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Exhibit 3.10
CUSTODY AGREEMENT
MEMORANDUM OF AGREEMENT made this 8th day of December, 2000.
AMONG:
VIVENDI UNIVERSAL S.A., a corporation existing
under the laws of France (hereinafter referred to as
"Vivendi"),
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VIVENDI UNIVERSAL EXCHANGECO INC., a corporation
existing under the laws of Canada (hereinafter referred to as
"Vivendi Universal Exchangeco"),
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CIBC Mellon Trust Company, as custodian, a trust
company incorporated under the laws of Canada
(hereinafter referred to as the "Custodian"),
WHEREAS in connection with the Merger Agreement as herein defined,
Vivendi Universal Exchangeco is to issue Exchangeable Shares as herein defined
to certain holders of common shares of The Seagram Company Ltd. ("Seagram")
under the Arrangement as herein defined, as contemplated in the Merger
Agreement;
AND WHEREAS under the Merger Agreement, Vivendi and Vivendi Universal
Exchangeco are required to execute a custody agreement substantially in the form
of this Agreement;
AND WHEREAS pursuant to the Transfer Agreement as herein defined,
Vivendi has transferred to the Custodian, on behalf of the Holders as herein
defined, a number of Vivendi Voting Rights equal to the number of Exchangeable
Shares issued pursuant to the Plan of Arrangement;
AND WHEREAS each Vivendi Voting Right entitles the Holder to one vote
at Vivendi shareholders meetings subject to the provisions of the Vivendi
Statuts as herein defined;
NOW THEREFORE in consideration of the foregoing and the mutual
agreements contained herein and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto
covenant and agree as follows:
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1. Definitions. In this Agreement, the following terms shall have the
following meanings:
"Accredited Intermediary" means an entity qualifying as an accredited
intermediary eligible to hold securities of Vivendi in bearer form under
French law and appointed pursuant to Section 2.3;
"Affiliate" has the meaning ascribed thereto in the Securities Act;
"Arrangement" means the arrangement under section 192 of the CBCA on the
terms and subject to the conditions set out in the Plan of Arrangement;
"Beneficial Owner" means each person owning from time to time any
beneficial interest in the Exchangeable Shares through any agent or
financial intermediary;
"Business Day" means any day on which commercial banks are generally
open for business in Toronto, Ontario, New York City, New York and France,
other than a Saturday, a Sunday or a day observed as a holiday in Toronto,
Ontario, in New York City, New York or in France under applicable laws;
"CBCA" means the Canada Business Corporations Act, as amended;
"Claims" has the meaning ascribed thereto in section 7.1;
"Court" means the Superior Court of Justice (Ontario);
"Custodian" means CIBC Mellon Trust Company and, subject to the
provisions of Article 9, includes any successor custodian;
"Custodian Parties" has the meaning ascribed thereto in section 5.9;
"Depositary" means the depositary from time to time under the deposit
agreement dated as of April 19, 1995 as amended among Vivendi Universal, the
Bank of New York and Owners and Beneficial Owners of American Depositary
Receipts for the Vivendi ADSs;
"Exchange Trust Agreement" means the exchange trust agreement made as of
even date of this Agreement among Vivendi Universal Exchangeco, Vivendi and
CIBC Mellon Trust Company in connection with the Plan of Arrangement
substantially in the form and content of Schedule D annexed to the Merger
Agreement;
"Exchangeable Shares" means the non-voting exchangeable shares in the
capital of Vivendi Universal Exchangeco, having the rights, privileges,
restrictions and conditions set
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out in Appendix 1 to the Plan of Arrangement;
"Holder" means a registered holder of Exchangeable Shares, each of whom
is also the owner of an equivalent number of Vivendi Voting Rights, other
than Vivendi and its affiliates;
"Holder Votes" has the meaning ascribed thereto in section 3.5;
"Indemnified Parties" has the meaning ascribed thereto in section 7.1;
"Limitation Instruction" has the meaning ascribed thereto in section 3.2
hereof;
"Merger Agreement" means the agreement made as of June 19, 2000 among
Vivendi, Seagram, Canal Plus S.A., Sofiee S.A. and Vivendi Universal
Exchangeco, as amended, providing for, among other things, the Arrangement;
"Officer's Certificate" means, with respect to Vivendi, or Vivendi
Universal Exchangeco, as the case may be, a certificate signed by any
officer or director of Vivendi or Vivendi Universal Exchangeco, as the case
may be;
"Person" includes any individual, firm, partnership, limited
partnership, joint venture, venture capital fund, limited liability company,
unlimited liability company, association, trust, trustee, executor,
administrator, legal personal representative, estate, group, body corporate,
corporation, unincorporated association or organization, government body,
syndicate or other entity, whether or not having legal status;
"Plan of Arrangement" means the plan of arrangement relating to the
arrangement of Seagram under section 192 of the CBCA substantially in the
form and content of Schedule F annexed to the Merger Agreement as amended
pursuant to the terms thereof;
"Receipt Date" has the meaning ascribed thereto in section 3.2;
"Securities Act" means the Securities Act (Ontario) and the rules and
regulations thereunder, as in force on the date hereof;
"Share Provisions" means the rights, privileges, restrictions and
conditions attaching to the Exchangeable Shares set forth in Appendix I to
the Plan of Arrangement;
"Support Agreement" means the support agreement made as of even date of
this Agreement among Vivendi, Vivendi Universal Holdings and Vivendi
Universal Exchangeco in connection with the Plan of Arrangement
substantially in the form and content of Schedule H to the Merger Agreement
as amended pursuant to the terms of the Support Agreement;
"Transfer Agreement" means the transfer agreement made as of even date
of this Agreement between Vivendi and CIBC Mellon Trust Company, as
transferee, pursuant to
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which, inter alia, Vivendi transferred the Vivendi Voting Rights to the
custodian for and on behalf of the Holders;
"Vivendi ADSs " has the meaning ascribed thereto in the Share
Provisions;
"Vivendi Meeting" means a meeting of shareholders of Vivendi at which
holders of Vivendi Shares are entitled to vote;
"Vivendi Parties" has the meaning ascribed thereto in section 12.1;
"Vivendi Shares" means (i) the ordinary shares in registered or bearer
form in the capital of Vivendi, heretofore validly issued and outstanding as
fully paid and nonassessable or hereafter validly issued and outstanding as
fully paid and nonassessable; and (ii) if there shall occur any change in
nominal value, a change in par value, a subdivision or consolidation or any
other reclassification or upon any recapitalization, reorganization, merger,
consolidation, liquidation or sale of assets affecting Vivendi, the
successor securities resulting from such change in nominal value, par value,
subdivision or consolidation or such other reclassification or such other
event;
"Vivendi Successor" has the meaning ascribed thereto in section 8.1;
"Vivendi Universal Holdings" has the meaning ascribed thereto in the
Share Provisions;
"Vivendi Voting Right" means an "action en nue propriete" under French
law, which, subject to the provisions of the Transfer Agreement, among other
things, represents one vote on the same basis and in the same circumstances
as one Vivendi Share or any new Vivendi Voting Right as described in section
3.3;
"Vivendi's Statuts" means the articles of incorporation of Vivendi as
amended from time to time;
"Voting Instruction Card" has the meaning ascribed thereto in section
3.2; and
"Voting Instruction Notice" has the meaning ascribed thereto in Section
3.2.
1.2. Interpretation not Affected by Headings, etc. The division of this
Agreement into Articles and sections and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement. Unless otherwise indicated, all references to
an "Article" or "section" followed by a number and/or a letter refer to the
specified Article or section of this Agreement. The terms "this Agreement",
"hereof", "herein" and "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, section or other portion hereof and
include any agreement or instrument supplementary or ancillary hereto.
1.3. Number, Gender, etc. Unless the context otherwise requires, words
importing the singular
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shall include the plural and vice versa. Words importing any gender include all
genders.
1.4. Date for any Action. In the event that any day on which any action is
required to be taken under this Agreement by any person is not a Business Day,
such action shall be required to be taken on the next succeeding day that is a
Business Day.
ARTICLE 2
VIVENDI VOTING RIGHTS
2.1. Receipt of the Vivendi Voting Rights. During the term of this Agreement and
subject to the terms and conditions of this Agreement, the Custodian shall:
(a) hold the Vivendi Voting Rights directly or through an Accredited
Intermediary as a sub-custodian solely for and on behalf of the Holders
in accordance with the provisions of this Agreement and the Transfer
Agreement; and
(b) except as specifically authorized by this Agreement and the Transfer
Agreement, have no power or authority to sell, transfer, vote or
otherwise deal in or with the Vivendi Voting Rights, and the Vivendi
Voting Rights shall not be exercised or disposed of by the Custodian
for any purpose other than the purposes specified in this Agreement.
2.2. Legended Share Certificates. Vivendi Universal Exchangeco will cause each
certificate representing Exchangeable Shares to bear an appropriate legend
stating that subject to Vivendi's Statuts, Holders may instruct the Custodian
with respect to the exercise of the Vivendi Voting Rights. Vivendi Universal
Exchangeco will cause such legend to be removed from all such certificates
representing Exchangeable Shares acquired by Vivendi and its Affiliates.
2.3 Appointment of Accredited Intermediary. If Vivendi decides the Vivendi
Voting Rights are to be held by or registered in the name of an Accredited
Intermediary, Vivendi may appoint one or more Accredited Intermediaries on such
terms as is reasonably acceptable to the Custodian provided that the Custodian
is indemnified in respect of the performance of any Accredited Intermediary
under this Agreement.
ARTICLE 3
VOTING RIGHTS
3.1. Fixing of Record Date. Whenever the Custodian shall receive notice of any
Vivendi Meeting, the Custodian shall fix a record date for the determination of
who shall be entitled to give instructions for the exercise of voting rights at
the Vivendi Meeting, which record date shall be the same record date as the
corresponding record date fixed by Vivendi, or such other record date as close
thereto as practicable as Vivendi may instruct the Custodian to fix.
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3.2. Voting of Vivendi Voting Rights. Upon receipt of notice of any Vivendi
Meeting sent by Vivendi, the Custodian shall, as soon as practicable thereafter,
mail to the Holders at Vivendi's expense (a) an English version (or if elected
by the Holder a French version) of the notice of such meeting sent by Vivendi to
the Custodian pursuant to section 4.1, (b) a statement that the Holders as of
the close of business on a record date established by the Custodian and referred
to in section 3.1 hereof will be entitled, subject to any applicable provisions
of French law and Vivendi's Statuts (which provisions, if any, shall be
summarized in pertinent part in such statement), to exercise the voting rights
(subject to the procedures and restrictions detailed below), if any, pertaining
to the Vivendi Voting Rights, (c) English translations of any materials or other
documents provided by Vivendi for the purpose of enabling the Holders to
exercise such voting rights, by means of voting by mail (formulaire de vote par
correspondance) or by proxy (pouvoirs), or by proxy in blank (pouvoirs en blanc)
or otherwise, or to the extent Vivendi is required by U.S. law or U.S. stock
exchange rules to send the holders of Vivendi ADSs a document in English that
includes substantially the same information, with an equivalent or greater level
of detail, in the aggregate, than a non-English document that is to be sent to
the holders of Vivendi Shares, the Custodian will send the Holders such document
in English in lieu of an English translation of such non-English document if the
Depositary sends such document in English to the registered holders of Vivendi
ADSs and (d) a voting instruction card (which may include a formulaire de vote
par correspondance or procuration) and (when applicable) all other information,
authorizations and certifications required under French law to vote Vivendi
Voting Rights in registered form and, if applicable Vivendi Voting Rights in
bearer form to be prepared by Vivendi (a "Voting Instruction Card") (including a
statement as to the manner in which Vivendi Voting Rights with respect to which
the Custodian receives an incomplete Voting Instruction Card will be voted)
setting forth the date established by the Custodian for the receipt of such
Voting Instruction Card (the "Receipt Date") and setting forth the Limitation
Instruction (as defined below), and accompanied by the Voting Instruction Notice
(as defined below). Vivendi agrees to deliver the foregoing materials to the
Custodian sufficiently in advance of such meeting to enable the Custodian to
deliver such materials to the Holders sufficiently in advance of the Receipt
Date so that the Holders and the Beneficial Owners have a sufficient period of
time to complete and return their Voting Instruction Cards prior to the Receipt
Date; provided, however, that the Custodian shall have no obligations or be
subject to any liability with respect to Vivendi's obligation set forth in this
sentence.
The parties hereto acknowledge that, pursuant to Vivendi's Statuts (as
in effect as of the date of this Agreement), shareholders of Vivendi owning, as
defined in Vivendi's Statuts and Article L 233-9 of the French Commercial Code
to which Vivendi's Statuts refer, in excess of 2% of the total voting power of
Vivendi will have their voting rights adjusted through the application of a
formula designed to limit the voting power of those shareholder to that which
they would possess if 100% of the shareholders were present at the meeting at
which the vote in question takes place. This provision is applicable to Holders
and Beneficial Owners but Vivendi acknowledges and agrees it shall not consider
the Custodian (solely in its capacity as the Custodian), any Accredited
Intermediary (solely in its capacity as an Accredited Intermediary) or any agent
or financial intermediary holding an interest in an Exchangeable Share (solely
to the extent such interest is held for or on behalf of a Beneficial Owner) to
be a single shareholder holding in excess of 2% of the total voting power of
Vivendi for purposes of Vivendi's Statuts.
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For the purposes of facilitating compliance with the provisions of the preceding
paragraph, the Custodian and Vivendi will require that Voting Instruction Cards
distributed to Holders and Beneficial Owners contain either an instruction
substantially in the form of the following (the "Limitation Instruction"):
"By completing this Voting Instruction Card and returning it (1) to
CIBC Mellon Trust Company, the Custodian for the Vivendi Voting Rights,
or (2) to your financial intermediary (if you are voting Vivendi Voting
Rights held indirectly though a broker or financial institution), you
are representing that you do not own (as defined in Vivendi's Statuts
and Article L 233-9 of the French Commercial Code to which Vivendi's
Statuts refer) or beneficially own more than 2% of the total voting
power of Vivendi Universal (including your voting power through your
ownership of Vivendi Voting Rights)."
or, if practicable, a box that, if marked by a Holder or Beneficial Owner, will
indicate that such Holder or Beneficial Owner does not own more than 2% of the
total voting power of Vivendi, including through ownership of Vivendi Shares,
Vivendi ADSs and Vivendi Voting Rights.
Accompanying the Voting Instruction Card shall be an instruction, substantially
in the following form (the "Voting Instruction Notice"):
If you own, as defined under Vivendi's Statuts and Article L 233-9 of
the French Commercial Code to which Vivendi's Statuts refer, more than
[insert 2% number] of the Vivendi Shares including Vivendi Shares held
in the form of Vivendi ADSs and the Vivendi Voting Rights, you must
contact the Custodian by sending a written notice by facsimile
(514-285-3640) or by registered mail or delivery to CIBC Mellon Trust
Company, 16th Floor, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
to obtain instructions as to how to exercise your voting rights. The
Custodian will require you to identify the total number of Vivendi
Voting Rights, Vivendi ADSs and Vivendi Shares that you own and the
manner in which you own them, and will provide instructions as to where
you should send this Voting Instruction Card. If you own more than 2%
of the total voting power of Vivendi Universal, your voting rights will
be adjusted in accordance with Vivendi's Statuts (its governing
document) such that your actual voting power will be limited to that
which you would possess if 100% of the shareholders were present at the
shareholders meeting. If you own more than 2% of the total voting power
of Vivendi and submit this Voting Instruction Card without first
contacting the Custodian and following its instructions, then your
Voting Instruction Card will be invalid. An agent or financial
intermediary is not deemed to be the owner of Vivendi Voting Rights,
Vivendi ADSs and Vivendi Shares for or on behalf of another person."
Any Voting Instruction Card will be invalid if submitted by any Holder
or Beneficial Owner who owns in excess of 2% of the total voting power of
Vivendi if the Voting Instruction Card is submitted by a Holder (other than an
agent or financial intermediary holding an interest in a Vivendi Voting Right
for or on behalf of a Beneficial Owner) to the Custodian or by a Beneficial
Owner to an agent or financial intermediary holding an interest in Vivendi
Voting
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Rights for or on behalf of a Beneficial Owner, in either case without first
contacting the Custodian and following its instruction as contemplated by the
Voting Instruction Notice. The Custodian agrees, upon receipt of such contact,
to promptly notify Vivendi of such contact and to forward the Voting Instruction
Card, upon receipt thereof, to Vivendi. Vivendi agrees to provide the Custodian
with sufficient information to fill in the number of Shares in the Voting
Instruction Notice and the Custodian shall be entitled to act and rely on such
information.
Upon receipt by the Custodian of a properly completed Voting
Instruction Card on or before the Receipt Date, the Custodian shall, either, in
its discretion, endeavor to vote such Vivendi Voting Rights, insofar as
practicable and permitted under any applicable provisions of French law,
Vivendi's Statuts and the Vivendi Voting Rights, in accordance with the Voting
Instruction Card or forward such instructions to the Accredited Intermediary as
sub-custodian, and the Accredited Intermediary shall endeavor, insofar as
permitted under any applicable provisions of French law, the Vivendi's Statuts
and the Vivendi Voting Rights, to vote or cause to be voted the Vivendi Voting
Rights in accordance with the Voting Instruction Card. The Custodian shall not,
and shall direct any Accredited Intermediary not to, vote or attempt to exercise
the right to vote that attaches to the Vivendi Voting Rights other than in
accordance with such instructions or in accordance with the statement under
clause (d) of the first paragraph of this section 3.2 as to the manner in which
Vivendi Voting Rights with respect to which the Custodian receives an incomplete
Voting Instruction Card or receives a blank proxy or a blank form for voting by
mail will be voted.
Neither the Custodian nor Vivendi will take any action to
impair the ability of the Custodian or any Accredited Intermediary to vote the
number of Vivendi Voting Rights necessary to carry out the instructions of all
Holders and Beneficial Owners under this section.
Notwithstanding the provisions of section 10.1, the Custodian
and Vivendi may modify, amend or adopt additional voting procedures from time to
time as they determine may be necessary or appropriate to comply with applicable
French law or any amendment to Vivendi's Statuts; provided, however, that any
such procedures shall not conflict with the provisions contained in the second,
third, fourth, fifth and sixth paragraphs of this section 3.2 to the extent
reasonably practicable. To the extent applicable French law would require the
adoption of voting procedures that conflict with this section 3.2, the
procedures adopted shall be consistent to the extent reasonably practicable with
the provisions of this section 3.2 and the purposes thereof.
The Custodian will not charge any fees to a Holder in
connection with enabling the Holder to exercise its voting rights under this
section 3.2.
3.3. Changes Affecting Vivendi Voting Rights. Upon the occurrence of an event
referred to in clause (ii) of the definition of Vivendi Shares, any Vivendi
Voting Rights which shall be received by the Custodian or an Accredited
Intermediary in exchange for or in conversion of or in respect of Vivendi Voting
Rights, shall be treated as new Vivendi Voting Rights under this Agreement, and
Vivendi Voting Rights shall thenceforth represent, in addition to the existing
Vivendi Voting Rights, the right to receive the new Vivendi Voting Rights so
received.
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Upon any such change, conversion, or exchange covered by this section in respect
of the Vivendi Voting Rights, the Custodian shall give notice thereof to all
Holders within 30 days following the applicable event. Vivendi shall inform the
Custodian of the occurrence of an event referred to in clause (ii) of the
definition of Vivendi Shares.
3.4. Voting Instructions. Subject to section 5.6:
(a) the Custodian shall exercise, or cause to be exercised, the voting
rights only on the basis of instructions received (or in accordance
with the statement under clause (d) of the first paragraph of section
3.2) under this Article 3 from Holders entitled to instruct the
Custodian as to the voting thereof; and
(b) to the extent that no instructions are received from a Holder with
respect to the voting rights to which such Holder is entitled, except
as provided in the statement under clause (d) of the first paragraph of
section 3.2, the Custodian shall not exercise or permit the exercise of
such Voting Rights or attend the Vivendi Meeting in respect thereof.
3.5. Number of Votes. With respect to all Vivendi Meetings, each Holder shall be
entitled, in accordance with section 3.2 to cast and exercise one Vivendi Voting
Right for each Exchangeable Share owned of record by such Holder on the
applicable record date (the "Holder Votes"), in respect of each matter,
question, proposal or proposition to be voted on by holders of Vivendi Shares at
such Vivendi Meeting.
3.6 Voting by Custodian. As long as the Custodian holds any Vivendi Voting
Rights under this Agreement for and on behalf of Holders , the Custodian shall
ensure that at least one Vivendi Voting Right is owned in the name of the
Custodian in registered form.
ARTICLE 4
SHAREHOLDER INFORMATION
4.1. Notices and Reports. On or before the first date on which Vivendi gives
notice, by publication or otherwise, of any Vivendi Meeting, or of any adjourned
meeting thereof, Vivendi agrees to deliver to the Custodian and any Accredited
Intermediary the French version of such notice and an English translation, if
not already in English, of the notice thereof in the form given or to be given
to holders of Shares.
Vivendi will arrange for the translation into English, if not already in
English, and the prompt delivery by it to the Custodian and any Accredited
Intermediary of all notices and any other reports and communications, including
proxy materials, (i) which Vivendi delivers to the holders of Shares or (ii)
which Vivendi makes available for inspection by holders of its Shares. The
Custodian will arrange for the mailing, at Vivendi's expense, of copies of such
notices, reports and communications referenced in clause (i) of the preceding
sentence to all Holders contemporaneously with the sending of such materials to
the holders of Vivendi ADSs. The
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Custodian will make available for inspection by Holders, at its principal office
in the City of Montreal, the documents referred to in clause (ii) of the second
preceding sentence. Vivendi will timely provide the Custodian with the quantity
of such notices, reports, and communications, as requested by the Custodian from
time to time, in order for the Custodian to effect such mailings so as to enable
the Custodian to send those materials to each Holder at the same time as such
materials are first sent to holders of Vivendi ADSs or to make such documents
available for inspection. Vivendi agrees not to communicate with holders of
Vivendi ADSs with respect to such written materials otherwise than by mail
unless such method of communication is also reasonably available to the
Custodian to communicate with the Holders. Notwithstanding the foregoing, if
Vivendi is required by U.S. law or U.S. stock exchange rules to send the holders
of Vivendi ADSs a document in English that includes substantially the same
information, with an equivalent or greater level of detail, in the aggregate,
than a non-English document that is to be sent to the holders of Vivendi Shares,
Vivendi may timely provide the Custodian such document in English in lieu of an
English translation of such non-English document.
ARTICLE 5
CONCERNING THE CUSTODIAN
5.1. No Conflict of Interest. The Custodian represents to Vivendi and Vivendi
Universal Exchangeco that at the date of execution and delivery of this
Agreement there exists no conflict of interest in the role of the Custodian
hereunder. The Custodian shall, within 90 days after it becomes aware that such
material conflict of interest exists, either eliminate such conflict of interest
or resign in the manner and with the effect specified in Article 9. If,
notwithstanding the foregoing provisions of this section 5.1, the Custodian has
such a conflict of interest, the validity and enforceability of this Agreement
shall not be affected in any manner whatsoever by reason only of the existence
of such conflict of interest. If the Custodian contravenes the foregoing
provisions of this section 5.1, any interested party may apply to the Superior
Court of Justice (Ontario) for an order that the Custodian be replaced as
Custodian hereunder.
5.2. Dealings with Transfer Agents, Registrars, etc. Vivendi and Vivendi
Universal Exchangeco authorize the Custodian for the purposes of performing its
obligations hereby, from time to time, to:
(a) consult, communicate and otherwise deal with the Depositary and the
respective registrars and transfer agents and any Accredited
Intermediary of the Exchangeable Shares, Vivendi Shares and Vivendi
ADSs; and
(b) obtain a list of Holders.
Vivendi and Vivendi Universal Exchangeco irrevocably authorize their respective
registrars and transfer agents to comply with all such requests.
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5.3. Books and Records. The Custodian shall keep available for inspection by
Vivendi and Vivendi Universal Exchangeco at the Custodian's principal office in
Montreal correct and complete books and records of account relating to the
performance of its obligations under this Agreement, including without
limitation, all relevant data relating to mailings and instructions to and from
Holders. On or before January 15, 2002, and on or before January 15th in every
year thereafter, the Custodian shall transmit to Vivendi and Vivendi Universal
Exchangeco a brief report, dated as of the preceding December 31st, with respect
to the number of Vivendi Voting Rights held by it on behalf of holders of
Exchangeable Shares on that date.
5.4. Reliance Upon Declarations. The Custodian shall not be considered to be in
breach of its obligations under this Agreement or the Transfer Agreement if,
when required, it acts and relies in good faith upon an Officer's Certificate,
information including lists, mailing labels or other documents received from the
transfer agent for the Exchangeable Shares or other written direction of Vivendi
or Vivendi Universal Exchangeco or the opinion of counsel to Vivendi or Vivendi
Universal Exchangeco. The Custodian is entitled to receive an Officer's
Certificate or such opinion at any time and from time to time in respect of its
obligations under this Agreement and the Transfer Agreement. Notwithstanding the
foregoing provisions of this section 5.4 if after consultation with Vivendi or
Vivendi Universal Exchangeco the Custodian determines that in respect of any
matter hereunder or pursuant to the Transfer Agreement it requires an opinion of
counsel and counsel to Vivendi and Vivendi Universal Exchangeco have a conflict
in connection with such matter, then the Custodian may retain such counsel in
respect of such matter as it may determine. If based on such counsel's opinion
the Custodian in the performance of its obligations hereunder or its obligations
under the Transfer Agreement requires the advice of services of other experts
then after consultation with Vivendi or Vivendi Universal Exchangeco the
Custodian may retain such experts.
5.5. Authority to Carry on Business. The Custodian represents to Vivendi and
Vivendi Universal Exchangeco that at the date of execution and delivery by it of
this Agreement it is authorized to carry on business in each of the provinces of
Canada but if, notwithstanding the provisions of this section 5.5, it ceases to
be so authorized to carry on business, the validity and enforceability of this
Agreement shall not be affected in any manner whatsoever by reason only of such
event but the Custodian shall, within 90 days after ceasing to be authorized to
carry on business in any province of Canada, either become so authorized or
resign in the manner and with the effect specified in Article 9.
5.6. Conflicting Claims. If conflicting claims or demands are made or asserted
with respect to any interest of any Holder in any Vivendi Voting Rights,
including any disagreement between the heirs, representatives, successors or
assigns succeeding to all or any part of the interest of any Holder in any
Vivendi Voting Rights, resulting in conflicting claims or demands being made in
connection with such interest, then the Custodian shall be entitled, at its sole
discretion, to refuse to recognize or to comply with any such claims or demands.
In so refusing, the Custodian may elect not to exercise any Vivendi Voting
Rights subject to such conflicting claims or demands and, in so doing, the
Custodian shall not be or become liable to any person on account of such
election or its failure or refusal to comply with any such conflicting claims or
demands. The Custodian shall be entitled to continue to refrain from acting and
to refuse to act until:
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(a) the rights of all adverse claimants with respect to the Vivendi Voting
Rights subject to such conflicting claims or demands have been
adjudicated by a final judgment of a court of competent jurisdiction
and all rights of appeal therefrom have expired; or
(b) all differences with respect to the Vivendi Voting Rights subject to
such conflicting claims or demands have been conclusively settled by a
valid written agreement binding on all such adverse claimants, and the
Custodian shall have been furnished with an executed copy of such
agreement certified to be in full force and effect.
If the Custodian elects to recognize any claim or comply with any demand made by
any such adverse claimant, it may in its discretion require such claimant to
furnish such surety bond or other security satisfactory to the Custodian as it
shall deem appropriate to fully indemnify it as between all conflicting claims
or demands.
5.7. Custodian Not a Trustee. The relationship between the Holder and the
Custodian under this Agreement is that of principal and agent only and not that
of beneficiary and trustee and under no circumstances shall this Agreement be
construed to create any trust relationship between the Custodian and the Holder.
5.8. Custodian Not Liable for Taxes. The Custodian shall not be liable for any
taxes, duties or governmental charges or expenses that may become payable by or
on behalf of a Holder in respect of any Vivendi Voting Rights whether under any
present or future fiscal or other laws or regulations. Accordingly, if the
Custodian shall receive a demand for or be obliged to withhold and pay any such
tax, duty, governmental charge or expense then the Custodian shall, if it is not
presented with satisfactory proof of payment by the Holder, deduct the amount of
same from any monies received on behalf of that Holder and remit the amount
withheld to the relevant government authority as and when required by law.
5.9 Custodian Obligations. The Custodian and its directors, employees, agents
and affiliates (collectively "Custodian Parties") assume no obligation nor shall
any of them be subject to any liability under this Agreement or the Transfer
Agreement to the Holders (including, without limitation, liability with respect
to the validity or worth of the Vivendi Voting Rights), except that the
Custodian agrees to perform its obligations specifically set forth in this
Agreement and the Transfer Agreement without fraud, negligence, wilful
misconduct or bad faith. Each of the Custodian Parties shall not be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Vivendi Voting Rights, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and
the Accredited Intermediary shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Accredited Intermediary
being solely to Vivendi. Each of the Custodian Parties shall not be liable for
any action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any Holder or any other person believed by any of
them in good faith to be competent to give such advice or information. The
Custodian shall not be liable for any acts or omissions made by a successor
Custodian whether in connection with a previous act or omission
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of the Custodian or in connection with any matter arising wholly after the
removal or resignation of the Custodian, provided that in connection with the
issue out of which such potential liability arises the Custodian performed its
obligations without fraud, negligence, wilful misconduct or bad faith while it
acted as Custodian. The Custodian shall not be responsible for any failure to
carry out any instructions to vote any of the Vivendi Voting Rights, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or nonaction is without fraud, negligence, wilful
misconduct or bad faith while it acted as Custodian.
5.10 Prevention or Delay in Performance by the Custodian Parties. Each of the
Custodian Parties shall not incur any liability to any Holder, if by reason of
any provision of any present or future law or regulation of Canada or any other
country, or of any governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of Vivendi's Statuts, or by reason
of any provision of any securities issued or distributed by Vivendi, or any
offering or distribution thereof, or by reason of any act of God or war or other
circumstances beyond its control, any Custodian Party shall be prevented,
delayed or forbidden from, or be subject to any civil or criminal penalty on
account of, doing or performing any act or thing which by the terms of this
Agreement or Vivendi Voting Rights it is provided shall be done or performed;
nor shall any of the Custodian Parties or Vivendi incur any liability to any
Holder by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of this Agreement it is
provided shall or may be done or performed, or by reason of any exercise of, or
failure to exercise, any discretion provided for in this Agreement.
5.11 Dealing in Securities. The Custodian may own or deal in any securities of
Vivendi and its Affiliates.
5.12 Disclosure of Interest Provisions in Vivendi's Statuts. On the date of this
Agreement, Vivendi's Statuts provide that any individual or entity, acting alone
or in concert with others, that acquires or disposes of, directly or indirectly,
more than 0.5%, or any multiple thereof, of Vivendi's outstanding share capital,
voting rights or securities convertible into the share capital of Vivendi, or
who falls below any such level, must notify Vivendi, within 15 calendar days
from the date of crossing any such threshold, of the number of Vivendi Shares,
voting rights or securities convertible into the share capital of Vivendi that
such individual or entity holds, directly or indirectly or in concert with
others. In the event of a failure to comply with such notification requirement,
upon the request of one or more shareholders holding no less than 0.5% of
Vivendi's share capital, the Vivendi Shares (including the Vivendi Shares
represented by American Depositary Shares), Vivendi Voting Rights or rights
relating to Vivendi Shares in excess of the relevant threshold will be deprived
of voting rights for all shareholder meetings until the end of a two-year period
following the date on which the Holder or the Beneficial Owner has complied with
such notification requirements.
The provisions described in this Section 5.12 are applicable to Holders and
Beneficial Owners, but Vivendi acknowledges and agrees it shall not consider the
Custodian (solely in its capacity as the Custodian), any Accredited Intermediary
(solely in its capacity as an Accredited Intermediary) or any agent or financial
intermediary holding an interest in an Exchangeable
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Share (solely to the extent that such interest is held for or on behalf of a
Beneficial Owner) to be a single shareholder holding in excess of 0.5% of
Vivendi's outstanding share capital or voting rights or securities convertible
into the share capital of Vivendi for purposes of Vivendi's Statuts.
ARTICLE 6
COMPENSATION
6.1. Fees and Expenses of the Custodian. Vivendi agrees to pay to the Custodian
reasonable compensation for all of the services rendered by it under this
Agreement and the Transfer Agreement and will reimburse the Custodian for all
reasonable expenses (including but not limited to taxes, compensation paid to
counsel, experts, agents and advisors and travel expenses) and disbursements,
including the cost and expense of any suit or litigation of any character and
any proceedings before any governmental agency, reasonably incurred by the
Custodian in connection with the carrying out of its rights and duties under
this Agreement and the Transfer Agreement; provided that Vivendi shall have no
obligation to reimburse the Custodian for any expenses of disbursements paid,
incurred or suffered by the Custodian in any suit or litigation in which the
Custodian is determined to have acted in bad faith or with negligence or willful
misconduct.
ARTICLE 7
INDEMNIFICATION AND LIMITATION OF LIABILITY
7.1. Indemnification of the Custodian. Vivendi and Vivendi Universal Exchangeco
jointly and severally agree to indemnify and hold harmless the Custodian and
each of its directors, officers, employees and agents appointed and acting in
accordance with this Agreement and the Transfer Agreement (collectively, the
"Indemnified Parties") against all claims, losses, damages, reasonable costs,
penalties, fines and reasonable expenses (including reasonable expenses of the
Custodian's legal counsel) (collectively, "Claims") which, without fraud,
negligence, wilful misconduct or bad faith on the part of such Indemnified
Party, may be paid, incurred or suffered by the Indemnified Party by reason or
as a result of the Custodian's compliance with its obligations set forth in this
Agreement or the Transfer Agreement as the case may be, or any written or oral
instruction delivered to the Custodian by Vivendi or Vivendi Universal
Exchangeco under this Agreement or the Transfer Agreement.
In no case shall Vivendi or Vivendi Universal Exchangeco be liable under this
indemnity for any claim against any of the Indemnified Parties unless Vivendi
and Vivendi Universal Exchangeco shall be notified by the Custodian of the
written assertion of a claim or of any action commenced against the Indemnified
Parties, promptly after any of the Indemnified Parties shall have received any
such written assertion of a claim or shall have been served with a summons or
other first legal process giving information as to the nature and basis of the
claim. Subject to (ii) below, Vivendi and Vivendi Universal Exchangeco shall be
entitled to participate at their own expense
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in the defense and, if Vivendi and Vivendi Universal Exchangeco so elect at any
time after receipt of such notice, either of them may assume the defense of any
suit brought to enforce any such claim. The Custodian shall have the right to
employ separate counsel in any such suit and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the
Custodian unless: (i) the employment of such counsel has been authorized by
Vivendi or Vivendi Universal Exchangeco such authorization not to be
unreasonably withheld; or (ii) the named parties to any such suit include both
the Custodian and Vivendi or Vivendi Universal Exchangeco and the Custodian
shall have been advised by counsel acceptable to Vivendi or Vivendi Universal
Exchangeco that there may be one or more legal defenses available to the
Custodian that are different from or in addition to those available to Vivendi
or Vivendi Universal Exchangeco and that, in the opinion of such counsel, would
present a conflict of interest were a joint representation to be undertaken (in
which case Vivendi and Vivendi Universal Exchangeco shall not have the right to
assume the defense of such suit on behalf of the Custodian but shall be liable
to pay the reasonable fees and expenses of counsel for the Custodian). This
indemnity shall survive the termination of this Agreement, the Transfer
Agreement and the resignation or removal of the Custodian under this Agreement
or the Transfer Agreement. Neither Vivendi nor Vivendi Universal Exchangeco have
any obligation to indemnify the Indemnified Parties against Claims incurred by
an Indemnified Party as a result of the fraud, negligence, wilful misconduct or
bad faith of any Indemnified Party.
ARTICLE 8
VIVENDI SUCCESSORS
8.1. Certain Requirements in respect of Combination, etc. If Vivendi consummates
any transaction (whether by way of reconstruction, reorganization,
consolidation, merger, transfer, sale, lease or otherwise) whereby all or
substantially all of its undertaking, property and assets would become the
property of any other person or, in the case of a merger, of the continuing
corporation resulting therefrom then:
(a) such other person or continuing corporation (herein called the "Vivendi
Successor"), must by operation of law, become, without more, bound by
the terms and provisions of this Agreement or, if not so bound,
execute, before or contemporaneously with the consummation of such
transaction, an agreement supplemental hereto and such other
instruments (if any) as are satisfactory to the Custodian, acting
reasonably, and in the opinion of legal counsel are reasonably
necessary or advisable to evidence the assumption by the Vivendi
Successor of all the covenants and obligations of Vivendi under this
Agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material respect any
of the rights of the Holders hereunder, and the Custodian shall have
received an Officer's Certificate and an opinion of counsel to such
effect to the extent applicable.
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8.2 Vesting of Powers in Successor. Whenever the conditions of section 8.1 have
been duly observed and performed, the Custodian, Vivendi Successor, Vivendi and
Vivendi Universal Exchangeco shall, if required by section 8.1, execute and
deliver the supplemental agreement provided for in this Agreement and thereupon
Vivendi Successor shall possess and from time to time may exercise each and
every right and power of Vivendi under this Agreement in the name of Vivendi or
otherwise and any act or proceeding by any provision of this Agreement required
to be done or performed by the Board of Directors of Vivendi or any officers of
Vivendi may be done and performed with like force and effect by the directors or
officers of such Vivendi Successor.
ARTICLE 9
CUSTODIAN AND ACCREDITED INTERMEDIARY
9.1. Resignation. The Custodian may at any time resign under this Agreement and
the Transfer Agreement by giving written notice of such resignation to Vivendi
and Vivendi Universal Exchangeco specifying the date on which it desires to
resign, provided that such notice shall not be given less than thirty (30) days
before such desired resignation date unless Vivendi and Vivendi Universal
Exchangeco otherwise agree and provided further that such resignation shall not
take effect until the date of the appointment of a successor Custodian under
this Agreement and the Transfer Agreement and the acceptance of such appointment
by the successor Custodian under this Agreement and the Transfer Agreement. Upon
receiving such notice of resignation, Vivendi and Vivendi Universal Exchangeco
shall promptly appoint a successor Custodian, which shall be a corporation
organized and existing under the laws of Canada or a province by written
instrument in duplicate, one copy of which shall be delivered to the resigning
Custodian and one copy to the successor Custodian. Failing the appointment and
acceptance of a successor Custodian, a successor Custodian may be appointed by
order of a court of competent jurisdiction upon application of one or more of
the parties to this Agreement. If the retiring Custodian is the party initiating
an application for the appointment of a successor Custodian by order of a court
of competent jurisdiction, Vivendi shall be liable to reimburse the retiring
Custodian for its legal costs and expenses in connection with same.
9.2. Removal. The Custodian, or any Custodian hereafter appointed, may (provided
a successor Custodian is appointed) be removed at any time on not less than 30
days' prior notice by written instrument executed by Vivendi and Vivendi
Universal Exchangeco, in duplicate, one copy of which shall be delivered to the
Custodian so removed and one copy to the successor Custodian.
9.3. Successor Custodian. Any successor Custodian appointed as provided under
this Agreement shall execute, acknowledge and deliver to Vivendi and Vivendi
Universal Exchangeco and to its predecessor Custodian an instrument accepting
such appointment. Thereupon the resignation or removal of the predecessor
Custodian shall become effective and such successor Custodian, without any
further act, deed or conveyance, shall become vested with all the rights and
obligations of its predecessor under this Agreement, with the like effect as if
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originally named as Custodian in this Agreement. However, on the written request
of Vivendi and Vivendi Universal Exchangeco or of the successor Custodian, the
Custodian ceasing to act shall, upon payment of any amounts then due it under
the provisions of this Agreement, execute and deliver an instrument transferring
to such successor Custodian all the rights of the Custodian so ceasing to act.
Upon the request of any such successor Custodian, Vivendi, Vivendi Universal
Exchangeco and such predecessor Custodian shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor Custodian all such rights and powers.
9.4. Notice of Successor Custodian. Upon acceptance of appointment by a
successor Custodian as provided herein, Vivendi and Vivendi Universal Exchangeco
shall cause to be mailed notice of the succession of such Custodian hereunder to
each Holder. If Vivendi or Vivendi Universal Exchangeco shall fail to cause such
notice to be mailed within 10 days after acceptance of appointment by the
successor Custodian, the successor Custodian shall cause such notice to be
mailed at the expense of Vivendi and Vivendi Universal Exchangeco.
9.5. Accredited Intermediary. If an Accredited Intermediary is appointed
pursuant to the provisions of section 2.3 hereunder it shall be subject at all
times and in all respects to the direction of Vivendi and shall be responsible
solely to it and the Custodian. The Accredited Intermediary may resign and be
discharged from its duties hereunder by notice of such resignation delivered to
the Custodian and Vivendi at least 30 days prior to the date on which such
resignation is to become effective. Vivendi shall, promptly after receiving such
notice, appoint a substitute intermediary, after consultation with the
Custodian, which shall thereafter be the Accredited Intermediary hereunder.
Whenever Vivendi determines that it is in the best interest of the Holders to do
so, it may cause the appointment of a substitute or an additional intermediary,
after consultation with the Custodian, which shall thereafter be the Accredited
Intermediary hereunder. Upon demand of the Custodian or Vivendi, the Accredited
Intermediary shall deliver such of the Vivendi Voting Rights held by it as are
requested of it to any other Accredited Intermediary or such substitute or
additional intermediary or intermediaries. Each such substitute or additional
intermediary shall deliver to Vivendi forthwith upon its appointment, an
acceptance of such appointment satisfactory in form and substance to the
Custodian and Vivendi. Immediately upon any such change, the Custodian shall
give notice thereof in writing to all Holders.
Upon the appointment of any successor Custodian hereunder, any Accredited
Intermediary then acting hereunder shall forthwith become, without any further
act or writing, the sub-custodian hereunder of such successor Custodian and the
appointment of such successor Custodian shall in no way impair the authority of
each Accredited Intermediary hereunder; but the successor Custodian so appointed
shall, nevertheless, on the written request of any Accredited Intermediary,
execute and deliver to such Accredited Intermediary all such instruments as may
be proper to give to such Accredited Intermediary full and complete power and
authority as agent hereunder of such successor Custodian.
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Any Accredited Intermediary shall be an entity qualifying as an accredited
intermediary eligible to hold securities of Vivendi in bearer form under French
law. If appointed, the Accredited Intermediary shall be the registered holder of
the Vivendi Voting Rights in any circumstances so required by French law, or
considered desirable by Vivendi or the Custodian. The Accredited Intermediary
must agree, as a condition of its appointment as such, that it shall hold the
Vivendi Voting Rights only as nominee.
9.6 Transfer Agreement. Concurrently with the appointment of a successor
Custodian under this Agreement, a successor Custodian will be appointed under
the Transfer Agreement, mutatis mutandis. The Transfer Agreement will terminate
concurrently with the termination of this Agreement in accordance with section
11.2.
ARTICLE 10
AMENDMENTS AND SUPPLEMENTAL CUSTODY AGREEMENTS
10.1. Amendments, Modifications, etc. Subject to sections 8.2, 10.2, 10.4 and
except as otherwise provided in this section, this Agreement may be amended or
modified by an agreement in writing executed by Vivendi and the Custodian
without the consent of the Holders in any respect which they may deem necessary
or desirable. Notwithstanding the foregoing, (i) the provisions of section 3.2
of this Agreement shall not be amended, modified or supplemented in any manner
adverse to the Holders or Beneficial Owners without the affirmative, written
approval of the Holders holding Vivendi Voting Rights evidencing at least a
majority of the Vivendi Voting Rights and (ii) this Agreement shall not be
amended, modified or supplemented in any manner which will materially and
adversely affect the rights of the Holders or Beneficial Owners unless such
amendment, modification or supplement shall have been affirmatively approved in
writing by the Holders holding Vivendi Voting Rights evidencing at least a
majority of the Vivendi Voting Rights. The Custodian shall not be required to
effect any amendment, modification or supplement to this Agreement without the
approval of the Holders to the extent required in the preceding sentence unless
in the case of clause (i) of the preceding sentence, Vivendi shall have first
certified in writing to the Custodian, which certification the Custodian shall
be entitled to act and rely on in full, that such amendment, modification or
supplement does not adversely affect the rights of Holders or Beneficial Owners
and, in the case of clause (ii) of the preceding sentence, Vivendi shall have
first certified in writing to the Custodian, which certification the Custodian
shall be entitled to act and rely on in full, that such amendment, modification
or supplement does not materially and adversely affect the rights of Holders or
Beneficial Owners.
10.2. Ministerial Amendments. Notwithstanding the provisions of section 10.1,
the parties to this Agreement may in writing, at any time and from time to time,
without the approval of the Holders, amend or modify this Agreement for the
purposes of:
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(a) adding to the covenants of any or all parties hereto for the protection
of the Holders hereunder provided that the Board of Directors of each
of Vivendi Universal Exchangeco and Vivendi shall be of the good faith
opinion that such additions will not be prejudicial to the rights or
interests of the Holders;
(b) making such amendments or modifications not inconsistent with this
Agreement as may be necessary or desirable with respect to matters or
questions which, in the good faith opinion of the Board of Directors of
each of Vivendi and Vivendi Universal Exchangeco and in the opinion of
counsel to the Custodian, having in mind the best interests of the
Holders, it may be expedient to make, provided that such Boards of
Directors and the Custodian, acting on the advice of counsel, shall be
of the opinion that such amendments and modifications will not be
prejudicial to the interests of the Holders;
(c) making such changes or corrections which, on the advice of counsel to
Vivendi, Vivendi Universal Exchangeco and the Custodian, are required
for the purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or manifest
error, provided that the Custodian, acting on the advice of counsel,
and the Board of Directors of each of Vivendi and Vivendi Universal
Exchangeco shall be of the opinion that such changes or corrections
will not be prejudicial to the rights and interests of the Holders; or
(d) complying with applicable laws or rules and regulations thereunder or
Vivendi's Statuts.
10.3. Meeting to Consider Amendments. Vivendi Universal Exchangeco, at the
request of Vivendi, shall call a meeting or meetings of the Holders for the
purpose of considering any proposed amendment or modification requiring approval
under this Agreement requiring such a meeting. Any such meeting or meetings
shall be called and held in accordance with the by-laws of Vivendi Universal
Exchangeco, the Share Provisions and all applicable laws.
10.4. Changes in Capital of Vivendi and Vivendi Universal Exchangeco. At all
times after the occurrence of any event contemplated under section 2.7 or 2.8 of
the Support Agreement or otherwise, as a result of which the Vivendi Shares,
Vivendi Voting Rights or the Exchangeable Shares are in any way changed, this
Agreement shall forthwith be amended and modified as necessary in order that it
shall apply with full force and effect, mutatis mutandis, to all new securities
into which the Vivendi Voting Rights are so changed and the parties hereto shall
execute and deliver a supplemental agreement giving effect to and evidencing
such necessary amendments and modifications.
10.5. Execution of Supplemental Custody Agreements. From time to time Vivendi
Universal Exchangeco (when authorized by a resolution of its Board of
Directors), Vivendi (when authorized by a resolution of its Board of Directors)
and the Custodian may, subject to the provisions of this Agreement, and they
shall, when so directed by the provisions of this Agreement, execute and deliver
by their proper officers, agreements or other instruments supplemental hereto,
which thereafter shall form part hereof, for any one or more of the following
purposes:
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(a) evidencing the successors of any successor Custodian in accordance with
the provisions of Article 9;
(b) making any additions to, deletions from or alterations of the
provisions of this Agreement which, in the opinion of the Custodian,
acting on the advice of counsel, will not be prejudicial to the
interests of the Holders or are, in the opinion of counsel to the
Custodian, necessary or advisable in order to incorporate, reflect or
comply with any legislation the provisions of which apply to Vivendi,
Vivendi Universal Exchangeco, the Custodian or this Agreement; and
(c) for any other purposes not inconsistent with the provisions of this
Agreement, including without limitation, to make or evidence any
amendment or modification to this Agreement as contemplated hereby,
provided that, in the opinion of the Custodian, the rights of the
Custodian and Holders will not be prejudiced thereby.
10.6. Amendment to Transfer Agreement. Vivendi will not without the prior
approval of Vivendi Universal Exchangeco and the prior approval of the Holders
given in accordance with section 10.2 of the Share Provisions, take or authorize
or approve, any action that would cause or result in any variation (whether an
increase or decrease) in the rights of the actions en nue propriete comprising
the Vivendi Voting Rights, or the allocation of rights between them and the
corresponding usufruct including without limitation, the Board of Directors of
Vivendi shall not propose, approve or endorse any amendment to any provisions of
Vivendi's Statuts that would have such result.
ARTICLE 11
TERMINATION OF RIGHTS OR AGREEMENT
11.1. Transfer of Vivendi Voting Rights to Vivendi. Upon the acquisition by
Vivendi or its Affiliates of Exchangeable Shares pursuant to the provisions of
the Exchange Trust Agreement, the Share Provisions, the Support Agreement, the
Plan of Arrangement or otherwise the Vivendi Voting Rights relating to such
Exchangeable Shares shall be automatically transferred to Vivendi without any
further action by the Holders of such Exchangeable Shares. Upon receipt by the
Custodian of an Officer's Certificate setting forth the details of any such
acquisition of Exchangeable Shares by Vivendi, the Custodian will deliver such
documents as Vivendi may reasonably request.
11.2. Term. This Agreement shall continue until the earliest to occur of the
following events:
(a) no outstanding Exchangeable Shares are held by a Holder; and
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(b) each of Vivendi and Vivendi Universal Exchangeco elects in writing to
terminate this Agreement and such termination is approved by the
Holders in accordance with section 10.2 of the Share Provisions.
The provisions of Articles 6 and 7 shall survive any termination of this
Agreement.
ARTICLE 12
CONCERNING VIVENDI
12.1. Vivendi Obligations. Vivendi and its directors, employees, agents and
affiliates (collectively "Vivendi Parties") assume no obligation nor shall any
of them be subject to any liability under this Agreement to the Holders or
Beneficial Owners, except that Vivendi agrees to perform its obligations
specifically set forth in this Agreement without fraud, negligence, wilful
misconduct or bad faith. Each of the Vivendi Parties shall not be under any
obligation in respect of its obligations under this Agreement to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Vivendi Voting Rights, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
shall be furnished as often as may be required. Each of the Vivendi Parties
shall not be liable for any action or nonaction by it in reliance upon the
advice of or information from legal counsel, accountants, any Holder or any
other person believed by any of them in good faith to be competent to give such
advice or information.
12.2. Prevention or Delay in Performance by the Vivendi Parties. Each of the
Vivendi Parties shall not incur any liability to any Holder, if by reason of any
provision of any present or future law or regulation of Canada or any other
country, or of any governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of Vivendi's Statuts, or by reason
of any provision of any securities issued or distributed by Vivendi, or any
offering or distribution thereof, or by reason of any act of God or war or other
circumstances beyond its control, any Vivendi Party shall be prevented, delayed
or forbidden from, or be subject to any civil or criminal penalty on account of,
doing or performing any act or thing which by the terms of this Agreement or
Vivendi Voting Rights it is provided shall be done or performed; nor shall any
of the Vivendi Parties or Vivendi incur any liability to any Holder by reason of
any nonperformance or delay, caused as aforesaid, in the performance of any act
or thing which by the terms of this Agreement it is provided shall or may be
done or performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Agreement.
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ARTICLE 13
GENERAL
13.1. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule or law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
13.2. Enurement. This Agreement shall be binding upon and enure to the benefit
of the parties hereto and their respective successors and permitted assigns and
to the benefit of the Holders and the Beneficial Owners.
13.3. Notices to Parties. All notices and other communications between the
parties hereunder shall be in writing and shall be deemed to have been given if
delivered personally or by confirmed telecopy to the parties at the following
addresses (or at such other address for such party as shall be specified in like
notice):
(a) if to Vivendi or Vivendi Universal Exchangeco, at:
c/o Vivendi S.A.
▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 08
France
Attention: Le Secretaire General
Telecopier No.: ▇▇.▇.▇▇.▇▇.▇▇.▇▇
With a copy to:
Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Box 25, Commerce Court West
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
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(b) if to the Custodian, at:
CIBC Mellon Trust Company
16th Floor, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Branch Manager
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
(c) if to the Holders:
At their respective addresses set forth in the Exchangeable Share
registers.
Any and all notices to be given and any documents to be sent to any Holders may
be given or sent to the address of such Holder shown on the register of holders
of Exchangeable Shares in any manner permitted by the by-laws of Vivendi
Universal Exchangeco from time to time in force in respect of notices to
shareholders and shall be deemed to be received (if given or sent in such
manner) at the time specified in such by-laws, the provisions of which by-laws
shall apply mutatis mutandis to notices or documents as aforesaid sent to such
Holders.
Any notice or other communication given personally shall be deemed to have been
given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and received on the date of receipt thereof unless
such day is not a Business Day in which case it shall be deemed to have been
given and received upon the immediately following Business Day.
13.4. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
13.5. Jurisdiction. This Agreement shall be construed and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada applicable
therein.
13.6. Attornment. Each of the parties agrees that any action or proceeding
arising out of or relating to this Agreement may be instituted in the courts of
Ontario, waives any objection which it may have now or hereafter to the venue of
any such action or proceeding, irrevocably submits to the jurisdiction of the
said courts in any such action or proceeding, agrees to be bound by any judgment
of the said courts and not to seek, and hereby waives, any review of the merits
of any such judgment by the courts of any other jurisdiction and Vivendi hereby
appoint Vivendi Universal Exchangeco at its registered office in the Province of
Ontario as attorney for service of process.
24
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IN WITNESS WHEREOF Vivendi Universal, Vivendi Universal Exchangeco Inc.
and CIBC Mellon Trust Company have duly executed this Agreement as of the day,
and year first set forth above.
VIVENDI UNIVERSAL S.A.
Per: ________________________________
Name:
Title:
VIVENDI UNIVERSAL EXCHANGECO INC.
Per: ________________________________
Name:
Title:
CIBC MELLON TRUST COMPANY
Per: ________________________________
Name:
Title: