Exhibit 10.14
SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT dated for reference the 28th day of March, 2001.
BETWEEN:
ICHOR CORPORATION, a corporation organized under the laws of
the State of Delaware in the United States
(hereinafter referred to as "PARENTCO")
AND:
0000 XXXXXXXXXX S.A., a corporation organized under the laws
of Luxembourg
(hereinafter referred to as "LUXCO")
WHEREAS in connection with a share exchange agreement (the "SHARE EXCHANGE
AGREEMENT") dated for reference December 13, 2000 between ParentCo and certain
shareholders of Hippocampe SA., ParentCo agreed to execute and deliver and cause
LuxCo to execute and deliver a support agreement substantially in the form of
this Agreement which contemplates that ParentCo will cause LuxCo to issue LuxCo
Exchangeable Preferred Shares to certain holders of securities of Hippocampe SA.
contemplated by the Share Exchange Agreement;
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 hereto
covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
Each term denoted herein by initial capital letters and not otherwise defined
herein shall have the meaning ascribed thereto in a shareholder agreement (the
"SHAREHOLDER AGREEMENT") dated for reference March 28, 2001 among ParentCo,
LuxCo and certain holders of LuxCo Exchangeable Preferred Shares, unless the
context requires otherwise.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS
The division of this agreement into Articles, sections and other portions and
the insertion of headings are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement Unless otherwise
indicated, all references to an "Article" or "section" followed by a number
and/or a letter refer to the specified Article or section of this Agreement. The
terms "this Agreement", "hereof", "herein" and "hereunder" and similar
expressions refer to this Agreement and not to any particular Article, section
or other portion hereof and include any agreement or instrument supplementary or
ancillary hereto.
1.3 NUMBER, GENDER
Words importing the singular number only shall include the plural and vice
versa. Words importing 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.
ARTICLE 2
COVENANTS OF PARENTCO AND LUXCO
2.1 COVENANTS REGARDING LUXCO EXCHANGEABLE PREFERRED SHARES
So long as any LuxCo Exchangeable Preferred Shares not owned by ParentCo or its
Affiliates are outstanding, ParentCo will:
(a) not declare or pay any dividend on the ParentCo Common Shares unless:
(i) LuxCo shall simultaneously declare or pay, as the case may be, an
equivalent dividend (as provided for in the Shareholder Agreement) on
the LuxCo Exchangeable Preferred Shares; and (ii) LuxCo shall have
sufficient money or other assets or authorized but unissued securities
available to enable the due declaration and the due and punctual
payment, in accordance with applicable law, of any such dividend on the
LuxCo Exchangeable Preferred Shares;
(b) advise LuxCo sufficiently in advance of the declaration by ParentCo of
any dividend on ParentCo Common Shares and take all such other actions
as are reasonably necessary, in cooperation with LuxCo, to ensure that
the respective declaration date, record date and payment date for a
dividend on the LuxCo Exchangeable Preferred Shares shall be the same
as the declaration date, record date and payment date for the
corresponding dividend on the ParentCo Common Shares;
(c) ensure that the record date for any dividend declared on ParentCo
Common Shares is not less than ten business days after the declaration
date of such dividend; and
(d) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit LuxCo, in accordance with
applicable law, to pay and otherwise perform its obligations with
respect to the satisfaction of the Liquidation Amount, the Retraction
Price or the Redemption Price in respect of each issued and outstanding
LuxCo Exchangeable Preferred Share (other than LuxCo Exchangeable
Preferred Shares owned by ParentCo or its Affiliates) upon the
liquidation, dissolution or winding-up of LuxCo, the delivery of a
Retraction Request by a holder of LuxCo Exchangeable Preferred Shares
or a redemption of LuxCo Exchangeable Preferred Shares by LuxCo, as the
case may be, including without limitation all such actions and all such
things as are necessary or desirable to enable and permit LuxCo to
cause to be delivered ParentCo Common Shares to the holders of LuxCo
Exchangeable Preferred Shares in accordance with the provisions of
Article 6, 7, or 8, as the case may be, of the Shareholder Agreement.
2.2 SEGREGATION OF FUNDS
ParentCo will cause LuxCo to deposit a sufficient amount of funds in a separate
account of LuxCo and segregate a sufficient amount of such other assets and
property as is necessary to enable LuxCo to pay dividends when due and to pay or
otherwise satisfy its respective obligations under Article 6, 7 or 8 of the
Shareholder Agreement as applicable.
2.3 RESERVATION OF PARENTCO COMMON SHARES
ParentCo hereby represents, warrants and covenants in favor of LuxCo that, from
and after the filing by ParentCo of a Certificate of Amendment to Certificate of
Incorporation to increase the authorized number of ParentCo Common Shares from
30,000,000 to 80,000,000, ParentCo will reserve for issuance and will, at all
times while any LuxCo Exchangeable Preferred Shares (other than LuxCo
Exchangeable Preferred Shares held by ParentCo or its Affiliates) are
outstanding, keep available, free from pre-emptive and other rights, out of its
authorized and unissued capital stock such number of ParentCo Common Shares (or
other shares or securities into which ParentCo Common Shares may be reclassified
or changed as contemplated by section 2.7 hereof): (i) as is equal to the sum
of. (A) 1,066.44 multiplied by the number of LuxCo Exchangeable Preferred Shares
issued and outstanding from time to time,
subject to adjustment in accordance with section 2.7 hereof, and (B) 1,066.44
multiplied by the number of LuxCo Exchangeable Preferred Shares issuable upon
the exercise of all rights to acquire LuxCo Exchangeable Preferred Shares
outstanding from time to time, subject to adjustment in accordance with section
2.7 hereof; and (ii) as are now and may hereafter be required to enable and
permit ParentCo to meet its obligations under the Voting and Exchange Trust
Agreement and under any other security or commitment pursuant to which ParentCo
may now or hereafter be required to issue ParentCo Common Shares and to enable
and permit LuxCo to meet its respective obligations under the provisions
attaching to the LuxCo Exchangeable Preferred Shares and under the Shareholder
Agreement.
2.4 NOTIFICATION OF CERTAIN EVENTS
In order to assist ParentCo to comply with its obligations hereunder and to
permit ParentCo to exercise the Liquidation Call Right, the Retraction Call
Right and the Redemption Call Right, LuxCo will notify ParentCo of each of the
following events at the time set forth below:
(a) in the event of any determination by the board of directors of LuxCo to
institute voluntary liquidation, dissolution or winding-up proceedings
with respect to LuxCo or to effect any other distribution of the assets
of LuxCo among its shareholders 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;
(b) promptly, upon the earlier of receipt by LuxCo of notice of and LuxCo
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 LuxCo or to effect any other
distribution of the assets of LuxCo among its shareholders for the
purpose of winding up its affairs;
(c) immediately, upon receipt by LuxCo of a Retraction Request;
(d) on the same date on which notice of redemption is given to holders of
LuxCo Exchangeable Preferred Shares, upon the determination of a
Redemption Date in accordance with the Shareholder Agreement; and
(e) as soon as practicable upon the issuance by LuxCo of any LuxCo
Exchangeable Preferred Shares or rights to acquire LuxCo Exchangeable
Preferred Shares (other than the issuance of LuxCo Exchangeable
Preferred Shares and rights to acquire LuxCo Exchangeable Preferred
Shares in exchange for outstanding common shares of Hippocampe S.A.
pursuant to the Share Exchange Agreement).
2.5 DELIVERY OF COMMON SHARES TO LUXCO
In furtherance of its obligations under sections 2.1(d) hereof, upon notice
from LuxCo of any event that requires LuxCo to cause to be delivered ParentCo
Common Shares to any holder of LuxCo Exchangeable Preferred Shares, ParentCo,
shall forthwith issue and deliver or cause to be delivered to LuxCo the
requisite number of ParentCo Common Shares to be received by, and issued to or
to the order of, the former holder of the surrendered LuxCo Exchangeable
Preferred Shares, as LuxCo shall direct. All such ParentCo Common Shares shall
be duly authorized and validly issued as fully paid and non-assessable and shall
be free and clear of any lien, claim or encumbrance. In consideration of the
issuance and delivery of each such ParentCo Common Share, LuxCo shall issue to
ParentCo, or as ParentCo may direct, LuxCo Common Shares having equivalent
value.
2.6 QUALIFICATION OF PARENTCO COMMON SHARES
If any ParentCo Common Shares (or other shares or securities into which ParentCo
Common Shares may be reclassified or changed as contemplated by section 2.7
hereof) to be issued and delivered hereunder require 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 securities or other law or regulation or pursuant to the
rules and regulations of any securities or other regulatory authority or the
fulfillment of any other legal requirement before such shares (or such other
shares or securities) may be issued by ParentCo and delivered by ParentCo at the
direction of LuxCo to the holder of surrendered LuxCo Exchangeable Preferred
Shares, ParentCo, will in good faith
expeditiously take all such actions and do all such things as are necessary or
desirable to cause such ParentCo Common Shares (or such other shares or
securities) to be and remain duly registered, qualified or approved under
applicable laws. ParentCo will in good faith expeditiously take all such actions
and do all such things as are reasonably necessary or desirable to cause all
ParentCo Common Shares (or such other shares or securities) to be delivered
hereunder to be listed, quoted or posted for trading on all stock exchanges and
quotation systems on which outstanding ParentCo Common Shares (or such other
shares or securities) have been listed by ParentCo and remain listed and are
quoted or posted for trading at such time.
2.7 ECONOMIC EQUIVALENCE
So long as any LuxCo Exchangeable Preferred Shares not owned by ParentCo, or its
Affiliates are outstanding:
(a) ParentCo will not without prior approval of LuxCo and the prior
approval of the holders of the LuxCo Exchangeable Preferred Shares
given in accordance with section 13.2 of the Shareholder Agreement:
(i) issue or distribute ParentCo Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire ParentCo Common Shares) to the holders of all or
substantially all of the then outstanding ParentCo Common
Shares by way of stock dividend or other distribution, other
than an issue of ParentCo Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire ParentCo Common Shares) to holders of ParentCo Common
Shares who exercise an option to receive dividends in ParentCo
Common Shares (or securities exchangeable for or convertible
into or carrying rights to acquire ParentCo Common Shares) in
lieu of receiving cash dividends; or
(ii) issue or distribute rights, options or warrants to the holders
of all or substantially all of the then outstanding ParentCo
Common Shares entitling them to subscribe for or to purchase
ParentCo Common Shares (or securities exchangeable for or
convertible into or carrying rights to acquire ParentCo Common
Shares); or
(iii) issue or distribute to the holders of all or substantially all
of the then outstanding ParentCo Common Shares: (A) shares or
securities of ParentCo of any class other than ParentCo Common
Shares (other than shares convertible into or exchangeable for
or carrying rights to acquire ParentCo Common Shares); (B)
rights, options or warrants other than those referred to in
section 2.7(a)(ii) above; (C) evidences of indebtedness of
ParentCo; or (D) assets of ParentCo,
unless the economic equivalent on a per share basis of such rights,
options, securities, shares, evidences of indebtedness or other assets
is issued or distributed simultaneously to holders of the LuxCo
Exchangeable Preferred Shares; provided that, for greater certainty,
the above restrictions shall not apply to any securities issued or
distributed by ParentCo in order to give effect to and to consummate
the transactions contemplated by, and in accordance with, the Share
Exchange Agreement,
(b) ParentCo will not without the prior approval of LuxCo and the prior
approval of the holders of the LuxCo Exchangeable Preferred Shares
given in accordance with section 13.2 of the Shareholder Agreement:
(i) subdivide, redivide or change the then outstanding ParentCo
Common Shares into a greater number of ParentCo Common Shares;
or
(ii) reduce, combine, consolidate or change the then outstanding
ParentCo Common Shares into a lesser number of ParentCo Common
Shares; or
(iii) reclassify or otherwise change ParentCo Common Shares or
effect an amalgamation, merger, reorganization or other
transaction affecting ParentCo Common Shares,
unless the same or an economically equivalent change shall
simultaneously be made to, or in the rights of the holders of, the
LuxCo Exchangeable Preferred Shares.
(c) ParentCo will ensure that the record date for any event referred to in
section 2.7(a) or 2.7(b) above, or (if no record date is applicable for
such event) the effective date for any such event, is not less than
five business days after the date on which such event is declared or
announced by ParentCo (with contemporaneous notification thereof by
ParentCo to LuxCo);
(d) The board of directors of LuxCo shall determine, in good faith and in
its sole discretion, economic equivalence for the purposes of any event
referred to in section 2.7(a) or 2.7(b) above and each such
determination shall be conclusive and binding on ParentCo. in making
each such determination, the following factors shall, without excluding
other factors determined by the board of directors of LuxCo to be
relevant, be considered by the board of directors of LuxCo:
(i) in the case of any stock dividend or other distribution
payable in ParentCo Common Shares, the number of such shares
issued in proportion to the number of ParentCo Common Shares
previously outstanding;
(ii) in the case of the issuance or distribution of any rights,
options or warrants to subscribe for or purchase ParentCo
Common Shares (or securities exchangeable for or convertible
into or carrying rights to acquire ParentCo Common Shares),
the relationship between the exercise price of each such
right, option or warrant and the Current Market Price of a
ParentCo Common Share;
(iii) in the case of the issuance or distribution of any other form
of property (including without limitation any shares or
securities of ParentCo, of any class other than ParentCo
Common Shares, any rights, options or warrants other than
those referred to in section 2.7(d)(ii) above, any evidences
of indebtedness of ParentCo or any assets of ParentCo), the
relationship between the fair market value (as determined by
the board of directors of LuxCo in the mariner above
contemplated) of such property to be issued or distributed
with respect to each outstanding ParentCo Common Share and the
Current Market Price of a ParentCo Common Share;
(iv) in the case of any subdivision, redivision or change of the
then outstanding ParentCo Common Shares into a greater number
of ParentCo Common Shares or the reduction, combination,
consolidation or change of the then outstanding ParentCo
Common Shares into a lesser number of ParentCo Common Shares
or any amalgamation, merger, reorganization or other
transaction affecting ParentCo Common Shares, the effect
thereof upon the then outstanding ParentCo Common Shares; and
(v) in all such cases, the general taxation consequences of the
relevant event to holders of LuxCo Exchangeable Preferred
Shares to the extent that such consequences may differ from
the taxation consequences to holders of ParentCo Common Shares
as a result of differences between taxation laws of Luxembourg
and the United States (except for any differing consequences
arising as a result of differing marginal taxation rates and
without regard to the individual circumstances of holders of
LuxCo Exchangeable Preferred Shares).
(e) LuxCo agrees that, to the extent required, upon due notice from
ParentCo, LuxCo will use its best efforts to take or cause to be taken
such steps as may be necessary for the purposes of ensuring that
appropriate dividends are paid or other distributions are made by
LuxCo, or subdivisions, redivisions or changes are made to the LuxCo
Exchangeable Preferred Shares, in order to implement the required
economic equivalent with respect to the ParentCo Common Shares and the
LuxCo Exchangeable Preferred Shares as provided for in this Section
2.7.
2.8 TENDER OFFERS
In the event that a tender offer, share exchange offer, issuer bid, take-over
bid or similar transaction with respect to ParentCo Common Shares (an "OFFER")
is proposed by ParentCo or is proposed to ParentCo or its shareholders and is
recommended by the board of directors of ParentCo, or is otherwise effected or
to be effected with the consent or approval of the board of directors of
ParentCo, and the LuxCo Exchangeable Preferred Shares are not redeemed by LuxCo
or purchased by ParentCo pursuant to the Redemption Call Right, ParentCo will
use its reasonable efforts
expeditiously and in good faith to take all such actions and do all such things
as are necessary or desirable to enable and permit holders of LuxCo Exchangeable
Preferred Shares to participate in such Offer to the same extent and on an
economically equivalent basis as the holders of ParentCo Common Shares, without
discrimination. Without limiting the generality of the foregoing, ParentCo will
use its reasonable efforts expeditiously and in good faith to ensure that
holders of LuxCo Exchangeable Preferred Shares may participate in each such
Offer without being required to retract LuxCo Exchangeable Preferred Shares as
against LuxCo (or, if so required, to ensure that any such retraction, shall be
effective only upon, and shall be conditional upon, the closing of such Offer
and only to the extent necessary to tender or deposit to the Offer). Nothing
herein shall affect the rights of LuxCo to redeem (or ParentCo to purchase
pursuant to the Redemption Call Right) LuxCo Exchangeable Preferred Shares, as
applicable, in the event of a ParentCo Control Transaction.
2.9 OWNERSHIP OF OUTSTANDING SHARES
Without the prior approval of LuxCo and the prior approval of the holders of the
LuxCo Exchangeable Preferred Shares given in accordance with section 13.2 of the
Shareholder Agreement, ParentCo covenants and agrees in favor of LuxCo that, as
long as any outstanding LuxCo Exchangeable Preferred Shares are owned by any
Person other than ParentCo or any of its Affiliates, ParentCo with be and remain
the direct or indirect beneficial owner of all issued and outstanding voting
shares in the capital of LuxCo.
2.10 PARENTCO AND AFFILIATES NOT TO VOTE LUXCO EXCHANGEABLE PREFERRED SHARES
ParentCo covenants and agrees that it will appoint and cause to be appointed
proxy holders with respect to all LuxCo Exchangeable Preferred Shares held by it
and its Affiliates for the sole purpose of attending each meeting of holders of
LuxCo Exchangeable Preferred Shares in order to be counted as part of the quorum
for each such meeting. ParentCo further covenants and agrees that it will not,
and will cause its Affiliates not to, exercise any voting rights which may be
exercisable by holders of LuxCo Exchangeable Preferred Shares from time to time
pursuant to the Shareholder Agreement or pursuant to the provisions of any
applicable corporate legislation in Delaware or Luxembourg, as applicable, with
respect to any LuxCo Exchangeable Preferred Shares held by it or by its
Affiliates in respect of any matter considered at any meeting of holders of
LuxCo Exchangeable Preferred Shares.
ARTICLE 3
PARENTCO SUCCESSORS
3.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
ParentCo shall not consummate 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, but may do so if:
(a) such other Person or continuing corporation (the "PARENTCO 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 reasonably necessary or advisable to evidence the assumption by the
ParentCo Successor of liability for all moneys payable and property
deliverable hereunder and the covenant of such ParentCo 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 ParentCo under
this Agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material respect any
of the rights, duties, powers and authorities of the other parties
hereunder.
3.2 VESTING OF POWERS IN SUCCESSOR
Whenever the conditions of section 3.1 have been duly observed and performed,
the parties, if required by section 3.1, shall execute and deliver the
supplemental agreement provided for in section 3.1(a) and thereupon the ParentCo
Successor shall possess and from time to time may exercise each and every right
and power of ParentCo under this Agreement in the name of ParentCo 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 ParentCo or any officers of ParentCo
may be done and performed with like force and effect by the directors or
officers of such ParentCo Successor.
3.3 WHOLLY-OWNED SUBSIDIARIES
Nothing herein shall be construed as preventing the amalgamation or merger of
any wholly-owned direct or indirect subsidiary of ParentCo with or into ParentCo
or the winding-up, liquidation or dissolution of any wholly-owned subsidiary of
ParentCo provided that all of the assets of such subsidiary are transferred to
ParentCo or another wholly-owned direct or indirect subsidiary of ParentCo and
any such transactions are expressly permitted by this Article 3.
ARTICLE 4
GENERAL
4.1 TERM
This Agreement shall come into force and be effective as of the date hereof and
shall terminate and be of no further force and effect at such time as no LuxCo
Exchangeable Preferred Shares (or securities or rights convertible into or
exchangeable for or carrying rights to acquire LuxCo Exchangeable Preferred
Shares) are held by any Person other than ParentCo and any of its Affiliates.
4.2 CHANGES IN CAPITAL OF PARENTCO AND LUXCO
At all times after the occurrence of any event contemplated pursuant to sections
2.7 and 2.8 hereof or otherwise, as a result of which either ParentCo Common
Shares or the LuxCo Exchangeable Preferred Shares or both are in any way
changed, this agreement shall forthwith be amended and modified as necessary in
order that it shall apply with full force and effect, mutatis mutandis, to all
new securities into which ParentCo Common Shares or the LuxCo Exchangeable
Preferred Shares or both are so changed and the parties hereto shall execute and
deliver an agreement in writing giving effect to and evidencing such necessary
amendments and modifications.
4.3 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.
4.4 AMENDMENTS, MODIFICATIONS
This Agreement may not be amended or modified except by an agreement in writing
executed by LuxCo and ParentCo and approved by the holders of the LuxCo
Exchangeable Preferred Shares in accordance with section 13.2 of the Shareholder
Agreement.
4.5 MINISTERIAL AMENDMENTS
Notwithstanding the provisions of section 4.4, the parties to this Agreement may
in writing at any time and from time to time, without the approval of the
holders of the LuxCo Exchangeable Preferred Shares, amend or modify this
Agreement for the purposes of:
(a) adding to the covenants of any or all parties provided that the board
of directors of each of LuxCo and ParentCo shall be of the good faith
opinion that such additions will not be prejudicial to the rights or
interests of the holders of the LuxCo Exchangeable Preferred Shares;
(b) making such amendments or modifications not inconsistent with this
Agreement as may be necessary or desirable with respect to matters or
questions which, in the good faith opinion of the board of directors of
each of LuxCo and ParentCo, it may be expedient to make, provided that
each such board of directors shall be of the good faith opinion that
such amendments or modifications will not be prejudicial to the rights
or interests of the holders of the LuxCo Exchangeable Preferred Shares;
or
(c) making such changes or corrections which, on the advice of counsel to
LuxCo and ParentCo, are required for the purpose of curing or
correcting any ambiguity or defect or inconsistent provision or
clerical omission or mistake or manifest error, provided that the
boards of directors of each of LuxCo and ParentCo shall be of the good
faith opinion that such changes or corrections will not be prejudicial
to the rights or interests of the holders of the LuxCo Exchangeable
Preferred Shares.
4.6 MEETING TO CONSIDER AMENDMENTS
LuxCo, at the request of ParentCo, shall call a meeting or meetings of the
holders of the LuxCo Exchangeable Preferred Shares for the purpose of
considering any proposed amendment or modification requiring approval pursuant
to section 4.4 hereof. Any such meeting or meetings shall be called and held in
accordance with the bylaws of LuxCo, the Shareholder Agreement and all
applicable laws.
4.7 AMENDMENTS ONLY IN WRITING
No amendment to or modification or waiver of any of the provisions of this
Agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by all of the parties hereto.
4.9 ENUREMENT
This Agreement shall be binding upon and enure to the benefit of the parties
hereto and their respective successors and assigns.
4.9 NOTICES TO PARTIES
All notices and other communications between the parties to this Agreement 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 any such party as shall be specified in like notice):
(a) if to LuxCo:
0000 Xxxxxxxxxx S.A. 0,
Xxx xx xx Xxxxxxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: Secretary
Telecopier No.: (352) 45 45 51
(b) if to ParentCo:
ICHOR Corporation
00 Xxxx Xxxxxx Xxxxxx 0, Xxxxxxx
Attention: Secretary
Telecopier No.: (0000)000 0000
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 confirmed 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.
4.10 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which taken together shall constitute one and the same
instrument.
4.11 JURISDICTION
This Agreement shall be construed and enforced in accordance with the laws of
the State of Delaware in the United States.
4.12 ATTORNMENT
Each of the parties hereto agrees that any action or proceeding arising out of
or relating to this Agreement may be instituted in the courts of the State of
Delaware in the United States, waives any objection which it may have now or
hereafter to the venue of any such action or proceeding, irrevocably submits to
the jurisdiction of the said courts in any such action or proceeding, agrees to
be bound by any judgment of the said courts and not to seek, and hereby waives,
any review of the merits of any such judgment by the courts of any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
ICHOR CORPORATION
By: /s/M. Xxxx Xxxxxxxx
_________________________________
Name: Xx. Xxxx Xxxxxxxx
Title: CFO
6543 LUXEMBOURG S.A.
By: /s/ Xxxxxxx Xxxx
_________________________________
Name: Xxxxxxx Xxxx
Title: Director
