CONFIDENTIAL JULY 26, 2000
LOCK-UP AGREEMENT
To the principal shareholder (the "Principal Shareholder") of ▇▇▇▇▇▇▇ &
Associates Investment Management Ltd. listed in Schedule "A-1" and the
individual (the "Individual") listed in Schedule "A-2"
Dear Sirs:
This letter agreement (the "Agreement"), together with the acquisition agreement
dated July 26, 2000 among the parties listed in such agreement (the "Acquisition
Agreement"), sets out the terms and conditions upon which Franklin Resources,
Inc. ( "Purchaser") will cause its wholly-owned subsidiary, FTI Acquisition Inc.
(the "Offeror") to make an offer (the "Offer") on the terms set forth in the
Acquisition Agreement for all of the issued and outstanding common shares (the
"Common Shares") of ▇▇▇▇▇▇▇ & Associates Investment Management Ltd. (the
"Corporation").
This Agreement also sets out the terms and conditions of the agreement by the
Principal Shareholder to deposit irrevocably and unconditionally under the Offer
the 792,500 Common Shares owned beneficially and of record by the Principal
Shareholder (the "Shareholder Securities") and sets out the obligations and
commitments of the Principal Shareholder and the Individual in connection
therewith.
1. THE OFFER
(a) TIMING - The Purchaser agrees to cause the Offeror to make the Offer
for 100% of the Common Shares on or before August 15, 2000.
(b) CONDITIONS PRECEDENT - Notwithstanding Section 1(a), the Offeror shall
not be required to make the Offer (and the Purchaser may, without
prejudice to any other rights, by notice to the Principal Shareholder
and the Individual, terminate this Agreement) if any of the conditions
to the making of the Offer as set forth in the Acquisition Agreement
are not satisfied or waived by the Offeror in writing.
(c) DIVIDEND - The Acquisition Agreement provides that the Board of
Directors of the Corporation shall be permitted to declare a dividend
of $0.48 per Common Share, with such to be paid to shareholders of
record immediately prior to the time that any Common Shares are taken
up under the Offer.
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2. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SHAREHOLDER - The
Principal Shareholder hereby represents and warrants that, as of the
date hereof and as of the date the Offeror first takes up Common
Shares pursuant to the Offer:
(i) of the Common Shares now owned or over which control or direction
is exercised by it, certain of such Common Shares as set forth in
Schedule "B" attached hereto (the "1998 Escrowed Shares") are
held in escrow by Montreal Trust Company of Canada (the "Escrow
Agent") pursuant to an escrow agreement dated June 4, 1998 (the
"1998 Escrow Agreement"), a copy of which has been provided to
the Offeror. The Principal Shareholder agrees to use its best
efforts to make or cause to be made within three business days
from the execution of the Agreement, an application (the "Escrow
Relief Application") to the applicable regulatory authorities to
obtain regulatory approval to allow the Escrow Agent to deposit
the 1998 Escrowed Shares under the Offer (the "Escrow Relief") as
soon as practicable following receipt of the required regulatory
approval, but in any event, not later than the expiry date of the
Offer, provided such regulatory approval has been received and
the Offer has not been withdrawn or terminated.
(ii) it is a corporation that is duly incorporated and validly
existing under the laws of its jurisdiction of incorporation; has
all necessary power, authority, capacity and right, and has
received all requisite approvals (including any necessary
approval of its shareholders), and, subject to the making of the
Escrow Relief Application, has made any required filings to enter
into this Agreement and to complete the transactions contemplated
hereby and that, upon the due execution and delivery of this
Agreement by the Purchaser, this Agreement shall be duly executed
and delivered by the Principal Shareholder and shall be a valid
and binding agreement enforceable by the Purchaser against the
Principal Shareholder in accordance with its terms. subject to
the qualification that such validity, binding effect and
enforceability may be limited by: (i) applicable bankruptcy,
insolvency, moratorium, reorganization or other laws affecting
creditors' rights generally; (ii) equitable remedies, including
the remedies of specific performance and injunctive relief, being
available only in the discretion of the applicable court; (iii)
the statutory and inherent powers of a court to grant relief from
forfeiture, to stay execution of proceedings before it and to
stay executions on judgments; (iv) the applicable laws regarding
limitations of actions; (v) enforceability of provisions which
purport to sever any provision which is prohibited or
unenforceable under applicable law without affecting the
enforceability or validity of the remainder of such document
would be determined only in the discretion of the court; (vi)
enforceability of the provisions exculpating a party from
liability or duty otherwise owed by it may be limited under
applicable law; and (vii) the enforceability of any waiver of
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statutory rights may be limited by applicable law;
(iii)it is the sole legal and beneficial owner of the Shareholder
Securities set forth opposite its name on Schedule "B" to this
Agreement and has, subject to the terms of the 1998 Escrow
Agreement, the exclusive right to dispose of such Shareholder
Securities as provided in this Agreement and, subject to the
receipt of the regulatory approvals referred to in Schedule "C"
to the Acquisition Agreement, is not a party to, bound or
affected by or subject to, any charter or by-law provision,
statute, regulation, judgment, order, decree or law which would
be violated, contravened, breached by, or under which default
would occur as a result of, the execution and delivery of this
Agreement or the consummation of any of the transactions provided
for in this Agreement;
(iv) subject to the granting of the Escrow Relief, the Shareholder
Securities to be acquired by the Offeror from it pursuant to the
Offer will be acquired with good title, free and clear of any and
all mortgages, liens, charges, restrictions, security interests,
adverse claims, pledges, encumbrances and demands or rights of
others of any nature or kind whatsoever; and
(v) except for the 1998 Escrow Agreement, it is not a party to or
bound by any indenture, mortgage, lease or agreement which would
be violated, contravened, breached by, or under which default
would occur or which would otherwise be impaired as a result of
the execution and delivery of this Agreement or the consummation
of any of the transactions provided for in this Agreement if the
result of such violation, contravention, breach, default or
impairment, individually or in the aggregate, would materially
adversely affect the Principal Shareholder or the Purchaser;
(b) REPRESENTATIONS AND WARRANTIES OF THE INDIVIDUAL - The Individual
hereby represents and warrants that, as of the date hereof and as of
the date the Offeror first takes up Common Shares pursuant to the
Offer:
(i) he or she is of full age of majority and is legally competent to
execute this Agreement and to take all action pursuant hereto;
has received all requisite approvals, and has made any required
filings, to enter into this Agreement and to complete the
transaction contemplated hereby and that, this Agreement has been
duly executed and delivered by the Individual and shall be a
valid and binding agreement enforceable by the Purchaser against
the Individual in accordance with its terms, subject to the
qualification that such validity, binding effect and
enforceability may be limited by: (i) applicable bankruptcy,
insolvency, moratorium, reorganization or other laws affecting
creditors' rights generally; (ii) equitable remedies, including
the remedies of specific performance and injunctive relief, being
available only in the discretion of the applicable court; (iii)
the statutory and inherent powers of a court to grant relief from
4
forfeiture, to stay execution of proceedings before it and to
stay executions on judgments; (iv) the applicable laws regarding
limitations of actions; (v) enforceability of provisions which
purport to sever any provision which is prohibited or
unenforceable under applicable law without affecting the
enforceability or validity of the remainder of such document
would be determined only in the discretion of the court; (vi)
enforceability of the provisions exculpating a party from
liability or duty otherwise owed by it may be limited under
applicable law; and (vii) the enforceability of any waiver of
statutory rights may be limited by applicable law;
(ii) the persons listed in Schedule "A-2" and "A-3" are the legal and
beneficial owners of all of the issued and outstanding shares of
the Principal Shareholder, there are no other issued and
outstanding shares or any rights to acquire, exchange for or
convert into shares outstanding, and none of such persons nor, to
his or her knowledge, the Principal Shareholder is a party to,
bound or affected by or subject to, any charter or by-law
provision, statute, regulation, judgment, order, decree or law
which would be violated, contravened, breached by, or under which
default would occur as a result of, the execution and delivery of
this Agreement or the consummation of any of the transactions
provided for in this Agreement; and
(iii)none of the persons described in Schedule "A-2" or "A-3" nor the
Principal Shareholder is a party to or bound by any indenture,
mortgage, lease or agreement which would be violated,
contravened, breached by, or under which default would occur or
which would otherwise be impaired as a result of the execution
and delivery of this Agreement or the consummation of any of the
transactions provided for in this Agreement if the result of such
violation, contravention, breach, default or impairment,
individually or in the aggregate, would materially adversely
affect the Principal Shareholder or the Purchaser;
(c) REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SHAREHOLDER AND THE
INDIVIDUAL - Each of the Principal Shareholder and the Individual
hereby represents and warrants to the Purchaser and the Offeror that,
to the best of its or his knowledge, the representations and
warranties of the Corporation set forth in Article 4 of the
Acquisition Agreement are true and correct as of the date of such
agreement and will be true and correct as of the date the Offeror
first takes up Shares pursuant to the Offer, except where the failure
of such representation and warranties to be correct does not have
individually or, in the aggregate, a Material Adverse Effect (as such
term is defined in the Acquisition Agreement), in each case with the
same effect as if the representations and warranties were repeated in
their entirety in this Agreement.
(d) REPRESENTATIONS AND WARRANTIES OF THE PURCHASER - The Purchaser hereby
represents and warrants that (i) the Purchaser is, and the Offeror
will be at the date of the Offer, a corporation duly incorporated and
5
validly existing under the laws of its jurisdiction of incorporation;
(ii) the Purchaser has all necessary power, authority, capacity and
right, and has received, or at the time it takes up and pays for
Common Shares pursuant to the Offer will have received all requisite
approvals (including, without limitation, any necessary approval of
its shareholders), to enter into this Agreement and to complete the
transactions contemplated hereby (iii) no other corporate proceedings
on the part of the Purchaser are necessary to authorize this Agreement
and the transactions contemplated hereby; (iv) the execution and
delivery by the Purchaser of this Agreement and the performance by the
Purchaser of its obligations hereunder will not result in a violation
or breach of any provisions of: (A) the Purchaser's articles or
by-laws; or (B) subject to the receipt of requisite regulatory
approvals, any law, regulation, order, judgment or decree; in each
such case, other than any such violations or breaches that will not,
individually or in the aggregate, have an adverse effect on the
ability of the Purchaser to fulfil its obligations under this
Agreement; (v) the Purchaser now has and the Offeror will have at the
date of the Offer and until the Offeror has paid for all of the Common
Shares acquired by it pursuant to the Offer financing immediately
available to make the Offer on the terms as contemplated hereby and to
purchase all outstanding Common Shares (on a fully-diluted basis)
which may be deposited pursuant to the Offer and to pay all related
fees and expenses; and (vi) upon the due execution and delivery of
this Agreement by the Principal Shareholders and the Individuals this
Agreement shall be a valid and binding agreement enforceable by the
Principal Shareholder against the Purchaser in accordance with its
terms subject to the qualification that such validity, binding effect
and enforceability may be limited by: (i) applicable bankruptcy,
insolvency, moratorium, reorganization or other laws affecting
creditors' rights generally; (ii) equitable remedies, including the
remedies of specific performance and injunctive relief, being
available only in the discretion of the applicable court; (iii) the
statutory and inherent powers of a court to grant relief from
forfeiture, to stay execution of proceedings before it and to stay
executions on judgments; (iv) the applicable laws regarding
limitations of actions; (v) enforceability of provisions which purport
to sever any provision which is prohibited or unenforceable under
applicable law without affecting the enforceability or validity of the
remainder of such document would be determined only in the discretion
of the court; (vi) enforceability of the provisions exculpating a
party from liability or duty otherwise owed by it may be limited under
applicable law; and (vii) the enforceability of any waiver of
statutory rights may be limited by applicable law.
3. COVENANTS OF THE PRINCIPAL SHAREHOLDER AND INDIVIDUAL
(a) GENERAL - The Principal Shareholder and the Individual jointly and
severally covenant that until the Offeror has taken up and paid for
the Common Shares under the Offer or abandoned the Offer, she, he or
it will:
(i) not solicit, initiate or encourage enquiries, submissions,
proposals or offers from any other person, entity or group
relating to, and will not participate in any negotiations
regarding or furnish to any other person, entity or group an
6
information with respect to, or otherwise cooperate in any way
with or assist or participate in, or facilitate or encourage any
effort or attempt with respect to:
(1) the direct or indirect acquisition or disposition of all or
any Common Shares; or
(2) any amalgamation, merger, sale of any part of the
Corporation's assets, take-over bid, reorganization,
recapitalization, liquidation or winding-up of, or other
business combination or similar transaction involving the
Corporation or assets which could materially adversely
affect (a) the successful completion of the Offer, or (b)
individually or in the aggregate, the value of the Common
Shares;
(ii) exercise the voting rights attaching to each of the Shareholder
Securities and otherwise use her, his or its commercially
reasonable best efforts to oppose any proposed action by: (1) the
Corporation, its shareholders or others which might reasonably be
regarded as being directed towards or likely to prevent or delay
the successful completion of the Offer, or (2) the Corporation or
its shareholders, to change the business, assets, operations,
capital, affairs, financial condition, licences, permits, rights
or privileges, whether contractual or otherwise or prospects of
the Corporation which in the sole judgement of the Purchaser,
acting reasonably in the circumstances could, individually or in
the aggregate adversely affect the value of the Common Shares to
the Purchaser or the Offeror; and
(iii)use her, his or its best efforts to (i) assist the reasonable
requests of the Purchaser and the Offeror to successfully
complete the transactions contemplated by this Agreement,
including the Offer, and (ii) as requested by the Purchaser and
the Offeror, cause the Corporation to comply with its obligations
under the Acquisition Agreement.
(b) ACTION BY INDIVIDUAL SHAREHOLDER - The Individual hereby agrees to
take all action necessary to cause the Principal Shareholder to
perform its obligations under this Agreement and to indemnify and save
harmless the Purchaser and the Offeror in the event of the failure of
the Principal Shareholder to so perform its obligations.
(c) FIDUCIARY QUALIFICATION - The foregoing provisions of this Section 3
shall not in any way prevent any person that is the director or
officer of the Corporation or that is in a fiduciary capacity to the
Principal Shareholder, from acting in any manner which such person
believes, acting reasonably, is necessary or appropriate in the
discharge of his fiduciary duties or statutory obligations and
provided further that if such person is a director or officer of the
Corporation, the foregoing provisions of this Section 3, shall not in
any way prevent such person from acting in a manner as instructed or
7
authorized by the board of directors of the Corporation in the
discharge of their fiduciary duties in accordance with the Acquisition
Agreement.
(d) RESIGNATION - The Individual shall resign as a director of the
Corporation effective at the time and in the manner requested by the
Purchaser, after the Offeror takes up and pays for the Shareholder
Securities.
(e) 1998 ESCROWED SHARES - In the event that the Escrow Relief is not
obtained prior to the time the Offeror takes up any Common Shares
pursuant to the Offer, the Principal Shareholder and the Individual
jointly and severally covenant to cooperate with the Purchaser and to
use their best efforts establish an alternate arrangement that has the
same economic impact for the Principal Shareholder, the Purchaser and
the Offeror as if the Escrow Relief had been obtained.
4. COVENANTS OF THE PURCHASER
(a) GENERAL - The Purchaser hereby covenants to use, and to cause the
Offeror to use, its best efforts to successfully complete the
transactions contemplated by this Agreement, including the Offer,
including co-operating with the Principal Shareholder in making all
requisite regulatory filings, and giving evidence in relation to such
filings, and in mailing or otherwise making the Offer to holders of
the Common Shares and, except in respect of matters which the
Purchaser is required to maintain as confidential, to provide copies
of drafts of the Offer to the Principal Shareholder and to inform the
Principal Shareholder of all steps taken in respect of applications
for such regulatory approvals and to provide copies of all written
documents and submissions and responses with respect thereto in
connection with regulatory proceedings.
(b) INDEMNITIES; INSURANCE - The Purchaser covenants and agrees in favour
of the Individual (if an officer or director of the Corporation) to
comply with the provisions of Section 5.10 of the Acquisition
Agreement.
(c) LIABLE AS OBLIGOR - The Purchaser covenants to cause the performance
by the Offeror of all of the obligations hereunder and to be directly
liable as principal obligor for any such obligations without the
necessity or the requirement of the Principal Shareholder to pursue or
exhaust its remedies of recourse against the Offeror.
5. ACCEPTANCE
(a) DEPOSIT - Subject to Section 2(a)(i) with respect to only the 1998
Escrowed Shares, the Principal Shareholder hereby irrevocably and
unconditionally agrees to deposit the Shareholder Securities owned by
it, together with a duly completed and executed letter of transmittal,
under the Offer as soon as practicable after the Offer has been made
(or in respect of the Escrowed Shares, after the Escrow Relief has
been granted) and, in any event, on or before the tenth business day
8
after the date of the Offer or the granting of the Escrow Relief, as
the case may be.
(b) NO-WITHDRAWAL - The Principal Shareholder hereby irrevocably and
unconditionally agrees not to withdraw or take any action to withdraw
any of the Shareholder Securities deposited under the Offer
notwithstanding any statutory rights or other rights under the terms
of the Offer or otherwise which it might have unless (i) the Purchaser
or Offeror reduces the consideration to be offered pursuant to the
Offer; or (ii) this Agreement is terminated in accordance with its
terms prior to the taking up of the Shareholder Securities under the
Offer.
6. TERMINATION BY THE PRINCIPAL SHAREHOLDER AND THE INDIVIDUAL
(a) TERMINATION - The Principal Shareholder and the Individual may,
without prejudice to any other rights, terminate this Agreement by
notice to the Purchaser and withdraw any Shareholder Securities
deposited under the Offer if:
(i) the Offer has not been made on or before August 31, 2000, other
than by reason of the Principal Shareholder, the Individual or
the Corporation having breached its respective obligations under
this Agreement or the Acquisition Agreement;
(ii) the Offer is not on the terms set forth in the Acquisition
Agreement;
(iii)Common Shares deposited under the Offer have not, for any reason
whatsoever, been taken up and paid for on or before 75 days after
the date of the mailing of the Offer to Shareholders of the
Corporation, provided that if the Purchaser is precluded from so
taking up and paying as a result of any breach by the Principal
Shareholder, the Individual or the Corporation of its respective
obligations under this Agreement or the Acquisition Agreement,
such 75 day period shall be deemed extended to the 3rd business
day following the date upon the Purchaser is no longer so
precluded.
(iv) the Offer has been terminated, withdrawn or otherwise expires; or
(v) there shall have been a material breach of any covenant,
representative or warranty on the part of the Purchaser or the
Offeror contained herein or in the Acquisition Agreement.
7. GENERAL
(a) LIABILITY - The liability of the Principal Shareholder and the
Individual for any matters hereunder shall not exceed the aggregate
consideration to be received by the Principal Shareholder under the
Offer, provided however that upon the deposit into escrow of
$24,775,840 by 571770 Alberta Ltd., Belmont Capital Management Ltd.
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. (the "Other Principal Shareholders") pursuant
to lock-up agreements entered into by the Other Principal Shareholders
9
and the Purchaser, among others, then the liability of the Principal
Shareholder and the Individual for any matters hereunder shall not
exceed 30% of the aggregate consideration to be received by the
Principal Shareholder under the Offer. The Individual shall not have
any liability for any breach of Section 2(c) in the event the
Purchaser does not take up Common Shares pursuant to the Offer.
(b) SURVIVAL OF REPRESENTATIONS AND WARRANTIES - The representations and
warranties shall survive the consummation of the Offer but only for a
period of eighteen months after the date of this Agreement. No
investigations made by or on behalf of the Purchaser, the Offeror or
any of their authorized agents at any time shall have the effect of
waiving, diminishing the scope of or otherwise affecting any
representation or warranty or covenant made by the Principal
Shareholder in or pursuant to this Agreement.
(c) DISCLOSURE - Neither the Purchaser nor the Offeror, on the one hand,
nor the Principal Shareholder on the other hand, shall make any public
announcement or statement with respect to this Agreement without the
approval of the Principal Shareholder or the Purchaser, as the case
may be. Moreover, the parties agree to consult with each other prior
to issuing each public announcement or statement with respect to this
Agreement. A copy of this Agreement may be provided to the directors
of the Corporation.
(d) ASSIGNMENT - The Purchaser or the Offeror may assign all or any part
of its rights under this Agreement to a Subsidiary of the Purchaser or
the Offeror, as the case may be, but, if such assignment takes place,
the Purchaser shall continue to be liable to the Principal Shareholder
for any default in performance by the assignee. This Agreement shall
not otherwise be assignable by any party hereto.
(e) TIME - Time shall be of the essence of this Agreement.
(f) CURRENCY - All sums of money referred to in this Agreement shall mean
Canadian funds.
(g) GOVERNING LAW - This Agreement shall be governed by and construed in
accordance with the laws of the Province of Alberta and of Canada
applicable therein.
(h) ENTIRE AGREEMENT - This Agreement constitutes the entire agreement and
understanding between and among the parties hereto with respect to the
subject matter hereof and supersedes any prior agreement,
representation or understanding with respect thereto.
(i) AMENDMENTS - This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written
agreement executed by all of the parties hereto.
(j) SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS - Each of the parties
recognizes and acknowledges that this Agreement is an integral part of
10
the transactions contemplated in the Offer, that the Purchaser would
not contemplate causing the Offer to be made and the Principal
Shareholder would not agree to the deposit of Common Shares under the
Offer unless this Agreement was executed and that a breach by a party
of any covenants or other commitments contained in this Agreement will
cause the other party to sustain injury for which it would not have an
adequate remedy at law for money damages. Therefore, each of the
parties agrees that in the event of any such breach, the aggrieved
party shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and
other equitable relief in addition to any other remedy to which it may
be entitled, at law or in equity, and the parties further agree to
waive any requirement for the securing or posting of any bond in
connection with the obtaining of any such injunctive or other
equitable relief.
(k) NOTICES - Any notice, request, consent, agreement or approval which
may or is required to be given pursuant to this Agreement shall be in
writing and shall be sufficiently given or made if delivered, in the
case of:
(i) if to the Purchaser or the Offeror:
Franklin Resources, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
Templeton Management Limited
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, President & Chief
Executive Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
11
and to:
Osler, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇
1 First Canadian Place
Toronto, Ontario
M5X 1B8
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Principal Shareholder or the Individual, addressed
as follows:
▇▇▇▇▇ T. Guest
Suite 3030 TD Bank Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the relevant party may from time to time advise by
notice in writing given pursuant to this section. The date of receipt of any
such notice, request, consent, agreement or approval shall be deemed to be the
date of delivery thereof.
(l) EXPENSES - Each of the parties shall pay its legal, financial advisory
and accounting costs and expenses incurred in connection with the
preparation, execution and delivery of this Agreement and all
documents and instruments executed or prepared pursuant hereto and any
other costs and expenses whatsoever and howsoever incurred.
(m) BUSINESS DAY - A business day for the purpose of this Agreement shall
mean a day other than a Saturday, Sunday or other day on which (i)
commercial banks in Calgary or Toronto, Canada are authorized or
required by law, regulation or executive order to close or (ii) the
New York Stock Exchange is not open for trading.
(n) COUNTERPARTS - This Agreement may be executed in one or more
counterparts which together shall be deemed to constitute one valid
and binding agreement and delivery of the counterparts may be effected
by means of a telecopied transmission.
(o) SEVERABILITY - If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of 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 adverse to any party. Upon such
12
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.
If the terms and conditions of this letter are acceptable to you please so
indicate by executing and returning the enclosed copy hereof to the undersigned.
Yours truly,
FRANKLIN RESOURCES, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Senior Vice President
The terms and conditions set forth above are agreed to this 26th day of July,
2000.
GUEST HOLDINGS LTD.
By: /s/ ▇▇▇▇▇ T. Guest
------------------------------
Name: ▇▇▇▇▇ T. Guest
SIGNED, SEALED & DELIVERED
In the presence of:
/s/▇▇▇▇▇ T. Guest
------------------------------- ------------------------------
Witness ▇▇▇▇▇ T. Guest
SCHEDULE "A-1"
PRINCIPAL SHAREHOLDER: GUEST HOLDINGS LTD.
SCHEDULE "A-2"
INDIVIDUAL: ▇▇▇▇▇ T. GUEST
SCHEDULE "A-3"
OTHER SHAREHOLDER(S) OF PRINCIPAL SHAREHOLDERS: ▇▇▇▇▇▇▇▇ GUEST
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ GUEST
▇▇▇▇▇▇ GUEST
▇▇▇▇▇▇▇ GUEST
SCHEDULE "B"
1998 ESCROWED SHARES: 345,989 Common Shares