valuator who is
accredited as a chartered business valuator for the purposes of
determining the fair market value of the shares. If Ledcor and WFCL
fail to agree on the selection of the valuator
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within 10 days, then the selection of a valuator shall be referred
to arbitration under this Agreement. The report of the valuator
setting out the valuation of the shares will be final and binding on
the parties.
(d) If the Triggering Event is an Insolvency Event, then the Option
Holder will identify (acting reasonably) and retain a valuator who
is accredited as a chartered business valuator, for the purpose of
determining the fair market value of the shares. The valuator shall
be a person who is dealing at arm's length with the Option Holder.
The valuator shall render its decision as to the fair market value
of the shares within 60 days of the valuator's appointment, or such
longer period of time as may be required by him, acting
expeditiously, to complete such valuation. The report of the valuator
setting out the valuation of the shares will be final and binding on
the parties.
2.3 EXERCISE OF OPTION
The option will be exercisable by the Option Holder delivering to the
Corporation a notice in writing (the "Exercise Notice") exercising the option
which notice must be delivered no later than that day which is six months
after the occurrence of the Triggering Event and which notice must specify
the number and class of shares to be purchased (the "Purchased Shares"). Upon
the giving of the Exercise Notice a binding contract of purchase and sale
between the Option Holder and the Subject Shareholder (and LIL, as the case
may be) will be deemed to come into existence on the terms specified in this
Agreement.
2.4 CLOSING
The closing of the purchase and sale of the Purchased Shares shall take place
at the head office of the Corporation on a closing date to be determined by
the Option Holder, provided that the closing date shall not be later than the
day which is 60 days after the determination of the purchase price. At the
closing, each of the parties shall execute and deliver to the others such
documents and instruments and take such further actions as may be necessary
or appropriate to effect the transfer of the Purchased Shares to the Option
Holder, and the Option Holder will pay the purchase price for the Purchased
Shares.
2.5 SUBJECT SHAREHOLDER DEFAULT
If the Subject Shareholder (or LIL, as the case may be) refuses or fails to
execute the documents and instruments necessary to transfer the Purchased
Shares to the Option Holder, on tender of payment of the price for the
Purchased Shares, the Subject Shareholder (or LIL, as the case may be) will
be bound to transfer those shares to the Option Holder and, if the Subject
Shareholder (or LIL, as the case may be) fails to do so, the Corporation will
cause the name of the Option Holder to be entered into the register of
members of the Corporation as the holder of those shares and will cancel the
share certificates previously issued to the Subject Shareholder (or LIL, as
the case may be) representing those shares, whether they have been produced
to the Corporation or not. Payment to the Corporation, as agent for the
Subject Shareholder (or LIL, as the case may be), of the purchase price will
be sufficient payment by the Option Holder and entry of the transfers in the
register of members of the Corporation will be conclusive evidence of the
validity of the transfers. Upon completion of the transfers, and delivery of
the share certificates duly endorsed in blank for transfer, the Corporation
will pay the purchase price to the Subject Shareholder.
2.6 SECURITY INTEREST
In support of the obligations of the parties under this Article 2:
(a) WFCL hereby delivers to the Escrow Agent, as agent for Ledcor, the
share certificates representing all the issued and outstanding shares
of the corporation held by WFCL and hereby grants to Ledcor a security
interest in such shares and all proceeds of such shares (including,
without limitation, all stock certificates, options, or rights of
any nature whatsoever which may be issued or granted in respect of
such shares, and all dividends or other income, collections thereon
or distributions with respect thereto), as collateral security for
the prompt and complete
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performance when due of all obligations of WFCL under this Article
2 (the "Secured Obligations"). If WFCL shall, as a result of its
ownership of such shares, become entitled to receive or shall
receive any stock certificate (including, without limitation, any
certificate representing a stock dividend or distribution in
connection with any reclassification, increase or redemption of
capital or any certificate issued in connection with any
reorganization), option or rights, whether in addition to, in
substitution of, as a conversion of, or in exchange for any shares
which are pledged hereunder, or otherwise in respect thereof, WFCL
shall accept the same as agent for Ledcor, hold the same in trust
for Ledcor and deliver the same forthwith to the Escrow Agent, as
agent for Ledcor, in the exact form received and, at the option of
Ledcor, duly endorsed by WFCL in blank or accompanied by an undated
stock power or other instrument of transfer reasonably acceptable
to Ledcor covering such certificate duly executed in blank by WFCL,
as additional collateral security for the Secured Obligations. In
case any distribution of capital should be made on or in respect of
any such shares, or any property shall be distributed upon or with
respect to such shares, pursuant to the recapitalization or
reclassification of the capital of the corporation or pursuant to
the reorganization thereof, the property so distributed shall be
delivered to the Escrow Agent, as agent for Ledcor, to be held by
it under the Escrow Agreement as additional collateral security for
the Secured Obligations. If any property so paid or distributed
shall be received by WFCL, WFCL shall, until such property is paid
or delivered to the Escrow Agent, hold such property in trust for
Ledcor, as additional collateral security for the Secured
Obligations.
(b) Ledcor and LIL each hereby delivers to the Escrow Agent, as agent
for WFCL, the share certificates representing all the issued and
outstanding shares of the corporation held by Ledcor and LIL and
each hereby grants to WFCL a security interest in such shares all
proceeds of such shares (including, without limitation, all stock
certificates, options, or rights of any nature whatsoever which may
be issued or granted in respect of such shares, and all dividends
or other income, collections thereon or distributions with respect
thereto), as collateral security for the prompt and complete
performance when due of all obligations of Ledcor and LIL under
this Article 2 (the "Secured Obligations"). If Ledcor or LIL shall,
as a result of its ownership of such shares, become entitled to
receive or shall receive any stock certificate (including, without
limitation, any certificate representing a stock dividend or
distribution in connection with any reclassification, increase or
redemption of capital or any certificate issued in connection with
any reorganization), option or rights, whether in addition to, in
substitution of, as a conversion of, or in exchange for any shares
which are pledged hereunder, or otherwise in respect thereof,
Ledcor or LIL, as the case may be, shall accept the same as agent
for WFCL, hold the same in trust for WFCL and deliver the same
forthwith to the Escrow Agent, as agent for WFCL, in the exact form
received and, at the option of WFCL, duly endorsed by Ledcor or
LIL, as the case may be, in blank or accompanied by an undated
stock power or other instrument of transfer reasonably acceptable
to WFCL covering such certificate duly executed in blank by Ledcor
or LIL, as the case may be, as additional collateral security for
the Secured Obligations. In case any distribution of capital should
be made on or in respect of any such shares, or any property shall
be distributed upon or with respect to such shares, pursuant to the
recapitalization or reclassification of the capital of the
corporation or pursuant to the reorganization thereof, the property
so distributed shall be delivered to the Escrow Agent, as agent for
WFCL, to be held by it under the Escrow Agreement as additional
collateral security for the Secured Obligations. If any property so
paid or distributed shall be received by Ledcor or LIL, Ledcor or
LIL, as the case may be, shall, until such property is paid or
delivered to the Escrow Agent, hold such property in trust for
WFCL, as additional collateral security for the Secured Obligations.
2.7 ESCROW AGREEMENT
As further security for the performance of the obligations of the parties
under this Article 2, Ledcor, LIL and WFCL will execute an Escrow Agreement,
and deliver to the Escrow Agent under the Escrow Agreement the share
certificates representing the shares which they hold in the Corporation.
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ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 RESTRICTION ON TRANSFER
No Shareholder will Transfer all or any part of its shares to any Person,
whether a Shareholder or not, except as otherwise expressly provided in this
Agreement.
3.2 RIGHT OF FIRST REFUSAL
(a) A Shareholder (the "Offeror") desiring to transfer any or all of its
shares will give written notice to the Corporation (the "Transfer
Notice") specifying the number of its shares that it desires to
Transfer (the "Offered Shares"), the price, in lawful money of
Canada, for the Offered Shares, and the terms of payment upon which
the Offeror is prepared to transfer the Offered Shares. The
Transfer Notice will constitute the Corporation as the agent of the
Offeror for the sale of the Offered Shares to Ledcor, if the
Offeror is WFCL, or to WFCL if the Offeror is Ledcor or LIL (Ledcor
or WFCL, as the case may be, is herein called the "Offeree"), at
the price and upon the terms of payment specified in the Transfer
Notice. The Transfer Notice will also state whether the Offeror has
received an offer to purchase (the "Third Party Offer") the Offered
Shares, or any of them, from, or proposes to sell the Offered
Shares, or any of them, to, any particular Person or Persons who
are not Shareholders and, if so, the names and addresses of those
Persons and the price and terms in the Third Party Offer will be
specified in the Transfer Notice. The Transfer Notice will
constitute an offer by the Offeror to the Offeree to sell all, but
not less than all, of the Offered Shares to the Offeree and will
not be revocable.
(b) Upon the Corporation's receipt of a written notice of acceptance
from the Offeree to purchase all the Offered Shares, a binding
contract of purchase and sale between the Offeror and the Offeree
will be deemed to come into existence on the terms set out in this
Agreement and the Transfer Notice.
(c) On tender of payment of the price for the Offered Shares, the
Offeror will be bound to transfer those shares to the Offeree and
if the Offeror fails to do so the Corporation will cause the name
of the Offeree to be entered in the register of members of the
Corporation as the holder of those shares and will cancel the share
certificates previously issued to the Offeror representing those
shares whether they have been produced to the Corporation or not.
Payment to the Corporation, as agent for the Offeror, of the
purchase price will be sufficient payment by the Offeree and entry
of the transfers in the register of members of the Corporation will
be conclusive evidence of the validity of the transfers. Upon
completion of the transfers, and delivery of the share certificates
duly endorsed in blank for transfer, the Corporation will pay the
purchase price to the Offeror.
(d) The Offeror may for a period of 60 days after the expiration of the
30-day period provided for in subsection (b) above transfer to any
person the Offered Shares pursuant to subsections (b) and (c) above,
provided that:
(i) the Offeror may not sell less than all the Offered Shares;
(ii) the Offeror will sell the Offered Shares for cash at closing,
free and clear of encumbrances, and on terms which are
otherwise identical to those specified in the Transfer Notice;
(iii) the Offeror will not sell any of the Offered Shares to any
Person, unless at the time of the sale that Person complies
with section 3.4; and
(iv) if the Offeror has not transferred the Offered Shares or any
of them within the 90-day period, then the provisions of this
section 3.2 will again become applicable to all of the
Offered Shares not disposed of within the 90-day period.
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(e) The provisions as to transfers of shares contained in subsections
(a), (b), (c) and (d) of this section 3.2 will not apply:
(i) if, before the proposed transfer of shares is made, the
Offeree waives its right to receive the Transfer Notice; or
(ii) to any transfer of shares pursuant to the provisions of
Article 2 of this Agreement.
3.3 NO TRANSFER BY SUBJECT SHAREHOLDER
If a Shareholder is or has been a Subject Shareholder under section 2.2 (or,
in the case of LIL, Ledcor is or has been a Subject Shareholder under section
2.2), then notwithstanding any other provision of this Agreement, except as
required by the terms of this Agreement, such Shareholder will not be
entitled to Transfer or otherwise dispose of its shares, or any part thereof,
without the prior written consent of the other Shareholders during the
applicable six month period after the occurrence of the Triggering Event
under section 2.1.
3.4 FURTHER RESTRICTION OF TRANSFER
No Shareholder will Transfer all or any part of its shares to any Person,
whether a Shareholder or not, who is not a party to or has not agreed to be
bound by this Agreement until such Person agrees in writing to be bound by
this Agreement. The Shareholders and the Corporation will not recognize or
treat as a shareholder of the Corporation any Person who acquires any
interest or control over any shares or afford any such Person the rights
afforded by this Agreement or any of the incidents connected with being a
shareholder of the Corporation until such Person subscribes to or agrees to
be bound by this Agreement, and the Shareholders need only deal with, as a
shareholder of the Corporation, Persons who agree in writing to be bound by
this Agreement.
ARTICLE 4
AGREEMENT ON CORPORATE MATTERS
4.1 CORPORATE MATTERS
The Shareholders and the Corporation agree that, notwithstanding any
provisions to the contrary contained in the Articles of the Corporation, the
corporate matters referred to in this Article 4 will be governed by the
applicable provisions of this Article 4, and that in the case of any
inconsistency or conflict between the Articles of the Corporation and the
provisions of this Article 4, the provisions of this Article 4 will govern.
4.2 DIRECTORS
The Shareholders will vote their shares so that the Board comprises of six
Directors, which include three nominees of WFCL and three nominees of Ledcor.
Subject to the foregoing, if a position on the Board formerly held by a
director is open for any reason, the Shareholder whose nominee formerly
occupied such position will be entitled to nominate a new director to fill
the vacancy. The initial directors nominated by Ledcor shall be Xxxxx Xxxx,
Xxxxxxxx Xxxx and Xxxxxx Xxxxxxxxx. The initial directors nominated by WFCL
shall be Xxxx Manrusiak, Xxxxx Xxxxx and Xxxxxxx Xxxx.
4.3 FAILURE TO VOTE
In the event that a director fails to vote and act as a director to carry out
the provisions of this Agreement, the Shareholders will exercise their rights
as shareholders of the Corporation to remove such director from the Board
and, subject to section 4.2, to elect in his or her place an individual who
will use his or her best efforts to carry out the provisions of this
Agreement.
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4.4 MATTERS REQUIRING APPROVAL OF LEDCOR AND WFCL
No sale, license, lease, transfer, mortgage, pledge or other disposition of
all or any part of the Plough Technology will be undertaken without the prior
written consent in writing of both of Ledcor and WFCL.
ARTICLE 5
ARTICLES AND IMPLEMENTATION OF AGREEMENT
5.1 ARTICLES AND BYLAWS
The Articles and Bylaws shall at all times be subject to this Agreement and
where any provision of the Articles or Bylaws is inconsistent with this
Agreement, this Agreement shall prevail. Subject to the jurisdiction of the
Court of Queen's Bench of Alberta, any Shareholder may require all of the
Shareholders to cause the Articles or Bylaws to be amended or altered to the
extent necessary to remove or correct such inconsistency.
5.2 VOTING OF SHARES
Each of the Shareholders shall vote or cause to be voted the shares owned by
it in such a way so as to fully implement the terms and conditions of this
Agreement and shall, if any director for any reason refuses to exercise his
discretion in accordance with the terms of this Agreement, forthwith take
such steps as are necessary to remove such director notwithstanding any
provision contained herein to the contrary.
5.3 CONSENTS TO TRANSFERS
Each of the Shareholders shall be deemed to have consented to any transfer of
shares made in accordance with this Agreement and each Shareholder covenants
and agrees to waive any restriction on transfer contained in the Articles or
Bylaws in order to give effect to such transfer.
5.4 ACKNOWLEDGEMENT BY CORPORATION
The Corporation, by its execution hereof, hereby acknowledges that it has
actual notice of the terms of this Agreement, consents thereto and hereby
covenants with each of the Shareholders that it will at all times during the
continuance hereof, be governed by this Agreement in carrying out its
business and affairs and accordingly, shall give or cause to be given such
notices, execute or cause to be executed such deeds, transfers and documents
and do or cause to be done all such acts, matters and things as may from time
to time be necessary or conducive to the carrying out of the terms and intent
hereof.
ARTICLE 6
RESTRICTIONS ON SHARES
6.1 SHARE CERTIFICATE ENDORSEMENT
The certificates representing the shares of the Corporation shall be endorsed
with the following reference as to the restrictions imposed by this Agreement:
"The shares represented by this Certificate are subject to the
provisions of the Unanimous Shareholders Agreement made on the
1st day of December, 1998, among the Corporation and all of
the shareholders, which agreement imposes restrictions on the
right of a shareholder, and successors of a shareholder, to
sell, encumber, realize or otherwise deal with the shares
represented hereby and notice of the terms and conditions of
the Unanimous Shareholders Agreement is hereby given. A copy
of the Unanimous Shareholders Agreement may be viewed at the
registered office of the Corporation."
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6.2 RESTRICTIONS ON TRANSFERS AND ENCUMBRANCES
Each of the Shareholders covenants and agrees that:
(a) a Shareholder shall not Encumber its shares, or any part thereof;
(b) a Shareholder shall not Transfer its shares, or any part thereof,
except for a Transfer made strictly in accordance with the terms
of this Agreement; and
(c) a Transfer or Encumbrance of all or any part of a Shareholder's
shares shall be void and without effect unless the Transfer or
Encumbrance is made strictly in accordance with the terms of this
Agreement and the transferee or encumbrancee as the case may be,
first agrees in writing to be bound by the terms of this Agreement
in the place and stead of the Shareholder.
6.3 BENEFICIAL OWNERSHIP
Each of the Shareholders hereby represents and warrants to the other
Shareholders and the Corporation that as of the date of this Agreement all of
the issued shares of the capital stock of the Corporation owned by such
Shareholders are owned both legally and beneficially solely by them.
ARTICLE 7
UNANIMOUS SHAREHOLDERS AGREEMENT
7.1 UNANIMOUS SHAREHOLDERS AGREEMENT
This Agreement is deemed be a unanimous shareholders agreement and is subject
to the provisions relating to unanimous shareholders agreements contained in
the Act.
ARTICLE 8
GENERAL
8.1 ARBITRATION
All disputes arising out of or in connection with this Agreement, or in
respect of any defined legal relationship associated therewith or derived
therefrom, will be referred to and finally resolved by arbitration under the
Rules of the British Columbia International Commercial Arbitration Centre.
The appointing authorities will be the British Columbia International
Commercial Arbitration Centre. The case will be administered by the British
Columbia International Commercial Arbitration Centre in accordance with its
"Procedures for Cases Under the BCICAC Rules". The place of arbitration will
be Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx.
8.2 GOVERNING LAW AND ATTORNMENT
This Agreement will be governed by and construed in accordance with the
substantive laws of Alberta and the federal laws of Canada applicable in
Alberta, without regard to the conflict of law rules of Alberta. Subject to
section 8.1, the parties irrevocably submit to and accept generally and
unconditionally the exclusive jurisdiction of the courts and appellate courts
of Alberta with respect to any legal action or proceeding which may be
brought at any time relating in any way to this Agreement. Each of the
parties irrevocably waives any objection it may now or in the future have to
the venue of any such action or proceeding, and any claim it may now or in
the future have that any such action or proceeding has been brought in an
inconvenient forum.
8.3 TIME OF THE ESSENCE OF THE AGREEMENT
Unless otherwise specifically provided in this Agreement, time will be of the
essence of this Agreement and of the transactions contemplated by this
Agreement.
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8.4 REMEDIES NOT EXCLUSIVE
The remedies provided to the parties under this Agreement are cumulative and
not exclusive to each other, and any such remedy will not be deemed or
construed to affect any right which any of the parties is entitled to seek at
law, in equity or by statute.
8.5 NOTICES
Any notice, direction, request or other communication required or
contemplated by any provision of this Agreement will be given in writing and
will be given by delivering or faxing same to the parties as follows:
(a) To WFCL at:
Suite 1510 - 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xx. Xxxxxxx Xxxx
Fax No.: (000) 000-0000
(b) To Ledcor or LIL at:
Suite 1000 - 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Xx. Xxxxx Xxxx
Fax No.: (000) 000-0000
(c) To the Corporation at:
Ledcor Industries Limited
Suite 1000 - 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Xx. Xxxxx Xxxx
Fax No.: (000) 000-0000
with a copy to:
Xxxxx 0000 - 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Xx. Xxxxxxx Xxxx
Fax No.: (604) 681- 6822
Any such notice, direction, request or other communication will be deemed to
have been given or made on the date on which it was delivered or, in the case
of fax, on the next business day after receipt of transmission. Any party may
change its fax number or address for service from time to time by written
notice in accordance with this section.
8.6 COUNTERPARTS
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document. All of these
counterparts will for all purposes constitute one agreement, binding on the
parties, notwithstanding that all parties are not signatories to the same
counterpart. A fax transcribed copy or photocopy of
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this Agreement executed by a party in counterpart or otherwise will
constitute a properly executed, delivered and binding agreement or
counterpart of the executing party.
8.7 WAIVER
No failure or delay on the part of any party in exercising any power or right
under this Agreement will operate as a waiver of such power or right. No
single or partial exercise of any right or power under this Agreement will
preclude any further or other exercise of such right or power. No
modification or waiver of any provision of this Agreement and no consent to
any departure by any party from any provision of this Agreement will be
effective until the same is in writing. Any such waiver or consent will be
effective only in the specific instance and for the specific purpose for
which it was given. No notice to or demand on any party in any circumstances
will entitle such party to any other or further notice or demand in similar
or other circumstances.
8.8 FURTHER ASSURANCES
Each of the parties will promptly execute and deliver to the other at the
cost of the other such further documents and assurances and take such further
actions as the other may from time to time request in order to more
effectively carry out the intent and purpose of this Agreement and to
establish and protect the rights, interests and remedies intended to be
created in favour of the other.
8.9 ENTIRE AGREEMENT
This Agreement and any documents and agreements to be delivered pursuant to
this Agreement supersede all previous invitations, proposals, letters,
correspondence, negotiations, promises, agreements, covenants, conditions,
representations and warranties with respect to the subject matter of this
Agreement. There is no representation, warranty, collateral term or condition
or collateral agreement affecting this Agreement, other than as expressed in
writing in this Agreement.
8.10 AMENDMENTS
No change or modification of this Agreement will be valid unless it is in
writing and signed by each party to this Agreement.
8.11 INVALIDITY OF PARTICULAR PROVISION
If any provision of this Agreement or any part of any provision (in this
section called the "Offending Provision") is declared or becomes
unenforceable, invalid or illegal for any reason whatsoever including,
without limiting the generality of the foregoing, a decision by any competent
courts, legislation, statutes, bylaws or regulations or any other
requirements having the force of law, then the remainder of this Agreement
will remain in full force and effect as if this Agreement had been executed
without the Offending Provision.
8.12 CURRENCY
Unless otherwise specified all sums of money expressed in this Agreement are
in the lawful money of Canada.
8.13 NUMBER AND GENDER
Unless the context of this Agreement otherwise requires, to the extent
necessary so that each clause will be given the most reasonable
interpretation, the singular number will include the plural and vice versa,
the verb will be construed as agreeing with the word so substituted, words
importing the masculine gender will include the feminine and neuter genders,
words importing persons will include firms and corporations and words
importing firms and corporations will include individuals.
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8.14 HEADINGS AND CAPTIONS
The headings and captions of sections and paragraphs contained in this
Agreement are all inserted for convenience of reference only and are not to
be considered when interpreting this Agreement.
8.15 ACKNOWLEDGEMENT OF RECEIPT
Each of the parties acknowledges receiving an executed copy of this Agreement.
8.16 ENUREMENT
Subject to the restrictions on transfer contained in this Agreement, this
Agreement will enure to the benefit of and be binding on the parties and
their respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF the parties have executed this Agreement on the dates
stated below.
WORLDWIDE FIBER COMMUNICATIONS LTD. LEDCOR INC.
Per: Signed Per: Signed
---------------------------------- ----------------------------------
Signature Signature
---------------------------------- ----------------------------------
Name Name
---------------------------------- ----------------------------------
Title Title
December 1, 1998 December 1, 1998
---------------------------------- ----------------------------------
Date of Execution Date of Execution
LEDCOM HOLDINGS LTD. LEDCOR INDUSTRIES LIMITED
Per: Signed Per: Signed
---------------------------------- ----------------------------------
Signature Signature
---------------------------------- ----------------------------------
Name Name
---------------------------------- ----------------------------------
Title Title
December 1, 1998 December 1, 1998
---------------------------------- ----------------------------------
Date of Execution Date of Execution
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