Radioworks Shares Option Agreement

Exhibit 4.49


























A. MediaWorks proposes to offer for sale to retail and institutional investors up to 30% of new MediaWorks Shares and to list the MediaWorks Shares on the NZSX.


B. RadioWorks is a company incorporated in New Zealand and has a share capital comprised of 100 ordinary shares and has issued $96,364,000 convertible notes.


C. CICI is the legal owner of all of the RadioWorks Shares. CICI has pledged the RadioWorks Shares to The Bank of Nova Scotia, as administrative agent, amongst others, pursuant to aCanadian agreement, the Securities Pledge Agreement dated 7 November 2000 and a New Zealand agreement, the Deed of Mortgage of Shares dated 7 November 2000.


D. CICI has agreed to grant MediaWorks an option to acquire all of the RadioWorks Shares on the terms contained in this agreement.






1.1 In this agreement, unless the context otherwise requires:


“Business Day” means a day on which registered banks are open for business in Auckland, New Zealand and Winnipeg, Manitoba, Canada.


“Completion” means the exercise of theOption in accordance with section 4, or as the context may require, the point in time at which such completion takes place.


“Exercise Date” means the date specified in the notice delivered by MediaWorks to CICI pursuant to clause 4.1 as the date on whichMediaWorks intends to exercise the Option.


“Exercise Price” has the meaning set out in clause 3.1.


“GST” means goods and services tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985 (New Zealand), and any penalties, additional tax or interest payable inrespect thereof.


“MediaWorks Shares”means the ordinary shares of MediaWorks.


“NZX ListingRules” means the listing rules of New Zealand Exchange Limited.


“Option” has the meaning set out at clause 2.1 of this agreement.


“RadioWorks” means CanWest RadioWorks Limited.


“RadioWorks Convertible Notes Option Agreement” means the option agreement between1130400 Alberta Ltd. and MediaWorks dated on or about the date of this agreement.


“RadioWorks Shares” means the 100 ordinary shares in RadioWorks, being all of RadioWorks’ issued shares.


“Tax Savings”, in respect of a loss, liability, cost or expense shall:


  (a) include, where the amount of a loss, liability, cost or expense incurred is wholly or partly deductible for income tax purposes, the amount of the deduction to which the relevantperson is entitled multiplied by the relevant taxation rate;


  (b) in the case of a deduction referred to in (a) above, be treated as arising in the same tax year as the relevant loss, liability, cost or expense is incurred; and


  (c) include the amount of any GST input tax credit available as a consequence of that loss, liability, cost or expense.


“Warranties” means the warranties created by clause 5.1 andset out in Schedule 1 and “Warranty” shall be construed accordingly.


“Warranty Loss” means a loss, liability, cost or expense incurred by Party B (as defined in clause 5) (calculated after taking into account all relevant Tax Savings) as a result of a Warranty beinguntrue.


“$” and “Dollars”means the lawful currency of New Zealand.


1.2 In this agreement, unless the context otherwise requires:


  (a) words importing one gender include the other gender;


  (b) the singular includes the plural and vice versa;


  (c) references to a month or a year are references to a calendar month or year, as the case may be.


1.3 In this agreement:


  (a) a reference to CICI or MediaWorks is a reference also to their respective successors;


  (b) a reference to a “person” includes an individual, firm, company, corporation, unincorporated body of persons, state or government or any agency thereof and other body orentity (in each case, whether or not having separate legal personality) and a reference to a “company” includes a person;


  (c) headings are for convenience only and shall not affect interpretation;


  (d) references to sections, clauses and schedules are references to sections, clauses and schedules of this agreement.


1.4 The schedules to this agreement form part of this agreement and have the same force and effect as if expressly set out in the body of this agreement.





2.1 CICI grants MediaWorks an option to acquire, on or after 28 July 2004, all of the RadioWorks Shares together with all rights attaching thereto at the date of this agreement(“Option”).


2.2 The aggregate consideration for the Option shall be the sum of $1.00 which shall be paid by MediaWorks on the date of this Agreement.




3.1 The aggregate exercise price of the Option shall be the sum of $100 (“Exercise Price”).


3.2 MediaWorks shall satisfy the Exercise Price by the payment of $100 in full into the nominated bank account of CICI.




4.1 MediaWorks shall give CICI prior notice of its intention to exercise the Option in the form attached as Schedule 2.


4.2 Completion shall take place on the Exercise Date at the Auckland office of Russell McVeagh or such other place as CICI and MediaWorks agree.


4.3 On Completion, CICI shall deliver to MediaWorks the following:


  (a) transfers of the RadioWorks Shares duly executed by CICI in registrable form;


  (b) evidence of the passing by the board of directors of RadioWorks of a valid resolution approving the transfers of the RadioWorks Shares and directing that the name of MediaWorksand/or its nominee be entered in the share register of RadioWorks upon production of the transfers to RadioWorks duly executed by MediaWorks; and


  (c) such other certificates or other documentation as MediaWorks may reasonably require.


4.4 Upon compliance with each of the provisions of clause 4.3, MediaWorks shall forthwith comply with the provisions of clause 3.2, execute the transfers of the RadioWorks sharesand deliver them to RadioWorks.




5.1 In consideration of the other party entering into this agreement, each of CICI and MediaWorks hereby gives the Warranties and such Warranties shall also be deemed to be given onCompletion. For the purposes of this clause, the party giving the Warranties shall be “Party A” and the Warranties shall be given for the benefit of “Party B”.


5.2 The Warranties shall be deemed to have been given subject to:


  (a) any exception or qualification fairly disclosed in a formal disclosure letter given by or on behalf of Party A and received by Party B prior to execution of this agreement by PartyB, or expressly stated in this agreement; and



  (b) any matter or thing hereafter done or omitted to be done pursuant to any other provision of this agreement or at the request in writing, or with the prior approval in writing, ofParty B.


5.3 Subject to the limitations set out in this section 5, Party A shall indemnify Party B against each Warranty Loss.


5.4 Party B acknowledges that the only relief available to it arising from any breach of a Warranty is the right to be indemnified by Party A under clause 5.3 (subject always to thelimitations set out in this section 5) and that the breach of any Warranty shall not give rise to any other or separate cause of action for damages or other relief from misrepresentations or breach of representation or warranty or otherwise.


5.5 Party B has no claims against Party A in respect of the Warranties or any other obligations of Party A expressed or implied in this agreement:


  (a) in respect of any matter recorded in a public register and capable of being searched by the public;


  (b) if and to the extent that the relevant circumstance or amount has been or is made good, or recovered by or paid to Party B without cost, liability or loss to Party B;


  (c) if and to the extent that the relevant event, circumstance, loss, liability, cost or expense to which the claim relates would not have arisen but for:


  (i) any act or omission by Party B;


  (ii) an obligation or commitment entered into or made after the Exercise Date; and


  (iii) Party B admitting liability in respect thereof without the prior written consent of Party A;


  (d) if and to the extent that such claim arises as a result of any legislation not in force at the date of this agreement which takes effect retrospectively or arises as a result onlyof any increase in the rates of taxation in force at the date of this agreement; and


  (e) if and to the extent that such claim arises as a result of a change after the date of this agreement in any law or interpretation of any law.


5.6 The parties agree that:


  (a) the maximum aggregate amount for which Party A shall be liable to Party B under or by virtue of this agreement on any account whatsoever (whether under or by virtue of theWarranties or otherwise, including under statute or in tort) shall not exceed an amount that is 50% of the Exercise Price; and


  (b) no claim for a breach of a Warranty will be valid unless the claim is notified in writing to Party A within six (6) months from the Exercise Date.


5.7 To the maximum extent permitted by law:


  (a) all implied or other representations or warranties of Party A in relation to the transactions evidenced by this agreement are hereby expressly excluded;



  (b) any inquiry or determination by a Court into any of the following matters is precluded:


  (i) whether a statement, promise, or undertaking was made or given, either in words or by conduct, in connection with or in the course of negotiations leading to the making of thisagreement; or


  (ii) whether, if it was so made or given, it constituted a representation or a term of this agreement; or


  (iii) whether, if it was a representation, it was relied upon;


  (c) (without limiting the provisions of clauses 5.7(a) and 5.7(b)), Party B renounces any cause of action (if any) against Party A or any other person which, notwithstanding theforegoing provisions of this clause 5.7, it may have founded on, and discharges Party A from any liability at common law (including, but not limited to, negligence) or under statute (including, but not limited to, the Fair Trading Act 1986 (NewZealand) except to the extent prohibited by that Act) arising out of this agreement.


5.8 CICI shall use all reasonable endeavours to procure that all liens, charges, encumbrances, security interests, rights or pre-emption or other adverse interest of any nature over theRadioWorks Shares are discharged within five (5) Business Days following the Exercise Date.




6.1 MediaWorks shall not exercise the Option until such time as it has exercised its option under the RadioWorks Convertible Notes Option Agreement.


6.2 The Option will lapse, by written notice given by CICI, if has not been exercised by 13 August 2004 or such later date as may be agreed by the parties. If this agreement is soavoided it will be of no further force or effect and both parties shall be released from their obligations under this agreement.




7.1 Except as may be required by law or by the NZX Listing Rules or the requirements of any other stock exchange or regulatory body to which a party is subject, neither of the partiesshall make any announcements or disclosures as to the subject matter or any of the terms of this agreement except in such form and manner, and at such time, as CICI and MediaWorks agree.





If either party wishes to give to or serve on the other party any notice, claim, demand or other communication (“notice”) under or in connectionwith this agreement, the notice shall be sufficiently given or served (but without prejudice to any other mode of service) if addressed to that party and delivered to the address of that party stated below or in each case to such other address asthat party shall have notified to the other party for




the purpose of this agreement by not less than five (5) Business Days’ written notice given in accordance with this clause.


CICI:    CanWest International Communications Inc.
     Jalabash House
     12 Highgate Park
     St Michael
Facsimile:    +1 246 228 3847
Attention:    Chief Executive Officer
MediaWorks:    CanWest MediaWorks (NZ) Limited
     3 Flower Street
     Eden Terrace
Facsimile    +64 9 366 5999
Attention:    Chief Executive Officer




9.1 Neither party shall transfer or assign (whether by operation of law or otherwise) its interest in, or its rights and obligations under, this agreement.




10.1 The obligations, warranties, undertakings, and indemnities undertaken or given under or pursuant to this agreement, to the extent not already fully performed at Completion, shallnot merge on Completion but shall remain enforceable to the fullest extent notwithstanding any rule of law to the contrary.




11.1 No waiver of any breach, or failure to enforce any provision, of this agreement at any time by any party shall in any way affect, limit or waive such party’s right thereafterto enforce and compel strict compliance with the provisions of this agreement.




12.1 If any provision of this agreement shall be held to be illegal, invalid or unenforceable under any applicable law, then such contravention or invalidity or unenforceability shallnot invalidate or render unenforceable the entire agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceablethen this agreement shall be construed as if not containing the provision held to be invalid, illegal or unenforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly.





13.1 Any amendments to this agreement shall be executed by each party in the same manner and with the same formality as this agreement is executed.




14.1 This agreement constitutes the entire agreement between the parties with respect to the matters dealt with in this agreement and there are no oral or written understandings,representations or commitments of any kind, express or implied, not expressly set out in this agreement.




15.1 Each party shall at all times keep confidential, treat as privileged, and not directly or indirectly make or allow any disclosure or use to be made of, any provision of thisagreement or of any information relating to any provision, or the subject matter, of this agreement or of any information directly or indirectly obtained from the other party under or in connection with this agreement, except to the extent:


  (a) required by law; or


  (b) necessary to satisfy the requirements of any applicable stock exchange; or


  (c) that the parties otherwise agree in writing; or


  (d) necessary to obtain the benefit of, or to carry out obligations under, this agreement; or


  (e) that the information is or becomes available in the public domain without breach by a party of its confidentiality obligations under this clause or at law.




16.1 This agreement shall be governed by, and construed in accordance with, the laws of New Zealand.


16.2 The parties unconditionally and irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of all matters arising out of this agreement and waiveany right they may have to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum, or to claim that those courts do not have jurisdiction.





17.1 This agreement may be executed in any number of counterparts (including facsimile copies) and, provided that every party has executed a counterpart, the counterparts together shallconstitute a binding and enforceable agreement between the parties.






authorised signatory in the presence of:


Signature of authorised signatory


Name of authorised signatory


Signature of witness




City/town of residence



LIMITED by its authorised signatory in the

presence of:


Signature of authorised signatory


Name of authorised signatory


Signature of witness




City/town of residence






(Clause 5.1)




Theclauses in this schedule are the Warranties given pursuant to clause 5.1 of the agreement:


1. It has full power, authority and legal right to enter into this agreement and to observe and perform its obligations hereunder and has taken all necessary corporate and other actionto authorise the execution, delivery and performance of this agreement.


2. This agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms, except as such enforceability may be limited by equitableprinciples or by bankruptcy, moratorium, insolvency, reorganisation, liquidation or other laws relating to or affecting creditors’ rights.


3. The execution and delivery of this agreement by it and the performance by it of its obligations under this agreement does not and will not exceed any power granted to it, orconstitute, or result in, a breach or violation of:


  (a) any provision of any law or any rule or directive of any court or governmental or regulatory agency or authority to which it is subject; or


  (b) its constitution.





(Clause 4.1)




Date:    [                ] 2004
Time:    [        ]

CanWest International Communications Inc.

Jalabash House

12 Highgate Park

St Michael





Defined terms used in thisnotice have the meanings given to them in the Agreement.


Pursuant to clause4.1 of the Agreement, we hereby notify you of our intention to exercise the Option to acquire all of the RadioWorks Shares on [    ] which shall be the Exercise Date for the purposes of the Agreement.



Signature of authorised signatory


Name of authorised signatory