-SECURITIES AND EXCHANGE COMMISSION-
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. _______________)*
Rogers Cantel Mobile Communications Inc.
(Name of Issuer)
Class B Restricted Voting Shares
(Title of Class of Securities)
775102205
(CUSIP Number)
Fasken Campbell Godfrey, c/o George C. Glover, Jr.
Suite 4200, Toronto Dominion Bank Tower, Box 20,
Toronto-Dominion Centre, Toronto, Canada M5K 1N6
(416) 366-8381
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
August 16, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.113d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act,
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
<TABLE>
<S> <C>
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CUSIP No. 775102205 13D Page 1 of 18 Pages
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<S> <C>
1) Names of Reporting Persons I.R.S. Identification Nos. of Above Persons (entities only)
JVII
AT&T Canada Investments Inc.
BT (Netherlands) 1 B.V. which acts on behalf of and for the account of BT Longmont
(Luxembourg) IV SARL, a company under formation
AT&T Corp.
British Telecommunications plc
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2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) X
(b)
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3) SEC Use Only
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4) Source of Funds (See Instructions)
WC, OO
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
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6) Citizenship or Place of Organization
JVII - Delaware
AT&T Canada Investments Inc. - Delaware
BT (Netherlands) 1 B.V. which acts on behalf of and for the account of BT Longmont (Luxembourg) IV SARL,
a company under formation - Netherlands
AT&T Corp. - New York
British Telecommunications plc - England and Wales
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(7) Sole Voting Power:
12,313,435 Class A Multiple Voting Shares (convertible on a 1 for 1 basis into Class B
Restricted Voting Shares)
Number 15,334,453 Convertible Preference Shares, Series A (convertible, after August 16, 2000,
of on a 1 for 1 basis into Class A Multiple Voting Shares, which are, in turn, convertible
Shares on a 1 for 1 basis into Class B Restricted Voting Shares)
Beneficially
Owned by 1,043,171 Class B Restricted Voting Shares (acquired on conversion of warrants previously
Each issued to a wholly-owned subsidiary of AT&T Corp. and contributed to JVII)
Reporting
Person with 12,443,324 Convertible Preference Shares, Series B (convertible, after August 16,
2000, on a 1 for 1 basis into Class B Restricted Voting Shares)
Assuming conversion of all shares held into Class B Restricted Voting Shares, the number
of shares described above will total 41,134,383 Class B Restricted Voting Shares
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(8) Shared Voting Power:
None
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(9) Sole Dispositive Power:
12,313,435 Class A Multiple Voting
Shares (convertible on a 1 for 1 basis
into Class B Restricted Voting Shares)
15,334,453 Convertible Preference
Shares, Series A (convertible, after
August 16, 2000, on a 1 for 1 basis
into Class A Multiple Voting Shares,
which are, in turn, convertible on a 1
for 1 basis into Class B Restricted
Voting Shares)
1,043,171 Class B Restricted Voting
Shares (acquired on exercise of
warrants previously issued to a
wholly-owned subsidiary of AT&T Corp.
and contributed to JVII)
12,443,324 Convertible Preference
Shares, Series B (convertible, after
August 16, 2000, on a 1 for 1 basis
into Class B Restricted Voting Shares)
Assuming conversion of all shares held
into Class B Restricted Voting Shares,
the number of shares described above
will total 41,134,383 Class B
Restricted Voting Shares
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(10) Shared Dispositive Power:
None
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11) Aggregate Amount Beneficially Owned by Each Reporting Person
12,313,435 Class A Multiple Voting Shares (convertible on
a 1 for 1 basis into Class B Restricted Voting Shares)
15,334,453 Convertible Preference Shares, Series A
(convertible, after August 16, 2000, on a 1 for 1 basis
into Class A Multiple Voting Shares, which are, in turn,
convertible on a 1 for 1 basis into Class B Restricted
Voting Shares)
1,043,171 Class B Restricted Voting Shares (acquired on
exercise of warrants previously issued to a wholly-owned
subsidiary of AT&T Corp. and contributed to JVII)
12,443,324 Convertible Preference Shares, Series B
(convertible, after August 16, 2000, on a 1 for 1 basis
into Class B Restricted Voting Shares)
Assuming conversion of all shares held into Class B
Restricted Voting Shares, the number of shares described
above will total 41,134,383 Class B Restricted Voting
Shares
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12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
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13) Percent of Class Represented by Amount in Row (11)
16.4% of Class A Multiple Voting Shares 100% of
Convertible Preferred Shares, Series A 5.09% of Class
B Restricted Voting Shares 100% of Convertible
Preference Shares, Series B
Assuming conversion of all Class A Multiple Voting
Shares and the Series A and B Convertible Preference
Shares into Class B Restricted Voting Shares, 33.3% of
the Class B Restricted Voting Shares would be
represented by the amount in Row (11)
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14) Type of Reporting Person (See Instructions) JVII - PN
All others - CO
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</TABLE>
<PAGE>
Item 1 Security and Issuer.
The title of the classes of equity securities to which
this statement relates is:
12,313,435 Class A Multiple Voting Shares
15,334,453 Convertible Preference Shares, Series A
1,043,171 Class B Restricted Voting Shares
12,443,324 Convertible Preference Shares, Series B
(collectively, the "Purchased Shares") of Rogers Cantel
Mobile Communications Inc. (the "Issuer").
The name of the Issuer and the address of its principal
executive offices are:
Rogers Cantel Mobile Communications Inc.
333 Bloor Street East, 10th Floor
Toronto, Ontario
Canada
M4W 1G9
Item 2 Identity and Background.
(a) - (c) and (f):
JVII is a general partnership organized and existing under
the laws of Delaware. The principal business address of JVII
is c/o Fasken Campbell Godfrey, Suite 4200, Toronto Dominion
Bank Tower, Box 20, Toronto-Dominion Centre, Toronto, Canada
M5K 1N6. The principal business of JVII is to serve as a
holding entity for investing in the Issuer. Each of AT&T
Canada Investments Inc. ("AT&T Investments") and BT
(Netherlands) 1 B.V. ("BT Investments"), (which acts on
behalf of and for the account of BT Longmont (Luxembourg) IV
SARL, a Luxembourg corporation under formation), owns a 50%
interest in JVII. AT&T Investments and BT Investments are
ultimately controlled by AT&T Corp. ("AT&T") and British
Telecommunications plc ("BT"), respectively.
AT&T Investments is a corporation organized and existing
under the laws of Delaware and has a principal business
address of 412 Mount Kemble Avenue, Morristown, New Jersey
07962. The principal business of AT&T Investments is to
serve as a single purpose holding company.
BT Investments is a corporation organized and existing under
the laws of the Netherlands and has a principal business
address of Overschiestraat 65 1062 XD Amsterdam,
Netherlands. The principal business of BT Investments is to
serve as a single purpose holding company. The sole director
of BT Investments is BT (Netherlands) Holdings B.V., a
corporation organized and existing under the laws of the
Netherlands with a principal business address of
Overschiestraat 65, 1062 XD Amsterdam, Netherlands.
AT&T is a corporation organized and existing under the laws
of New York. The principal address of AT&T is 32 Avenue of
the Americas, New York, New York 10013-2412. AT&T is a
communications company which provides domestic long
distance, international long distance, regional, local and
wireless telecommunications services, cable television and
internet communications transmission services.
BT is a corporation organized and existing under the laws of
England and Wales. The principal address of BT is 81 Newgate
Street, London, England, EC1A 7AJ. BT is a
telecommunications company whose principal activity is the
supply of local, long distance and international
telecommunications services and equipment in the United
Kingdom.
Set forth below is information concerning the name, business
address, and present principal occupation or employment of
all of the present executive officers and directors of AT&T
Investments, AT&T and BT. JVII presently has no directors,
executive officers or management board members. Also
provided are the names of each person controlling such
corporations, if any, and each executive officer and
director of any corporation or other person ultimately in
control of such corporation, if any.
<TABLE>
<S> <C> <C>
Present and Principal
Name Business Address Occupation or Employment
AT&T Investments Directors
Steve Garfinkel 32 Avenue of the Americas Senior Attorney, AT&T Corp.
New York, New York
10013-2412
Errol A. Harris 32 Avenue of the Americas Assistant Treasurer,
New York, New York AT&T Corp.
10013-2412
Lawrence R. Kurland 32 Avenue of the Americas General Attorney, AT&T Corp.
New York, New York
10013-2412
AT&T Investments Officers
Steve Garfinkel 32 Avenue of the Americas Senior Attorney AT&T Corp.
New York, New York
10013-2412
Michael Berg 32 Avenue of the Americas General Attorney,
New York, New York AT&T Corp.
10013-2412
AT&T Directors
C. Michael Armstrong 32 Avenue of the Americas Chairman of the Board and
New York, New York Chief Executive Officer of
10013-2412 AT&T
Kenneth J. Derr 32 Avenue of the Americas Chairman and Chief
New York, New York Executive Officer,
10013-2412 Chevron Corporation
George M.C. Fisher 32 Avenue of the Americas Chairman and Chief
New York, New York Executive Officer,
10013-2412 Eastman Kodak Company
John C. Malone 32 Avenue of the Americas Chief Executive Officer,
New York, New York Liberty Media Group
10013-2412
Thomas H. Wyman 32 Avenue of the Americas Former Chairman and
New York, New York Chief Executive Officer,
10013-2412 CBS Inc.
Donald V. Fites 32 Avenue of the Americas Retired Chairman and Chief
New York, New York Executive Officer,
10013-2412 Caterpillar Inc.
Donald F. McHenry 32 Avenue of the Americas President, IRC Group, LLC
New York, New York
10013-2412
John D. Zeglis 32 Avenue of the Americas President of AT&T
New York, New York
10013-2412
M. Kathryn Eickhoff 32 Avenue of the Americas President,
New York, New York Eickhoff Economics Inc.
10013-2412
Ralph S. Larsen 32 Avenue of the Americas Chairman and Chief
New York, New York Executive Officer,
10013-2412 Johnson & Johnson
Michael I. Sovern 32 Avenue of the Americas President Emeritus and Chancellor
New York, New York Kent Professor of Law at Columbia
10013-2412 University
Walter Y. Elisha 32 Avenue of the Americas Retired Chairman and Chief
New York, New York Executive Officer,
10013-2412 Springs Industries Inc.
Sanford I. Weill 32 Avenue of the Americas Chairman and Co-Chief
New York, New York Executive Officer,
10013-2412 Citigroup Inc.
Amos B. Hostetter, Jr. 32 Avenue of the Americas Chairman, Pilot House
New York, New York Associates
10013-2412
AT&T Executive Officers
Leo J. Hindery, Jr. 32 Avenue of the Americas President AT&T
New York, New York Broadband and Internet Services
10013-2412
John C. Petrillo 32 Avenue of the Americas Executive Vice President
New York, New York Corporate Strategy and
10013-2412 Business Development
Nicholas S. Cyprus 32 Avenue of the Americas Vice President and
New York, New York Controller
10013-2412
Harold W. Burlingame 32 Avenue of the Americas Executive Vice President, Merger and
New York, New York Joint-Venture Integration
10013-2412
Frank Ianna 32 Avenue of the Americas President AT&T
New York, New York Network Services
10013-2412
Richard R. Roscitt 32 Avenue of the Americas President
New York, New York AT&T Solutions
10013-2412
Edward M. Dwyer 32 Avenue of the Americas Vice President and
New York, New York Treasurer
10013-2412
James W. Cicconi 32 Avenue of the Americas General Counsel and
New York, New York Executive Vice President
10013-2412 Law and Government Affairs
Michael G. Keith 32 Avenue of the Americas President AT&T
New York, New York Business Services
10013-2412
Marilyn J. Wasser 32 Avenue of the Americas Vice President Law and Secretary
New York, New York
10013-2412
Mirian M. Graddick 32 Avenue of the Americas Executive Vice President Human Resources
New York, New York
10013-2412
H. Eugene Lockhart 32 Avenue of the Americas Vice President, AT&T Consumer Services
New York, New York
10013-2412
Daniel E. Somers 32 Avenue of the Americas Senior Executive Vice President and
New York, New York Chief Financial Officer
10013-2412
Daniel R. Hesse 32 Avenue of the Americas President AT&T Wireless Services
New York, New York
10013-2412
Richard J. Martin 32 Avenue of the Americas Executive Vice President Public
New York, New York Relations and Employee Communications
10013-2412
David C. Nagel 32 Avenue of the Americas Chief Technology Officer and President
New York, New York AT&T Labs
10013-2412
BT Directors
BT Executives
Sir Iain Vallance 81 Newgate Street Chairman of BT and Vice-Chairman of The
London, England Royal Bank of Scotland
EC1A 7AJ
Sir Peter Bonfield 81 Newgate Street Chief Executive of BT
London, England
EC1A 7AJ
Robert P. Brace 81 Newgate Street Group Finance Director of BT
London, England
EC1A 7AJ
Bill Cockburn 81 Newgate Street Group Managing Director of BT (U.K.)
London, England
EC1A 7AJ
BT Non-Executives
Lord Marshall of 81 Newgate Street Non-Executive Chairman of British
Knightsbridge London, England Airways, Inchcape and Invensys and
EC1A 7AJ Director of HSBC and the New York Stock
Exchange
Helen Alexander 81 Newgate Street Chief Executive of
London, England The Economist Group
EC1A 7AJ and Director of Northern Foods
Dr. Iain Anderson 81 Newgate Street Retired Strategy and
London, England Technology Director
EC1A 7AJ of Unilever
Neville Isdell 81 Newgate Street Chairman and Chief
London, England Executive Officer of
EC1A 7AJ Coca-Cola Beverages plc
Keith Oates 81 Newgate Street Director of Guinness
London, England
EC1A 7AJ
Sir John Weston 81 Newgate Street Retired British Ambassador to the
London, England United Nations and Director of Rolls
EC1A 7AJ Royce plc
June de Moller 81 Newgate Street Director of Anglian Water, Cookson
London, England Group and Lynx Group
ECIA 7AJ
Other BT Officers
Colin R. Green 81 Newgate Street Group Commercial Director and Secretary
London, England of BT
EC1A 7AJ
</TABLE>
(d) - (e)
During the last five years, none of the Reporting Persons,
nor any of the persons listed above, has been convicted in a
criminal proceeding or been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction
and as a result of such proceeding been subject to a
judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to,
Federal or State securities laws or finding any violation
with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The aggregate purchase price of the Purchased Shares was
Cdn$1,391,165,056.40, excluding the cost of the Class B
Restricted Voting Shares acquired on exercise of warrants.
These warrants were exercised by a wholly-owned subsidiary
of AT&T with the Class B Restricted Voting Shares acquired
thereby being contributed to JVII. Including the cost of the
Class B Restricted Voting Shares issued on exercise of the
warrants, the purchase price was Cdn$1,427,363,090.00. The
funds used by JVII in such purchase were from existing
available working capital of each of AT&T and BT which was
contributed indirectly, as to 50% each, to JVII and none of
the consideration for such shares was represented by
borrowed funds.
Item 4. Purpose of Transaction.
The purpose of the transaction is to provide AT&T and BT
with a strategic investment in the business and operations
of the Issuer. This investment provides AT&T and BT with an
enhanced position in the Canadian mobile telecommunications
market.
The Purchased Shares will represent, in total, 30.6% of the
Class A Multiple Voting Shares (following conversion of the
Convertible Preference Shares, Series A) and 40.9% of the
Class B Restricted Voting Shares (following conversion of
the Convertible Preference Shares, Series B). If the Class A
Multiple Voting Shares were converted into Class B
Restricted Voting Shares, the Purchased Shares would
represent 33.3% of the Class B Restricted Voting Shares.
Since the Class A Multiple Voting Shares have 10 votes per
share while Class B Restricted Voting Shares have only one
vote, but they are equal in relation to equity, on
conversion of all Convertible Preference Shares, Series A
and B the shares held be JVII would represent a 31% voting
interest and 33.3% equity interest in the Issuer.
Prior to the conversion of any shares, the Purchased Shares
represent 5.09% of the Class B Restricted Voting Shares,
16.4% of the Class A Multiple Voting Shares and 100% of both
series of Convertible Preference Shares. Accordingly, JVII
holds, prior to conversion, 14.0% of the aggregate Class A
Multiple Voting Shares and Class B Restricted Voting Shares
which, collectively, carry 16.1% of the votes attaching to
all Class A Multiple Voting Shares and Class B Restricted
Voting Shares.
Through indirect, wholly-owned subsidiaries (being AT&T
Investments and BT Investments, respectively) AT&T and BT
each have acquired a 50% interest in JVII. Thus, this
transaction has provided each of AT&T and BT with an
indirect interest in the Issuer. Under the
Telecommunications Act of Canada, non-Canadians can
beneficially own and control no more than 33.3% of the
issued and outstanding voting shares of a Canadian
telecommunications holding company, such as the Issuer. This
provision prevents JVII from acquiring any material amount
of additional voting securities of the Issuer at this time.
As part of the terms of the Shareholders Agreement (as
defined in Item 6, below), AT&T and BT are entitled to
certain governance rights which include the ability to
nominate representatives to the Issuer's board of directors.
The governance and nomination rights are discussed in
greater detail in Item 6, below.
Except as set forth herein, the Reporting Persons have no
present plans or intentions which would result in or relate
to any of the transactions required to be described in
subparagraphs (a) through (c) and (e) through (j) of Item 4
of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) The aggregate number and percentage of the Issuer's
securities to which this Schedule 13D relates is as
follows:
<TABLE>
<CAPTION>
Title of Class Amount of Beneficial Percentage of Class
Ownership
<S> <C> <C>
Class A Multiple Voting Shares 12,313,435(1) 16.4%
Convertible Preference Shares, Series A 15,334,453(2) 100%
Class B Restricted Voting Shares 1,043,171(3) 5.09%
Convertible Preference Shares, Series B 12,443,324(4),(5) 100%
Notes:
</TABLE>
(1) Each Class A Multiple Voting Share is entitled to 10
votes per share and is convertible, at any time, into
Class B Restricted Voting Shares on a 1 for 1 basis.
(2) Convertible Preference Shares, Series A, are
convertible at any time on or after August 16, 2000
into Class A Multiple Voting Shares at a conversion
rate of 1 for 1.
(3) Each Class B Restricted Voting Share is entitled to 1
vote per share.
(4) Convertible Preference Shares, Series B, are
convertible at any time on or after August 16, 2000
into Class B Restricted Voting Shares at a conversion
rate of 1 for 1.
(5) Following full conversion of the other Purchased Shares
into Class B Restricted Voting Shares, JVII will hold
41,134,383 Class B Restricted Voting Shares, being
33.3% of the class.
(b) JVII has the sole power to vote or direct the vote
and the sole power to dispose or to direct the
disposition of the Purchased Shares, save and except
such limitations as are imposed by the Right of First
Negotiation, as defined and discussed in Item 6,
below.
(c) The transaction described in Item 4 is the only
transaction effected during the last sixty days by
JVII or any person or corporation named in Item 2,
above, for the securities identified in this Item 5.
(d) No person is known by the filing person to have the
right to receive or the power to direct the receipt
of dividends from, or the proceeds from the sale of,
the Issuer's securities identified in this Item 5.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
Shareholders Agreement
JVII has entered into a shareholders agreement with the
Issuer and Rogers Communications Inc. ("RCI") dated as of
August 16, 1999 (the "Shareholders Agreement"). This
Shareholders Agreement contains certain terms and provisions
which govern the ability of JVII and RCI (the "Shareholder
Parties") to transfer the shares held by them in the Issuer.
In general, the Shareholders Agreement provides that the
Shareholder Parties shall not transfer any securities of the
Issuer except in accordance with the Shareholders Agreement.
Specifically, the Shareholders Agreement provides JVII with
a right of first negotiation in the event RCI wishes to
transfer or sell any of its securities in the Issuer,
subject to certain exceptions. A reciprocal right of first
negotiation applies in the event JVII wishes to transfer or
sell any of its securities held in the Issuer, provided that
RCI holds 20% of the equity shares of the Issuer
(collectively, the negotiation rights of JVII and RCI being
referred to as the "Right of First Negotiation"). The Right
of First Negotiation requires the party wishing to transfer
securities in the Issuer to negotiate with the other
Shareholder Party. Where an unsolicited offer to purchase
securities in the Issuer is received by RCI which RCI wishes
to accept, RCI is required to offer such securities to JVII
on the same terms and conditions as offered by the third
party.
The Shareholders Agreement also provides rights to JVII in
the event of the acquisition of control of RCI by a
designated material competitor of AT&T (as specified in the
Shareholders Agreement) (the "Shotgun"). In such
circumstances, the Shotgun provides that either of RCI or
JVII shall have the right to offer to purchase all of the
securities of the Issuer held by the other Shareholder
Party. Where such offer is rejected, the recipient of the
offer is deemed to have agreed to purchase all of the
securities of the Issuer of the other Shareholder Party.
JVII is granted a pre-emptive right in the Shareholders
Agreement which provides that, subject to certain
exceptions, if the Issuer or any of its subsidiaries issues
any equity shares or convertible securities, the Issuer
shall, or shall cause its subsidiary to, offer to JVII the
right to subscribe and purchase such additional securities
as required for JVII to maintain its voting and equity
interest in the Issuer. RCI has a corresponding pre-emptive
right.
The Shareholders Agreement provides JVII the right to
nominate four representatives to the board of directors of
the Issuer. The number of directors on the Issuer's board
will remain at 16. JVII shall also have the right to select
two of its nominees to be appointed to each of the audit
committee and the executive committee, one of its nominees
to each of the compensation committee and pension committee
and two of its nominees to each other standing committee of
the Issuer's board of directors as established from time to
time. In addition, JVII shall have the right to nominate any
new individual who is proposed as the Chief Technology
Officer of the Issuer. Unless the Shareholders Agreement is
terminated, however, JVII is prohibited from exercising the
voting rights attached to the Class B Restricted Voting
Shares of the Issuer in respect of the election of three
nominees of the holders of such shares as directors of the
Issuer.
As part of the governance rights granted under the
Shareholders Agreement, JVII is provided the right to
approve certain amalgamations, mergers or other proposed
business combinations of the Issuer with any third party.
Additionally, JVII's written approval is required for a
number of actions including, generally, decisions by the
Issuer to transfer all or substantially all of its assets,
amend its charter documents or change its business,
decisions to issue equity securities, decisions to create or
assume any borrowing or issue debt securities or decisions
to grant any other person voting rights or board of
directors rights superior to those granted to JVII.
The Shareholders Agreement is attached as Exhibit A to this
Schedule 13D.
Registration Rights Agreement
JVII and the Issuer have entered into a registration rights
agreement dated as of August 16, 1999 (the "Registration
Rights Agreement"). This document provides that so long as
JVII holds at least 10% of the outstanding Class B
Restricted Voting Shares of the Issuer held by JVII as of
the date of the agreement, JVII shall be entitled to the
benefit of certain covenants of the Issuer. These covenants
include the requirement that the Issuer will provide notice
to JVII if it intends to make a public offering of Class B
Restricted Voting Shares and that the Issuer will include in
such public offering all of the Class B Restricted Voting
Shares specified by JVII. Additionally, subject to certain
limitations, at any time after December 31, 1999, JVII may
require the Issuer to use its reasonable commercial efforts
to assist it in making a public offering in Canada or the
United States of all or a portion of the Class B Restricted
Voting Shares of the Issuer held by JVII.
The Registration Rights Agreement is attached as Exhibit C
to this Schedule 13D.
Framework Agreement
AT&T and BT entered into a framework agreement (the
"Framework Agreement") dated August 5, 1999 providing, among
other things, for the formation of JVII, the investment by
JVII in the Issuer and the relationship between AT&T
Investments and BT Investments, the partners of JVII. AT&T
and BT have agreed to negotiate definitive agreements to
replace the Framework Agreement.
BT and AT&T have agreed not to acquire additional shares of
the Issuer other than indirectly through JVII. If JVII
obtains the right or opportunity to buy additional shares of
the Issuer, BT has an option to purchase indirectly through
JVII up to the same percentage of shares in the Issuer as it
then holds in JVI. JVI was formed contemporaneously with
JVII by BT and AT&T affiliates to hold shares of AT&T Canada
Inc. and related entities. Currently BT holds 30% of JVI.
Pursuant to the Framework Agreement, AT&T Investments has a
right to call, and BT Investments has a right to put, BT
Investments' interest in JVII, in certain circumstances. If
AT&T Investments obtains control or the right to control
(collectively "Controls") the Issuer, BT Investments will
acquire certain additional put rights. If AT&T Investments
Controls the Issuer, in some cases where BT Investments
elects to put its JVII interest, AT&T Investments may elect
to either purchase BT Investments' JVII interest or
facilitate a public offering of such JVII interest or an
appropriate portion of the securities of the Issuer owned by
JVII.
JVII is prohibited, under the Framework Agreement, from
issuing any new securities unless (i) both parties agree, or
(ii) subject to certain qualifications, such issuance is at
fair market value and is for the sole purpose of raising
capital required by the Issuer, and AT&T Investments and BT
Investments have the right to acquire their pro rata share
of such securities.
The Framework Agreement provides that AT&T Investments has
the right, subject to certain conditions, to control the
timing and process of each exercise of the Right of First
Negotiation and the Shotgun pursuant to the Shareholders
Agreement and any other acquisition of shares of the Issuer.
BT Investments has a right to put its JVII interest to AT&T
Investments if the exercise of any of the foregoing leads to
certain consequences. The Framework Agreement also provides
a mechanism for triggering or responding to the Shotgun
pursuant to the Shareholders Agreement.
Unless and until AT&T Investments Controls the Issuer and
JVII, AT&T Investments and BT Investments each have the
right to cause JVII to distribute its securities in the
Issuer and to sell such securities to persons other than
designated material competitors, subject to a right of first
refusal in favour of each other. At any time after AT&T
Investments Controls the Issuer and JVII, BT has a right to
sell all or a portion of its interest in JVII to persons
other than designated material competitors subject to a
right of first refusal in favour of AT&T Investments. At any
time after AT&T Investments Controls the Issuer and JVII,
AT&T Investments has the right to sell all or a portion of
its interest in JVII to any person, subject to a right of
first offer (if AT&T Investments is selling all of its
interest) or right of first refusal (if AT&T Investments is
selling part of its interest) in favour of BT Investments
and subject to drag-along and tag-along rights.
The Framework Agreement sets out the manner in which JVII
will exercise governance rights with respect to the Issuer
afforded to it in the Shareholders Agreement. As long as
AT&T Investments and BT Investments are equal partners in
JVII, each of them can designate two of JVII's nominees on
the board of directors of the Issuer and either of them can
cause JVII to exercise its approval right in respect of a
matter under the Shareholders Agreement. At any time after
AT&T Investments acquires Control of JVII, BT Investments'
governance rights are reduced and may be further reduced by
AT&T Investments if BT Investments falls below specified
ownership thresholds. At any time after AT&T Investments
Controls the Issuer and JVII, AT&T Investments and BT
Investments' right to designate JVII's nominees on the board
of directors of the Issuer will be pro rata to their
interests in JVII.
Unless and until AT&T Investments Controls the Issuer, BT
Investments and AT&T Investments shall jointly exercise
approval rights regarding the nomination of the Chief
Technology Officer of the Issuer. If AT&T Investments
Controls the Issuer and JVII, BT Investments will have the
right to nominate the Chief Technology Officer or Chief
Financial Officer of the Issuer at BT Investments' option,
and one other mutually agreeable senior officer of the
Issuer, subject to AT&T Investment's approval.
Item 7. Material to be Filed as Exhibits.
Exhibit A - Shareholders Agreement between JVII, RCI and
the Issuer dated August 16, 1999.
Exhibit B - Joint Filing Agreement dated August 27, 1999
between JVII, AT&T Investments, BT Investments, AT&T and
BT.
Exhibit C - Registration Rights Agreement dated August 16,
1999 between JVII and the Issuer.
<PAGE>
Signature.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
August 27, 1999
JVII
/s/ Robert S. Feit
-----------------------------
By: Robert S. Feit
Title: Assistant Secretary
/s/ Cynthia S. Brown
-----------------------------
By: Cynthia S. Brown
Title: Solicitor, Group Legal
AT&T Canada Investments Inc.
/s/ Robert S. Feit
-----------------------------
By: Robert S. Feit
Title: Assistant Secretary
<PAGE>
BT (Netherlands) 1 B.V. on behalf of and for
the account of BT Longmont (Luxembourg)
IV SARL
/s/ Cynthia S. Brown
-----------------------------
By: Cynthia S. Brown
Title: Solicitor, Group Legal
AT&T Corp.
/s/ Robert S. Feit
-----------------------------
By: Robert S. Feit
Title: Assistant Secretary
British Telecommunications plc
/s/ Cynthia S. Brown
-----------------------------
By: Cynthia S. Brown
Title: Solicitor, Group Legal
EXECUTION COPY
ROGERS COMMUNICATIONS INC.
- and -
JVII PARTNERSHIP
- and -
ROGERS CANTEL MOBILE COMMUNICATIONS INC.
- --------------------------------------------------------------------------------
SHAREHOLDERS' AGREEMENT
- --------------------------------------------------------------------------------
August 16, 1999
<PAGE>
ARTICLE 1. INTERPRETATION......................................................2
1.1. DEFINITIONS...........................................................2
1.2. SCHEDULES............................................................12
1.3. HEADINGS AND TABLE OF CONTENTS.......................................12
1.4. GENDER AND NUMBER....................................................13
1.5. CURRENCY.............................................................13
1.6. INVALIDITY OF PROVISIONS.............................................13
1.7. GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.............................13
1.8. ENTIRE AGREEMENT.....................................................13
1.9. WAIVER, AMENDMENT....................................................13
1.10. GOVERNING LAW..................................................14
1.11. DEALING AT ARM'S LENGTH........................................14
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.....................................14
2.1. REPRESENTATIONS AND WARRANTIES.......................................14
ARTICLE 3. GOVERNANCE RIGHTS..................................................15
3.1. GOVERNANCE RIGHTS....................................................15
3.2. CONSULTATION RIGHTS..................................................24
3.3. EXERCISE OF JV SHAREHOLDER VOTING RIGHTS.............................25
3.4. COOPERATION WITH RESPECT TO TAX EFFECTS..............................25
3.5. VETO BY JV SHAREHOLDER...............................................25
3.6. SURVIVAL.............................................................26
ARTICLE 4. ADDITIONAL COVENANTS...............................................26
4.1. ADDITIONAL COVENANTS OF RCI..........................................26
4.2. ADDITIONAL COVENANTS OF RCMCI........................................27
4.3. ADDITIONAL COVENANTS OF JV SHAREHOLDER...............................27
4.4 TRANSFER OF INTERESTS IN JV SHAREHOLDER..............................28
4.5 SURVIVAL.............................................................29
ARTICLE 5. GENERAL PROHIBITION ON TRANSFER OF SECURITIES......................29
5.1. GENERAL PROHIBITION ON TRANSFER OF SECURITIES........................29
ARTICLE 6. RIGHT OF FIRST NEGOTIATION.........................................29
<PAGE>
6.1. GRANT OF RIGHT OF FIRST NEGOTIATION..................................29
ARTICLE 7. SALE OF SHARES BY JV Shareholder...................................44
7.1. SALE OF CLASS A SHARES BY JV SHAREHOLDER.............................44
7.2. EXCEPTION............................................................47
7.3. SURVIVAL.............................................................48
ARTICLE 8. CHANGE OF CONTROL OF RCI...........................................48
8.1. APPLICATION OF ARTICLE 8.............................................48
8.2 DEFINITIONS..........................................................49
8.3 SIGNIFICANT INFLUENCE................................................52
8.4 CHANGES TO SCHEDULE "B"..............................................53
8.5 ACQUISITION OF CONTROL OF RCI BY A DESIGNATED
MATERIAL COMPETITOR OF AT&T..........................................55
8.6 SHOTGUN RIGHTS AT FMV PLUS 5%........................................56
8.7 SHOTGUN RIGHTS AT ANY SPECIFIED PURCHASE PRICE
PER SECURITY.........................................................57
8.8 ACQUISITION OF CONTROL OF RCI BY A NON-DESIGNATED
MATERIAL COMPETITOR OF AT&T..........................................59
8.9 CHANGE OF STATUS OF NON-DESIGNATED MATERIAL
COMPETITOR OF AT&T...................................................59
8.10 FAIR MARKET VALUE PER SECURITY OF RCMCI........................60
8.11 GENERAL........................................................63
ARTICLE 9. PRE-EMPTIVE RIGHT..................................................65
9.1 PRE-EMPTIVE RIGHT OF JV SHAREHOLDER..................................65
9.2 NON-APPLICABILITY OF PRE-EMPTIVE RIGHT...............................66
9.3 PRE-EMPTIVE RIGHT OF RCI.............................................66
ARTICLE 10. CLOSING PROCEDURES................................................66
10.1. CLOSING PROCEDURES.............................................66
ARTICLE 11. ARBITRATION.......................................................68
11.1. MEDIATION AND ARBITRATION......................................68
11.2. INJUNCTIVE RELIEF..............................................69
ARTICLE 12. GENERAL PROVISIONS................................................69
12.1. TERM...........................................................69
12.2. TERMINATION NOT TO AFFECT RIGHTS OR OBLIGATIONS................71
12.3. NOTICES........................................................71
12.4. TIME LIMITS....................................................75
12.5. FURTHER ASSURANCES.............................................75
<PAGE>
12.6. COUNTERPARTS...................................................75
12.7. ENUREMENT......................................................75
SCHEDULES
SCHEDULE "A"
OWNERSHIP OF SECURITIES
SCHEDULE "B"
LISTED MATERIAL COMPETITORS
SCHEDULE "C"
PLEDGES OUTSTANDING
Schedule"D"
CONFIDENTIALITY AGREEMENT
<PAGE>
SHAREHOLDERS' AGREEMENT
THIS AGREEMENT is made as of the 16th day of August, 1999,
B E T W E E N:
ROGERS COMMUNICATIONS INC., a corporation incorporated under the laws of
British Columbia
(hereinafter called "RCI")
- and -
JVII PARTNERSHIP, a general partnership formed under the laws of Delaware
(hereinafter called "JV Shareholder")
- and -
ROGERS CANTEL MOBILE COMMUNICATIONS INC., a corporation incorporated under
the laws of Canada
(hereinafter called "RCMCI")
<PAGE>
RECITALS:
WHEREAS 90,468,259 Class A multiple voting shares (the "Class
A Shares") and 31,310,160 Class B restricted voting shares (the "Class B
Shares") of RCMCI are issued and outstanding;
AND WHEREAS the Shareholders are the legal and beneficial
owners of all of the outstanding Class A Shares and certain of the Shareholders
hold a portion of the outstanding Class B Shares;
AND WHEREAS the Shareholders and RCMCI wish to enter into this
Agreement to govern certain aspects of their relationship as shareholders of
RCMCI;
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,
"ACE" means AT&T Canada Enterprises Company, a company amalgamated
under the laws of Nova Scotia;
"Affiliate" means a Person which, directly or indirectly, Controls, is
Controlled by or is under common Control with another Person. For the
purposes of this definition, (i) "Control" (including, with correlative
meanings, the terms "Controlled by" and "under common Control with")
means the possession of the power, in law or in fact, to direct or
cause the direction of the management and policies of a corporation or
other Person, whether through legal and beneficial ownership of a
majority of Voting Shares of such Person or voting interests in such
Person if not a corporation, by agreement or otherwise; and (ii) each
<PAGE>
of BT and its Affiliates and AT&T U.S. and its Affiliates shall be
deemed to be an Affiliate of JV Shareholder (and vice versa); provided
that BT and its Affiliates or AT&T U.S. and its Affiliates shall cease
to be deemed to be an Affiliate of JV Shareholder (and vice versa),
respectively, if they hold, directly or indirectly through the JV
Shareholder, less than 5% of the Equity Shares of RCMCI and JV
Shareholder shall provide written notice to the other Parties promptly
after it has knowledge that either BT and its Affiliates or AT&T U.S.
and its Affiliates have ceased to be deemed to be Affiliates of JV
Shareholder;
"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;
"AT&T U.S." means AT&T Corp., a corporation incorporated under the laws
of the State of New York;
"AWS" means AT&T Wireless Services Inc., a wholly-owned subsidiary of
AT&T U.S. incorporated under the laws of the State of Delaware;
"Board of Directors" means the board of directors of RCMCI;
"Brand Licence Agreement" means the revised brand licence agreement
dated August 16, 1999 between ACE and Cantel, as the same may be
renewed or amended from time to time;
"Broadcasting Act" means the Broadcasting Act (Canada) as the same
may be amended from time to time and any successor legislation;
"BT" means British Telecommunications plc, a corporation incorporated
under the laws of the United Kingdom;
<PAGE>
"Business Day" means any day, other than Saturday, Sunday or any
statutory holiday in the Province of Ontario;
"Cantel" means Rogers Cantel Inc., a corporation incorporated under the
laws of Canada;
"Class A Shares" means any Class A Multiple Voting Shares of RCMCI
which are issued and outstanding from time to time and includes any
shares or securities which may be converted or changed into Class A
Multiple Voting Shares or which result from a consolidation,
subdivision or reclassification or which are received by holders of
Class A Multiple Voting Shares upon or as a result of any merger,
amalgamation, arrangement, consolidation, reorganization or similar
transaction of or involving RCMCI;
"Class B Shares" means the Class B Restricted Voting Shares of RCMCI
which are issued and outstanding from time to time and includes any
shares or securities which may be converted or changed into Class B
Restricted Voting Shares or which result from a consolidation,
subdivision or reclassification or which are received by holders of
Class B Restricted Voting Shares upon or as a result of any merger,
amalgamation, arrangement, consolidation, reorganization or similar
transaction of or involving RCMCI;
"Concurrent Offer" means (i) an offer made in accordance with section 2
of the Trust Agreement by JV Shareholder or a Third Party to the
holders of Class B Shares to purchase Class B Shares on the same terms
and conditions as a purchase by JV Shareholder or such Third Party
under section 6.1; or (ii) an offer made in accordance with section 2
of the JV Trust Agreement by RCI, an Affiliate of RCI or by a Third
Party to the holders of the Class B Shares to purchase Class B Shares
on the same terms and conditions as a purchase by RCI, such Affiliate
of RCI or such Third Party under section 7.1;
"Control" or "Controlled" other than for the purposes of the definition
of Affiliate means, with respect to a Person, such Person holding
<PAGE>
securities to which are attached more than 50% of the total votes
which, if exercised, are sufficient to elect a majority of the
directors or similar positions of such Person;
"Convertible Security" means any security which may be, directly or
indirectly, converted into or exchanged for an Equity Share or which
constitutes or carries a right to purchase an Equity Share or any other
right to purchase an Equity Share;
"Designated Material Competitor of AT&T" has the meaning set forth in
section 8.2;
"EBITDA" means an amount equal to the total net income of RCMCI, on a
consolidated basis, prepared in accordance with generally accepted
accounting principles, and excluding all extraordinary and other
non-recurring and unusual items plus, to the extent deducted in
calculating such net income, interest expense and other financing costs
and expenses, depreciation, amortization and all taxes, whether or not
deferred, applicable to the relevant period;
"Equity Share" means any security or other interest in a Person which,
directly or indirectly, confers upon the holder thereof the right to
participate in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding-up of the relevant
Person beyond a fixed sum or a fixed sum plus accrued dividends and any
Voting Share, and, in the case of RCMCI, includes the Preference
Shares, the Class A Shares and the Class B Shares;
"Excluded Services" means the following services: television services
(whether cable, broadcast, direct broadcast satellite or broadband
wireless) and broadcast radio services,
"Fair Market Value" for the purposes of sections 6.1(k) and (o) and
section 12.1(a) means (i) where the subject securities are listed on a
stock exchange, the weighted average trading price of such securities
during the 20 trading days immediately preceding the applicable
calculation date on the stock exchange or stock association on which
the highest volume of trading of such securities occurred during such
20 trading day period; and (ii) where the subject securities are not
<PAGE>
listed on a stock exchange or stock association, the fair market value
as at the applicable calculation date determined in accordance with
section 8.10;
"Fixed Wireless Services" has the meaning set forth in the Brand
Licence Agreement;
"Independent Directors" means a director of RCMCI other than a director
who (apart from being a director of RCMCI or any of its subsidiaries)
is an employee, insider, associate (as the terms insider and associate
are defined in the Securities Act) or Affiliate of RCI or one of its
Affiliates;
"Internet Access" has the meaning set forth in the Brand Licence
Agreement;
"Internet Services" has the meaning set forth in the Brand Licence
Agreement;
"JV" means JV Shareholder and its Affiliates;
"JV Securities" means all of the Securities of RCMCI beneficially
owned, directly or indirectly, by JV Shareholder at the particular
time;
"JV Threshold Amount" means that number of Equity Shares of RCMCI which
constitutes 20% of the outstanding Equity Shares of RCMCI;
"JV Trust Agreement" means the trust agreement dated August 16, 1999
among JV Shareholder, RCMCI and CIBC Mellon Trust Company, as trustee;
"Licensee Controlling Interest" means the ownership of or control over
fifty percent (50%) or more of the voting rights attached to the Voting
Shares of Cantel or any of its subsidiaries which are permitted
Sublicensees or such other percentage of the voting rights attached to
Voting Shares of Cantel or any of its subsidiaries which are permitted
Sublicensees that are sufficient, if exercised, to elect a majority of
the board of directors of Cantel or any of its subsidiaries which are
permitted Sublicensees;
"material subsidiary" means a subsidiary of RCMCI where the
unconsolidated EBITDA of such subsidiary, based on 12 month trailing
EBITDA, constitutes more than 5% of the EBITDA of the RCMCI Group,
<PAGE>
based on 12 month trailing EBITDA, calculated on a consolidated basis.
"Member of the Rogers Family" means (a) Edward S. Rogers O.C.; (b) any
of the following Persons: (i) the spouse, for the time being and from
time to time, of Edward S. Rogers O.C.; (ii) after the death of Edward
S. Rogers O.C., the widow, if any, of Edward S. Rogers O.C.; (iii) the
issue of Edward S. Rogers O.C. ; (iv) any half-sister of Edward S.
Rogers O.C. and the issue of any such half-sister; (v) individuals
adopted by Edward S. Rogers O.C. or by any of the issue of Edward S.
Rogers O.C., provided that such individuals have not attained the age
of majority at the date of such adoption, together with the issue of
any such adopted individuals; provided that if any Person is born out
of wedlock he or she shall be deemed not to be the issue of another
Person for the purposes hereof unless and until he or she is proven or
acknowledged to be the issue of such Person; (c) a Qualifying Trust;
and (d) any Person designated by any of the foregoing to exercise
voting rights provided that such Person is either one of the foregoing
or has no beneficial interest in the securities for which such Person
has been granted voting rights and has a fiduciary duty to exercise
such voting rights in the best interests of one or more of the
foregoing;
"Mobile Communication Services" means communication services, where
either the terminal from which the communication originated or a
terminal on which the communication was alternately received, or both
such terminals, are mobile radiocommunications devices (including, in
each case, mobile communications devices that are being used in a fixed
mode) and include, but are not limited to, cellular telephone equipment
sales and related services, paging and mobile voice/data equipment
sales and related services, local area personal communications network
and all activities reasonably necessary or incidental thereto;
"Mobile Wireless Services" means telecommunications services
(including, voice, video or data) provided by means of radio
frequencies that are or may be licensed, permitted or authorized now or
in the future by United States or Canadian regulatory authorities, and
<PAGE>
in respect of which services the user equipment is capable of and
intended for usage during routine movement, including halts at
unspecified points, at more than one location throughout a wide area
public or private wireless network. Mobile Wireless Services shall
exclude Excluded Services;
"Non Competition Agreement" means the non-competition agreement dated
August 16, 1999 entered into between AT&T Canada Corp. and Cantel, as
the same may be amended from time to time;
"Party" means any of RCI, RCMCI, JV Shareholder and any Person who may
become bound by the terms hereof; and "Parties" means all of them;
"Permitted Transferee" means AT&T U.S. or BT or any Person in which
AT&T U.S. or BT, or a combination thereof, owns directly or indirectly,
at least a majority of the voting rights attached to all outstanding
Voting Shares sufficient, if exercised, to elect a majority of the
board of directors or similar governing body of such Person;
"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;
"Pledge" means any mortgage, hypothecation, lien, charge, pledge,
encumbrance, grant of security interest or similar arrangement with
respect to assets or shares;
"Preference Shares" means the convertible preference shares in the
capital of RCMCI purchased by JV Shareholder from RCMCI under the
Subscription Agreement;
"Programming Undertaking" means "distribution undertaking" as set forth
in the Broadcasting Act;
<PAGE>
"Qualifying Trust" means a trust (whether testamentary or inter vivos
and whether now or hereinafter constituted) the primary beneficiaries
of which are one or more of the Persons referred to in paragraph (a) or
(b) of the definition of "Member of the Rogers Family" or the spouse,
widow or widower, for the time being and from time to time, of any
Person described in paragraph (b)(iii), (iv) or (v) of the definition
of "Member of the Rogers Family" (provided that such spouse, widow or
widower is living at the date hereof or is born after the date hereof)
or a charity and none of the non-primary beneficiaries of which, who
are Persons who are not individuals, carries on a business which is
competitive with the business carried on by AT&T U.S. and its
Affiliates;
"RCMCI Group" means RCMCI together with its subsidiaries;
"RCMCI Wholly-Owned Group" means RCMCI together with its wholly-owned
subsidiaries;
"Registration Rights Agreement" means the registration rights agreement
dated August 16, 1999 entered into between JV Shareholder and RCMCI, as
the same may be amended from time to time;
"Related Agreements" means the Brand Licence Agreement, the Wireless
Marketing, Technology and Services Agreement, the Non-Competition
Agreement, the Supply and Marketing Agreement, the Share Purchase
Agreement, the Subscription Agreement, the Registration Rights
Agreement and the Warrant Amendment Agreement;
"Right of First Negotiation" means the rights granted to JV Shareholder
under section 6.1 or the rights granted to RCI under section 7.1, as
the case may be;
"Rogers Cable Territories" means the territories in which RCI or any of
its Affiliates carries on from time to time a Programming Undertaking;
"Rogers Family Holding Company" means a corporation which is Controlled
by one or more Persons each of whom is a Member of the Rogers Family;
<PAGE>
"Rogers Group" means RCI and its Affiliates, the Members of the Rogers
Family, the Rogers Family Holding Companies and the Affiliates of the
Rogers Family Holding Companies;
"Rogers Shareholders" means, collectively, the holders of Class A
Shares which are members of the Rogers Group;
"Securities" means any Equity Shares of RCMCI or Convertible Securities
of RCMCI;
"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;
"Shareholder" means the Persons specified in Schedule "A" who are
registered holders of Securities;
"Share Purchase Agreement" means the agreement dated August 5, 1999
under which Rogers Cablesystems Limited and Rogers Holdings Inc. agreed
to sell an aggregate of 12,313,435 Class A Shares to JV Shareholder;
"Sublicensees" means permitted sublicensees under the Brand Licence
Agreement;
"Subscription Agreement" means the subscription agreement dated August
5, 1999 between RCMCI, RCI and JV Shareholder under which JV
Shareholder subscribed for the Preference Shares;
"subsidiary" has the meaning set forth in the Securities Act;
"Supply and Marketing Agreement" means the supply and marketing
agreement dated August 16, 1999, as amended, entered into between AT&T
Canada Corp. and Cantel as the same may be amended from time to time;
"Third Party" means any Person or group or combination of Persons that
is at arm's length to the Rogers Group and JV;
<PAGE>
"Transfer" includes any sale, exchange, assignment, transfer,
distribution, gift, bequest, disposition, Pledge or other arrangement
by which legal title or beneficial ownership passes from one Person to
another, or to the same Person in a different capacity, whether or not
voluntary and whether or not for value, and any agreement to effect any
of the foregoing; provided, however, that a Transfer shall not include
(i) any Pledge granted by or on behalf of RCI or its Affiliates which
is outstanding on the date hereof as described in Schedule "C" hereto
or which is an amendment, renewal, extension, substitution,
refinancing, restructuring, supplement or other modification of such
Pledge, provided that no such amendment, renewal, extension,
substitution, refinancing, supplement or other modification shall be on
terms that have a material adverse effect on the rights of JV
Shareholder hereunder or result in an additional number of Securities
becoming subject to the Pledge other than in accordance with the
existing terms of the Pledge unless, with respect to any such
additional Securities, the Pledge satisfies the criteria set out in
(ii) below; or (ii) any Pledge given in favour of a recognized
financial institution as security for a bona fide loan or obligation
and such financial institution agrees in writing to be bound by this
Agreement, including, without limitation, the Right of First
Negotiation, to the same extent as RCI, provided that such a Pledge
shall not release RCI from any of its obligations under this Agreement;
further provided that if AT&T and its Affiliates and/or BT and its
Affiliates propose to Transfer Equity Shares in JV Shareholder (the "JV
Shares"), and if after giving effect to such Transfer, AT&T and/or its
Affiliates and/or BT and/or its Affiliates and/or their Permitted
Transferees would own, directly or indirectly, less than a majority of
the outstanding Equity Shares in JV Shareholder (calculated on a fully
diluted basis) then the Transfer of the JV Shares shall be deemed to be
a Transfer to which Article 7 shall apply, mutatis mutandis; and the
word "Transferred", "Transferring", "Transferee" and similar words have
corresponding meanings;
"Trust Agreement" means the trust agreement dated July 25, 1991 among
RCI (as successor to Rogers Canada Inc.), RCMCI and the CIBC Mellon
Trust Company (as successor to National Trust Company), as trustee;
<PAGE>
"Voting Share" means any security carrying a voting right either under
all circumstances or under circumstances that have occurred and are
continuing;
"Warrant Amendment Agreement" means the agreement dated August 16, 1999
to amend the Warrant Certificate;
"Warrant Certificate" means the warrant certificate dated November 13,
1996 issued by RCMCI to AT&T Canada Enterprises Company and "Warrants"
means the share purchase warrants evidenced by the Warrant Certificate;
"Wireless Marketing, Technology and Services Agreement" means the
wireless marketing, technology and services agreement dated August 16,
1999, as amended, entered into between AWS and Cantel;
1.2. Schedules
The following are the schedules attached to this Agreement:
------------------------------------- ---------------------------------
Schedule "A" Ownership of Securities
-Section 2.1(a)
------------------------------------- ---------------------------------
------------------------------------- ---------------------------------
Schedule "B" Listed Material Competitors
-Section 8.2
------------------------------------- ---------------------------------
------------------------------------- ---------------------------------
Schedule "C" Pledges Outstanding
-Section 1.1
------------------------------------- ---------------------------------
------------------------------------- ---------------------------------
Schedule "D" Form of Confidentiality Agreement
-Section 6.1(b)
------------------------------------- ---------------------------------
1.3. 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.
<PAGE>
1.4. 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.
1.5. Currency
Except as otherwise expressly provided in this Agreement, all amounts
in this Agreement are stated and shall be paid in Canadian currency.
1.6. 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.
1.7. Generally Accepted Accounting Principles
In this Agreement, except to the extent otherwise expressly provided,
references to "generally accepted accounting principles" mean, for those
principles stated in the Handbook of the Canadian Institute of Chartered
Accountants, such principles so stated.
1.8. Entire Agreement
This Agreement together with the Related Agreements 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 or
therein.
1.9. Waiver, Amendment
Except as expressly provided in this Agreement, no amendment or waiver
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.
<PAGE>
1.10. 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 Article 11, each of the parties hereby submits to the exclusive
jurisdiction of the courts of Ontario.
1.11. Dealing at Arm's Length
For the purposes of this Agreement, whether or not any Person is at, or
deals at, arm's length with another Person shall be determined in accordance
with the Income Tax Act (Canada).
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties
Each Shareholder hereby represents and warrants:
(a) that such Shareholder is the legal and beneficial owner of the
number of Securities which are set out opposite such
Shareholder's name in Schedule "A" hereto;
(b) in the case of a Shareholder that is a corporation, that it is
duly incorporated and validly existing under the laws of its
jurisdiction of incorporation, that it has the corporate power
and capacity to enter into and perform its obligations under
this Agreement and that the execution and delivery of this
Agreement have been duly authorized by it;
(c) in the case of a Shareholder that is a partnership, that it is
duly constituted and validly existing as a partnership under
the laws of its jurisdiction of formation, that it has the
power and capacity to perform its obligations under this
Agreement and that the execution and delivery of this
Agreement have been duly authorized by it; and
<PAGE>
(d) that this Agreement constitutes a valid and binding obligation
enforceable against the Shareholder in accordance with its
terms, subject to the usual exceptions as to bankruptcy and
the availability of equitable remedies.
ARTICLE 3.
GOVERNANCE RIGHTS
3.1. Governance Rights
(a) So long as the Rogers Group Controls RCMCI, RCI agrees as
shareholder of RCMCI to cause JV Shareholder to have the
governance rights set forth in this section 3.1 to the fullest
extent permitted by applicable law.
(b) JV Shareholder shall have the right to nominate four
individuals for election and appointment as directors to the
Board of Directors and to the board of directors of Cantel out
of a total number of 16 directors and RCI shall cause such
individuals to be so elected or appointed. Such nominees shall
include the chief executive officer of AWS, as long as no
other Person that is not an Affiliate of AT&T U.S. has a
larger equity interest in JV Shareholder than AT&T U.S. and
its subsidiaries, and such other senior officers of JV as may
be mutually agreed upon by JV Shareholder and RCI. The Parties
acknowledge that a majority of the members of the Board of
Directors and at least 80% of the board of directors of Cantel
shall be resident Canadians. JV Shareholder's right to
nominate directors is subject to any requirement for the
appointment of "Canadian" directors. RCMCI shall reserve seats
for non-Canadian members of the Board of Directors and the
board of directors of Cantel for JV Shareholder, subject in
the case of Cantel, to the maximum number of non-Canadian
members permitted under applicable law. If there are any
increases in the size of the Board of Directors or the board
of directors of Cantel, JV Shareholder's rights to nominate
directors shall be adjusted proportionately. At such time as
the number of directors on the Board of Directors or the board
of directors of Cantel is increased, JV Shareholder shall have
the right to nominate such greater number of directors, if
<PAGE>
any, to make such nomination rights proportionate to its
ownership of Equity Shares of RCMCI. At such time as RCMCI has
any material subsidiaries (other than Cantel), RCMCI shall
provide similar proportionate nomination rights for JV
Shareholder on the board of directors of such material
subsidiary.
(c) JV Shareholder shall have the right to select two of JV
Shareholder's nominees to the Board of Directors who will be
appointed to each of the audit committee and executive
committee of the Board of Directors and one of JV
Shareholder's nominees to the Board of Directors who will be
appointed to each of the compensation committee and pension
committee of the Board of Directors. JV Shareholder shall have
the right to select two of JV Shareholder's nominees who will
be appointed to each other standing committee of the Board of
Directors established from time to time. JV Shareholder shall
have similar proportionate representation rights on committees
of the board of directors of Cantel and any other material
subsidiary. The Parties agree that JV Shareholder shall not
nominate a majority of the members of any standing committee
of the Board of Directors and the members of such standing
committees shall be resident Canadians as required by
applicable law.
(d) JV Shareholder will have the right to nominate any new
individual who is proposed as the Chief Technology Officer of
RCMCI and Cantel or as the officer to perform a similar
function subject to such nominee being approved by the Board
of Directors. If such nominee is not approved by the Board of
Directors, JV Shareholder's right to nominate shall again be
exercised, and so on until the Board of Directors approves an
JV Shareholder nominee. JV Shareholder acknowledges that it
supports the individual currently holding the office of Chief
Technology Officer of RCMCI.
(e) JV Shareholder's prior written approval will be required for:
<PAGE>
(i) a Transfer of all or substantially all of the assets
of the RCMCI Group to a Person or Persons that are
not members of the RCMCI Wholly-Owned Group;
(ii) any decision by the RCMCI Group that the RCMCI Group
sell the Licensee Controlling Interest, provided that
such restriction shall not require the prior written
approval of JV Shareholder for any sale of Control of
a subsidiary of RCMCI where the unconsolidated EBITDA
of such subsidiary, based on 12 month trailing
EBITDA, does not constitute more than 5% of the
EBITDA of the RCMCI Group, based on 12 month trailing
EBITDA, calculated on a consolidated basis provided
that, in such event, such subsidiary will not be
entitled to continue to have the benefit of the Brand
Licence Agreement;
(iii) any amendment to the articles of incorporation or
other constating document of any member of the RCMCI
Group including the continuance of any member of the
RCMCI Group under the laws of any other jurisdiction,
or the making, amending or repealing of any by-laws
of any member of the RCMCI Group, which would have an
adverse effect on the rights attaching to any shares
in the capital of a member of the RCMCI Group held by
JV Shareholder or which would adversely affect the
governance rights granted to JV Shareholder under
this Agreement;
(iv) (A) any decision by the RCMCI Group to carry on a
business other than Mobile Communication Services,
Internet Services, Mobile Wireless Services, Internet
Access provided by Mobile Wireless Services, and
Fixed Wireless Services, except decisions to carry on
any of the businesses as permitted to be carried on
by Cantel by express exceptions to the restrictions
contained in the Non-Competition Agreement and except
for capital expenditures or investments in, or
acquisitions of, businesses or assets outside of the
foregoing businesses which do not exceed in the first
<PAGE>
five year period ending December 31, 2004 an
aggregate of $225 million and which do not exceed
more than an aggregate of $100 million in year one of
such first five year period, an aggregate of $200
million in year one and year two of such first five
year period and an aggregate of $225 million in year
one, year two and year three of such first five year
period and after year three of such first five year
period do not exceed an aggregate of $225 million in
any rolling five year period;
(B) any decision by RCI and its subsidiaries
(including the RCMCI Group) to carry on Mobile
Communication Services, Internet Services, Mobile
Wireless Services, Internet Access provided by Mobile
Wireless Services or Fixed Wireless Services
businesses in North America other than through a
member of the RCMCI Group in or from Canada and other
than the business of reselling the Mobile
Communication Services, Mobile Wireless Services and
Fixed Wireless Services of the RCMCI Group by RCI and
its subsidiaries other than the RCMCI Group in or
from Canada; provided that notwithstanding the
foregoing, RCI and its subsidiaries (excluding the
RCMCI Group) shall not be restricted from carrying on
Fixed Wireless Services in the Rogers Cable
Territories or outside Canada or Internet Services in
or outside Canada;
(C) any decision by RCI and its subsidiaries
(including the RCMCI Group) to carry on a Mobile
Communication Services, Internet Services, Mobile
Wireless Services, Internet Access provided by Mobile
Wireless Services or Fixed Wireless Services business
outside North America; provided that if RCI offers to
carry on any such business within the RCMCI Group and
JV Shareholder does not consent to any such business
being carried on within the RCMCI Group, RCI and its
subsidiaries may carry on such business outside of
the RCMCI Group provided that RCI and its
subsidiaries will not have the benefits of the Brand
Licence Agreement with respect to such business and
provided further that notwithstanding the foregoing,
<PAGE>
RCI and its subsidiaries (excluding the RCMCI Group)
shall not be restricted from carrying on Fixed
Wireless Services or Internet Services outside North
America;
(D) for greater certainty, nothing in this Agreement
restricts RCI and its subsidiaries (excluding the
RCMCI Group) from carrying on Internet Services
businesses in or outside Canada;
(v) the taking of any steps to wind-up, dissolve,
reorganize or terminate the corporate existence of
any member of the RCMCI Group (other than the
wind-up, dissolution, reorganization or termination
of a subsidiary of RCMCI with or into the RCMCI
Wholly-Owned Group) or the taking by any member of
the RCMCI Group of any steps in respect of
bankruptcy, insolvency, liquidation or similar
proceedings other than in connection with a
transaction under clause (xi) that does not require
JV Shareholder's prior written approval;
(vi) any decision by RCMCI to issue, or enter into any
agreement to issue, any shares of any class of Equity
Shares or Convertible Securities except (A) the
issuance of Class A Shares pursuant to rights granted
to all holders of Class A Shares to subscribe for
Class A Shares; (B) the issuance of Class B Shares
whereby no one Person, following completion of the
distribution, acquires more than 5% of the Equity
Shares outstanding, other than Persons who are
equipment, software or service providers to the RCMCI
Group and who have an on-going business relationship
with the RCMCI Group which Persons may acquire up to
10% of the Equity Shares outstanding, provided that
in the case of (A) and (B), the number of Class A
Shares and Class B Shares issued in any 12 month
period does not exceed, in the aggregate, 15% of the
then outstanding number of Equity Shares; (C) in
connection with the issuance of Class B Shares
pursuant to the exercise of stock options granted
under RCMCI's stock option plan, stock purchase plan
<PAGE>
or stock benefit plan provided that the Equity Shares
issuable pursuant to such plans do not exceed 10% of
the then outstanding number of Equity Shares; and (D)
pursuant to any conversion or exchange right
outstanding or existing on the date hereof (including
pursuant to any securities issued under the
Subscription Agreement) or pursuant to any conversion
or exchange right attaching to a Convertible Security
the issuance of which does not require JV
Shareholder's prior written approval hereunder. In
all cases described in (A), (B), (C) and (D) above,
during the term of this Agreement and thereafter so
long as the Brand Licence Agreement is in effect,
neither RCMCI nor any of its subsidiaries shall
knowingly issue or sell any Equity Shares,
Convertible Securities or other securities or rights
to acquire any such securities to any Designated
Material Competitor of AT&T (other than a Designated
Material Competitor of AT&T who, after the date
hereof, acquires Control of RCMCI in accordance with
the terms of this Agreement) and in any public
distribution of securities of RCMCI or any of its
subsidiaries, RCMCI or its subsidiary, as the case
may be, as the issuer or seller will cause each of
the underwriters or selling agents to covenant that
it will not knowingly take any action which will
result in a breach of this covenant;
(vii) any decision by any subsidiary of RCMCI to issue, or
enter into any agreement to issue to any Person other
than a member of the RCMCI Wholly-Owned Group, any
shares of any class of Securities other than, subject
to section 3.1(e)(vi), an issuance or grant of option
or right to make an investment of 10% or less of the
capital stock of any subsidiary of Cantel provided
that such subsidiary has not acquired and will not
thereafter acquire any assets having a value in
excess of $100 million or any material rights from a
member of the RCMCI Group;
(viii) after giving effect to the use of proceeds as
permitted under section 7.1 of the Subscription
Agreement, any decision by any member of the RCMCI
<PAGE>
Group to create, assume, become liable for or
guarantee any borrowing or to issue any debt
securities which would result in the RCMCI Group
having total indebtedness for borrowed money
outstanding in excess of five times EBITDA based on
the 12 month trailing EBITDA all calculated on a
consolidated basis;
(ix) any decision by any member of the RCMCI Group to
enter into any contract, agreement or commitment with
RCI or any Affiliate of RCI (other than a member of
the RCMCI Group) or with any Person who does not deal
at arm's length with RCI or any Affiliate of RCI
(other than a member of the RCMCI Group), other than
(A) contracts, agreements or commitments which do not
represent expenditures or costs in excess of $5
million in the aggregate in any fiscal year; (B)
contracts, agreements or commitments relating to the
provision of management services, the acquisition of
products and services, the payment of interest on
indebtedness for borrowed money constituting
intercompany borrowings, the sharing or leasing of
premises, facilities or assets or other cost and
expense, related party and sharing arrangements and
transactions of similar type that have been entered
into prior to the date hereof and which are referred
to in Appendix V to Part A of Schedule B to the Share
Purchase Agreement or which constitute an amendment,
expansion, replacement, extension, supplement or
modification of any such contract, agreement or
commitment provided such amendment, expansion,
replacement, extension, supplement or modification
does not change in any material respect the basis or
principle for calculating or determining the amounts
payable thereunder; or (C) contracts, agreements or
commitments entered into on terms no less favourable
to the members of the RCMCI Group than those which
may be obtained at the time from a Person who deals
at arm's length with the RCMCI Group provided that:
<PAGE>
1. for such contracts, agreements or commitments
that do not represent costs or expenditures in
excess of $20 million in any year, such
contract is approved by a majority of the
Independent Directors on the audit committee
provided that if no JV Shareholder nominee on
the audit committee of RCMCI approves such
contract, agreement or commitment, RCMCI shall
obtain at its cost an opinion of an
independent, internationally recognized
qualified valuator selected by JV Shareholder
with the consent of RCMCI not to be
unreasonably withheld, as to the fair market
value of the financial terms of such contract,
agreement or commitment; it being understood
that such opinion will not prevent or impair
the ability of RCMCI to enter into such a
contract, agreement or commitment that is
approved by a majority of the Independent
Directors on the audit committee provided that
the financial terms are revised retroactively,
if necessary, to make sure that such financial
terms are at fair market value in accordance
with the opinion of such valuator; and
2. for such contracts, agreements or commitments
that represent costs or expenditures in excess
of $20 million in any year, such contract,
agreement or commitment is approved by a
majority of the Independent Directors on the
audit committee which majority shall include
at least one JV Shareholder nominee;
(x) any decision by any member of the RCMCI Group to
enter into any material contract, agreement or
commitment with any Person other than JV Shareholder
in respect of which any action or inaction on the
part of JV Shareholder would result (with or without
notice or lapse of time or both) in a material breach
or default, acceleration or termination of such
contract, agreement or commitment;
<PAGE>
(xi) any amalgamation, merger, arrangement, acquisition,
disposition or other business combination transaction
involving:
(A) the sale, lease, exchange, transfer or other
disposition of any assets or securities of
the RCMCI Group to any Person other than a
member of the RCMCI Wholly-Owned Group,
including the granting of an option for any
such transaction, where the total enterprise
value of such assets or securities is in
excess of the greater of $500 million and
15% of the book value of the total
consolidated assets of RCMCI as at the date
of its most recent consolidated balance
sheet in any one transaction or related
transactions;
(B) the taking of any steps to amalgamate, merge
or otherwise combine any member of the RCMCI
Group with another Person (which Person has
an enterprise value in excess of the greater
of $500 million and 15% of the book value of
the total consolidated assets of RCMCI as at
the date of its most recent consolidated
balance sheet) other than any such
amalgamation or merger solely among the
RCMCI Wholly-Owned Group; or
(C) the acquisition or taking of any steps by
any member of the RCMCI Group to acquire any
assets or securities of any other Person
other than a member of the RCMCI
Wholly-Owned Group where the total
enterprise value of such other Person is in
excess of the greater of $500 million and
15% of the book value of the total
consolidated assets of RCMCI as at the date
of its most recent consolidated balance
sheet in any one transaction or related
transactions,
provided that, whether or not subject to JV
Shareholder's written approval, any additional shares
of any class of Equity Shares or Convertible
<PAGE>
Securities issued by RCMCI in connection with any
such transaction (excluding any such shares issued on
a pro rata basis to the shareholders of RCMCI
immediately prior to such transaction in connection
with such transaction) shall be counted for the
purposes of determining whether RCMCI is entitled to
issue Equity Shares under section 3.1(e)(vi);
(xii) the entering into by any member of the RCMCI Group of
any material contract with a Designated Material
Competitor of AT&T which is outside the normal course
of the business of the RCMCI Group; or
(xiii) the granting to any Person other than JV Shareholder
of any voting rights, Board of Directors rights,
Board of Directors committee rights or other
governance rights other than (A) those attaching to
the shares generally of RCMCI; or (B) voting rights,
Board of Directors rights, Board of Directors
committee rights or other governance rights which are
not superior to those granted to JV Shareholder under
this Agreement and the Related Agreements and any
amendments thereto and which do not diminish or
adversely affect the rights of JV Shareholder
(including by reducing the proportion of JV
Shareholder nominees on the Board of Directors or on
the boards of directors of Cantel and any other
material subsidiary of RCMCI).
3.2. Consultation Rights
RCMCI agrees to provide to AT&T U.S., AWS and BT, as long as each of
them is an Affiliate of JV Shareholder, a reasonable right of consultation in
the preparation of the annual and long term consolidated budgets and business
plans of RCMCI prior to submission of such budgets and plans to the Board of
Directors for its approval. If any such Person with such right of consultation
has any specific initiatives to propose, it may provide a detailed business case
to RCMCI to support the recommended initiative. Any such Person with such right
of consultation and RCMCI will share their business plans and budgets relating
to RCMCI, as approved by their respective boards of directors, with each other.
<PAGE>
3.3. Exercise of JV Shareholder Voting Rights
JV Shareholder shall not exercise the voting rights attached to any
Class B Shares held by it, from time to time, with respect to the election of
directors to the Board of Directors pursuant to the right of holders of Class B
Shares, voting separately as a class, to elect three directors to the Board of
Directors unless this Agreement shall have terminated or JV Shareholder shall
not be entitled to exercise its Board of Directors nomination rights under
Section 3.1(b) in which event, JV Shareholder shall be entitled to exercise the
voting rights attached to the Class B Shares held by it to elect up to that
number of directors of RCMCI for which the Class B Shares may be voted for
election which is proportionate to JV Shareholder holding of Class B Shares,
rounded up to the nearest whole number.
3.4. Cooperation with respect to Tax Effects
The Parties hereto agree that (i) if any member of the RCMCI Group
proposes to take any act or upon the occurrence of any event which such member
of the RCMCI Group has been advised in writing by JV Shareholder, or which such
member knows, would have, or would be reasonably likely to have, a significant
adverse tax effect on JV and, if any member of the RCMCI Group has taken or
omitted to take any action which has resulted, or is reasonably likely to result
in, such a significant adverse tax effect on JV and JV Shareholder advises such
Person in writing, the RCMCI Group shall take such commercially reasonable steps
as JV Shareholder may request to minimize such result; (ii) if JV proposes to
take any act or upon the occurrence of any event which JV Shareholder has been
advised in writing by a member of the Rogers Group, or which JV Shareholder
knows, would have, or would be reasonably likely to have, a significant adverse
tax effect on the RCMCI Group and, if JV has taken or omitted to take any action
which has resulted, or is reasonably likely to result in, such a significant
adverse tax effect and the RCMCI Group advises JV Shareholder in writing, JV
shall take such commercially reasonable steps as the RCMCI Group may request to
minimize such result.
3.5. Veto by JV Shareholder
In the event that JV Shareholder does not approve a particular
amalgamation, merger, arrangement, acquisition, disposition or other business
<PAGE>
combination with or involving a Third Party or Third Parties in Canada under
section 3.1(e)(xi) and provided JV Shareholder is not able to veto such
particular transaction pursuant to any other provision hereunder, JV and RCI and
its subsidiaries shall be prohibited from engaging in that particular
amalgamation, merger, arrangement, acquisition, disposition or other business
combination transaction with or involving such Third Party or Third Parties from
the date JV Shareholder has exercised its right to veto the transaction.
3.6. Survival
Notwithstanding any other provision of this Agreement, the provisions
of this Article 3 other than the last sentence of section 3.1(e)(vi), section
3.3 and section 3.5 shall not survive the termination of this Agreement.
ARTICLE 4.
ADDITIONAL COVENANTS
4.1. Additional Covenants of RCI
(a) RCI agrees that it will not, and will cause its Affiliates
not to, themselves nominate or vote for, and will to the
extent permitted by law persuade its nominees on the Board of
Directors not to nominate or vote for, as directors of RCMCI
or its subsidiaries, individuals who are employees or
representatives of any Designated Material Competitor of AT&T
or who are employees or representatives of Persons who are, or
whose Affiliates are, in partnership or formal joint ventures
with the Designated Material Competitor of AT&T where such
partnership or formal joint venture provides wireless, long
distance or other telecommunications services, but excluding
the sale of equipment, the provision of telecommunications
software and the sale, by means of telecommunications, of
non-telecommunications goods and services.
(b) The covenants set forth in sections 3.1(e)(xii) and 4.1(a)
shall not apply to a Designated Material Competitor of AT&T
which has acquired Control of RCI and/or RCMCI.
<PAGE>
(c) RCI agrees unconditionally and irrevocably to authorize the
RCMCI Group to carry on outside the Rogers Cable Territories
the businesses of offering wireline long distance services,
wireline local services and Fixed Wireless Services, subject
to the RCMCI Group's compliance with its contractual and other
legal obligations to JV Shareholder.
4.2. Additional Covenants of RCMCI
(a) Pursuant to Article II of Schedule III to the articles of
incorporation of RCMCI, without the consent of the holder of a
majority of the Class A Shares, RCMCI may not carry on any
businesses except:
(i) any business carried on by RCMCI or its subsidiaries
on June 17, 1991; and
(ii) Mobile Communication Services.
(b) RCMCI and each of its subsidiaries shall take all reasonable
actions not prohibited by law to deny representatives of a
Designated Material Competitor of AT&T access to confidential
or proprietary marketing and strategic plans and other
confidential corporate material relating to the use and
planned use of the licensed marks and materials disclosed by
AT&T U.S. or its subsidiaries to the RCMCI Group.
4.3. Additional Covenants of JV Shareholder
(a) JV Shareholder agrees that it will not oppose and will support
any "going private" or similar transaction relating to RCMCI
that may be initiated by RCI (or any of its Affiliates) as
purchaser provided JV Shareholder retains the same equity and
voting interests and the same corporate governance rights in
RCMCI after completion of any such transaction, provided that
in the case of a "going private" or similar transaction
initiated by RCMCI, the prior written consent of JV
Shareholder was obtained and provided that in each case RCMCI
<PAGE>
agrees to continue to provide JV Shareholder with the timely
and continuous disclosure that it would otherwise be required
to disclose to the public as a reporting issuer prior to
effecting the "going private" transaction. Following any
"going private" transaction, RCI and/or RCMCI shall provide JV
Shareholder with liquidity for its Equity Shares satisfactory
to JV Shareholder, acting reasonably, for its investment in
RCMCI.
(b) Subject to clause (c), so long as RCI Controls RCMCI, JV shall
not purchase any outstanding Class B Shares except from the
Rogers Group or as otherwise permitted hereunder.
(c) In the event of any merger, amalgamation, arrangement,
consolidation, reorganization or similar transaction of or
involving RCMCI, JV Shareholder may purchase outstanding Class
B Shares notwithstanding section 4.3(b) provided that after
giving effect to such purchase JV Shareholder would hold no
more than the lesser of (i) 33 1/3% of the outstanding Equity
Shares of RCMCI; and (ii) the percentage of outstanding Equity
Shares held by JV Shareholder immediately prior to such
transaction.
4.4 Transfer of Interests in JV Shareholder
In the event that any Person other than (x) AT&T U.S., (y) BT, or (z) a
Permitted Transferee, or any combination of AT&T U.S., BT and Permitted
Transferees, becomes the beneficial owner of, directly or indirectly, more than
a majority of the Equity Shares in, or has the power, in law or in fact, to
direct or cause the direction of the management and policies of JV Shareholder,
JV Shareholder shall notify RCMCI in writing of such fact forthwith and, whether
or not JV Shareholder so notifies RCMCI, upon the occurrence of the foregoing,
JV Shareholder shall be required immediately to exercise all rights to convert,
directly or indirectly, all Securities (including the Preference Shares, Series
A and all Class A Shares) held by it and its Permitted Transferees into Class B
Shares.
<PAGE>
4.5 Survival
Notwithstanding any other provision hereof, the provisions of Article 4
shall survive the termination of this Agreement; provided that sections 4.1(a)
and 4.2 shall apply only so long as the Brand Licence Agreement is in effect
unless the Brand Licence Agreement has been terminated as a result of default by
Cantel.
ARTICLE 5.
GENERAL PROHIBITION ON TRANSFER OF SECURITIES
5.1. General Prohibition on Transfer of Securities
During the term of this Agreement, none of the Parties shall Transfer
any Securities of RCMCI or any interest therein now or hereafter owned by such
Person except in accordance with and as permitted by this Agreement and any
purported Transfer of any such Securities in violation of this Agreement shall
constitute a breach of this Agreement.
ARTICLE 6.
RIGHT OF FIRST NEGOTIATION
6.1. Grant of Right of First Negotiation
(a) Grant of Right of First Negotiation. On and subject to the
terms and conditions of this section 6.1, RCI grants to JV
Shareholder, the exclusive first right to negotiate the
acquisition of any Securities owned by RCI if RCI wishes to
Transfer any number of such Securities.
(b) Notice to JV Shareholder. (i) RCI shall use commercially
reasonable efforts to give prompt written notice to JV
Shareholder at such time as it has entered into discussions
with one or more Third Parties which RCI reasonably believes
may result in the delivery to JV Shareholder of a Sale Notice
referred to below and, in connection with any such
discussions, shall cause a confidentiality agreement
containing customary provisions, substantially in the form
attached as Schedule D, to be entered into by such Third Party
or Third Parties in favour of RCMCI; (ii) RCI will give prompt
<PAGE>
written notice to JV Shareholder (a "Sale Notice") of any
decision by RCI to Transfer any Securities, including the
number of Securities of RCMCI then beneficially owned,
directly or indirectly, by RCI and the number and class or
series of such Securities proposed to be Transferred (the
"Offered Securities"); and (iii) from the date such Sale
Notice has been given until RCI is entitled to offer the
Offered Securities to a Third Party or Third Parties other
than JV Shareholder under clauses (d), (i), (m), (o), (r) or
(v), RCI will not solicit, initiate or encourage inquiries,
submissions, proposals, bids or offers from or negotiate with
any Third Party or Third Parties relating to, or furnish to
any Third Party or Third Parties any information with respect
to, or enter into any agreement with any Third Party or Third
Parties with respect to, the Transfer of the Offered
Securities or make any public announcement relating to any of
the foregoing except as required by law or any regulatory
requirement.
Sale of Control
(c) Sale of Control; Other Sales. In the event that RCI gives a
Sale Notice to JV Shareholder that RCI wishes to Transfer (i)
Offered Securities which are or include Class A Shares or any
other Securities which have voting rights, absolute or
contingent (other than the voting rights which may be cast by
holders of the Class B Shares), and if, after giving effect to
such Transfer, RCI would own Securities to which are attached
less than a majority of the voting rights sufficient to elect
a majority of directors of RCMCI in which case RCI shall be
deemed for all purposes of this section 6.1 to have given a
Sale Notice to Transfer all of the Securities beneficially
owned, directly or indirectly, by RCI and the Offered
Securities shall constitute all of the Securities beneficially
owned, directly or indirectly, by RCI; or (ii) Offered
Securities and if in such Sale Notice RCI specifies that the
provisions of clauses (d) to (j) inclusive shall apply to the
Transfer of such Securities; then in each such case, the
provisions of clauses (d) to (j) inclusive shall apply to such
Transfer.
<PAGE>
(d) Good Faith Negotiations. During the period of 25 Business
Days following receipt by JV Shareholder of a Sale Notice to
which this clause applies (the "First Negotiation Period"),
RCI and JV Shareholder shall negotiate diligently and in good
faith to attempt to agree upon the price and other terms and
conditions for the Transfer of the Offered Securities to JV
Shareholder. At any time during the First Negotiation Period,
JV Shareholder may deliver to RCI a written offer (the "JV
Initial Offer") to purchase the Offered Securities from RCI at
a price and on terms and conditions upon which JV Shareholder
is prepared to purchase the Offered Securities. If on the
expiry of the First Negotiation Period JV Shareholder has not
delivered a JV Initial Offer, JV Shareholder shall within 4
Business Days following the expiry of the First Negotiation
Period deliver to RCI a JV Initial Offer. If JV Shareholder
does not deliver a JV Initial Offer to RCI as contemplated by
this clause (d) or notifies RCI in writing of its intention
not to deliver a JV Initial Offer, RCI shall be entitled
during the period of 120 days following (i) the expiration of
such 4 Business Day period, or (ii) if JV Shareholder gives
notice that it will not deliver a JV Initial Offer, the date
such notice is received by RCI, to complete the Transfer of
all, but not less than all, of the Offered Securities to any
bona fide Third Party or Third Parties on such terms and
conditions as RCI shall determine (without prejudice to JV
Shareholder's rights hereunder in the event that no such sale
is completed during such period). The JV Initial Offer shall
remain open for acceptance by RCI for a period of 8 Business
Days following receipt by RCI of the JV Initial Offer or until
RCI rejects in writing the JV Initial Offer (the "JV Initial
Offer Period").
(e) Due Diligence. RCMCI agrees that JV Shareholder shall be
permitted to conduct reasonable due diligence with respect to
RCMCI during the First Negotiation Period.
(f) RCI Response to JV Initial Offer. During the JV Initial Offer
Period, unless or until RCI accepts or rejects in writing the
<PAGE>
JV Initial Offer or until the expiry of the JV Initial Offer
Period, RCI and JV Shareholder shall negotiate diligently and
in good faith to attempt to agree upon the price and other
terms and conditions for the Transfer of the Offered
Securities to JV Shareholder. At any time prior to the expiry
of the JV Initial Offer Period, RCI may in writing accept the
JV Initial Offer or RCI may in writing reject the JV Initial
Offer. If at the expiry of the JV Initial Offer Period RCI has
not in writing accepted the JV Initial Offer, RCI shall be
deemed to have rejected the JV Initial Offer.
(g) RS Counter Offer. If on the expiry of the JV Initial Offer
Period an agreement for the Transfer of the Offered Securities
to JV Shareholder has not been reached, RCI shall within 4
Business Days following the expiry of the JV Initial Offer
Period deliver a written offer to JV Shareholder (the "RS
Counter Offer") to Transfer the Offered Securities to JV
Shareholder at a price and on terms and conditions which RCI
is prepared to accept, which offer shall be at a price per
share no less than 2% greater than the purchase price per
share set out in the JV Initial Offer or, if a subsequent
offer was made by JV Shareholder, in the highest offer made in
writing by JV Shareholder to RCI during the JV Initial Offer
Period. The RS Counter Offer shall remain open for acceptance
for a period of 4 Business Days following receipt by JV
Shareholder of the RS Counter Offer or until JV Shareholder
rejects in writing the RS Counter Offer (the "RS Counter Offer
Period"). If RCI does not deliver an RS Counter Offer within 4
Business Days following the expiry of the JV Initial Offer
Period, RCI shall cease to have any right to Transfer any of
the Offered Securities under this section 6.1, and RCI shall
have no right to give a subsequent Sale Notice to JV
Shareholder under clause (b) for a period of 120 days
following the expiry of the JV Initial Offer Period without
prejudice to RCI's right to give an Offer Notice under clause
(o).
(h) JV Shareholder Response to RS Counter Offer. At any time prior
to the expiry of the RS Counter Offer Period, JV Shareholder
may in writing:
<PAGE>
(i) accept the RS Counter Offer;
(ii) reject the RS Counter Offer; or
(iii) reject the RS Counter Offer and deliver a written
offer to RCI (the "JV Final Offer") to purchase the
Offered Securities at a price and on terms and
conditions which JV Shareholder is willing to accept,
which offer shall be at a price per share no less
than 2% greater than the purchase price per share set
out in the JV Initial Offer or in the highest offer
made in writing by JV Shareholder subsequent to the
JV Initial Offer and prior to the expiry of the RS
Counter Offer Period.
The JV Final Offer shall remain open for acceptance for a
period of 5 Business Days following receipt by RCI of the JV
Final Offer. If on expiry of the RS Counter Offer Period, JV
Shareholder has not in writing taken one of the actions
referred to in subclause (i), (ii) or (iii) of this clause
(h), JV Shareholder shall be deemed to have rejected the RS
Counter Offer. If JV Shareholder has rejected or is deemed to
have rejected the RS Counter Offer and if no JV Final Offer
has been made, or if an JV Final Offer has been made but RCI
has not in writing accepted the JV Final Offer within the
period of 5 Business Days following receipt by RCI of the JV
Final Offer, then RCI shall be entitled to Transfer the
Offered Securities to a Third Party or Third Parties in
accordance with clause (i).
(i) Sale at Adjusted Price. During the period of 120 days
following the later of (i) the expiry of the RS Counter Offer
Period, and (ii) the expiry or rejection in writing by RCI of
the JV Final Offer, if any, (such period is hereinafter
referred to as the "Third Party Offer Period"), RCI may
Transfer all, but not less than all, of the Offered Securities
to any bona fide Third Party or Third Parties for
consideration per share no less than the Adjusted Price, as
such term is defined in clause (j). In the event that no sale
<PAGE>
to a bona fide Third Party or Third Parties has been completed
prior to the expiry of the Third Party Offer Period, RCI shall
be entitled and required to comply again with the Right of
First Negotiation in accordance with its terms in the event
that RCI proposes any subsequent Transfer of Securities
provided that RCI shall have no right to give a subsequent
Sale Notice to JV Shareholder under clause (b) for a period of
60 days following the expiry of the Third Party Offer Period
without prejudice to RCI's right to give an Offer Notice under
clause (o).
(j) "Adjusted Price" means for the purposes of clause (i), the
aggregate of (x) the price per share offered by JV Shareholder
pursuant to the highest offer made in writing by JV
Shareholder to RCI up to and including the JV Final Offer,
plus (y) 75% of the excess of (i) the price per share offered
by RCI pursuant to the RS Counter Offer or pursuant to the
lowest offer made in writing by RCI to JV Shareholder during
the RS Counter Offer Period; over (ii) the price per share
referred to in item (x) of this clause (j).
(k) Piggy-Back/Carry-Along Rights. If RCI proposes to Transfer
the Offered Securities or Offer Securities (as defined in
clause (o)) to a Third Party who is a Designated Material
Competitor of AT&T and if, after giving effect to such
Transfer, RCI would own Securities to which are attached less
than a majority of the voting rights sufficient to elect a
majority of directors of RCMCI, then RCI shall obtain from the
Third Party or Third Parties a bona fide offer addressed to JV
Shareholder (a "Piggy-Back Offer") to purchase all of the
Securities owned by JV Shareholder at the same price and on
the same terms and conditions as are contained in the offer
(the "Third Party Offer") by the Third Party or Third Parties
to purchase the Offered Securities or the Offer Securities, as
the case may be, provided that JV Shareholder shall be
required to provide only customary representations, warranties
and covenants and shall not be bound by any non-competition or
other obligations of the seller and RCI shall deliver the
<PAGE>
Piggy-Back Offer to JV Shareholder no later than 5 Business
Days after RCI enters into a binding agreement to sell the
Offered Securities or the Offer Securities, as the case may
be, to the Third Party or Third Parties. To the extent that
the consideration payable to RCI under the Third Party Offer
consists wholly or partly of securities, the Piggy-Back Offer
shall include an offer consisting of the same proportion of
securities and an all cash offer which includes the equivalent
in cash of the Fair Market Value of such securities. JV
Shareholder shall be entitled to elect the form of
consideration to be paid to it pursuant to the Piggy-Back
Offer provided that if it fails to advise the Third Party or
Third Parties of its election within 20 Business Days of
receipt of the Piggy-Back Offer it shall be deemed to have
elected to be paid entirely in cash. For greater certainty,
the Piggy-Back Offer shall be for the same price per Class A
Share and Class B Share held by JV Shareholder. The Piggy-Back
Offer shall be irrevocable and shall be open for acceptance by
JV Shareholder by written notice to the Third Party or Third
Parties given within the period of 10 Business Days following
receipt of the Piggy-Back Offer by JV Shareholder. RCI may
deliver to JV Shareholder together with the Piggy-Back Offer,
written notice to JV Shareholder (a "Carry-Along Notice")
requiring that all, but not less than all, of the Securities
owned by JV Shareholder shall be sold to the Third Party or
Third Parties at the same price and on the same terms and
conditions as are contained in the Piggy-Back Offer provided
that in the event such Piggy Back Offer includes an all cash
offer and an offer consisting wholly or partly of securities,
JV Shareholder shall be entitled to elect the form of
consideration to be paid to it pursuant to the Carry-Along
Notice provided that if it fails to advise the Third Party or
Third Parties of its election within 20 Business Days of
receipt of the Carry-Along Notice it shall be deemed to have
elected to be paid entirely in cash. JV Shareholder shall be
deemed to have accepted the Piggy-Back Offer upon the receipt
by JV Shareholder of the Carry-Along Notice. If JV Shareholder
accepts or is deemed to accept the Piggy-Back Offer, closing
of such sale shall occur contemporaneously with the sale of
the Offered Securities or the Offer Securities by RCI to the
<PAGE>
Third Party or Third Parties. It is understood and agreed that
the Third Party Offer may provide for the making by the Third
Party or Third Parties of a Concurrent Offer to the holders of
the Class B Shares to purchase their Class B Shares. In that
event, the closing of the sale of the Offered Securities or
the Offer Securities and of the sale pursuant to the
Piggy-Back Offer shall occur contemporaneously with the
take-up and payment for shares under the Concurrent Offer and
the Concurrent Offer shall be commenced within 20 Business
Days following acceptance or deemed acceptance of the
Piggy-Back Offer and take-up and payment for the Class B
Shares tendered to such offer shall occur no later than 45
days after the making of the Concurrent Offer.
Sale of Securities Without Sale of Control
(l) Sale of a Portion of Holdings in RCMCI. In the event that RCI
gives notice to JV Shareholder under clause (b) that RCI
desires to Transfer less than all of the Securities it holds
in RCMCI and if after giving effect to such Transfer RCI would
continue to own Securities to which are attached at least a
majority of the voting rights sufficient to elect a majority
of directors of RCMCI and RCI has not elected under subclause
(c)(ii) to proceed under clauses (d) to (j) inclusive, then
the provisions of clauses (m) and (n) shall apply to such
sale.
(m) JV Shareholder Rights. In the event that RCI gives a Sale
Notice to JV Shareholder with respect to Offered Securities
other than those governed by clause (c)(i), and if RCI has not
elected as permitted under clause (c)(ii), then RCI shall
negotiate diligently and in good faith with JV Shareholder for
a period of 21 days from the date of the Sale Notice (in this
clause (m), the "Negotiation Period") to attempt to agree upon
the terms and conditions for the sale of the Offered
Securities to JV Shareholder which are satisfactory to RCI and
JV Shareholder. If on the expiry of the Negotiation Period, an
agreement cannot be reached, RCI may during the 60 day period
following the expiry of the Negotiation Period, Transfer the
Offered Securities pursuant to a sale whereby no one Person
<PAGE>
upon completion of such Transfer acquires in such sale from
RCI more than 5% of the Equity Shares outstanding, other than
Persons who are equipment, software or service providers to
the RCMCI Group who have an on-going business relationship
with the RCMCI Group which Persons may acquire up to 10% of
the Equity Shares outstanding, provided that if such Offered
Securities are Class A Shares, the Class A Shares are
converted to Class B Shares prior to the completion of the
sale and provided that RCI shall not knowingly sell any of
such Offered Securities to a Designated Material Competitor of
AT&T. On any such Transfer, the price per share shall be
greater than the price per share offered by JV Shareholder
pursuant to the highest offer made in writing by JV
Shareholder to RCI prior to the expiry of the Negotiation
Period or, if no such offer was made, shall be on such terms
and conditions as RCI shall determine. In the event that no
Transfer to a bona fide Third Party or Third Parties has been
completed prior to the expiry of the 60 day period referred to
in this clause (m), RCI shall comply again with the Right of
First Negotiation in accordance with its terms in the event
that RCI proposes any subsequent sale of Securities.
(n) Conversion of JV Shareholder's Class A Shares. If Class A
Shares are converted into Class B Shares in connection with a
Transfer described in clause (m) and such conversion of Class
A Shares into Class B Shares would result in JV Shareholder
owning more than the maximum percentage of outstanding Class A
Shares which may be owned at that time by a non-Canadian under
applicable federal legislation limiting foreign ownership or
any other regulatory requirement, JV Shareholder agrees that
it will in connection with the conversion of Class A Shares
and the Transfer of Class B Shares pursuant to clause (m) upon
written notice from RCI, convert, within 15 Business Days
following receipt of such notice, sufficient Class A Shares
into Class B Shares, or Transfer sufficient Class A Shares to
Third Parties (including to a trustee as permitted under
clause (t) below) so that JV Shareholder's ownership of Class
A Shares will not exceed such foreign ownership threshold.
<PAGE>
General
(o) Third Party Offer. If at any time when a Sale Notice has not
been given, a Third Party or Third Parties make a bona fide,
unsolicited, written offer (the "Third Party Offer") to
purchase Securities (the "Offer Securities"), which offer RCI
wishes to accept, RCI shall give written notice (the "Offer
Notice") to JV Shareholder irrevocably offering the Offer
Securities for sale to JV Shareholder, which notice shall
include a copy of the Third Party Offer, and JV Shareholder
shall have the right by written notice given to RCI (the
"Acceptance Notice") within the period of 30 Business Days
following receipt by JV Shareholder of the Offer Notice to
purchase the Offer Securities from RCI at the price and on the
terms and conditions set forth in the Third Party Offer. In
the event that the Third Party Offer offers consideration
which is payable wholly or partly in securities, JV
Shareholder may in the Acceptance Notice offer all cash or may
offer securities of JV Shareholder and/or its Affiliates to
the same extent as provided in the Third Party Offer, which
cash and/or securities shall (1) have a Fair Market Value no
less than the Fair Market Value of the securities offered
under the Third Party Offer; and (2) provide no less liquidity
than the securities offered under the Third Party Offer. The
purchase by JV Shareholder under this clause (o) shall be
completed on the date specified by JV Shareholder in the
Acceptance Notice which date shall be no more than 15 days
following receipt by RCI of the Acceptance Notice. In the
event that JV Shareholder fails to deliver the Acceptance
Notice as contemplated by this clause (o) within the 30
Business Day period, RCI shall be entitled, subject to clause
(k) hereof, to Transfer the Offer Securities to such Third
Party or Third Parties at no less than the price, and
substantially on the other terms and conditions, specified in
the Third Party Offer, such Transfer to be completed on the
date no more than 15 days following the expiry of the 30
Business Day Period or the date that JV Shareholder fails to
complete the purchase of the Offer Securities, as the case may
be. In the event that JV Shareholder fails to complete the
<PAGE>
purchase of the Offer Securities by reason of a default of JV
Shareholder, RCI shall be entitled, subject to clause (k)
hereof, to Transfer the Offer Securities to any bona fide
Third Party or Third Parties upon such terms and conditions as
RCI shall determine provided such Transfer is completed during
the 120 day period following such failure (and such sale shall
be without prejudice to any rights and remedies RCI may
otherwise have by reason of such default). If any Transfer by
RCI to a bona fide Third Party or Third Parties is not
completed as contemplated by this clause (o), RCI shall be
required to comply with the Right of First Negotiation in
accordance with its terms in the event that RCI proposes any
subsequent sale of Securities.
(p) Binding on the Third Parties. This Agreement, including the
Right of First Negotiation constituted by this section 6.1 and
the Change of Control provisions contained in Article 8, shall
be binding upon any Transferee of Securities from RCI referred
to in clause (d), (i), (o), (r) or (v) unless either RCI or JV
Shareholder has exercised and completed the
piggy-back/carry-along rights provided for in clause (k) and
references to RCI shall be deemed to refer to such Transferee
except that a Transferee of Securities from RCI referred to in
clauses (o), (r) or (v) where such Transfer is not governed by
clause (c)(i) shall not be bound by this Agreement.
(q) Sale Prohibited under Trust Agreement. In the event that a
sale by RCI to JV Shareholder hereunder would be prohibited
under the terms of the Trust Agreement, JV Shareholder shall
advise RCI in any notice given hereunder offering to purchase
Securities or accepting an offer to Transfer Securities by RCI
whether or not it proposes to make, or cause to be made, a
Concurrent Offer. If JV Shareholder advises RCI that it
proposes to make, or cause to be made, a Concurrent Offer,
then notwithstanding any other provisions of this section 6.1,
the sale by RCI to JV Shareholder shall be completed
contemporaneously with the take-up and payment for shares
under the Concurrent Offer and the provisions of clause (r)
shall apply.
<PAGE>
(r) JV Shareholder Concurrent Offer. If JV Shareholder advises
RCI that it proposes to make, or cause to be made, a
Concurrent Offer, JV Shareholder shall commence such offer, or
cause such offer to be commenced, within 20 Business Days
following any agreement reached by JV Shareholder and RCI for
the purchase by JV Shareholder of Securities (the "Purchase
Securities") and shall take-up and pay for shares under the
Concurrent Offer no later than 45 days after the making of the
Concurrent Offer. In the event that JV Shareholder advises RCI
that it will make but fails to make, or cause to be made, a
Concurrent Offer, or fails to take-up and pay for shares under
the Concurrent Offer, within the time periods set forth in
this clause (r) by reason that such purchase is prohibited
under applicable law or pursuant to the terms of the Trust
Agreement or by reason of JV Shareholder's default in its
obligations, JV Shareholder shall thereupon cease to have any
right to purchase the Purchase Securities and RCI may, subject
to clause (k) hereof, sell the Purchase Securities to a bona
fide Third Party or Third Parties provided such sale is
completed during the 120 day period following such failure
upon such terms and conditions as RCI shall determine. If such
Transfer is not so completed, RCI shall be required to comply
again with the Right of First Negotiation in accordance with
its terms in the event that RCI proposes any subsequent sale
of Securities.
(s) Concurrent Offer by Third Party or Third Parties. Any
requirement under this section 6.1 that a Transfer of
Securities to a Third Party or Third Parties be completed
within a specified period shall mean, in the event that the
Transfer by RCI to the Third Party or Third Parties would be
prohibited under the terms of the Trust Agreement unless the
Third Party or Third Parties make a Concurrent Offer to the
holders of the Class B Shares, that such Third Party or Third
Parties shall have agreed in writing to purchase the
Securities from RCI and to make the Concurrent Offer to the
holders of the Class B Shares and that the Third Party or
Third Parties shall have commenced the Concurrent Offer,
provided that the Third Party or Third Parties take-up and pay
<PAGE>
for the Securities to be purchased from RCI concurrently with
the take-up and payment for Class B Shares under the
Concurrent Offer and provided further that the Third Party or
Third Parties take-up and pay for Class B Shares under the
Concurrent Offer within 45 days after the making of such
offer, failing which the Right of First Negotiation shall
apply again to the Transfer of such Securities.
(t) Designation of Third Party or Third Parties. JV Shareholder
shall have the right to designate any Person as the purchaser
of Securities pursuant to this section 6.1, including a Third
Party who, in JV Shareholder 's discretion, may be a trustee
who will hold the Securities in trust pending receipt of any
regulatory or other approval necessary for the transfer of
such Securities to JV Shareholder provided that such Person
agrees to be bound by this Agreement with respect to such
Securities.
(u) Deferral for Certain Regulatory Approvals. Notwithstanding
any other provision of this section 6.1, JV Shareholder shall
be entitled to defer the completion of any purchase by JV
Shareholder, or by any Person or a Third Party or Third
Parties designated under clause (t), and any Third Party or
Third Parties purchasing Securities pursuant to clauses (d),
(i), (k), (m), (o), (r) or (v) shall be entitled to defer the
completion of any purchase by such Third Party or Third
Parties, for a period not exceeding 90 days from the making of
a Concurrent Offer or, if no Concurrent Offer is required to
be made, 115 days from the date of the relevant agreement of
purchase and sale, for the sole purpose of permitting the
purchaser to obtain any Investment Canada Act, Competition
Act, Telecommunications Act or other regulatory approval
necessary to the completion of such purchase.
(v) Failure of JV Shareholder to Purchase. In the event that JV
Shareholder agrees with RCI to purchase Offered Securities or
Offer Securities under this section 6.1 and JV Shareholder
ultimately fails to complete such purchase as contemplated by
such agreement by reason that such purchase is prohibited
under applicable law or pursuant to the terms of the Trust
Agreement or by reason of JV Shareholder's default in its
<PAGE>
obligations, RCI shall be entitled, subject to clause (k)
hereof, during the period of 120 days following the failure by
JV Shareholder to complete the purchase of the Offered
Securities or the Offer Securities, as the case may be, as
contemplated by this section 6.1 to Transfer the Offered
Securities or the Offer Securities to any Third Party or Third
Parties on such terms and conditions as RCI shall determine
(without prejudice to any rights and remedies RCI may
otherwise have by reason of such default).
(w) Brand Licence Agreement. In the event of the Transfer of
Offered Securities or Offer Securities by RCI to a Third Party
who is a Designated Material Competitor of AT&T (other than a
Designated Material Competitor of AT&T who acquires such
Offered Securities or Offer Securities in the public markets
without the prior knowledge of RCI), then ACE and Cantel shall
each be entitled to terminate the Brand Licence Agreement,
without any liability under the Brand Licence Agreement based
solely on such termination, by written notice given by the
terminating party to the other party within 60 days following
the completion of the sale of such Securities.
(x) Exceptions. The Right of First Negotiation in this section 6.1
shall not apply:
(i) to any conversion by RCI of Class A Shares into Class
B Shares provided that, for greater certainty, the
Right of First Negotiation in this section 6.1 shall
apply to any subsequent Transfer of such Class B
Shares;
(ii) to any Transfer by RCI to any member of the Rogers
Group provided that such Person agrees in writing
with JV Shareholder to be bound by this Agreement
including, without limitation, the Right of First
Negotiation in this section 6.1, to the same extent
as RCI and provided that such Transfer shall not
release RCI from its obligations under this
Agreement;
<PAGE>
(iii) to any Pledge of Securities by or on behalf of RCI to
a recognized financial institution as security for a
bona fide loan or obligation provided that the
pledgee agrees in writing with JV Shareholder to be
bound by this Agreement including, without
limitation, this Article 6 and provided that such
Pledge shall not release RCI from its obligations
under this Agreement;
(iv) to a Pledge of Securities by or on behalf of RCI or
its Affiliates excluded from the definition of
"Transfer" in section 1.1; and
(v) to any Transfer of Securities resulting from any amalgamation,
merger, arrangement, acquisition, disposition or other
business combination involving solely Persons who are
wholly-owned by members of the Rogers Group or permitted
pursuant to clause 3.1(e)(xi).
(y) Co-operation. The Parties shall agree to co-operate fully in
the filing of all applications for all necessary regulatory
approvals and to use their respective reasonable commercial
efforts to obtain all such necessary regulatory approvals
within the relevant time periods referred to in Article 6. In
the event that a necessary regulatory approval is not obtained
on terms satisfactory to the purchaser, acting reasonably,
within such period, the agreement of purchase and sale shall
cease to be binding and enforceable with respect to the
purchase and sale of the Securities of RCMCI subject thereto,
without prejudice to any right of the Parties to seek damages
for any breach of the terms and conditions of such agreement
or of this Agreement.
<PAGE>
ARTICLE 7.
SALE OF SHARES BY JV SHAREHOLDER
7.1. Sale of Class A Shares by JV Shareholder
(a) Grant of Right of First Negotiation. On and subject to the
terms and conditions of this section 7.1, JV Shareholder
grants to RCI for so long as RCI holds at least 20% of the
Equity Shares of RCMCI the exclusive first right to negotiate
the acquisition of any Securities owned by JV Shareholder if
JV Shareholder wishes to Transfer any number of such
Securities.
(b) Notice to RCI. JV Shareholder agrees that it will give prompt
written notice to RCI of any decision by JV Shareholder to
Transfer any Securities, including the number of Securities
then beneficially owned, directly or indirectly, by JV
Shareholder in the aggregate and the number and class or
series of such Securities proposed to be Transferred (the "JV
Offered Securities").
(c) Acceptance/Rejection. If JV Shareholder gives a notice to
RCI under clause (b), JV Shareholder shall negotiate
diligently and in good faith with RCI for a period of 21 days
following receipt by RCI of the notice from JV Shareholder
referred to in clause (b) (in this clause 7.1(c) the
"Negotiation Period") to attempt to agree upon the terms and
conditions to the Transfer of the JV Offered Securities to RCI
which are satisfactory to JV Shareholder and RCI. If on the
expiry of the Negotiation Period, an agreement cannot be
reached, JV Shareholder may, during the 60 day period
following the expiry of the Negotiation Period, Transfer the
JV Offered Securities to any bona fide Third Party or Third
Parties provided that if the JV Offered Securities include
Securities other than Class B Shares, such JV Offered
Securities, if convertible or exchangeable, directly or
indirectly, into Class B Shares, are converted or exchanged
into Class B Shares prior to the completion of such Transfer
and provided that no one Person following completion of such
Transfer acquires more than 5% of the Equity Shares of RCMCI
except for Persons who are equipment, software or service
<PAGE>
providers to the RCMCI Group who have an on-going business
relationship with the RCMCI Group which Persons may acquire up
to 10% of the Equity Shares outstanding. On any such Transfer,
the price per Security shall be greater than the price per
Security offered by RCI pursuant to the highest offer made in
writing by RCI to JV Shareholder prior to the expiry of the
Negotiation Period or, if no such offer was made, shall be on
such terms and conditions as JV Shareholder shall determine.
In the event that no Transfer to a bona fide Third Party or
Third Parties has been completed prior to the expiry of the 60
day period referred to in this clause (c), JV Shareholder
shall comply again with the Right of First Negotiation in
accordance with its terms in the event that JV Shareholder
proposes any subsequent sale of Securities.
(d) Binding on Permitted Transferees. The Right of First
Negotiation in this section 7.1 shall be binding upon any
Permitted Transferees from JV Shareholder of JV Offered
Securities pursuant to clause (c) and references to JV
Shareholder shall be deemed to refer to such Permitted
Transferees.
(e) Sale Prohibited under Trust Agreement. In the event that a
Transfer by JV Shareholder to RCI hereunder would be
prohibited under the terms of the Trust Agreement RCI shall
advise JV Shareholder in any notice given hereunder offering
to purchase JV Offered Securities whether or not it agrees to
make, or cause to be made, a Concurrent Offer. If RCI advises
JV Shareholder that it proposes to make, or cause to be made,
a Concurrent Offer, then notwithstanding any other provision
of this section 7.1, the sale by JV Shareholder to RCI shall
be completed contemporaneously with the take-up and payment
for Securities under the Concurrent Offer and the provisions
of clause (f) shall apply.
(f) Making a Concurrent Offer. If RCI advises JV Shareholder that
it proposes to make, or cause to be made, a Concurrent Offer,
RCI shall commence such offer, or cause such offer to be
commenced, within 20 Business Days following an agreement
being reached for the purchase by RCI of the JV Offered
<PAGE>
Securities and RCI shall take-up and pay for shares under the
Concurrent Offer concurrently with the purchase of the JV
Offered Securities from JV Shareholder (which take-up and
payment shall occur no later than 45 days after the making of
the Concurrent Offer). In the event that RCI advises JV
Shareholder it will make but fails to make, or cause to be
made, the Concurrent Offer, or fails to take-up and pay for
Securities under the Concurrent Offer within the time periods
set forth in this clause (f) by reason that such purchase is
prohibited under applicable law or pursuant to the terms of
the Trust Agreement or by reason of RCI's default in its
obligations, RCI shall thereupon cease to have any rights to
purchase the JV Offered Securities and JV Shareholder may sell
the JV Offered Securities to a bona fide Third Party or Third
Parties upon such terms and conditions as JV Shareholder shall
determine provided such sale is completed during the 60 day
period following such default.
(g) Designation of Third Party or Third Parties. RCI shall have
the right to designate any Person as a purchaser of Securities
pursuant to this section 7.1, including a Third Party or Third
Parties who, in RCI's discretion, may be a trustee who will
hold the Securities in trust pending receipt of any regulatory
or other approval necessary for the transfer of such
Securities to RCI provided such Person agrees to be bound by
this Agreement with respect to such Securities.
(h) Deferral for Certain Regulatory Approvals. Notwithstanding
any other provision of this section 7.1, RCI shall be entitled
to defer the completion of any purchase by RCI, or by any
Person or a Third Party or Third Parties designated under
clause (g), and any Third Party or Third Parties purchasing
Securities pursuant to clause (c) shall be entitled to defer
the completion of any purchase by such Third Party or Third
Parties, for a period not exceeding 90 days from the making of
a Concurrent Offer or, if no Concurrent Offer is required to
be made, 115 days from the date of the relevant agreement of
purchase and sale, for the sole purpose of permitting the
purchaser to obtain any Investment Canada Act, Competition
<PAGE>
Act, Telecommunications Act or other regulatory approval
necessary to the completion of such purchase.
(i) Failure of RCI to Purchase. In the event that RCI agrees with
JV Shareholder to purchase JV Offered Securities under this
section 7.1 and RCI ultimately fails to complete such purchase
as contemplated by such agreement by reason of RCI's default
in its obligations, JV Shareholder shall be entitled during
the period of 60 days following the failure by RCI to complete
the purchase of the JV Offered Securities as contemplated by
this section 7.1 to Transfer the JV Offered Securities to any
Third Party or Third Parties on such terms and conditions as
JV Shareholder shall determine (without prejudice to any
rights and remedies JV Shareholder may otherwise have by
reason of such default).
(j) Co-operation. The Parties shall agree to co-operate fully in
the filing of all applications for all necessary regulatory
approvals and to use their respective reasonable commercial
efforts to obtain all such necessary regulatory approvals
within the relevant time periods referred to in Article 7. In
the event that a necessary regulatory approval is not obtained
on terms satisfactory to the purchaser, acting reasonably,
within such period, the agreement of purchase and sale shall
cease to be binding and enforceable with respect to the
purchase and sale of the Securities of RCMCI subject thereto,
without prejudice to any right of the Parties to seek damages
for any breach of the terms and conditions of such agreement
or of this Agreement.
7.2. Exception
(a) The Right of First Negotiation in section 7.1 shall not apply,
(i) to the conversion by JV Shareholder of Preference
Shares into Class A Shares or Class B Shares or to
the conversion of Class A Shares into Class B Shares
provided that, for greater certainty, the Right of
First Negotiation in section 7.1 shall apply to any
<PAGE>
subsequent Transfer of such Class A Shares or Class B
Shares;
(ii) to any Transfer by JV Shareholder to any Permitted
Transferee provided that any such Permitted
Transferee agrees in writing with RCI to be bound by
this Agreement including, without limitation, the
Right of First Negotiation in this Article 7 to the
same extent as JV Shareholder and provided that such
Transfer shall not release the transferor of its
obligations under this Agreement; and
(iii) to any Pledge of Securities by JV Shareholder or any
Permitted Transferee to a recognized financial
institution as security for a bona fide loan or
obligation provided that the pledgee agrees in
writing with RCI to be bound by this Agreement
including, without limitation, this Article 7 and
provided that such Pledge shall not release the
pledgor of its obligations under this Agreement.
7.3. Survival
Notwithstanding any other provision of this Agreement, the provisions
of this Article 7 shall survive the termination of this Agreement with respect
to any Securities owned by JV Shareholder.
ARTICLE 8.
CHANGE OF CONTROL OF RCI
8.1. Application of Article 8
The provisions of Article 8 apply only so long as:
(a) the Rogers Group Controls RCMCI or Control of RCMCI has been
acquired by a Person upon whom this Agreement is binding under
section 6.1(p) or by a Person pursuant to sections 6.1(x)
(ii), (iii) and (iv) of this Agreement (a "Relevant
Transferee");
<PAGE>
(b) JV Shareholder and/or a Permitted Transferee holds in the
aggregate at least the JV Threshold Amount; and
(c) the Brand Licence Agreement is in effect or, if the Brand
Licence Agreement is not in effect, the Brand Licence
Agreement has been terminated by ACE in accordance with its
terms due to a breach thereof by Cantel.
8.2 Definitions
In this Article 8,
"Acquisition of Control" has the meaning set out in section 8.5.
"AT&T Line of Business" means each of (i) U.S. domestic long distance
voice and data; (ii) international long distance voice and data; (iii)
local telecommunications; (iv) wireless telecommunications; and (v)
Internet communications transmission and access services (as long as
AT&T U.S. or an Affiliate shall continue to carry on any such business
in a material way) and such other lines of business as are from time to
time publicly reported by AT&T U.S. pursuant to the rules and
regulations of the Securities and Exchange Commission (or its
successor) as segmented group financial results of business operations;
provided that, so long as RCI Controls Rogers Cablesystems Limited and
Rogers Cablesystems Limited remains a significant provider of cable
services in Canada, AT&T Line of Business shall not include Broadcast
Distribution Undertakings including traditional analog cable services
and digital cable services; and provided further that AT&T Line of
Business shall also not include businesses publicly reported by AT&T
U.S. as segmented group financial results of business operations under
the heading "Other".
"Broadcast Distribution Undertakings" means "distribution undertaking"
as set out in the Broadcasting Act (Canada).
"Designated Material Competitor of AT&T" means:
(a) a Listed Material Competitor;
<PAGE>
(b) any Affiliate of a Listed Material Competitor;
(c) any Person or group of Persons which is Significantly
Influenced by a Listed Material Competitor and/or by
an Affiliate of a Listed Material Competitor; and
(d) any Person who acquires all or substantially all of
the assets used in carrying on the business of a
Listed Material Competitor or who completes any
amalgamation, merger, arrangement or other business
combination with a Listed Material Competitor
provided that such Person becomes a Listed Material
Competitor pursuant to Section 8.4(B)(c) ;
provided that a Person and its Affiliates shall be deemed not to be a
Designated Material Competitor of AT&T if AT&T U.S. has entered into a
joint venture with such Person involving significant equity or asset
contributions by both parties to the joint venture, having a term of 15
years or more, providing for the sale by the joint venture to customers
of both parties and requiring the entering into of mutual, material,
non-competition covenants with respect to Canada and the United States
of America.
"Eligible Material Competitor" means a Person (including its
Affiliates):
(a) which carries on a business at the Relevant Date that
constitutes significant competition in or with AT&T
U.S. and its Affiliates in an AT&T Line of Business
as at the Relevant Date; and
(b) which
(i) either:
(A) derives not less than 25% of its
audited, consolidated gross revenues
for its most recently completed
financial year ended on or prior to
the Relevant Date from its business
which competes with AT&T U.S. and
its Affiliates in or with the AT&T
Line of Business; or
<PAGE>
(B) has a market share in the same
market as the AT&T Line of Business
of not less than 15%, provided that
AT&T U.S. (including its Affiliates)
has a market share in such AT&T Line
of Business in such market of not
less than 7.5% and
(ii) in the case of a Person which operates
primarily outside of Canada, has a market
capitalization in excess of the greater of
U.S. $7 billion and 3% of the market
capitalization of AT&T U.S. at the Relevant
Date, or in the case of a Person which
operates primarily in Canada, has a market
capitalization in excess of 125% of the
market capitalization of RCMCI as at the end
of its most recently completed financial
year ended on or prior to the Relevant Date.
"group of Persons" means Persons who are acting jointly or in concert.
"Initiating Party" has the meaning set out in sections 8.6(b) or
8.7(b), as the case may be.
"Listed Material Competitor" means a Person listed on Schedule "B"
hereto as the same may be revised from time to time pursuant to section
8.4 hereof.
"Non-Designated Material Competitor of AT&T" means a Person who is not
a Designated Material Competitor of AT&T.
"Relevant Date" has the meaning set out in section 8.4 B.(b).
"Relevant Transferee" has the meaning set out in section 8.1(a).
"Responding Party" has the meaning set out in sections 8.6(a) and
8.7(a), as the case may be.
"Section 8.6 Shotgun Notice" has the meaning set out in section 8.6(a).
<PAGE>
"Section 8.7 Shotgun Notice" has the meaning set out in section 8.7(a).
"Section 8.6 Specified Purchase Price per Security" has the meaning set
out in section 8.6(a).
"Section 8.7 Specified Purchase Price per Security" has the meaning set
out in section 8.7(a).
8.3 Significant Influence
In this Article 8, a Person or group of Persons ("Person B") will be
deemed to be Significantly Influenced by another Person ("Person A") if:
(a) Person A owns 30% or more of the Voting Shares of Person B
(on a fully diluted basis);
(b) Person A owns 20% or more but less than 30% of the Voting
Shares of Person B (on a fully diluted basis) provided that no
other Person owns more than 50% of the Voting Shares of Person
B (on a fully diluted basis); or
(c) If five or more of the following elements exist:
(i) Person A has the right to nominate management of
Person B such as, without limitation, the Chief
Executive Officer, the Chief Operating Officer, the
Chief Financial Officer, the senior marketing officer
or the senior technology officer;
(ii) Person A is the largest single shareholder of Person
B or holds a sufficient interest in the equity of
Person B to equity account for such investment;
(iii) Person A has the right to nominate 25% or more of the
directors of Person B on the board or similar
governing body of Person B;
(iv) Person A has granted to Person B a licence to use any
of its trade marks or trade names;
<PAGE>
(v) Person A has entered into a consulting services
agreement, management services agreement or similar
agreement with Person B;
(vi) Person A has an agreement with Person B for the
purpose of providing seamless services;
(vii) Person A is a member of the same international
telecommunications alliance of which Person B is also
a member; or
(viii) Person A has the right to veto either the capital or
operating budgets of Person B.
8.4 Changes to Schedule "B"
A. Changes Made by JV Shareholder
JV Shareholder shall be entitled by written notice given to
RCI and RCMCI not more than once in each 12 month period following the date of
this Agreement to:
(a) replace up to four Listed Material Competitors with an
equivalent number of Eligible Material Competitors who shall
thereupon become Listed Material Competitors; and
(b) fill any vacancies created on Schedule "B" pursuant to
sections 8.4 B.(a) or (b) with an equivalent number of
Eligible Material Competitors who shall thereupon become
Listed Material Competitors; provided that any vacancies
created on Schedule "B" pursuant to section 8.4 B.(a) may only
be filled to the extent that such vacancies resulted in the
number of Listed Material Competitors being fewer than 20.
B. Other Changes
(a) In the event of the acquisition of all or substantially all of
the assets used in carrying on the business of a Listed
Material Competitor by another Listed Material Competitor, an
amalgamation, merger, arrangement or other business
<PAGE>
combination of two or more Listed Material Competitors, then
the acquiring or continuing Person shall be deemed to continue
as a Listed Material Competitor and a vacancy or vacancies
shall be deemed to be created on Schedule "B" with respect to
the Listed Material Competitor or Listed Material Competitors
whose assets were acquired or who was or were amalgamated,
merged or combined with the continuing Person;
(b) A Listed Material Competitor shall be deemed to be deleted
from Schedule "B" and an equivalent vacancy shall be deemed to
be created in Schedule "B" if such Listed Material Competitor
does not qualify to be an Eligible Material Competitor as at
the date of its annual, audited consolidated financial
statements for its financial year which ends next after the
sixth anniversary of the date of this Agreement in the case of
the original Listed Material Competitors or next after the
fifth anniversary of the date of its addition to Schedule "B"
(in the case of a Designated Material Competitor of AT&T which
is added to Schedule "B") (the respective date referred to
being the "Relevant Date");
(c) In the event of the acquisition of all or substantially all
of the assets used in carrying on the business of a Listed
Material Competitor or an amalgamation, merger, arrangement or
other business combination with a Listed Material Competitor,
as contemplated by clause (d) of the definition of Designated
Material Competitor of AT&T in Section 8.2, the Person
acquiring such assets or completing such amalgamation, merger,
arrangement or other business combination may be placed on the
list on Schedule "B" in substitution for the Listed Material
Competitor whose assets such Person acquired or with whom such
Person completed the amalgamation, merger, arrangement or
other business combination (the "Predecessor Listed Material
Competitor"), provided that such Person shall be deemed to
have become a Listed Material Competitor as of the date the
Predecessor Listed Material Competitor became a Listed
Material Competitor.
<PAGE>
8.5 Acquisition of Control of RCI by a Designated Material Competitor of
AT&T
In the event that there is an acquisition of Control of RCI by a
Designated Material Competitor of AT&T (an "Acquisition of Control"):
(a) if, in connection with the Acquisition of Control,
(i) JV Shareholder had been given written notice of the
proposed sale of Control of RCI at the earlier of (A)
the earlier of: (i) three Business Days prior to
entering into a written confidentiality,
non-disclosure or similar agreement or commitment
with a Third Party in connection with negotiations
with such Third Party relating to a possible sale of
Control of RCI to such Third Party; or (ii) the date
on which any material confidential information
relating to RCMCI or its subsidiaries is disclosed to
such Third Party; and (B) 30 Business Days prior to
the date that a binding agreement was entered into
with respect to the Acquisition of Control, and
(ii) JV Shareholder was offered the opportunity to
participate as a potential buyer in the process
leading to the sale of Control of RCI on a basis
equivalent to Third Parties who have entered into
negotiations to acquire Control of RCI,
then the provisions of section 8.6 shall apply; or
(b) if, in connection with the Acquisition of Control, JV
Shareholder had not been given the notice in the time referred
to in clause (a)(i) above, or had been given such notice but
had not been offered the opportunity to participate in the
sale process as referred to in clause (a)(ii) above, then the
provisions of section 8.7 shall apply.
For greater certainty, RCI and RCMCI shall not have any obligation to
JV Shareholder to give the notice or to offer the participation in the sale
process referred to in clause (a) above. The only consequence of JV Shareholder
<PAGE>
not receiving such notice, or receiving such notice but not the offer to
participate, is that section 8.7 shall be applicable in the event of an
Acquisition of Control.
8.6 Shotgun Rights at FMV plus 5%
(a) Either RCI or JV Shareholder shall have the right but not the
obligation within a period of 90 days following the closing of
an Acquisition of Control to which this section 8.6 applies to
deliver to the other party a notice in writing (the "Section
8.6 Shotgun Notice") offering to purchase all but not less
than all of the Securities of RCMCI owned by the other party
at the purchase price per Security specified in such notice,
payable in cash (the "Section 8.6 Specified Purchase Price per
Security"); provided that the Section 8.6 Specified Purchase
Price per Security may not exceed 105% of the Fair Market
Value per Security of RCMCI. Upon the giving of a Section 8.6
Shotgun Notice, the party receiving such notice (the
"Responding Party") shall thereupon cease to have the right to
give a Section 8.6 Shotgun Notice under this section 8.6
unless the purchase and sale pursuant to the Section 8.6
Shotgun Notice so given is not completed as contemplated by
this section 8.6, other than by reason of the default of the
Responding Party, in which case, the Responding Party shall
thereupon be entitled to give a Section 8.6 Shotgun Notice
under this section 8.6 during the period of 30 days following
the failure of the purchaser to complete any such purchase and
sale.
(b) The Responding Party shall have a period of 30 days from the
date of receipt by the Responding Party of the Section 8.6
Shotgun Notice during which the Responding Party may deliver a
written notice to the party giving the Section 8.6 Shotgun
Notice (the "Initiating Party") either:
(i) accepting the offer to purchase contained in the
Section 8.6 Shotgun Notice and thereby agreeing to
sell all but not less than all the Securities of
RCMCI owned by the Responding Party to the Initiating
Party at the Section 8.6 Specified Purchase Price per
Security; or
<PAGE>
(ii) rejecting the offer to purchase set out in the
Section 8.6 Shotgun Notice.
(c) In the event that the Responding Party fails to deliver a
written notice either accepting or rejecting the offer to
purchase on the terms and conditions set out in the Section
8.6 Shotgun Notice, the Responding Party shall be deemed to
have accepted the offer to purchase and to have agreed to sell
all but not less than all the Securities of RCMCI owned by the
Responding Party to the Initiating Party for the Section 8.6
Specified Purchase Price per Security payable in cash.
(d) In the event that the Responding Party delivers a written
notice rejecting the offer to purchase set out in the Section
8.6 Shotgun Notice, the Initiating Party shall thereupon be
deemed to have agreed to sell and the Responding Party shall
thereupon be deemed to have agreed to purchase all and not
less than all of the Securities of RCMCI owned by the
Initiating Party at the Section 8.6 Specified Purchase Price
per Security, payable in cash.
8.7 Shotgun Rights at any Specified Purchase Price per Security
(a) Either RCI or JV Shareholder shall have the right but not the
obligation within a period of 90 days following the closing of
an Acquisition of Control to which this section 8.7 applies to
deliver to the other party a notice in writing (the "Section
8.7 Shotgun Notice") offering to purchase all but not less
than all of the Securities of RCMCI owned by the other party
at the purchase price per Security specified in such notice,
payable in cash (the "Section 8.7 Specified Purchase Price per
Security"). Upon the giving of a Section 8.7 Shotgun Notice,
the party receiving such notice (the "Responding Party") shall
thereupon cease to have the right to give a Section 8.7
Shotgun Notice under this section 8.7 unless the purchase and
sale pursuant to the Section 8.7 Shotgun Notice so given is
not completed as contemplated by this section 8.7, other than
by reason of the default of the Responding Party, in which
case, the Responding Party shall thereupon be entitled to give
a Section 8.7 Shotgun Notice under this section 8.7 during the
<PAGE>
period of 30 days following the failure of the purchaser to
complete any such purchase and sale.
(b) The Responding Party shall have a period of 30 days from the
date of receipt by the Responding Party of the Section 8.7
Shotgun Notice during which the Responding Party may deliver a
written notice to the party giving the Section 8.7 Shotgun
Notice (the "Initiating Party") either:
(i) accepting the offer to purchase contained in the
Section 8.7 Shotgun Notice and thereby agreeing to
sell all but not less than all the Securities of
RCMCI owned by the Responding Party to the Initiating
Party at the Section 8.7 Specified Purchase Price per
Security; or
(ii) rejecting the offer to purchase set out in the
Section 8.7 Shotgun Notice.
(c) In the event that the Responding Party fails to deliver a
written notice either accepting or rejecting the offer to
purchase on the terms and conditions set out in the Section
8.7 Shotgun Notice, the Responding Party shall be deemed to
have accepted the offer to purchase and to have agreed to sell
all but not less than all the Securities of RCMCI owned by the
Responding Party to the Initiating Party for the Section 8.7
Specified Purchase Price per Security payable in cash.
(d) In the event that the Responding Party delivers a written
notice rejecting the offer to purchase set out in the Section
8.7 Shotgun Notice, the Initiating Party shall thereupon be
deemed to have agreed to sell and the Responding Party shall
thereupon be deemed to have agreed to purchase all but not
less than all of the Securities of RCMCI owned by the
Initiating Party at the Section 8.7 Specified Purchase Price
per Security, payable in cash.
<PAGE>
8.8 Acquisition of Control of RCI by a Non-Designated Material Competitor
of AT&T
In the event that there is an acquisition of Control of RCI by a
Non-Designated Material Competitor of AT&T, the provisions of this Agreement
shall continue in full force and effect, unamended, and the Brand Licence
Agreement shall not be affected by such acquisition of Control of RCI by the
Non-Designated Material Competitor of AT&T.
8.9 Change of Status of Non-Designated Material Competitor of AT&T
In the event that a Non-Designated Material Competitor of AT&T acquires
Control of RCI and at any time after such acquisition such Non-Designated
Material Competitor of AT&T:
(a) becomes Controlled or Significantly Influenced by a Person who
is a Designated Material Competitor of AT&T at the time such
Non-Designated Material Competitor of AT&T becomes so
Controlled or Significantly Influenced;
(b) acquires Control of a Person that is a Designated Material
Competitor of AT&T at the time such Non-Designated Material
Competitor of AT&T acquires Control of such Person; or
(c) becomes an Eligible Material Competitor and is added to
Schedule B pursuant to section 8.4;
then, when either RCI or JV Shareholder becomes aware of the occurrence of one
or more of the events referred to in (a), (b) or (c) of this section 8.9, such
Party shall give written notice to the other Parties and within 90 days of such
notice, either RCI or JV Shareholder may deliver the Section 8.6 Shotgun Notice,
and section 8.6 shall then apply, mutatis mutandis and either Cantel or ACE may
terminate the Brand Licence Agreement in accordance with section 8.11(f),
mutatis mutandis. Notwithstanding the foregoing provisions of this section 8.9,
in the event that, following the occurrence of an event referred to in either
section 8.9(b) or section 8.9(c), the Non-Designated Material Competitor of AT&T
that either acquired Control of a Designated Material Competitor of AT&T under
section 8.9(b) or became an Eligible Material Competitor and is added to
<PAGE>
Schedule B under section 8.9(c) provides a written notice to JV Shareholder
within 30 days of the occurrence of either such event ("Divestiture Notice")
that such Non-Designated Material Competitor of AT&T intends to divest or
otherwise transfer to a Person or Persons with whom its deals at arm's length
that is not its Affiliate within a period of not more than 12 months from the
date of the occurrence of the respective event so that, after giving effect to
such divestitures and transfers, such Non-Designated Material Competitor of AT&T
neither Controls a Designated Material Competitor nor is an Eligible Material
Competitor, then neither RCI nor the JV Shareholder shall be entitled to deliver
the section 8.6 Shotgun Notice unless (i) such Non-Designated Material
Competitor of AT&T has not commenced its divestitures and transfers within 90
days of the date of receipt of the Divestiture Notice; or (ii) the necessary
divestitures and transfers are not completed within 12 months from the date of
the occurrence of the respective event under section 8.9(b) or section 8.9(c),
as the case may be.
8.10 Fair Market Value per Security of RCMCI
(a) For the purposes of section 8.6, the Fair Market Value per
Security of RCMCI shall be determined as of the date of the
Acquisition of Control and for the purpose of section 8.9 the
Fair Market Value per Security of RCMCI shall be determined as
of the date upon which the notice of exercise of the Section
8.6 Shotgun Notice is given and, in each case, in accordance
with this section 8.10.
(b) Either RCI or JV Shareholder may at any time appoint an
internationally recognized valuator under this section 8.10 by
written notice (the "appointment notice") to the other
identifying the valuator so appointed. The other may then
appoint a second valuator by written notice to the party which
gave the appointment notice, such written notice appointing a
second valuator to be given within 15 days following receipt
by the other party of an appointment notice. Failing the
appointment of a second valuator by such notice, the valuator
identified in the appointment notice shall be the sole
valuator for all purposes of this section 8.10.
<PAGE>
(c) Any valuator appointed under this section 8.10 shall determine
the Fair Market Value per Security of RCMCI pursuant to a
formal valuation prepared in accordance with Ontario
Securities Commission Policy 9.1 (or its successor from time
to time), including independence of the valuator, applying the
valuation rules and practices as have been outlined by the
Canadian Institute of Chartered Business Valuators. Fair
Market Value shall be the maximum monetary consideration that,
in an open and unrestricted market, a prudent and informed
buyer would pay to a prudent and informed seller, each acting
at arm's length with the other and under no compulsion to act.
The valuation shall not include a downward adjustment to
reflect the liquidity of the Securities, the effect of the
transaction on the Securities or the fact that the Securities
may not form part of a Controlling interest.
(d) Each party appointing a valuator under clause (b) shall be
liable for the fees of such valuator.
(e) Immediately upon appointment, the valuator or valuators shall
proceed to determine the Fair Market Value per Security of
RCMCI. Such determination shall be made as expeditiously as
possible and in any event within a period of 60 days following
the appointment of such valuator or valuators. Each valuator
shall specify in its valuation the dollar amount (and not a
range of dollar amounts) which it considers to be the Fair
Market Value per Security of RCMCI.
(f) Upon a determination by a valuator of the Fair Market Value
per Security of RCMCI, the valuator shall give notice in
writing to each of RCI and JV Shareholder that it has
completed its valuation, but without disclosing the amount of
such valuation, and when both valuations (the "initial
valuations") have been completed, the initial valuations shall
be simultaneously delivered to each of RCI and JV Shareholder,
together with reasonable particulars of the basis upon which
such value was determined.
<PAGE>
(g) Subject to clause (b) and (h), the Fair Market Value per
Security of RCMCI shall be the average of the Fair Market
Values per Security of RCMCI of the relevant Securities
determined in the initial valuations.
(h) If the Fair Market Value per Security of RCMCI determined by
one valuator in an initial valuation is more than 10% greater
than the Fair Market Value per Security of RCMCI determined by
the second valuator in the other initial valuation, then RCI
and JV Shareholder shall agree as to the appointment of a
third valuator. Failing such agreement, the auditors of RCMCI
(who shall be one of the five largest international firms of
chartered accountants) shall, at the request of either RCI or
JV Shareholder made within seven days following delivery of
the initial valuations to each of RCI and JV Shareholder,
appoint a third valuator who shall be an internationally
recognized valuator. The third valuator shall determine the
Fair Market Value per Security of RCMCI in accordance with
this section 8.10 within 60 days after the date of its
appointment and shall deliver its valuation and reasonable
particulars of the basis upon which such value was determined
to each of RCI and JV Shareholder upon completion. For greater
certainty, the third valuator shall not receive copies of the
initial valuations or be advised of the dollar amounts arrived
at in the initial valuations prior to delivery of the
valuation of the third valuator. The Fair Market Value per
Security of RCMCI for purposes of this section 8.10 shall be
the Fair Market Value determined in the initial valuation
which is closest to the Fair Market Value per Security of
RCMCI as determined by the valuator appointed under this
clause (h). The reasonable fees of the third valuator shall be
borne equally by RCI and JV Shareholder.
(i) The determination of Fair Market Value per Security of RCMCI
pursuant to this section 8.10 shall be final and binding on
RCI and JV Shareholder and shall not be subject to appeal.
<PAGE>
(j) Each of RCI and JV Shareholder agrees to co-operate in good
faith with each other and the valuator or valuators to permit
the determination of the Fair Market Value per Security of
RCMCI.
8.11 General
(a) A Section 8.6 Shotgun Notice or a Section 8.7 Shotgun Notice
may not contain any terms and conditions to the offer to
purchase the Securities of RCMCI other than:
(i) the receipt of all necessary regulatory approvals
applicable to the transfer of ownership of the
applicable Securities of RCMCI to the purchaser, on
terms and conditions satisfactory to the purchaser,
acting reasonably, within a period not exceeding 90
days from the making of a Concurrent Offer or, if no
Concurrent Offer is required to be made, 115 days
from the date the relevant agreement of purchase and
sale is entered into or is deemed to be entered into
between the parties; and
(ii) the delivery of the required closing documents by the
parties to transfer to the purchaser legal title to
the Securities of RCMCI to be purchased and sold.
(b) The parties shall agree to co-operate fully in the filing of
all applications for all necessary regulatory approvals and to
use their respective reasonable commercial efforts to obtain
all such necessary regulatory approvals within the relevant
time period referred to in clause (a)(i). In the event that a
necessary regulatory approval is not obtained on terms
satisfactory to the purchaser, acting reasonably, within such
period, the agreement of purchase and sale resulting from
delivery of a Shotgun at FMV Notice or a Shotgun Notice shall
cease to be binding and enforceable with respect to the
purchase and sale of the Securities of RCMCI subject thereto,
without prejudice to any right of the parties to seek damages
for any breach of the terms and conditions of such agreement
or of this Agreement.
<PAGE>
(c) Subject to clause (b), the agreement of purchase and sale that
results from the delivery of a Shotgun at FMV Notice or a
Shotgun Notice shall be closed on the fifth Business Day
following receipt of all necessary regulatory approvals.
(d) Any sale of Securities of RCMCI pursuant to the agreement of
purchase and sale that results from the delivery of a Section
8.6 Shotgun Notice or a Section 8.7 Shotgun Notice must not be
prohibited under the Trust Agreement or the JV Trust
Agreement, if applicable. If such sale is prohibited or if the
purchaser having agreed to make a Concurrent Offer fails to
purchase or cause to be purchased the Securities of RCMCI
deposited under such Concurrent Offer, the seller shall be
relieved of all obligations under the agreement of purchase
and sale that results from the delivery of a Section 8.6
Shotgun Notice or a Section 8.7 Shotgun Notice without
liability to the purchaser. The foregoing shall not relieve
the purchaser of any liability arising from any breach of the
terms and conditions of the agreement of purchase and sale or
of this Agreement.
(e) Either RCI or JV Shareholder shall have the right to designate
an Affiliate or a Third Party or Third Parties as the
purchaser of the Securities of RCMCI who in that party's
discretion may be a trustee who will hold the Securities in
trust in order to comply with or pending the receipt of all
necessary regulatory approvals for the transfer of such
Securities to the purchasing party.
(f) In the event that there is an Acquisition of Control, Cantel
and ACE shall each be entitled to cancel in each case without
any liability therefor, the Brand Licence Agreement by written
notice given by the terminating party to the other party
within 60 days following the Acquisition of Control.
<PAGE>
ARTICLE 9.
PRE-EMPTIVE RIGHT
9.1 Pre-Emptive Right of JV Shareholder
RCMCI agrees that if RCMCI or any of its subsidiaries issues any Equity
Shares or Convertible Securities (the "Additional Securities") (other than to
another member of the RCMCI Wholly-Owned Group), RCMCI shall, or shall cause its
subsidiary to, contemporaneously with such issuance or promptly thereafter offer
to JV Shareholder the right to subscribe for and purchase a number of such
Additional Securities so that JV Shareholder can maintain the voting and equity
interest in the RCMCI Group (determined on a diluted basis) which JV Shareholder
held immediately prior to the issue of the Additional Securities at the same
cash subscription price (or if the subscription price was paid in property, the
amount added to stated capital of the class of shares of RCMCI being issued in
respect of such property) in respect of such Additional Securities. Such offer
shall be made in writing by RCMCI to JV Shareholder and shall contain a
description of the terms and conditions of the Additional Securities, the price
at which the Additional Securities are to be or have been issued and the number
of Additional Securities which JV Shareholder is entitled to purchase under this
section and the offer shall state that if JV Shareholder wishes to purchase
Additional Securities under this section, it may do so only by giving written
notice of exercise of such right to RCMCI within 30 days following the date of
the offer to JV Shareholder. The offer shall also state that if JV Shareholder
wishes to subscribe for a number of Additional Securities less than the number
to which it is entitled under this section, JV Shareholder may do so and shall,
in the notice of exercise of the offer, specify the number of Additional
Securities that JV Shareholder wishes to purchase. RCMCI shall not be required
to offer to JV Shareholder any securities issuable upon the conversion of, or
otherwise issuable pursuant to, a Convertible Security so long as JV Shareholder
was offered the right to acquire such Convertible Security in accordance with
this section 9.1.
<PAGE>
9.2 Non-Applicability of Pre-Emptive Right
The provisions of section 9.1 shall not apply to any issue of Equity
Shares or Convertible Securities:
(a) pursuant to the conversion of Class A Shares into Class B
Shares or pursuant to the exercise of any conversion or
exchange right attached to any currently outstanding
Convertible Security of RCMCI;
(b) to a director, officer or employee of RCMCI pursuant to an
employee stock option plan, employee stock purchase plan or
other employee stock incentive plan of RCMCI provided that the
Equity Shares issuable pursuant to such plans do not exceed
10% of the then outstanding number of Equity Shares.
9.3 Pre-Emptive Right of RCI
RCMCI agrees that RCI shall have a pre-emptive right on the same terms
and conditions as the pre-emptive right granted to JV Shareholder under section
9.1 and the provisions of sections 9.1 and 9.2 shall apply, mutatis mutandis, to
the pre-emptive right granted by RCMCI to RCI under this section 9.3.
ARTICLE 10.
CLOSING PROCEDURES
10.1. Closing Procedures
Except as otherwise expressly provided in this Agreement, if a purchase
and sale of Securities is made pursuant to this Agreement, the following shall
apply:
(a) Payment of Purchase Price and Delivery of Certificates. The
purchase price shall be paid on closing. If the purchase price
is payable in cash, it shall be paid by wire transfer in
immediately available funds or in such other manner as the
Purchaser and Vendor may agree upon. The purchase price shall
be paid against receipt of the share certificate or
<PAGE>
certificates representing the Securities or Convertible
Securities being purchased, duly endorsed for transfer in
blank with signatures guaranteed by a Canadian chartered bank
or trust company.
(b) Date and Time of Closing. If the date for completion of any
transaction of purchase and sale falls on a day which is not a
Business Day, the transaction shall be completed on the first
Business Day following such date. Closing shall take place at
11:00 a.m. on the date for completion at the registered office
of RCMCI.
(c) Title. The acceptance by the vendor of payment for the Equity
Shares or Convertible Securities being purchased and sold
shall constitute a representation and warranty by the vendor
that the vendor has good and marketable title to such
Securities or Convertible Securities free and clear of any
Pledge or adverse claim (collectively, the "Liens"), except
the terms of this Agreement and the Related Agreements.
Notwithstanding the foregoing, the vendor shall deliver to the
purchaser all such documents, instruments and releases and
shall do all such acts and things as the purchaser may
reasonably request, whether before or after completion of the
transaction, to vest such title in the purchaser free and
clear of all Liens except the terms of this Agreement and the
Related Agreements.
(d) Failure to Complete Sale. If, at the time of closing, the
vendor shall not complete the sale for any reason, the
purchaser shall have the right to deposit the purchase price
for the Securities or Convertible Securities, if any, to be
purchased and sold for the account of the vendor in an account
with the bankers of RCMCI and such deposit shall constitute
valid and effective payment of the purchase price to the
vendor. Thereafter the purchaser shall have the right to
execute and deliver any deeds, stock transfers, assignments,
resignations, releases and other documents as may, in the
reasonable opinion of the purchaser, be necessary or desirable
in order to complete the transaction. If payment of the
purchase price is so deposited, then from and after the date
of deposit, notwithstanding that certificates or instruments
evidencing the Securities or Convertible Securities may not
have been delivered to the purchaser, the purchase of the
Securities or Convertible Securities shall be deemed to have
<PAGE>
been fully completed and the records of RCMCI shall be amended
accordingly and all right, title, benefit and interest, both
at law and in equity, in and to the Securities or Convertible
Securities shall be conclusively deemed to have been
transferred and assigned to and become vested in the purchaser
and all right, title and interest of the vendor and of any
other Person (other than the purchaser) having any interest
therein, legal or equitable, in any capacity whatsoever shall
cease.
ARTICLE 11.
ARBITRATION
11.1. Mediation and Arbitration
Any dispute arising out of or in relation to this Agreement, including
any dispute in relation to its breach, existence, validity or termination, or
whether an issue is arbitrable ("Disputes") which cannot be settled within a
reasonable period of time (not exceeding 30 days from the date of written notice
from any party to another describing the nature of the dispute) through
negotiation, shall be submitted to a sole mediator selected by the Parties or,
at any time at the option of a Party, to mediation by a mediator appointed by
the Arbitration and Mediation Institute of Ontario Inc., (the "AMI"), which
mediation shall be governed by the then-current mediation rules of the AMI. If
not thus resolved, the Dispute shall be referred to a panel of three (3)
arbitrators (none of whom may have any conflict with the issues forming the
subject matter of the arbitration or with the Parties to the arbitration and all
of whom have the required expertise for the issues forming the subject of the
arbitration) selected by the Parties, with one arbitrator to be appointed by
each Party and the third arbitrator to be agreed upon by both RCMCI and JV
within thirty (30) days of the termination of mediation or, in the absence of
such selection, to a panel of three arbitrators appointed by the AMI upon
application of either Party, which arbitration shall be governed by the
Arbitration Act, 1991 (Ontario) and the then-current arbitration rules of the
AMI and judgement on the award may be entered in any court having jurisdiction.
Any mediator or arbitrator selected shall be qualified by education and
experience to decide the matter in dispute and shall deal at arm's length to the
<PAGE>
Parties. The arbitrators shall determine issues of arbitrability but may not
award punitive damages or limit, expand or otherwise modify the terms of this
Agreement. The arbitrators shall send a copy of their decision to the Parties as
soon as practicable after conclusion of the final hearing, but in any event no
later than sixty (60) days after the final hearing, unless that time period is
extended for a fixed period by the arbitrators on written notice to each Party
because of illness or other cause beyond the arbitrators' control. The decision
of the arbitrators shall be final and binding on the Parties and shall not be
subject to any appeal or review if the arbitrators have followed the rules of
the AMI and have proceeded in accordance with the principles of natural justice.
The Parties, their representatives, other participants and the mediator and/or
the arbitrators shall hold the existence, content and result of the mediation
and/or arbitration in confidence to the greatest extent permitted by applicable
law.
11.2. Injunctive Relief
Notwithstanding arbitration pursuant to section 11.1 above, the Parties
acknowledge that money damages are not an adequate remedy for violations of this
Agreement and that any Party may, in its sole discretion, apply prior to or
during arbitration pursuant to section 11.1, to a court of competent
jurisdiction for specific performance or injunctive relief on an interim or
interlocutory basis as such court may deem just and proper in order to enforce
this Agreement or prevent any violation hereof at an interim or interlocutory
stage and, to the extent permitted by applicable law, each Party waives any
objection to the imposition of such relief.
ARTICLE 12.
GENERAL PROVISIONS
12.1. Term
This Agreement shall come into force and effect as of the date set out
on the first page of this Agreement and, except as otherwise expressly provided
in this Agreement, shall continue in force until the earliest of:
(a) the 180th day following the date on which JV Shareholder and
any Permitted Transferees first cease to own in the aggregate
at least the JV Threshold Amount provided that JV Shareholder
and any Permitted Transferees cease to own in the aggregate at
least the JV Threshold Amount throughout such 180 day period;
<PAGE>
Notwithstanding section 12.1(a), if JV Shareholder shall have
given written notice (the "Purchase Notice") to RCMCI, not
later than 90 days prior to the expiry of such 180 day period,
advising RCMCI of the fact that JV Shareholder and any
Permitted Transferees ceased to own in the aggregate at least
the JV Threshold Amount, setting out details of the then
ownership of Securities by JV Shareholder and its Permitted
Transferees and subscribing to RCMCI at Fair Market Value for
such number of authorized and unissued Class B Shares as is
necessary for JV Shareholder and any Permitted Transferees to
own in the aggregate at least the JV Threshold Amount after
giving effect to such subscription and either (A) RCMCI has
failed to issue such Class B Shares to JV Shareholder or its
Permitted Transferees at such price or (B) such shares have
been issued to JV Shareholder or its Permitted Transferees,
such that JV Shareholder and its Permitted Transferees own at
least the JV Threshold Amount, then this Agreement shall
continue in full force and effect. JV Shareholder shall not be
entitled to give the Purchase Notice if both of AT&T U.S. and
its Affiliates on the one hand, and BT and its Affiliates, on
the other hand, have Transferred Class B Shares (whether
directly or indirectly through JV Shareholder) otherwise than
to the Rogers Group or to Permitted Transferees. Any
Additional Class B Shares issued pursuant to this section
12.1(a) shall not be counted for purposes of determining
whether RCMCI is entitled to exercise its rights to issue
Equity Shares under section 3.1(e)(vi);
(b) having ceased to own in the aggregate at least the JV
Threshold Amount and having thereafter acquired sufficient
Securities to again own in the aggregate at least the JV
Threshold Amount as contemplated in clause (a) above, JV
Shareholder and any Permitted Transferees thereafter cease to
own the JV Threshold Amount;
<PAGE>
(c) at any time that JV Shareholder and any Permitted Transferees
cease to own in the aggregate at least 5% of the outstanding
Securities;
(d) in the event JV Shareholder is required to convert its
Securities into Class B Shares in compliance with section 4.4;
and
(e) the date on which this Agreement is terminated by written
agreement of all of the Parties.
12.2. Termination Not to Affect Rights or Obligations
The termination of this Agreement shall not affect or prejudice any
rights or obligations which have accrued or arisen under this Agreement prior to
the time of termination and such rights and obligations shall survive the
termination of this Agreement.
12.3. 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
<PAGE>
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, lock-out 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:
Rogers Cantel Mobile Communications Inc.
333 Bloor Street East, 10th Floor
Toronto, Ontario
M4W 1G9
Attention: Chief Executive Officer
Telecopier: (416) 935-3538
with a copy to:
Rogers Cantel Mobile Communications Inc.
333 Bloor Street East, 10th Floor
Toronto, Ontario
M4W 1G9
Attention: Chairman of the Board of Directors
Telecopier: (416) 935-3538
and with a copy to:
Tory Tory DesLauriers & Binnington
Suite 3000
Aetna Tower
P.O. Box 270
Toronto-Dominion Centre
79 Wellington Street West
Toronto, Ontario
M5K 1N2
Attention: James E.A. Turner
Telecopier: (416) 865-7380
<PAGE>
(b) if to RCI:
Rogers Communications Inc.
333 Bloor Street East, 10th Floor
Toronto, Ontario
M4W 1G9
Attention: Chief Executive Officer
Telecopier: (416) 935-3538
with a copy to:
Rogers Communications Inc.
333 Bloor Street East, 10th Floor
Toronto, Ontario
M4W 1G9
Attention: Chief Financial Officer
Telecopier: (416) 935-3557
and with a copy to:
Tory Tory DesLauriers & Binnington
Suite 3000
Aetna Tower
P.O. Box 270
Toronto-Dominion Centre
79 Wellington Street West
Toronto, Ontario
M5K 1N2
Attention: James E.A. Turner
Telecopier: (416) 865-7380
<PAGE>
(c) if to JV Shareholder:
JV II
c/o AT&T Corp.
295 North Maple Avenue
Basking Ridge, New Jersey
07920
Attention: Secretary, Marilyn Wasser
Telecopier: (908) 221-4408
and:
c/o British Telecommunications plc
81 Newgate Street
London, UK
EC1A 7AF
Attention: The Solicitor (Ref. CYB)
Telecopier: 44-1-71-356-6151
with a copy to:
Fasken Campbell Godfrey
TD Bank Tower
P.O. Box 20
Toronto-Dominion Centre
Toronto, Ontario
M5K 1N2
Attention: George C. Glover, Jr.
Telecopier: (416) 364-7813
and to:
Goodman Phillips & Vineberg
Suite 2400
250 Yonge Street
Toronto, Ontario
M5B 2M6
Attention: Stephen H. Halperin
Telecopier: (416) 979-1234
<PAGE>
12.4. Time Limits
The Parties to the Agreement have set the time limits in this Agreement
after due consideration of the amount of time necessary to complete each step
and it is their express desire that no extension of any time limit shall be
granted except in extraordinary circumstances, the onus for the proof of the
existence of which lies on the Party seeking an extension.
12.5. Further Assurances
Each of the Shareholders shall vote and act at all times as a
shareholder of RCMCI and in all other respects to take all such steps, execute
all such documents and do all such acts and things as may be necessary and
within the power of such Shareholder to implement to the full extent the
provisions of this Agreement.
12.6. 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.
12.7. Enurement
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and legal personal
representatives and permitted assigns. Except as otherwise expressly provided in
this Agreement, the rights and benefits under this Agreement may not be
transferred, assigned or delegated to any Person except with the prior written
consent of the Party granting such rights and benefits.
12.8 Transferees bound by this Agreement
In the event of an acquisition of control of RCMCI by a Person who has
assumed the obligations of RCI under this Agreement, references herein to RCI
shall be deemed thereafter to refer to such Person and in the event of a
Transfer to a Permitted Transferee of all of the Securities of RCMCI held,
<PAGE>
directly or indirectly, by JV Shareholder, references herein to JV Shareholder
shall be deemed thereafter to refer to such Permitted Transferee.
IN WITNESS WHEREOF the parties have executed this Agreement.
ROGERS COMMUNICATIONS INC.
/s/ Graeme McPhail
------------------------------
By: Graeme McPhail
Title:
/s/ David Miller
------------------------------
By: David Miller
Title:
JVII PARTNERSHIP
/s/ Dexter Congbalay
------------------------------
By: Dexter Congbalay
Title:
/s/ Cynthia S. Brown
------------------------------
By: Cynthia S. Brown
Title:
ROGERS CANTEL MOBILE COMMUNICATIONS INC.
/s/ Graeme McPhail
------------------------------
By: Graeme McPhail
Title:
/s/ David Miller
------------------------------
By: David Miller
Title:
<PAGE>
SCHEDULE "A"
OWNERSHIP OF SECURITIES
ROGERS CANTEL MOBILE COMMUNICATIONS INC.
Class A Shares % Class B Shares %
Rogers Communications Inc. 62,820,371 69.4% --- 0.0%
Public --- 0.0% 19,448,395 59.1%
JVII Partnership 27,647,888 30.6% 13,486,495 40.9%
---------- ------ ---------- ------
90,468,259 100.0% 32,934,890 100.0%
<PAGE>
SCHEDULE "B"
LISTED MATERIAL COMPETITORS
1. BCE
2. Telus
3. Call-Net
4. GTE
5. MCI Worldcom
6. Sprint (US)
7. Ameritech
8. BellSouth
9. Clearnet
10. Telesystem
11. Nextel
12. Qwest
13. Global Crossing
14. AOL
15. Cable and Wireless
16. Alltel
17. Vodafone
18. EDS
19. Deutsch Telekom
20. France Telecom
21. McLeod USA
22. Orange
23. Telmex
<PAGE>
SCHEDULE "C"
PLEDGES OUTSTANDING
The following Pledges are currently outstanding:
(A) the Pledge of RCMCI Class B Restricted Voting Shares (in the
form of RCMCI Class A Multiple Voting Shares) in connection
with the obligations of Rogers Cablesystems Limited
("Cablesystems") under an amended and restated loan agreement
made as of April 2, 1990 and amended and restated on November
26, 1996 and as further amended on April 21, 1997, May 1, 1997
and December 23, 1997; and
(B) security granted by Cantel under the its Amended and Restated
Deed of Trust dated March 15, 1997 between Cantel and National
Trust Company to secure obligations of Cantel under the
following agreements: (1) a Letter Loan Agreement dated
October 31, 1991 between Cantel and The Bank of Nova Scotia as
amended on March 30, 1992 re a Cdn.$10,000,000 overdraft
(operating) credit facility; (2) Amended and Restated Credit
Agreement dated as of March 15, 1997 between Cantel and The
Bank of Nova Scotia, as administrative agent, and others re a
Cdn.$800,000,000 revolving credit facility; (3) Indenture
dated as of May 30, 1996 among Cantel, Chemical Bank and The
R-M Trust Company re Cdn.$160,000,000 10 1/2% Senior Secured
Notes due 2006; (4) Indenture dated as of May 30, 1996 among
Cantel, Chemical Bank and The R-M Trust Company re
US$510,000,000 9-3/8% Senior Secured Debenture due 2008; (5)
Indenture dated as of May 30, 1996 among Cantel, Chemical Bank
and The R-M Trust Company re US$175,000,000 9 3/4% Senior
Secured Debentures due 2016; (6) Indenture dated as of
September 30, 1997 among Cantel, The Chase Manhattan Bank and
CIBC Mellon Trust Company re US$275,000,000 8.30% Senior
Secured Notes due 2007; and (7) Indenture dated as of
September 30, 1997 among Cantel, The Chase Manhattan Bank and
CIBC Mellon Trust Company re US$215,000,000 8.8% Senior
Subordinated Notes due 2007.
<PAGE>
SCHEDULE "D"
[LETTERHEAD OF RCMCI]
CONFIDENTIALITY AGREEMENT
[Date]
Rogers Communications Inc.
333 Bloor Street East
Toronto, Ontario
M4W 1G9
Attention: Chief Executive Officer
[Purchaser]
Dear Sirs:
We understand that Rogers Communications Inc. or its affiliates ("RCI") are
considering the possibility of a sale of |X| Class A Multiple Voting Shares
[and/or other securities] of RCMCI to |X| ("Purchaser"). In connection with such
potential sale, RCMCI agreed in the shareholders agreement dated August 16, 1999
(the "Shareholders' Agreement") among such parties and RCMCI that if it
furnished to the Purchaser information which is either non-public, confidential
or proprietary in nature in order to permit the Purchaser to carry out
reasonable due diligence with respect to RCMCI it would obtain a confidentiality
agreement in the form of this letter. The purpose of this letter agreement is to
set out the agreement of RCMCI, RCI and the Purchaser with respect to the
disclosure, provision and use of such information.
For the purposes of this agreement, "Confidential Information" means any
and all information supplied or communicated (either orally or in writing) by
RCMCI to the Purchaser including information designated as confidential, or
which ought to be considered as confidential from its nature or from the
circumstances surrounding its disclosure or which is acquired by inspection.
<PAGE>
Confidential Information includes, without limiting the generality of the
foregoing, information:
1. relating to RCMCI's software or hardware products and services, or
to its research and development projects or plans; and
2. relating to RCMCI's business policies, strategies, operations,
finances, plans or opportunities including the identity of, or
particulars about, RCMCI's customers, clients or suppliers.
SECTION 1 - RCMCI CONFIDENTIAL INFORMATION
All of RCMCI's Confidential Information provided or communicated to the
Purchaser, its directors, officers, employees, agents, or representatives,
including, without limitation, its lawyers, accountants, consultants or
financial advisors (all of such persons other than the Purchaser are
collectively referred to as "representatives") shall remain the exclusive and
confidential property of RCMCI. The Purchaser shall not disclose, or allow to be
disclosed, RCMCI's Confidential Information to any person other than the
Purchaser's representatives as permitted under this Agreement. The Purchaser
agrees to take all reasonable steps (including those steps the Purchaser takes
to protect its own information, data or tangible or intangible property which it
regards as confidential) to ensure the confidentiality of RCMCI's Confidential
Information including, without limitation, requiring its representatives to
agree to be bound by the provisions of this Agreement prior to the disclosure of
any such Confidential Information to any such representative. The Purchaser
shall allow access to RCMCI's Confidential Information to representatives only
on a need-to-know basis. The Purchaser agrees that Confidential Information
which consists of competitively sensitive information may be made available by
RCMCI to the Purchaser subject to such additional restrictions and pursuant to
such other arrangements as RCMCI may determine. Except as otherwise required by
law, the Purchaser agrees to keep confidential the fact that Confidential
Information is being provided to it under this Agreement, that this Agreement
<PAGE>
has been entered into or that the Purchaser is considering the possible purchase
by it from RCI of securities of RCMCI.
SECTION 2 - USE OF CONFIDENTIAL INFORMATION
The Purchaser agrees that it will not use, nor will it permit
any person to whom disclosure is permitted under this Agreement to use, any
Confidential Information other than for the purpose of evaluating a purchase of
securities of RCMCI from RCI.
SECTION 3 - PERMITTED DISCLOSURE AND USE
The provisions of Section 1 and 2 shall not apply to and Confidential
Information shall not include:
(i) information that is in the public domain other than
as a consequence of a breach of the obligations
contained in this Agreement to maintain the
confidentiality of Confidential Information;
(ii) information that is known by the Purchaser prior to
the disclosure to the Purchaser without any other
obligation of confidentiality to RCMCI or is
independently developed by the Purchaser without use
of the Confidential Information or breach of the
obligations contained in this Agreement; and
(iii) information that has been received by the Purchaser
from a third party who is not subject to obligations
similar to the obligations contained in this
Agreement.
SECTION 4 - PROVISION AND RETURN OF CONFIDENTIAL INFORMATION
Unless otherwise agreed to in writing by RCMCI, the Purchaser shall:
(i) return or cause to be returned to RCMCI all copies of
the Confidential Information in its possession or in
the possession of its representatives (which are not
destroyed pursuant to clause (ii) of this section 4);
and
<PAGE>
(ii) destroy all copies of any analyses, compilations,
studies or other documents prepared by the Purchaser
or for the Purchaser's use containing, incorporating
or reflecting any Confidential Information;
before the close of business 24 hours following the date of any written
request by RCMCI to the Purchaser to return or destroy the Confidential
Information. The Purchaser shall certify to RCMCI in writing of its compliance
with this section forthwith after having so complied. For purposes of this
section, "document" means any embodiment of Confidential Information in any
physical or ephemeral form, including any and all papers, reproductions,
slides and microfilms and any electronic media such as disks, tapes, other
magnetic media, computer software and computer storage systems containing any
Confidential Information and, where this Agreement calls for any document to
be destroyed, in the case of electronic media that can be erased, such
obligation means that such document shall be permanently erased.
SECTION 5 - COURT ORDERS
In the event that the Purchaser or anyone else to whom Confidential
Information is provided as permitted by this Agreement receives notice
indicating that it may or will be legally compelled to disclose any of the
Confidential Information to any person other than as permitted by this
Agreement, the Purchaser shall provide RCMCI with prompt notice so that RCMCI
may seek a protective order or other appropriate remedy and/or waive compliance
with the provisions of this Agreement. In the event that such protective order
or other remedy is not obtained for whatever reason, or that RCMCI waives
compliance with the provisions of this Agreement, such compelled person will
furnish only that portion of the information in respect of which it is advised
by written opinion of counsel that it is legally required to disclose and will
exercise its best efforts to obtain reliable assurances that confidential
treatment will be accorded such Confidential Information. Such compelled
disclosure of Confidential Information by the Purchaser will not constitute a
breach of this Agreement.
<PAGE>
SECTION 6 - SPECIFIC PERFORMANCE
RCI and the Purchaser understand and agree that this Agreement is separate
and independent of any agreement which has been or is entered into by RCI and
the Purchaser. The existence of any claim or cause of action by RCI or the
Purchaser against the other, whether predicated on such other agreements or
otherwise, shall not constitute a defence to the enforcement by RCMCI of any of
the covenants and agreements contained in this Agreement. The parties hereto
agree that failure to comply with the provisions of this Agreement may cause
irreparable harm to RCMCI and accordingly agree that any court having
jurisdiction may enter a preliminary and/or permanent restraining order,
injunction or order for specific performance in the event of actual or
threatened breach of any of the provisions of this Agreement in addition to
imposing any other remedies available.
SECTION 7 - NO REPRESENTATION OR WARRANTIES REGARDING CONFIDENTIAL INFORMATION
The Purchaser acknowledges that any Confidential Information provided to it
under this Agreement is given without any liability whatsoever on the part of
RCMCI or RCI or their respective directors, officers or employees and that no
representation or warranty is made with respect to such Confidential Information
by RCMCI, RCI or their respective directors, officers or employees and the
Purchaser acknowledges that RCMCI shall have no obligation whatsoever to update
or supplement the Confidential Information. Except as hereinafter provided, each
of RCI and the Purchaser agrees not to assert or allege the existence of any
representation, warranty or agreement by RCMCI or its directors, officers or
employees as a result of the provision of Confidential Information. RCMCI shall
have liability only in respect of those representations, warranties and
agreements which are made in writing by RCMCI and duly executed by it.
SECTION 8 - LIABILITY FOR BREACH OF AGREEMENT BY REPRESENTATIVES
The Purchaser agrees to be responsible for any breach of this Agreement by
any of its representatives.
<PAGE>
SECTION 9 - PROVISIONS DISTINCT AND SEVERABLE
Each of the provisions contained in the Agreement is distinct and severable
and a declaration of invalidity or unenforceability of any such provision or
part thereof by a court of competent jurisdiction shall not affect the validity
or enforceability of any other provision hereof.
SECTION 10 - 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.
Yours very truly,
ROGERS CANTEL MOBILE COMMUNICATIONS INC.
by:
Accepted and agreed to as of the date set forth above.
ROGERS COMMUNICATIONS INC.
by:
[Purchaser]
by:
EXHIBIT B
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange Act of 1934,
as amended, the undersigned hereby agree to the joint filing with all other
Reporting Entities (as such term is defined in the Schedule 13D referred to
below) on behalf of each of them of a statement on Schedule 13D (including
amendments thereto) with respect to the Class B Restricted Voting Shares of
Rogers Cantel Mobile Communications Inc. and that this Agreement be included as
an Exhibit to such joint filing. This Agreement may be executed in any number of
counterparts all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement this 27th
day of August, 1999.
JVII
/s/ Robert S. Feit
-----------------------------
By: Robert S. Feit
Title: Assistant Secretary
/s/ Cynthia S. Brown
-----------------------------
By: Cynthia S. Brown
Title: Solicitor, Group Legal
AT&T Canada Investments Inc.
/s/ Robert S. Feit
-----------------------------
By: Robert S. Feit
Title: Assistant Secretary
BT (Netherlands) 1 B.V., on behalf of and
for the account of BT Longmont (Luxembourg)
IV SARL
/s/ Cynthia S. Brown
-----------------------------
By: Cynthia S. Brown
Title: Solicitor, Group Legal
AT&T Corp.
/s/ Robert S. Feit
-----------------------------
By: Robert S. Feit
Title: Assistant Secretary
British Telecommunications plc
/s/ Cynthia S. Brown
-----------------------------
By: Cynthia S. Brown
Title: Solicitor, Group Legal
REGISTRATION RIGHTS AGREEMENT
JVII PARTNERSHIP
- and -
ROGERS CANTEL MOBILE COMMUNICATIONS INC.
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
- --------------------------------------------------------------------------------
August 16, 1999
<PAGE>
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
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of the 16th day of August, 1999,
B E T W E E N:
JVII PARTNERSHIP, a general partnership formed under the laws of
Delaware
hereinafter called "JV")
- and -
ROGERS 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
<PAGE>
(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,
<PAGE>
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;
<PAGE>
(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 Rogers Communications Inc., a corporation
incorporated under the laws of British Columbia;
"RCMCI's Counsel" means the law firm of Tory Tory DesLauriers
& 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.
<PAGE>
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.
<PAGE>
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 Rogers
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.
<PAGE>
(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
<PAGE>
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)
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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.
<PAGE>
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,
<PAGE>
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.
<PAGE>
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 Rogers 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.
<PAGE>
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.
<PAGE>
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:
Rogers Cantel Mobile Communications Inc.
333 Bloor Street East, 10th Floor
Toronto, Ontario M4W 1G9
Attention: Chief Executive Officer
Telecopier: (416) 935-3538
with a copy to:
Rogers Cantel Mobile Communications Inc.
333 Bloor Street East, 10th Floor
Toronto, Ontario M4W 1G9
<PAGE>
Attention: Chairman of the Board of Directors
Telecopier: (416) 935-3538
and with a copy to:
Tory Tory DesLauriers & Binnington
Suite 3000
Aetna Tower
P.O. Box 270
Toronto-Dominion Centre
79 Wellington Street West
Toronto, Ontario M5K 1N2
Attention: James E.A. Turner
Telecopier: (416) 865-7380
(b) if to JV:
JVII
c/o AT&T Corp.
295 North Maple Avenue
Basking Ridge, New Jersey 07920
Attention: Secretary, Marilyn Wasser
Telecopier: (908) 221-4408
and:
c/o British Telecommunications plc
81 Newgate Street
London, U.K. EC1A 7AF
Attention: Secretary
Telecopier: 44-171-356-6151
with a copy to:
Fasken, Campbell, Godfrey
TD Bank Tower
P.O. Box 20
Toronto-Dominion Centre
Toronto, Ontario M5K 1N2
Attention: G.C. Glover
Telecopier number: (416) 364-7813
and to:
Goodman, Phillips & Vineberg
Suite 2400
<PAGE>
250 Yonge Street
Toronto, Ontario M5B 2M6
Attention: Stephen H. Halperin
Telecopier number: (416) 979-1234
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).
<PAGE>
IN WITNESS WHEREOF the parties have executed this Agreement.
JVII PARTNERSHIP
/s/ Dexter Congbalay
----------------------------------------
By: Dexter Congbalay
Title:
/s/ David Chaplin
----------------------------------------
By: David Chaplin
Title:
ROGERS CANTEL MOBILE COMMUNICATIONS INC.
/s/ Graeme McPhail
----------------------------------------
By: Graeme McPhail
Title:
/s/ David Miller
----------------------------------------
By: David Miller
Title:
