EXHIBIT 2.2
VOTING AND EXCHANGE TRUST AGREEMENT
MEMORANDUM OF AGREEMENT made as of the day of
, 1995.
B E T W E E N:
ORBITAL SCIENCES CORPORATION,
a corporation existing under
the laws of the State of
Delaware,
(hereinafter referred to as "Orbital"),
- and -
MacDONALD DETTWILER HOLDINGS INC.,
(formerly known as 3173623 Canada Inc.)
a corporation existing under
the laws of Canada,
(hereinafter referred to as "Corporation"),
- and -
STATE STREET BANK AND TRUST COMPANY,
a ! existing under the laws
of the United States,
(hereinafter referred to as "Trustee").
WHEREAS pursuant to a combination agreement dated as of
August 31, 1995 (the "Combination Agreement"), by and between
Orbital, the Corporation and MacDonald, Dettwiler and Associates
Ltd. ("MDA"), the parties agreed that on the Effective Date (as
defined in the Combination Agreement), Orbital and the
Corporation would execute and deliver a Voting and Exchange Trust
Agreement containing the terms and conditions set forth in
Exhibit 2.2 to the Combination Agreement together with such other
terms and conditions as may be agreed to by the parties to the
Combination Agreement acting reasonably;
AND WHEREAS pursuant to an arrangement (the
"Arrangement") effected by articles of arrangement dated
, 1995 filed pursuant to the Canada Business Corporations Act,
each issued and outstanding common share of MDA (an "MDA Common
Share") was exchanged directly or indirectly for 0.# of an issued
and outstanding Exchangeable Non-Voting Share of the Corporation
(the "Exchangeable Shares");
AND WHEREAS the aforesaid articles of arrangement set
forth the rights, privileges, restrictions and conditions
(collectively the "Exchangeable Share Provisions") attaching to
the Exchangeable Shares;
AND WHEREAS Orbital is to provide voting rights in
Orbital to each holder (other than Orbital and its Affiliates)
from time to time of Exchangeable Shares, such voting rights per
Exchangeable Share to be equivalent to the voting rights per
share of the common stock, par value U.S. $.01 per share, of
Orbital (the "Orbital Common Shares");
AND WHEREAS Orbital is to grant to and in favour of the
holders (other than Orbital and its Affiliates) from time to time
of Exchangeable Shares the right, in the circumstances set forth
herein, to require Orbital to purchase from each such holder all
or any part of the Exchangeable Shares held by the holder;
AND WHEREAS the parties desire to make appropriate
provision and to establish a procedure whereby voting rights in
Orbital shall be exercisable by holders (other than Orbital and
its Affiliates) from time to time of Exchangeable Shares by and
through the Trustee, which will hold legal title to one share of
Orbital Special Voting Preferred Stock, U.S. $.01 par value (the
"Orbital Special Voting Stock"), to which voting rights attach
for the benefit of such holders and whereby the rights to require
Orbital to purchase Exchangeable Shares from the holders thereof
shall be exercisable by such holders from time to time of
Exchangeable Shares by and through the Trustee, which will hold
legal title to such rights for the benefit of such holders;
AND WHEREAS these recitals and any statements of fact
in this Agreement are made by Orbital and the Corporation and not
by the Trustee;
NOW THEREFORE in consideration of the respective
covenants and agreements provided in this Agreement and for other
good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement, the following terms
shall have the following meanings:
"Affiliate" of any person means any other person
directly or indirectly controlling, controlled by, or under
common control of, that person. For the purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling", "controlled by" and "under common control
of"), as applied to any person, means the possession by another
person, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that first
mentioned person, whether through the ownership of voting
securities, by contract or otherwise.
"Arrangement" has the meaning ascribed thereto in the
recitals hereto.
"Automatic Exchange Rights" means the benefit of the
obligation of Orbital to effect the automatic exchange of shares
of Orbital Common Shares for Exchangeable Shares pursuant to
subsection 5.12(c) hereof.
"Board of Directors" means the Board of Directors of
the Corporation.
"Business Day" means a day other than a Saturday, a
Sunday or a day when banks are not open for business in one or
both of Vancouver, British Columbia and the Commonwealth of
Virginia.
"Call Rights" means collectively the Liquidation Call
Right, the Redemption Call Right and the Retraction Call Right.
"Canadian Dollar Equivalent" means in respect of an
amount expressed in a foreign currency (the "Foreign Currency
Amount") at any date the product obtained by multiplying (a) the
Foreign Currency Amount by (b) the noon spot exchange rate on
such date for such foreign currency expressed in Canadian dollars
as reported by the Bank of Canada or, in the event such spot
exchange rate is not available, such exchange rate on such date
for such foreign currency expressed in Canadian dollars as may be
deemed by the Board of Directors to be appropriate for such
purpose.
"CBCA" means the Canada Business Corporations Act, as
amended;
"Current Market Price" means, in respect of Orbital
Common Shares on any date, the Canadian Dollar Equivalent of the
closing sale price of Orbital Common Shares on such date (or, if
no trades of any Orbital Common Shares occurred on such date, on
the last trading day prior thereto on which such trades occurred)
reported on the NASDAQ National Market System, or, if the Orbital
Common Shares are not then quoted on the NASDAQ National Market
System, on such other stock exchange or automated quotation
system on which the Orbital Common Shares are listed or quoted,
as the case may be, as may be selected by the Board of Directors
for such purpose; provided, however, that if in the opinion of
the Board of Directors the public distribution or trading
activity of Orbital Common Shares during such period does not
create a market that reflects the fair market value of Orbital
Common Shares, then the Current Market Price of Orbital Common
Shares shall be determined by the Board of Directors based upon
the advice of such qualified independent financial advisors as
the Board of Directors may deem to be appropriate, and provided
further that any such selection, opinion or determination by the
Board of Directors shall be conclusive and binding.
"Current Orbital Common Share Equivalent" has the
meaning ascribed thereto in the Exchangeable Share Provisions.
"Default Event" means any failure, other than by reason
of an Insolvency Event, of the Corporation to perform any of its
obligations pursuant to the Exchangeable Share Provisions,
including without limitation its obligation to redeem any
Retracted Shares.
"Exchange Right" has the meaning ascribed thereto in
section 5.1 hereof.
"Exchangeable Share Provisions" has the meaning
ascribed thereto in the recitals hereto.
"Exchangeable Shares" has the meaning ascribed thereto
in the recitals hereto.
"Holder Votes" has the meaning ascribed thereto in
section 4.2 hereof.
"Holders" means the registered holders from time to
time of Exchangeable Shares, other than Orbital and its
Affiliates.
"Insolvency Event" means the institution by the
Corporation of any proceeding to be adjudicated a bankrupt or
insolvent or to be dissolved or wound up, or the consent of the
Corporation to the institution of bankruptcy, insolvency,
dissolution or winding up proceedings against it, or the filing
of a petition, answer or consent seeking dissolution or winding
up under any bankruptcy, insolvency or analogous laws, including
without limitation the Companies Creditors' Arrangement Act
(Canada) and the Bankruptcy and Insolvency Act (Canada), and the
failure by the Corporation to contest in good faith any such
proceedings commenced in respect of the Corporation within 15
days of becoming aware thereof, or the consent by the Corporation
to the filing of any such petition or to the appointment of a
receiver, or the making by the Corporation of a general
assignment for the benefit of creditors, or the admission in
writing by the Corporation of its inability to pay its debts
generally as they become due, or the Corporation not being
permitted, pursuant to solvency requirements of applicable law,
to redeem any Retracted Shares pursuant to section 5.6 of the
Exchangeable Share Provisions.
"Lien" has the meaning ascribed thereto in the Plan of
Arrangement.
"Liquidation Call Right" has the meaning ascribed
thereto in the Plan of Arrangement.
"Liquidation Event" has the meaning ascribed thereto in
subsection 5.12(a) hereof.
"Liquidation Event Effective Date" has the meaning
ascribed thereto in subsection 5.12(c) hereof.
"List" has the meaning ascribed thereto in section 4.6
hereof.
"Officer's Certificate" means, with respect to Orbital
or the Corporation, as the case may be, a certificate signed by
any one of the Chairman of the Board, the President, any
Vice-President or any other senior officer of Orbital or the
Corporation, as the case may be.
"Orbital Common Shares" has the meaning ascribed
thereto in the recitals hereto.
"Orbital Consent" has the meaning ascribed thereto in
section 4.2 hereof.
"Orbital Meeting" has the meaning ascribed thereto in
section 4.2 hereof.
"Orbital Special Voting Stock" has the meaning ascribed
thereto in the recitals hereto.
"Orbital Successor" has the meaning ascribed thereto in
subsection 10.1(a) hereof.
"Person" includes an individual, partnership,
corporation, company, unincorporated syndicate or organization,
trust, trustee, executor, administrator and other legal
representative.
"Plan of Arrangement" means the plan of arrangement of
the Corporation providing for the Arrangement.
"Redemption Call Right" has the meaning ascribed
thereto in the Plan of Arrangement.
"Retracted Shares" has the meaning ascribed thereto in
section 5.7 hereof.
"Retraction Call Right" has the meaning ascribed
thereto in the Plan of Arrangement.
"Support Agreement" means that certain support
agreement made as of even date herewith between the Corporation
and Orbital.
"Trust" means the trust created by this Agreement.
"Trust Estate" means the Voting Share, any other
securities, the Exchange Right, the Automatic Exchange Rights and
any money or other property that may be held by the Trustee from
time to time pursuant to this Agreement.
"Voting Rights" means the voting rights attached to the
Voting Share.
"Voting Share" means the one share of Orbital Special
Voting Stock, issued by Orbital to and deposited with the
Trustee, which entitles the holder of record to a number of votes
at meetings of holders of Orbital Common Shares equal to the
number of Exchangeable Shares outstanding from time to time,
other than Exchangeable Shares held by Orbital and its
Affiliates, multiplied by the Current Orbital Common Share
Equivalent at the relevant time.
1.2 Interpretation not Affected by Headings, etc. The
division of this Agreement into articles, sections and paragraphs
and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation of
this Agreement.
1.3 Number, Gender, etc. Words importing the singular
number only shall include the plural and vice versa. Words
importing the use of any gender shall include all genders.
1.4 Date for any Action. If any date on which any action
is required to be taken under this Agreement is not a Business
Day, such action shall be required to be taken on the next
succeeding Business Day.
1.5 Withholding of Tax. All amounts required to be paid,
deposited or delivered hereunder shall be paid, deposited or
delivered after deduction of any amount required by applicable
law to be deducted or withheld on account of tax and the
deduction of such amounts and remittance to the applicable tax
authorities shall, to the extent thereof, satisfy such
requirement to pay, deposit or deliver hereunder.
ARTICLE 2
PURPOSE OF AGREEMENT
2.1 Establishment of Trust. The purpose of this Agreement
is to create the Trust for the benefit of the Holders, as herein
provided. The Trustee will hold the Voting Share in order to
enable the Trustee to exercise the Voting Rights and will hold
the Exchange Right and the Automatic Exchange Rights in order to
enable the Trustee to exercise such rights, in each case as
trustee for and on behalf of the Holders as provided in this
Agreement.
ARTICLE 3
VOTING SHARE
3.1 Issue and Ownership of the Voting Share. In
consideration of the granting of the Call Rights to Orbital,
Orbital hereby issues to and deposits with the Trustee the Voting
Share to be hereafter held of record by the Trustee as trustee
for and on behalf of, and for the use and benefit of, the Holders
and in accordance with the provisions of this Agreement. Orbital
hereby acknowledges receipt from the Trustee as trustee for and
on behalf of the Holders of good and valuable consideration (and
the adequacy thereof) for the issuance of the Voting Share by
Orbital to the Trustee. During the term of the Trust and subject
to the terms and conditions of this Agreement, the Trustee shall
possess and be vested with full legal ownership of the Voting
Share and shall be entitled to exercise all of the rights and
powers of an owner with respect to the Voting Share, provided
that the Trustee shall:
(a) hold the Voting Share and the legal
title thereto as trustee solely for the use and
benefit of the Holders in accordance with the
provisions of this Agreement; and
(b) except as specifically authorized by
this Agreement, have no power or authority to
sell, transfer, vote or otherwise deal in or with
the Voting Share and the Voting Share shall not be
used or disposed of by the Trustee for any purpose
other than the purposes for which this Trust is
created pursuant to this Agreement.
3.2 Legended Share Certificates. The Corporation shall
cause each certificate representing Exchangeable Shares to bear
an appropriate legend notifying the Holders of their right to
instruct the Trustee with respect to the exercise of the Voting
Rights with respect to the Exchangeable Shares held by Holders.
3.3 Safe Keeping of Certificate. The certificate
representing the Voting Share shall at all times be held in safe
keeping by the Trustee.
ARTICLE 4
VOTING RIGHTS
4.1 Voting Rights. The Trustee, as the holder of record of
the Voting Share, shall be entitled to all of the Voting Rights,
including the right to consent to or to vote in person or by
proxy the Voting Share, on any matter, question or proposition
whatsoever that may properly come before the stockholders of
Orbital for their vote at an Orbital Meeting or in connection
with an Orbital Consent. The Voting Rights shall be and remain
vested in and exercised by the Trustee. Subject to section 6.15
hereof, the Trustee shall exercise the Voting Rights only on the
basis of instructions received pursuant to this Article 4 from
Holders entitled to instruct the Trustee as to the voting thereof
at the time at which an Orbital Consent is sought or an Orbital
Meeting is held. To the extent that no instructions are received
from a Holder with respect to the Voting Rights to which such
Holder is entitled, the Trustee shall not exercise or permit the
exercise of such Holder's Voting Rights.
4.2 Number of Votes. With respect to all meetings of
stockholders of Orbital at which holders of Orbital Common Shares
are entitled to vote (an "Orbital Meeting") and with respect to
all written consents sought from the holders of Orbital Common
Shares (an "Orbital Consent"), each Holder shall be entitled to
instruct the Trustee to cast and exercise, in the manner
instructed, such number of votes comprised in the Voting Rights
as is equal to the Current Orbital Common Share Equivalent on the
record date established by Orbital or by applicable law for such
Orbital Meeting or Orbital Consent, as the case may be, for each
Exchangeable Share owned of record by such Holder on such record
date (the "Holder Votes") in respect of each matter, question or
proposition to be voted on at such Orbital Meeting or to be
consented to in connection with such Orbital Consent.
4.3 Mailings to Shareholders. With respect to each Orbital
Meeting and Orbital Consent, the Trustee shall mail or cause to
be mailed (or otherwise communicate in the same manner as Orbital
utilizes in communications to holders of Orbital Common Shares)
to each of the Holders named in the List on the same day as the
initial mailing of notice (or other communication) with respect
thereto is given by Orbital or any third party to its
stockholders:
(a) a copy of such notice, together with any
proxy or information statement and related
materials to be provided to stockholders of
Orbital;
(b) a statement that such Holder is entitled
to instruct the Trustee as to the exercise of the
Holder Votes with respect to such Orbital Meeting
or Orbital Consent, as the case may be, or,
pursuant to section 4.7 hereof, to attend such
Orbital Meeting and to exercise personally the
Holder Votes thereat;
(c) a statement as to the manner in which
such instructions may be given to the Trustee,
including an express indication that instructions
may be given to the Trustee to give:
(d) a proxy to such Holder or his designee
to exercise personally the Holder Votes; or
(i) a proxy to a
designated agent or other representative
of the management of Orbital to exercise
such Holder Votes;
(e) a statement that if no such instructions
are received from the Holder, the Holder Votes to
which such Holder is entitled will not be
exercised;
(f) a form of direction whereby the Holder
may so direct and instruct the Trustee as
contemplated herein; and
(g) a statement of (i) the time and date by
which such instructions must be received by the
Trustee in order to be binding upon it, which in
the case of a Orbital Meeting shall not be earlier
than the close of business on the second Business
Day prior to such meeting, and (ii) the method for
revoking or amending such instructions.
For the purpose of determining Holder Votes to which a Holder is
entitled in respect of any such Orbital Meeting or Orbital
Consent, the number of Exchangeable Shares owned of record by the
Holder shall be determined at the close of business on the record
date established by Orbital or by applicable law for purposes of
determining stockholders entitled to vote at such Orbital Meeting
or to give written consent in connection with such Orbital
Consent. Orbital shall notify the Trustee of any decision of the
board of directors of Orbital with respect to the calling of any
such Orbital Meeting or the seeking by Orbital of any such
Orbital Consent and shall provide all necessary information and
materials to the Trustee in each case promptly and in any event
in sufficient time to enable the Trustee to perform its
obligations contemplated by this section 4.3.
4.4 Copies of Stockholder Information. Orbital shall
deliver to the Trustee copies of all proxy materials, (including
notices of Orbital Meetings but excluding proxies to vote Orbital
Common Shares), information statements, reports (including
without limitation all interim and annual financial statements)
and other written communications that are to be distributed by
Orbital from time to time to holders of Orbital Common Shares in
sufficient quantities and in sufficient time so as to enable the
Trustee to send those materials to each Holder at the same time
as such materials are first sent to holders of Orbital Common
Shares. The Trustee shall mail or otherwise send to each Holder,
at the expense of Orbital, copies of all such materials (and all
materials specifically directed to the Holders or to the Trustee
for the benefit of the Holders by Orbital) received by the
Trustee from Orbital at the same time as such materials are first
sent to holders of Orbital Common Shares. The Trustee shall make
copies of all such materials available for inspection by any
Holder at the Trustee's principal office.
4.5 Other Materials. Immediately after receipt by Orbital
or any stockholder of Orbital of any material sent or given
generally to the holders of Orbital Common Shares by or on behalf
of a third party, including without limitation dissident proxy
and information circulars (and related information and material)
and tender and exchange offer circulars (and related information
and material), Orbital shall use all commercially reasonable
efforts to obtain and deliver to the Trustee copies thereof in
sufficient quantities so as to enable the Trustee to forward such
material (unless the same has been provided directly to Holders
by such third party) to each Holder as soon as possible
thereafter. As soon as practicable after receipt thereof, the
Trustee shall mail or otherwise send to each Holder, at the
expense of Orbital, copies of all such materials received by the
Trustee from Orbital. The Trustee shall also make copies of all
such materials available for inspection by any Holder at the
Trustee's principal office.
4.6 List of Persons Entitled to Vote. The Corporation
shall, (a) prior to each annual, general and special Orbital
Meeting or the seeking of any Orbital Consent and (b) forthwith
upon each request made at any time by the Trustee in writing,
prepare or cause to be prepared a list (a "List") of the names
and addresses of the Holders arranged in alphabetical order and
showing the number of Exchangeable Shares held of record by each
such Holder, in each case at the close of business on the date
specified by the Trustee in such request or, in the case of a
List prepared in connection with an Orbital Meeting or an Orbital
Consent, at the close of business on the record date established
by Orbital or pursuant to applicable law for determining the
holders of Orbital Common Shares entitled to receive notice of
and/or to vote at such Orbital Meeting or to give consent in
connection with such Orbital Consent. Each such List shall be
delivered to the Trustee promptly after receipt by the
Corporation of such request or the record date for such meeting
or seeking of consent, as the case may be, and in any event
within sufficient time as to enable the Trustee to perform its
obligations under this Agreement. Orbital agrees to give the
Corporation notice (with a copy to the Trustee) of the calling of
any Orbital Meeting or the seeking of any Orbital Consent,
together with the record dates therefor, sufficiently prior to
the date of the calling of such meeting or seeking of such
consent so as to enable the Corporation to perform its
obligations under this section 4.6.
4.7 Entitlement to Direct Votes. Any Holder named in a
List prepared in connection with any Orbital Meeting or any
Orbital Consent shall be entitled (a) to instruct the Trustee in
the manner described in section 4.3 hereof with respect to the
exercise of the Holder Votes to which such Holder is entitled or
(b) to attend such meeting and personally to exercise thereat (or
to exercise with respect to any written consent), as the proxy of
the Trustee, the Holder Votes to which such Holder is entitled.
4.8 Voting by Trustee, and Attendance of Trustee
Representative, at Meeting.
(a) In connection with each Orbital Meeting
and Orbital Consent, the Trustee shall exercise,
either in person or by proxy, in accordance with
the instructions received from a Holder pursuant
to section 4.3 hereof, the Holder Votes as to
which such Holder is entitled to direct the vote
(or any lesser number thereof as may be set forth
in the instructions); provided, however, that such
written instructions are received by the Trustee
from the Holder prior to the time and date fixed
by it for receipt of such instructions in the
notice given by the Trustee to the Holder pursuant
to section 4.3 hereof.
(b) The Trustee shall cause such
representatives as are empowered by it to sign and
deliver, on behalf of the Trustee, proxies for
Voting Rights to attend each Orbital Meeting.
Upon submission by a Holder (or its designee) of
identification satisfactory to the Trustee's
representatives, and at the Holder's request, such
representatives shall sign and deliver to such
Holder (or its designee) a proxy to exercise
personally the Holder Votes as to which such
Holder is otherwise entitled hereunder to direct
the vote, if such Holder either (i) has not
previously given the Trustee instructions pursuant
to section 4.3 hereof in respect of such meeting,
or (ii) submits to the Trustee's representatives
written revocation of any such previous
instructions. At such meeting, the Holder
exercising such Holder Votes shall have the same
rights as the Trustee to speak at the meeting in
respect of any matter, question or proposition, to
vote by way of ballot at the meeting in respect of
any matter, question or proposition and to vote at
such meeting by way of a show of hands in respect
of any matter, question or proposition.
4.9 Distribution of Written Materials. Any written
materials to be distributed by the Trustee to the Holders
pursuant to this Agreement shall be delivered or sent by mail (or
otherwise communicated in the same manner as Orbital utilizes in
communications to holders of Orbital Common Shares) to each
Holder at its address as shown on the books of the Corporation.
The Corporation shall provide or cause to be provided to the
Trustee for this purpose, on a timely basis and without charge or
other expense:
(a) a List; and
(b) upon the request of the Trustee, mailing
labels to enable the Trustee to carry out its
duties under this Agreement.
4.10 Termination of Voting Rights. Except with respect to
an Orbital Meeting or Orbital Consent for which the record date
has occurred, all of the rights of a Holder with respect to the
Holder Votes exercisable in respect of the Exchangeable Shares
held by such Holder, including the right to instruct the Trustee
as to the voting of or to vote personally such Holder Votes,
shall be deemed to be surrendered by the Holder to Orbital and
such Holder Votes and the Voting Rights represented thereby shall
cease immediately upon the delivery by such Holder to the Trustee
of the certificates representing such Exchangeable Shares in
connection with the exercise by the Holder of the Exchange Right
or the occurrence of the automatic exchange pursuant to the
Automatic Exchange Rights (unless in either case Orbital shall
not have delivered the requisite Orbital Common Shares issuable
in exchange therefor to the Trustee for delivery to the Holders),
or upon the redemption of Exchangeable Shares pursuant to Article
5 or Article 6 of the Exchangeable Share Provisions, or upon the
effective date of the liquidation, dissolution or winding-up of
the Corporation pursuant to Article 4 of the Exchangeable Share
Provisions, or upon the purchase of Exchangeable Shares from the
holder thereof by Orbital pursuant to the exercise by Orbital of
the Retraction Call Right, the Redemption Call Right or the
Liquidation Call Right.
4.11 Issue of Additional Shares. During the term of this
Agreement, Orbital will not issue any shares of Orbital Special
Voting Stock, in addition to the Voting Share.
ARTICLE 5
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
5.1 Grant and Ownership of the Exchange Right. In
consideration of the granting of the Call Rights to Orbital,
Orbital hereby grants to the Trustee as trustee for and on behalf
of, and for the use and benefit of, the Holders (a) the right
(the "Exchange Right"), upon the occurrence and during the
continuance of an Insolvency Event or Default Event, to require
Orbital to purchase from each Holder all or any part of the
Exchangeable Shares held by such Holder and (b) the Automatic
Exchange Rights, all in accordance with the provisions of this
agreement. Orbital hereby acknowledges receipt from the Trustee
as trustee for and on behalf of the Holders of good and valuable
consideration (and the adequacy thereof) for the grant of the
Exchange Right and the Automatic Exchange Rights by Orbital to
the Trustee. During the term of the Trust and subject to the
terms and conditions of this Agreement, the Trustee shall possess
and be vested with full legal ownership of the Exchange Right and
the Automatic Exchange Rights and shall be entitled to exercise
all of the rights and powers of an owner with respect to the
Exchange Right and the Automatic Exchange Rights, provided that
the Trustee shall:
(a) hold the Exchange Right and the
Automatic Exchange Rights and the legal title
thereto as trustee solely for the use and benefit
of the Holders in accordance with the provisions
of this Agreement; and
(b) except as specifically authorized by
this Agreement, have no power or authority to
exercise or otherwise deal in or with the Exchange
Right or the Automatic Exchange Rights, and the
Trustee shall not exercise any such rights for any
purpose other than the purposes for which this
Trust is created pursuant to this Agreement.
5.2 Legended Share Certificates. The Corporation shall
cause each certificate representing Exchangeable Shares to bear
an appropriate legend notifying the Holders of:
(a) their right to instruct the Trustee with
respect to the exercise of the Exchange Right in
respect of the Exchangeable Shares held by a
Holder; and
(b) the Automatic Exchange Rights.
5.3 General Exercise of Exchange Right. The Exchange Right
shall be and remain vested in and exercisable by the Trustee.
Subject to section 6.15 hereof, the Trustee shall exercise the
Exchange Right only on the basis of instructions received
pursuant to this Article 5 from Holders entitled to instruct the
Trustee as to the exercise thereof. To the extent that no
instructions are received from a Holder with respect to the
Exchange Right, the Trustee shall not exercise or permit the
exercise of the Exchange Right.
5.4 Purchase Price. The purchase price payable by Orbital
for each Exchangeable Share to be purchased by Orbital under the
Exchange Right shall be an amount per share equal to (a) the
Current Market Price multiplied by the Current Orbital Common
Share Equivalent, in each case determined on the day of closing
of the purchase and sale of such Exchangeable Share under the
Exchange Right, which shall be satisfied in full in respect of
the Exchangeable Shares in regard to which a Holder has exercised
the Exchange Right by causing to be delivered to such Holder such
whole number of Orbital Common Shares as is equal to the product
obtained by multiplying the number of such Exchangeable Shares by
the Current Orbital Common Share Equivalent (together with an
amount in lieu of any fractional Orbital Common Share resulting
from such calculation payable in accordance with section 9.4 of
the Exchangeable Share Provisions), plus (b) the aggregate of all
dividends declared and unpaid on each such Exchangeable Share
(provided that if the record date for any such declared and
unpaid dividends occurs on or after the day of closing of such
purchase and sale the purchase price shall not include such
declared and unpaid dividends).
5.5 Exercise Instructions. Subject to the terms and
conditions herein set forth, a Holder shall be entitled, upon the
occurrence and during the continuance of an Insolvency Event, to
instruct the Trustee to exercise the Exchange Right with respect
to all or any part of the Exchangeable Shares registered in the
name of such Holder on the books of the Corporation. To cause
the exercise of the Exchange Right by the Trustee, the Holder
shall deliver to the Trustee, in person or by certified or
registered mail, at its principal office or at such other place
as the Trustee may from time to time designate by written notice
to the Holders, the certificates representing the Exchangeable
Shares that such Holder desires Orbital to purchase, duly
endorsed in blank, and accompanied by such other documents and
instruments as may be required to effect a transfer of
Exchangeable Shares under the CBCA and the by-laws of the
Corporation and such additional documents and instruments as the
Trustee may reasonably require together with (a) a duly completed
form of notice of exercise of the Exchange Right, contained on
the reverse of or attached to the Exchangeable Share
certificates, stating (i) that the Holder thereby instructs the
Trustee to exercise the Exchange Right so as to require Orbital
to purchase from the Holder the number of Exchangeable Shares
specified therein, (ii) that such Holder has good title to and
owns all such Exchangeable Shares to be acquired by Orbital free
and clear of all Liens, (iii) the names in which the certificates
representing Orbital Common Shares issuable in connection with
the exercise of the Exchange Right are to be issued and (iv) the
names and addresses of the persons to whom such new certificates
should be delivered and (b) payment (or evidence satisfactory to
the Trustee, the Corporation and Orbital of payment) of the taxes
(if any) payable as contemplated by section 5.8 of this
Agreement. If only a part of the Exchangeable Shares represented
by any certificate or certificates delivered to the Trustee are
to be purchased by Orbital under the Exchange Right, a new
certificate for the balance of such Exchangeable Shares shall be
issued to the holder at the expense of the Corporation.
5.6 Delivery of Orbital Common Shares: Effect of Exercise.
Promptly after receipt of the certificates representing the
Exchangeable Shares that the Holder desires Orbital to purchase
under the Exchange Right (together with such documents and
instruments of transfer and a duly completed form of notice of
exercise of the Exchange Right (and payment of taxes, if any, or
evidence thereof in accordance with section 5.8)), duly endorsed
for transfer to Orbital, the Trustee shall notify Orbital and the
Corporation of its receipt of the same, which notice to Orbital
and the Corporation shall constitute exercise of the Exchange
Right by the Trustee on behalf of the holder of such Exchangeable
Shares, and Orbital shall immediately thereafter deliver or cause
to be delivered to the Trustee, for delivery to the Holder of
such Exchangeable Shares (or to such other persons, if any,
properly designated by such Holder), the certificates for the
number of Orbital Common Shares issuable in connection with the
exercise of the Exchange Right, which shares shall be duly issued
as fully paid and non-assessable and shall be free and clear of
any Liens, and cheques for the balance, if any, of the total
purchase price therefor (or, if part of the purchase price
consists of dividends payable in property, such property or
property the same as or economically equivalent to such
property). Immediately upon the giving of notice by the Trustee
to Orbital and the Corporation of the exercise of the Exchange
Right, as provided in this section 5.6, the closing of the
transaction of purchase and sale contemplated by the Exchange
Right shall be deemed to have occurred, and the Holder of such
Exchangeable Shares shall be deemed to have transferred to
Orbital all of its right, title and interest in and to such
Exchangeable Shares and in the related interest in the Trust
Estate and shall cease to be a holder of such Exchangeable Shares
and shall not be entitled to exercise any of the rights of a
holder in respect thereof, other than the right to receive the
purchase price therefor, unless the requisite number of Orbital
Common Shares (together with a cheque for the balance, if any, of
the purchase price therefor or, if part of the purchase price
consists of dividends payable in property, such property or
property the same as or economically equivalent to such property)
is not allotted, issued and delivered by Orbital to the Trustee
for delivery to such Holder (or to other persons, if any,
properly designated by such Holder) within five Business Days of
the date of the giving of such notice by the Trustee, in which
case the rights of the Holder shall remain unaffected until such
Orbital Common Shares are so allotted, issued and delivered by
Orbital and any such cheque is so delivered and paid.
Concurrently with such Holder ceasing to be a holder of
Exchangeable Shares, the Holder shall be considered and deemed
for all purposes to be the holder of the Orbital Common Shares
delivered to it pursuant to the Exchange Right.
5.7 Exercise of Exchange Right Subsequent to Retraction.
In the event that a Holder has exercised its right under Article
5 of the Exchangeable Share Provisions to require the Corporation
to redeem any or all of the Exchangeable Shares held by the
Holder (the "Retracted Shares") and is notified by the
Corporation pursuant to section 5.6 of the Exchangeable Share
Provisions that the Corporation is not permitted as a result of
solvency requirements of applicable law to redeem all of such
Retracted Shares, and provided that Orbital shall not have
exercised the Retraction Call Right with respect to the Retracted
Shares, the retraction request shall constitute and shall be
deemed to constitute notice from the Holder to the Trustee
instructing the Trustee to exercise the Exchange Right with
respect to those Retracted Shares that the Corporation is unable
to redeem. In any such event, the Corporation hereby agrees with
the Trustee and in favour of the Holder immediately to notify the
Trustee of such prohibition against the Corporation redeeming all
of the Retracted Shares and immediately to forward or cause to be
forwarded to the Trustee all relevant materials delivered by the
Holder to the Corporation or to the transfer agent of the
Exchangeable Shares (including without limitation a copy of the
retraction request delivered pursuant to section 5.1 of the
Exchangeable Share Provisions) in connection with such proposed
redemption of the Retracted Shares and the Trustee shall
thereupon exercise the Exchange Right with respect to the
Retracted Shares that the Corporation is not permitted to redeem
and will require Orbital to purchase such shares in accordance
with the provisions of this Article 5.
5.8 Stamp or Other Transfer Taxes. Upon any sale of
Exchangeable Shares to Orbital pursuant to the Exchange Right or
the Automatic Exchange Rights, the share certificate or
certificates representing Orbital Common Shares to be delivered
in connection with the payment of the purchase price therefor
shall be issued in the name of the Holder of the Exchangeable
Shares so sold or in such names as such Holder may otherwise
direct in writing without charge to the holder of the
Exchangeable Shares so sold, provided, however, that such Holder
(a) shall pay (and neither Orbital, the Corporation nor the
Trustee shall be required to pay) any documentary, stamp,
transfer or other similar taxes that may be payable in respect of
any transfer involved in the issuance or delivery of such shares
to a person other than such Holder or (b) shall establish to the
satisfaction of the Trustee, Orbital and the Corporation that
such taxes, if any, have been paid.
5.9 Notice of Insolvency Event or Default Event.
Immediately upon the occurrence of an Insolvency Event or Default
Event or any event that with the giving of notice or the passage
of time or both would be an Insolvency Event or Default Event,
the Corporation and Orbital shall give written notice thereof to
the Trustee. As soon as practicable after receiving notice from
the Corporation and Orbital or from any other person of the
occurrence of an Insolvency Event or Default Event, the Trustee
shall mail to each Holder, at the expense of Orbital, a notice of
such Insolvency Event or Default Event, which notice shall
contain a brief statement of the right of the Holders with
respect to the Exchange Right.
5.10 Qualification of Orbital Common Shares. Unless the
staff of the United States Securities and Exchange Commission
(the "SEC") has confirmed the availability of an exemption from
registration under the United States Securities Act of 1933, as
amended (the "Securities Act") as to the issuance of the Orbital
Common Shares in exchange for the Exchangeable Shares pursuant to
the Plan of Arrangement, the Exchangeable Share Provisions or
this Agreement, in response to the No Action Request (as defined
in the Combination Agreement) or Orbital has received an opinion
of counsel reasonably satisfactory to the Corporation to such
effect, then Orbital shall cause such issuance to be registered
under the Securities Act, and shall file a registration statement
covering such issuance with the SEC and use all commercially
reasonable efforts to cause such registration statement to become
effective as soon as practicable and remain effective throughout
the period during which the Exchangeable Shares may be exchanged
in accordance with the Plan of Arrangement, the Exchangeable
Share Provisions or this Agreement. Orbital agrees to file any
such required registration statement as soon as reasonably
practicable. Orbital shall use all reasonable efforts to obtain
all orders required from the applicable Canadian securities
authorities to permit the issuance of the Orbital Common Shares
upon any such exchange of the Exchangeable Shares without
registration or qualification with or approval of or the filing
of any document including any prospectus or similar document or
the taking of any proceeding with or the obtaining of any order,
ruling or consent from any governmental or regulatory authority
under any Canadian federal or provincial law or regulation or
pursuant to the rules and regulations of any regulatory authority
or the fulfilment of any other legal requirement before such
Orbital Common Shares may be issued and delivered by the
Corporation or Orbital to the holder thereof or in order that
such Orbital Common Shares may be freely traded thereafter (other
than any restrictions on transfer by reason of a holder being a
"control person" of the Corporation or Orbital for purposes of
Canadian federal or provincial securities law or an "affiliate"
for purposes of United States Federal or state securities law).
5.11 Reservation of Orbital Common Shares. Orbital hereby
represents and warrants that it has irrevocably reserved for
issuance out of its authorized and unissued capital stock such
number of Orbital Common Shares as is equal to the number of
Exchangeable Shares outstanding at the date hereof and covenants
that it will at all times keep available, free from pre-emptive
and other rights, out of its authorized and unissued capital
stock such number of Orbital Common Shares (or other shares or
securities into which Orbital Common Shares may be reclassified
or changed) as is necessary to enable Orbital and the Corporation
to perform their respective obligations pursuant to this
Agreement, the Exchangeable Share Provisions and the Support
Agreement.
5.12 Automatic Exchange on Liquidation of Orbital.
(a) Orbital shall give the Trustee notice of each of
the following events (a "Liquidation Event") at the time set
forth below:
(i) in the event of any
determination by the Board of Directors of
Orbital to institute voluntary liquidation,
dissolution or winding-up proceedings with
respect to Orbital or to effect any other
distribution of assets of Orbital among its
stockholders for the purpose of winding up
its affairs, at least 60 days prior to the
proposed effective date of such liquidation,
dissolution, winding-up or other
distribution; and
(ii) immediately, upon the
earlier of (A) receipt by Orbital of notice
of and (B) Orbital otherwise becoming aware
of any threatened or instituted claim, suit,
petition or other proceedings with respect to
the involuntary liquidation, dissolution or
winding up of Orbital or to effect any other
distribution of assets of Orbital among its
stockholders for the purpose of winding up
its affairs.
(b) Immediately following receipt by the Trustee from
Orbital of notice of any Liquidation Event, the Trustee shall
give notice thereof to the Holders. Such notice shall include a
brief description of the automatic exchange of Exchangeable
Shares for Orbital Common Shares provided for in subsection
5.12(c) below.
(c) In order that the Holders will be able to
participate on a pro rata basis with the holders of Orbital
Common Shares in the distribution of assets of Orbital in
connection with a Liquidation Event, on the fifth Business Day
prior to the effective date of a Liquidation Event (the
"Liquidation Event Effective Date") all of the then outstanding
Exchangeable Shares shall be automatically exchanged for Orbital
Common Shares. To effect such automatic exchange, Orbital shall
purchase each Exchangeable Share outstanding on the fifth
Business Day prior to the Liquidation Event Effective Date and
held by Holders, and each Holder shall sell the Exchangeable
Shares held by it at such time, for a purchase price per share
equal to (a) the Current Market Price multiplied by the Current
Orbital Common Share Equivalent on such fifth Business Day prior
to the Liquidation Event Effective Date, which shall be satisfied
in full in respect of the Exchangeable Shares held by each Holder
by Orbital issuing to such Holder such whole number of Orbital
Common Shares as is equal to the product obtained by multiplying
the number of such Exchangeable Shares by the Current Orbital
Common Share Equivalent (together with an amount in lieu of any
fractional Orbital Common Share resulting from such calculation
payable in accordance with section 9.4 of the Exchangeable Share
Provisions), plus (b) an additional amount equal to the aggregate
of all dividends declared and unpaid on each such Exchangeable
Share (provided that if the record date for any such declared and
unpaid dividends occurs on or after the day of closing of such
purchase and sale, the purchase price shall not include such
additional amount equal to such declared and unpaid dividends).
(d) On the fifth Business Day prior to the Liquidation
Event Effective Date, the closing of the transaction of purchase
and sale contemplated by the automatic exchange of Exchangeable
Shares for Orbital Common Shares shall be deemed to have
occurred, and each Holder of Exchangeable Shares shall be deemed
to have transferred to Orbital all of the Holder's right, title
and interest in and to such Exchangeable Shares and the related
interest in the Trust Estate and shall cease to be a Holder of
such Exchangeable Shares and Orbital shall issue to the Holder
the Orbital Common Shares issuable upon the automatic exchange of
Exchangeable Shares for Orbital Common Shares and shall deliver
to the Trustee for delivery to the Holder a cheque for the
balance, if any, of the purchase price for such Exchangeable
Shares (or, if any part of the purchase price consists of
dividends payable in property, such property or property that is
the same as or economically equivalent to such property).
Concurrently with such Holder ceasing to be a holder of
Exchangeable Shares, the Holder shall be considered and deemed
for all purposes to be the holder of the Orbital Common Shares
issued to it pursuant to the automatic exchange of Exchangeable
Shares for Orbital Common Shares and the certificates held by the
Holder previously representing the Exchangeable Shares exchanged
by the Holder with Orbital pursuant to such automatic exchange
shall thereafter be deemed to represent the Orbital Common Shares
issued to the Holder by Orbital pursuant to such automatic
exchange. Upon the request of a Holder and the surrender by the
Holder of Exchangeable Share certificates deemed to represent
Orbital Common Shares, duly endorsed in blank and accompanied by
such instruments of transfer as Orbital may reasonably require,
Orbital shall deliver or cause to be delivered to the Holder
certificates representing the Orbital Common Shares of which the
Holder is the holder.
ARTICLE 6
CONCERNING THE TRUSTEE
6.1 Powers and Duties of the Trustee. The rights, powers
and authorities of the Trustee under this Agreement, in its
capacity as trustee of the Trust, shall include:
(a) purchasing the Voting Share from Orbital
as trustee for and on behalf of the Holders in
accordance with the provisions of this Agreement;
(b) granting proxies and distributing
materials to Holders as provided in this
Agreement;
(c) voting the Holder Votes in accordance
with the provisions of this Agreement;
(d) receiving the grant of the Exchange
Right and the Automatic Exchange Rights from
Orbital as trustee for and on behalf of the
Holders in accordance with the provisions of this
Agreement;
(e) exercising the Exchange Right and
enforcing the benefit of the Automatic Exchange
Rights, in each case in accordance with the
provisions of this Agreement and in connection
therewith receiving from Holders Exchangeable
Shares and other requisite documents and
distributing to such Holders the Orbital Common
Shares and cheques, if any, to which such Holders
are entitled upon the exercise of the Exchange
Right or pursuant to the Automatic Exchange
Rights, as the case may be;
(f) holding title to the Trust Estate;
(g) investing any moneys forming, from time
to time, a part of the Trust Estate as provided in
this Agreement;
(h) taking action on its own initiative or
at the direction of a Holder or Holders to enforce
the obligations of Orbital under this Agreement;
and
(i) taking such other actions and doing such
other things as are specifically provided in this
Agreement.
In the exercise of such rights powers and authorities
the Trustee shall have (and is granted) such incidental and
additional rights, powers and authority not in conflict with any
of the provisions of this Agreement as the Trustee, acting in
good faith and in the reasonable exercise of its discretion, may
deem necessary, appropriate or desirable to effect the purpose of
the Trust. Any exercise of such discretionary rights, powers and
authorities by the Trustee shall be final, conclusive and binding
upon all persons. For greater certainty, the Trustee shall have
only those duties as are set out specifically in this Agreement.
The Trustee in exercising its rights, powers, duties
and authorities hereunder shall act honestly and in good faith
with a view to the best interests of the Holders and shall
exercise the care, diligence and skill that a reasonably prudent
trustee would exercise in comparable circumstances.
6.2 No Conflict of Interest. The Trustee represents to the
Corporation and Orbital that at the date of execution and
delivery of this Agreement there exists no material conflict of
interest in the role of the Trustee as a fiduciary hereunder and
the role of the Trustee in any other capacity. The Trustee
shall, within 30 days after it becomes aware that such a material
conflict of interest exists, either eliminate such material
conflict of interest or resign in the manner and with the effect
specified in Article 9 hereof. If, notwithstanding the foregoing
provisions of this section 6.2, the Trustee has such a material
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 material conflict of
interest. If the Trustee contravenes the foregoing provisions of
this section 6.2, any interested party may apply to the Supreme
Court of British Columbia (Trial Division) for an order that the
Trustee be replaced as trustee hereunder.
6.3 Dealings with Transfer Agents, Registrars, etc. The
Corporation and Orbital irrevocably authorize the Trustee, from
time to time, to:
(a) consult, communicate and otherwise deal
with the respective registrars and transfer
agents, and with any such subsequent registrar or
transfer agent, of the Exchangeable Shares and
Orbital Common Shares; and
(b) requisition, from time to time, (i) from
any such registrar or transfer agent any
information readily available from the records
maintained by it which the Trustee may reasonably
require for the discharge of its duties and
responsibilities under this Agreement and (ii)
from the transfer agent of Orbital Common Shares,
and any subsequent transfer agent of such shares,
the share certificates issuable upon the exercise
from time to time of the Exchange Right and
pursuant to the Automatic Exchange Rights in the
manner specified in Article 5 hereof.
The Corporation and Orbital irrevocably authorize their
respective registrars and transfer agents to comply with all such
requests. Orbital covenants that it will supply its transfer
agent with duly executed share certificates for the purpose of
completing the exercise from time to time of the Exchange Right
and the Automatic Exchange Rights, in each case pursuant to
Article 5 hereof.
6.4 Books and Records. The Trustee shall keep available
for inspection by Orbital and the Corporation, at the Trustee's
principal office, correct and complete books and records of
account relating to the Trustee's actions under this Agreement,
including without limitation all information relating to mailings
and instructions to and from Holders and all transactions
pursuant to the Voting Rights, the Exchange Right and the
Automatic Exchange Rights for the term of this Agreement. On or
before March 31, 1996, and on or before March 31 in every year
thereafter, so long as the Voting Share is on deposit with the
Trustee, the Trustee shall transmit to Orbital and the
Corporation a brief report, dated as of the preceding December
31, with respect to:
(a) the property and funds comprising the
Trust Estate as of that date;
(b) the number of exercises of the Exchange
Right, if any, and the aggregate number of
Exchangeable Shares received by the Trustee on
behalf of Holders in consideration of the issue
and delivery by Orbital of Orbital Common Shares
in connection with the Exchange Right, during the
calendar year ended on such date; and
(c) all other actions taken by the Trustee
in the performance of its duties under this
Agreement that it had not previously reported.
6.5 Income Tax Returns and Reports. The Trustee shall, to
the extent necessary, prepare and file on behalf of the Trust
appropriate United States and Canadian income tax returns and any
other returns or reports as may be required by applicable law or
pursuant to the rules and regulations of any securities exchange
or other trading system through which the Exchangeable Shares are
traded and, in connection therewith, may obtain the advice and
assistance of such experts as the Trustee may consider necessary
or advisable.
6.6 Indemnification Prior to Certain Actions by Trustee.
The Trustee shall exercise any or all of the rights, duties,
powers or authorities vested in it by this Agreement at the
request, order or direction of any Holder upon such Holder
furnishing to the Trustee reasonable funding, security and
indemnity against the costs, expenses and liabilities that may be
incurred by the Trustee therein or thereby, provided that no
Holder shall be obligated to furnish to the Trustee any such
funding, security or indemnity in connection with the exercise by
the Trustee of any of its rights, duties, powers and authorities
with respect to (i) the Voting Share pursuant to Article 4
hereof, subject to section 6.15 hereof, (ii) the Exchange Right
pursuant to Article 5 hereof, subject to section 6.15 hereof, and
(iii) the Automatic Exchange Rights pursuant to Article 5 hereof.
None of the provisions contained in this Agreement
shall require the Trustee to expend or risk its own funds or
otherwise incur financial liability in the exercise of any of its
rights, powers, duties or authorities unless funded and given
security and indemnity as aforesaid.
6.7 Actions by Holders. No Holder shall have the right to
institute any action, suit or proceeding or to exercise any other
remedy authorized by this Agreement for the purpose of enforcing
any of its rights or for the execution of any trust or power
hereunder unless the Holder has requested the Trustee to take or
institute such action, suit or proceeding and furnished the
Trustee with the funding, security and indemnity referred to in
section 6.6 hereof and the Trustee shall have failed to act
within a reasonable time thereafter. In such case, but not
otherwise, the Holder shall be entitled to take proceedings in
any court of competent jurisdiction such as the Trustee might
have taken, it being understood and intended that no one or more
Holders shall have any right in any manner whatsoever to affect,
disturb or prejudice the rights hereby created by any such
action, or to enforce any right hereunder or under the Voting
Rights, the Exchange Right or the Automatic Exchange Rights
except subject to the conditions and in the manner herein
provided, and that all powers and trusts hereunder shall be
exercised and all proceedings at law shall be instituted, had and
maintained by the Trustee, except only as herein provided, and in
any event for the equal benefit of all Holders.
6.8 Reliance upon Declarations. The Trustee shall not be
considered to be in contravention of any of its rights, powers,
duties and authorities hereunder if, when required, it acts and
relies in good faith upon lists, mailing labels, notices,
statutory declarations, certificates, opinions, reports or other
papers or documents furnished pursuant to the provisions hereof
or required by the Trustee to be furnished to it in the exercise
of its rights, powers, duties and authorities hereunder and such
lists, mailing labels, notices, statutory declarations,
certificates, opinions, reports or other papers or documents
comply with the provisions of section 6.9 hereof, if applicable,
and with any other applicable provisions of this Agreement.
6.9 Evidence and Authority to Trustee. The Corporation
and/or Orbital shall furnish to the Trustee evidence of
compliance with the conditions provided for in this Agreement
relating to any action or step required or permitted to be taken
by the Corporation and/or Orbital or the Trustee under this
Agreement or as a result of any obligation imposed under this
Agreement, including, without limitation, in respect of the
Voting Rights, the Exchange Right or the Automatic Exchange
Rights and the taking of any other action to be taken by the
Trustee at the request of or on the application of the
Corporation and/or Orbital forthwith if and when:
(a) such evidence is required by any other
section of this Agreement to be furnished to the
Trustee in accordance with the terms of this
section 6.9; or
(b) the Trustee, in the exercise of its
rights, powers, duties and authorities under this
Agreement, gives the Corporation and/or Orbital
written notice requiring it to furnish such
evidence in relation to any particular action or
obligation specified in such notice.
Such evidence shall consist of an Officer's Certificate
of the Corporation and/or Orbital or a statutory declaration or a
certificate made by persons entitled to sign an Officer's
Certificate stating that any such condition has been complied
with in accordance with the terms of this Agreement.
Whenever such evidence relates to a matter other than
the Voting Rights, the Exchange Right or the Automatic Exchange
Rights, and except as otherwise specifically provided herein,
such evidence may consist of a report or opinion of any
solicitor, auditor, accountant, appraiser, valuer, engineer or
other expert or any other person whose qualifications give
authority to a statement made by him, provided that if such
report or opinion is furnished by a director, officer or employee
of the Corporation and/or Orbital it shall be in the form of an
Officer's Certificate or a statutory declaration.
Each statutory declaration, certificate, opinion or
report furnished to the Trustee as evidence of compliance with a
condition provided for in this Agreement shall include a
statement by the person giving the evidence:
(a) declaring that he has read and
understands the provisions of this Agreement
relating to the condition in question;
(b) describing the nature and scope of the
examination or investigation upon which he based
the statutory declaration, certificate, statement
or opinion; and
(c) declaring that he has made such
examination or investigation as he believes is
necessary to enable him to make the statements or
give the opinions contained or expressed therein.
6.10 Experts, Advisers and Agents.
The Trustee may:
(a) in relation to this Agreement act and
rely on the opinion or advice of or information
obtained from any solicitor, auditor, accountant,
appraiser, valuer, engineer or other expert,
whether retained by the Trustee or by the
Corporation and/or Orbital or otherwise, and may
employ such assistants as may be necessary to the
proper discharge of its powers and duties and
determination of its rights hereunder and may pay
proper and reasonable compensation for all such
legal and other advice or assistance as aforesaid;
and
(b) employ such agents and other assistants
as it may reasonably require for the proper
discharge of its powers and duties hereunder, and
may pay reasonable remuneration for all services
performed for it in the discharge of the trusts
hereof and compensation for all disbursements,
costs and expenses made or incurred by it in the
discharge of its duties hereunder and in the
management of the Trust.
6.11 Investment of Moneys Held By Trustee. Unless otherwise
provided in this Agreement, any moneys held by or on behalf of
the Trustee that under the terms of this Agreement may or ought
to be invested or which may be on deposit with the Trustee or
that may be in the hands of the Trustee may be invested and
reinvested in the name or under the control of the Trustee in
securities in which, under the laws of the Commonwealth of
Massachusetts, trustees are authorized to invest trust moneys,
provided that such securities are stated to mature within two
years after their purchase by the Trustee, and the Trustee shall
so invest such moneys on the written direction of the
Corporation. Pending the investment of any moneys as
hereinbefore provided, such moneys may be deposited in the name
of the Trustee in any bank in the United States approved by the
Corporation or, with the consent of the Corporation, in the
deposit department of the Trustee at the rate of interest then
current on similar deposits.
6.12 Trustee Not Required to Give Security. The Trustee
shall not be required to give any bond or security in respect of
the execution of the trusts, rights, duties, powers and
authorities of this Agreement.
6.13 Trustee Not Bound to Act on Corporation's Request.
Except as in this Agreement otherwise specifically provided, the
Trustee shall not be bound to act in accordance with any
direction or request of the Corporation and/or Orbital or of the
directors thereof until a duly authenticated copy of the
instrument or resolution containing such direction or request
shall have been delivered to the Trustee, and the Trustee shall
be empowered to act and rely upon any such copy purporting to be
authenticated and believed by the Trustee to be genuine.
6.14 Authority to Carry on Business. The Trustee represents
to the Corporation and Orbital that at the date of execution and
delivery by it of this Agreement it is authorized to perform its
obligations pursuant to this Agreement under all applicable laws
but if, notwithstanding the provisions of this section 6.14, it
ceases to be so authorized, the validity and enforceability of
this Agreement and the Voting Rights, the Exchange Right and the
Automatic Exchange Rights shall not be affected in any manner
whatsoever by reason only of such event but the Trustee shall,
within 30 days after ceasing to be so authorized, either become
so authorized or resign in the manner and with the effect
specified in Article 9 hereof.
6.15 Conflicting Claims. If conflicting claims or demands
are made or asserted with respect to any interest of any Holder
in any Exchangeable Shares, including any disagreement between
the heirs, representatives, successors or assigns succeeding to
all or any part of the interest of any Holder in any Exchangeable
Shares resulting in conflicting claims or demands being made in
connection with such interest, then the Trustee shall be
entitled, at its sole discretion, to refuse to recognize or to
comply with any such claim or demand. In so refusing, the
Trustee may elect not to exercise any Voting Rights, Exchange
Right or Automatic Exchange Rights subject to such conflicting
claims or demands and, in so doing, the Trustee 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 Trustee shall be entitled to continue to refrain
from acting and to refuse to act until:
(a) the rights of all adverse claimants with
respect to the Voting Rights, Exchange Right or
Automatic Exchange Rights subject to such
conflicting claims or demands have been
adjudicated by a final judgment of a court of
competent jurisdiction; or
(b) all differences with respect to the
Voting Rights, Exchange Right or Automatic
Exchange 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 Trustee shall have been
furnished with an executed copy of such agreement.
If the Trustee 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 Trustee as it shall deem
appropriate fully to indemnify it as between all conflicting
claims or demands.
6.16 Acceptance of Trust. The Trustee hereby accepts the
Trust created and provided for by and in this Agreement and
agrees to perform the same upon the terms and conditions herein
set forth and to hold all rights, privileges and benefits
conferred hereby and by law in trust for the various persons who
shall from time to time be Holders, subject to all the terms and
conditions herein set forth.
ARTICLE 7
COMPENSATION
7.1 Fees and Expenses of the Trustee. Orbital and the
Corporation jointly and severally agree to pay to the Trustee
reasonable compensation for all of the services rendered by it
under this Agreement and will reimburse the Trustee for all
reasonable 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 Trustee in connection with its rights and duties under this
Agreement; provided that Orbital and the Corporation shall have
no obligation to reimburse the Trustee for any expenses or
disbursements paid, incurred or suffered by the Trustee in any
suit or litigation in which the Trustee is determined to have
acted fraudulently, in bad faith or with negligence or wilful
misconduct.
ARTICLE 8
INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 Indemnification of the Trustee. Orbital and the
Corporation jointly and severally agree to indemnify and hold
harmless the Trustee and each of its directors, officers,
employees and agents appointed and acting in accordance with this
Agreement (collectively the "Indemnified Parties") against all
claims, losses, damages, costs, penalties, fines and reasonable
expenses (including reasonable expenses of the Trustee's legal
counsel) 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 of or as
a result of the Trustee's acceptance or administration of the
Trust, its compliance with its duties set forth in this
Agreement, or any written or oral instructions delivered to the
Trustee by Orbital or the Corporation pursuant hereto. In no
case shall Orbital or the Corporation be liable under this
indemnity for any claim against any of the Indemnified Parties
unless Orbital and the Corporation shall be notified by the
Trustee 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, Orbital and the
Corporation shall be entitled to participate at their own expense
in the defense and, if Orbital or the Corporation so elect at any
time after receipt of such notice, either of them may assume the
defence of any suit brought to enforce any such claim. The
Trustee shall have the right to employ separate counsel in any
such suit and participate in the defence thereof but the fees and
expenses of such counsel shall be at the expense of the Trustee
unless: (i) the employment of such counsel has been authorized by
Orbital or the Corporation; or (ii) the named parties to any such
suit include both the Trustee and Orbital or the Corporation and
the Trustee shall have been advised by counsel acceptable to
Orbital or the Corporation that there may be one or more legal
defences available to the Trustee that are different from or in
addition to those available to Orbital or the Corporation and
that an actual or potential conflict of interest exists (in which
case Orbital and the Corporation shall not have the right to
assume the defence of such suit on behalf of the Trustee but
shall be liable to pay the reasonable fees and expenses of
counsel for the Trustee).
8.2 Limitation of Liability. The Trustee shall not be held
liable for any loss that may occur by reason of depreciation of
the value of any part of the Trust Estate or any loss incurred on
any investment of funds pursuant to this Agreement, except to the
extent that such loss is attributable to the fraud, negligence,
wilful misconduct or bad faith on the part of the Trustee.
ARTICLE 9
CHANGE OF TRUSTEE
9.1 Resignation. The Trustee, or any trustee hereafter
appointed, may at any time resign by giving written notice of
such resignation to Orbital and the Corporation specifying the
date on which it desires to resign, provided that such notice
shall never be given less than 60 days before such desired
resignation date unless Orbital and the Corporation otherwise
agree and provided further that such resignation shall not take
effect until the date of the appointment of a successor trustee
and the acceptance of such appointment by the successor trustee.
Upon receiving such notice of resignation, Orbital and the
Corporation shall promptly appoint a successor trustee by written
instrument in duplicate, one copy of which shall be delivered to
the resigning trustee and one copy to the successor trustee.
Failing acceptance by a successor trustee, a successor trustee
may be appointed by an order of the Supreme Court of British
Columbia upon application of one or more of the parties hereto.
9.2 Removal. The Trustee, or any trustee hereafter
appointed, may be removed with or without cause, at any time on
60 days' prior notice by written instrument executed by Orbital
and the Corporation, in duplicate, one copy of which shall be
delivered to the trustee so removed and one copy to the successor
trustee.
9.3 Successor Trustee. Any successor trustee appointed as
provided under this Agreement shall execute, acknowledge and
deliver to Orbital and the Corporation and to its predecessor
trustee an instrument accepting such appointment. Thereupon the
resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as trustee in
this Agreement. However, on the written request of Orbital and
the Corporation or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to
the provisions of this Agreement, execute and deliver an
instrument transferring to such successor trustee all the rights
and powers of the trustee so ceasing to act. Upon the request of
any such successor trustee, Orbital, the Corporation and such
predecessor trustee shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers.
9.4 Notice of Successor Trustee. Upon acceptance of
appointment by a successor trustee as provided herein, Orbital
and the Corporation shall cause to be mailed notice of the
succession of such trustee hereunder to each Holder specified in
a List. If Orbital or the Corporation shall fail to cause such
notice to be mailed within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of Orbital and the
Corporation.
ARTICLE 10
ORBITAL SUCCESSORS
10.1 Certain Requirements in Respect of Combination, etc.
Orbital shall not enter into 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, unless:
(a) such other person or continuing
corporation is a corporation (herein called the
"Orbital Successor") incorporated under the laws
of any state of the United States or the laws of
Canada or any province thereof; and
(b) Orbital Successor, by operation of law,
becomes, without more, bound by the terms and
provisions of this Agreement or, if not so bound,
executes, prior to or contemporaneously with the
consummation of such transaction an agreement
supplemental hereto and such other instruments (if
any) as are satisfactory to the Trustee acting
reasonably to evidence the assumption by Orbital
Successor of liability for all moneys payable and
property deliverable hereunder and the covenant of
such Orbital Successor to pay and deliver or cause
to be delivered the same and its agreement to
observe and perform all the covenants and
obligations of Orbital under this Agreement.
10.2 Vesting of Powers in Successor. Whenever the
conditions of section 10.1 hereof have been duly observed and
performed, the Trustee, if required, by section 10.1 hereof,
Orbital Successor and the Corporation shall execute and deliver
the supplemental agreement provided for in Article 11 hereof and
thereupon Orbital Successor shall possess and from time to time
may exercise each and every right and power of Orbital under this
Agreement in the name of Orbital 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 Orbital or any officers
of Orbital may be done and performed with like force and effect
by the directors or officers of such Orbital Successor.
10.3 Wholly-Owned Subsidiaries. Nothing herein shall be
construed as preventing the amalgamation or merger of any
wholly-owned subsidiary of Orbital with or into Orbital.
ARTICLE 11
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
11.1 Amendments, Modifications, etc. This Agreement may not
be amended or modified except by an agreement in writing executed
by the Corporation, Orbital and the Trustee and approved by the
Holders in accordance with section 8.2 of the Exchangeable Share
Provisions.
11.2 Ministerial Amendments. Notwithstanding the provisions
of section 11.1 hereof, 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:
(a) adding to the covenants of any or all of
the parties hereto for the protection of the
Holders hereunder;
(b) making such amendments or modifications
not inconsistent with this Agreement as may be
necessary or desirable with respect to matters or
questions that, in the opinion of the Board of
Directors of each of Orbital and Corporation and
in the opinion of the Trustee, having in mind the
best interests of the Holders as a whole, it may
be expedient to make, provided that such boards of
directors and the Trustee shall be of the opinion
that such amendments and modifications will not be
prejudicial to the interests of the Holders as a
whole; or
(c) making such changes or corrections
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 Trustee and the Board of
Directors of each of the Corporation and Orbital
shall be of the opinion that such changes or
corrections will not be prejudicial to the
interests of the Holders as a whole.
11.3 Meeting to Consider Amendments. The Corporation, at
the request of Orbital, shall call a meeting or meetings of the
Holders for the purpose of considering any proposed amendment or
modification requiring approval pursuant hereto. Any such
meeting or meetings shall be called and held in accordance with
the by-laws of the Corporation, the Exchangeable Share Provisions
and all applicable laws.
11.4 Changes in Capital of Orbital and the Corporation.
Notwithstanding section 11.1, at all times after the occurrence
of any Orbital Common Share Reorganization or Capital
Reorganization (as such terms are respectively defined in the
Exchangeable Share Provisions) or other change in either the
Orbital Common Shares or the Exchangeable Shares or both, 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 Orbital Common Shares
or the Exchangeable Shares or both are so changed and the parties
hereto shall execute and deliver a supplemental agreement giving
effect to and evidencing such necessary amendments and
modifications.
11.5 Execution of Supplemental Trust Agreements.
Notwithstanding section 11.1, from time to time the Corporation
(when authorized by a resolution of the Board of Directors),
Orbital (when authorized by a resolution of its board of
directors) and the Trustee may, subject to the provisions hereof,
and they shall, when so directed by these presents, 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:
(a) evidencing the succession of Orbital
Successors to Orbital and the covenants of and
obligations assumed by each such Orbital Successor
in accordance with the provisions of Article 10
and the succession of any successor trustee in
accordance with the provisions of Article 9;
(b) making any additions to, deletions from
or alterations of the provisions of this Agreement
or the Voting Rights, the Exchange Right or the
Automatic Exchange Rights that, in the opinion of
the Trustee acting reasonably will not be
prejudicial to the interests of the Holders as a
whole or are in the opinion of counsel to the
Trustee necessary or advisable in order to
incorporate, reflect or comply with any
legislation the provisions of which apply to
Orbital, the Corporation, the Trustee 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 Trustee acting reasonably, the rights of
the Trustee and the Holders as a whole will not be
prejudiced thereby.
ARTICLE 12
TERMINATION
12.1 Term. The Trust created by this Agreement shall
continue until the earliest to occur of the following events:
(a) no outstanding Exchangeable Shares are
held by any Holder;
(b) each of the Corporation and Orbital
elects in writing to terminate the Trust and such
termination is approved by the Holders of the
Exchangeable Shares in accordance with Section 8.2
of the Exchangeable Share Provisions; and
(c) 21 years after the death of the last
survivor of the descendants of His Majesty King
George VI of the United Kingdom of Great Britain
and Northern Ireland living on the date of the
creation of the Trust.
12.2 Survival. The provisions of Articles 7 and 8 hereof
shall survive any termination of the Trust pursuant to section
12.1.
ARTICLE 13
GENERAL
13.1 Severability. If any provision of this Agreement is
held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remainder of this Agreement
shall not in any way be affected or impaired thereby and this
Agreement shall be carried out as nearly as possible in
accordance with its original terms and conditions; provided,
however, that if the provision or provisions so held to be
invalid, in the reasonable judgment of the parties, is or are so
fundamental to the intent of the parties and the operation of
this Agreement that the enforcement of the other provisions
hereof, in the absence of such invalid provision or provisions,
would damage irreparably the intent of the parties in entering
into this Agreement, the parties shall agree (i) to terminate
this Agreement, or (ii) to amend or otherwise modify this
Agreement so as to carry out the intent and purposes hereof and
the transactions contemplated hereby.
13.2 Inurement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns and to the benefit of the
Holders.
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 Orbital at:
Orbital Sciences Corporation
21700 Atlantic Boulevard
Dulles, Virginia 20166
U.S.A.
Attention: General Counsel
Telecopy: (703) 406-5572
(b) if to the Corporation at:
MacDonald Dettwiler Holdings Inc.
13800 Commerce Parkway
Vancouver, British Columbia
V6V 2J3
Attention: #
Telecopy: (604) #
(with a copy to Orbital at the address set out in
(a))
(c) if to the Trustee at:
#
Attention: #
Telecopy: (#) #
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 Notice to Holders. 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 in
any manner permitted by the by-laws of the Corporation 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 bylaws
shall apply mutatis mutandis to notices or documents as aforesaid
sent to such Holders.
13.5 Risk of Payments by Post. Whenever payments are to be
made or documents are to be sent to any Holder by the Trustee or
by the Corporation, or by such Holder to the Trustee or to
Orbital or the Corporation, the making of such payment or sending
of such document sent through the post shall be at the risk of
the Corporation, in the case of payments made or documents sent
by the Trustee or the Corporation, and the Holder, in the case of
payments made or documents sent by the Holder.
13.6 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.
13.7 Jurisdiction. This Agreement shall be construed and
enforced in accordance with the laws of the Province of British
Columbia and the laws of Canada applicable therein.
13.8 Attornment. Orbital agrees that any action or
proceeding arising out of or relating to this Agreement may be
instituted in the courts of the Province of British Columbia,
waives any objection that 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 agrees not to seek, and hereby waives, any review of the
merits of any such judgment by the courts of any other
jurisdiction and hereby appoints the Corporation at its
registered office as Orbital's attorney for service of process.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
ORBITAL SCIENCES CORPORATION
by ___________________________
___________________________
MACDONALD DETTWILER HOLDINGS
INC.
by ___________________________
___________________________
STATE STREET BANK AND TRUST
COMPANY
by ___________________________
___________________________