Execution Copy
18
VOTING AND EXCHANGE TRUST AGREEMENT
AGREEMENT dated as of January 11, 2001, among Transaction
Systems Architects, Inc., a Delaware corporation ("TSA"), Transaction Systems
Architects Nova Scotia Company, a Nova Scotia unlimited company ("TSA Holdco"),
TSA Exchangeco Limited, a Nova Scotia limited company ("TSA Exchangeco") and
Xxxxx Fargo Bank Minnesota, National Association, , an entity existing under the
laws of the United States (the "Trustee").
WHEREAS, pursuant to a Combination Agreement dated as of
October 24, 2000 (such agreement, as it may be amended or restated, is
hereinafter referred to as the "Combination Agreement"), among TSA, TSA Holdco,
TSA Exchangeco and MessagingDirect Ltd. ("MDL"), such parties agreed that on the
Effective Date (as defined in the Combination Agreement), they would execute and
deliver a Voting and Exchange Trust Agreement substantially in the form of
Exhibit 7.2(b)(ii) thereto;
WHEREAS, pursuant to the plan of arrangement (the "Plan of
Arrangement") effected by articles of arrangement (the "Articles of
Arrangement") filed pursuant to the Business Corporations Act (Alberta)
("ABCA"), as amended, among other things, each issued and outstanding Class A
common share of MDL (a "MDL Class A Share") was exchanged for either (i) issued
and outstanding exchangeable shares of TSA Exchangeco (the "Exchangeable
Shares"); or (ii) Class A voting common shares of TSA ("TSA Class A Common
Shares");
WHEREAS, the Plan of Arrangement sets forth the rights,
privileges, restrictions and conditions (collectively, the "Exchangeable Share
Provisions") attaching to the Exchangeable Shares;
WHEREAS, TSA is to provide voting rights in TSA to each holder
(other than TSA and its Affiliates) from time to time of Exchangeable Shares,
such voting rights attaching to each Exchangeable Share to be equivalent to the
voting rights attaching to each TSA Class A Common Share;
WHEREAS, TSA is to grant to and in favor of the holders (other
than TSA and its Affiliates) from time to time of Exchangeable Shares the right,
in the circumstances set forth herein, to require TSA Holdco or TSA, as herein
provided, to purchase from each such holder all or any part of the Exchangeable
Shares held by the holder;
WHEREAS, the parties desire to make appropriate provision and
to establish a procedure whereby voting rights in TSA shall be exercisable by
holders (other than TSA and its subsidiaries and Affiliates) from time to time
of Exchangeable Shares by and through the Trustee, which will hold legal title
to one Special Voting Share of TSA, to which voting rights attach for the
benefit of the holders of Exchangeable Shares and whereby the rights to require
TSA Holdco or TSA to purchase Exchangeable Shares from the holders thereof
(other than TSA and its Affiliates) 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 the other parties hereto 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
Except as otherwise defined herein, capitalized terms used
herein shall have the meaning ascribed to such terms in the Combination
Agreement. As used herein, the following terms shall have the following
meanings:
"Arrangement" has the meaning ascribed thereto in the recitals
hereto.
"Automatic Exchange" has the meaning ascribed thereto in
Section 5.12(c).
"Automatic Exchange Rights" means the benefit of the
obligation of TSA to effect the automatic exchange of TSA Class A Common Shares
for Exchangeable Shares pursuant to Section 5.12 hereof.
"Board of Directors" means the Board of Directors of TSA
Exchangeco.
"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.
"Class A Shares" has the meaning ascribed thereto in the
recitals hereto.
"Current Market Price" means, in respect of a TSA Class A
Common Share on any date, the Canadian Dollar Equivalent of the average closing
price (computed and rounded to the third decimal point) of TSA Class A Common
Shares during a period of twenty (20) consecutive trading days ending not more
than three (3) trading days before such date on the NASDAQ, or, if the TSA Class
A Common Shares are not then listed on the NASDAQ, on such other stock exchange
or automated quotation system on which the TSA Class A 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 TSA Class A Common
Shares during such period does not create a market which reflects the fair
market value of a TSA Class A Common Share, then the Current Market Price of a
TSA Class A Common Share 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;
"Dividend Amount" means an amount equal to the full amount of
all declared and unpaid dividends on each Exchangeable Share with a dividend
record date prior to the effective date of: (i) the exchange of Exchangeable
Shares for TSA Class A Common Shares hereunder; (ii) the exercise of the
Exchange Right; or (iii) the exercise of the Automatic Exchange Rights;
"Equivalent Ratio Adjustment" has the meaning ascribed to that
term in the Exchangeable Share Provisions.
"Exchange Right" has the meaning ascribed thereto in Section
5.1 hereof.
"Exchangeable Share Provisions" means the rights, privileges,
restrictions and conditions attaching to the Exchangeable Shares.
"Exchangeable Shares" has the meaning ascribed thereto in the
recitals hereto.
"Fair Market Value" shall mean, as of the date of
determination thereof, the fair market value of such property or asset.
"Fractional Share Amount" means the amount of cash due and
unpaid in respect of a fractional share that would otherwise have been issuable
to the holder of an Exchangeable Share as a result of an Equivalent Ratio
Adjustment that has occurred prior to: (i) the exchange of Exchangeable Shares
for TSA Class A Common Shares hereunder; (ii) the exercise of the Exchange
Right; or (iii) the exercise of the Automatic Exchange Right;
"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 TSA and its Affiliates.
"Indemnified Parties" has the meaning ascribed thereto in
Section 9.1 hereof.
"Liquidation Call Right" has the meaning ascribed thereto in
Section 1.1 of the Plan of Arrangement.
"List" has the meaning ascribed thereto in Section 4.6
hereof.
"Officer's Certificate" shall mean a certificate signed by the
Chief Executive Officer, the President, the Chief Financial Officer or any Vice
President of TSA.
"Plan of Arrangement" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"Redemption Call Right" has the meaning ascribed thereto in of
the Exchangeable Share Provisions.
"Remittance Date" has the meaning ascribed thereto in Section
5.13 hereof.
"Retracted Shares" has the meaning ascribed thereto in Section
5.7 hereof.
"Retraction Call Right" has the meaning ascribed thereto in
the Exchangeable Share Provisions.
"Special Voting Share" means the one share of Special
Preferred Voting Stock of TSA having the attributes set out in Schedule 1 hereto
issued by TSA to and deposited with the Trustee, which entitles the holder of
record thereof to a number of votes at meetings of holders of TSA Class A Common
Shares equal to the number of Exchangeable Shares outstanding from time to time,
other than Exchangeable Shares held by TSA and its Affiliates.
"Support Agreement" means that certain Support Agreement dated
as of the date hereof among TSA, TSA Holdco and TSA Exchangeco.
"Trust" means the trust created by this Agreement.
"Trustee" shall mean Xxxxx Fargo Bank Minnesota, National
Association, as trustee under this Voting and Exchange Trust Agreement.
"Trust Estate" means the Special Voting Share, any other
securities, the Exchange Right, the Automatic Exchange Rights and any money or
other property which may be held by the Trustee from time to time pursuant to
this Agreement.
"TSA Class A Common Shares" has the meaning ascribed thereto
in the recitals hereto.
"TSA Consent" has the meaning ascribed thereto in Section 4.2
hereof.
"TSA Exchangeco Insolvency Event" means the institution by TSA
Exchangeco of any proceeding to be adjudicated a bankrupt or insolvent or to be
dissolved or wound up, or the consent of TSA Exchangeco 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 TSA Exchangeco to contest in good faith any
such proceedings commenced in respect of TSA Exchangeco within 30 days of
becoming aware thereof, or the consent by TSA Exchangeco to the filing of any
such petition or to the appointment of a receiver, or the making by TSA
Exchangeco of a general assignment for the benefit of creditors, or the
admission in writing by TSA Exchangeco of its inability to pay its debts
generally as they become due, or TSA Exchangeco not being permitted, pursuant to
solvency requirements of applicable law, to redeem any Retracted Shares pursuant
to Section 6 of the Exchangeable Share Provisions.
"TSA Liquidation Event" has the meaning ascribed thereto in
Section 5.12(b) hereof.
"TSA Liquidation Event Effective Date" has the meaning
ascribed thereto in Section 5.12(c) hereof.
"TSA Meeting" has the meaning ascribed thereto in Section 4.2
hereof.
"TSA Successor" has the meaning ascribed thereto in Section
11.1 hereof.
"Voting Rights" means the voting rights attached to the
Special Voting Share.
1.2 Interpretation Not Affected by Headings, Etc.
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 hereof. Unless
otherwise indicated, all references to an "Articles" or "section" followed by a
number and/or a letter refer to the specified Article or section of this
Agreement. The terms of "this Agreement", "hereof", "herein" and "hereunder" and
similar expressions refer to this Agreement (including the Schedules and
Exhibits hereto) and not to any particular Article, section or other portion
hereof, and do not include any agreement or instrument supplementary or
ancillary hereto.
1.3 Number, Gender, Etc.
Unless the context otherwise requires, words importing the
singular shall include the plural and vice versa and 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 day which is a Business Day.
1.5 Currency
Unless otherwise specifically indicated, all sums of money
referred to in this Agreement are expressed in lawful money of the United States
of America.
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 Special
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, and any money or other property
comprising the Trust Estate, in each case as trustee for and on behalf of the
Holders as provided in this Agreement.
ARTICLE 3
SPECIAL VOTING SHARE
3.1 Issue and Ownership of the Special Voting Share
In consideration of the granting of the Liquidation Call
Right, Redemption Call Right and Retraction Call Right to TSA, TSA hereby issues
to and deposits with the Trustee the Special 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.
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 Special Voting Share and shall be entitled to exercise all of the rights and
powers of an owner with respect to the Special Voting Share, provided that the
Trustee shall:
(a) hold the Special 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 Special Voting Share and the Special Voting
Share shall not be used or disposed of by the Trustee for any
purpose other than the purposes for which the Trust is created
pursuant to this Agreement
3.2 Legended Share Certificates
TSA Exchangeco will 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 a Holder.
3.3 Safe Keeping of Certificate
The certificate representing the Special Voting Share shall at
all times be held in safe keeping by the Trustee or its agent.
ARTICLE 4
EXERCISE OF VOTING RIGHTS
4.1 Voting Rights
The Trustee, as the holder of record of the Special 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 Special Voting Share, on any
matter, question, proposal or proposition whatsoever that may properly come
before the holders of TSA Class A Common Shares at a TSA Meeting or in
connection with a TSA Consent. The Voting Rights shall be and remain vested in
and exercised by the Trustee. 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 a
TSA Consent is sought or a TSA 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 shareholders of TSA at which
holders of TSA Class A Common Shares are entitled to vote (a "TSA Meeting") and
with respect to all written consents sought by TSA from its shareholders
including the holders of shares of TSA Class A Common Shares (a "TSA Consent"),
each Holder shall be entitled to instruct the Trustee to cast and exercise, in
the manner instructed, one of the votes comprised in the Voting Rights for each
Exchangeable Share owned of record by such Holder on the record date established
by TSA or by applicable law for such TSA Meeting or TSA Consent, as the case may
be (the "Holder Votes") in respect of each matter, question, proposal or
proposition to be voted on at such TSA Meeting or to be consented to in
connection with such TSA Consent.
4.3 Mailings to Shareholders
With respect to each TSA Meeting and TSA Consent, the Trustee
will mail or cause to be mailed (or otherwise communicate in the same manner as
TSA utilizes in communications to holders of TSA Class A Common Shares) to each
of the Holders named in the List on the same day as the initial mailing or
notice (or other communication) with respect thereto is given by TSA to its
shareholders:
(a) a copy of such notice, together with any proxy or
information statement and related materials to be provided
to shareholders of TSA;
(b) a statement that such Holder is entitled to instruct the
Trustee as to the exercise of the Holder Votes with respect to
such TSA Meeting or TSA Consent, as the case may be, or,
pursuant to Section 4.7 hereof, to attend such TSA 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:
(i) a proxy to such Holder or his designee to exercise personally the
Holder Votes; or
(ii) a proxy to a designated agent or other
representative of the management of TSA to exercise
such Holder Votes;
(d) 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;
(e) a form of direction whereby the Holder may so direct and
instruct the Trustee as contemplated herein; and
(f) 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 TSA Meeting shall
not be earlier than the close of business on the second
Business Day prior to such meeting or not later than the
time period allowed in the notice calling the TSA Consent to
allow for a direct response by the Holder in regards to the
subject matter of the TSA Consent; and (ii) the method for
revoking or amending such instructions.
The materials referred to above are to be provided by TSA to
the Trustee. For the purpose of determining Holder Votes to which a Holder is
entitled in respect of any such TSA Meeting or TSA 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 TSA or by applicable Law for
purposes of determining shareholders entitled to vote at such TSA Meeting or to
give written consent in connection with such TSA Consent. TSA will notify the
Trustee in writing of any decision of the board of directors of TSA with respect
to the calling of any such TSA Meeting or the seeking of any such TSA 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 Shareholder Information
TSA will deliver to the Trustee copies of all proxy materials,
(including notices of TSA Meetings; but excluding proxies to vote TSA Class A
Common Shares), information statements, reports (including without limitation
all interim and annual financial statements) and other written communications
that, in each case, are to be distributed from time to time to holders of TSA
Class A 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 TSA Class A Common Shares. The
Trustee will mail or otherwise send to each Holder, at the expense of TSA,
copies of all such materials (and all materials specifically directed to the
Holders or to the Trustee for the benefit of the Holders by TSA) received by the
Trustee from TSA at the same time as such materials are first sent to holders of
TSA Class A Common Shares. The Trustee will also make copies of all such
materials available for inspection by any Holder at the Trustee's principal
office in the city of Minneapolis, Minnesota.
4.5 Other Materials
Immediately after receipt by TSA or any shareholder of TSA of
any material sent or given generally to the holders of TSA Class A 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), TSA shall use
its 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 will mail or otherwise send to each Holder, at the expense
of TSA, copies of all such materials received by the Trustee from TSA. The
Trustee will also make copies of all such materials available for inspection by
any Holder at the Trustee's principal office in the city of Minneapolis,
Minnesota.
4.6 List of Persons Entitled to Vote
TSA Exchangeco shall, (a) prior to each annual, general and
special TSA Meeting or the seeking of any TSA 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 a TSA Meeting or a TSA Consent, at the close of business on the record date
established by TSA or pursuant to applicable law for determining the holders of
TSA Class A Common Shares entitled to receive notice of and/or to vote at such
TSA Meeting or to give consent in connection with such TSA Consent. Each such
List shall be delivered to the Trustee promptly after receipt by TSA Exchangeco
of such request or after the record date for such meeting or seeking of consent,
as the case may be, is set and in any event within sufficient time as to enable
the Trustee to perform its obligations under this Agreement. TSA agrees to give
TSA Exchangeco written notice (with a copy to the Trustee) of the calling of any
TSA Meeting or the seeking of any TSA 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 TSA Exchangeco 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 TSA
Meeting or any TSA Consent will be entitled: (a) to instruct the Trustee in the
manner described in Section 4.2 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 a Meeting
(a) In connection with each TSA Meeting and TSA Consent, the
Trustee shall exercise, either in person or by proxy, in
accordance with the instructions received from a Holder
pursuant to Section 4.2 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 TSA
Meeting. Upon submission by a Holder (or its designee which
may include Persons listed on Schedule I to the Escrow
Agreement as owners of Exchangeable Shares comprising the
assets held pursuant to the Escrow Agreement) 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 4.2 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 (or its designee) 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 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 TSA utilizes in communications to
holders of TSA Class A Common Shares) to each Holder at its address as shown on
the books of TSA Exchangeco. TSA Exchangeco 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 current 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
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 TSA or TSA
Holdco, as the case may be, 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 of Exchangeable Shares for TSA Class A
Common Shares, as specified in Article 5 hereof (unless, in either case, TSA or
TSA Holdco shall not have delivered the requisite TSA Class A Common Shares
issuable in exchange therefor and any applicable Dividend Amount and Fractional
Share Amounts to the Trustee for delivery to the Holders), or upon the
retraction or redemption of Exchangeable Shares pursuant to Article 6 or Article
7 of the Exchangeable Share Provisions, or upon the effective date of the
liquidation, dissolution or winding-up of TSA Exchangeco pursuant to Article 5
of the Exchangeable Share Provisions, or upon the purchase of Exchangeable
Shares from the Holder by TSA Holdco, TSA Exchangeco or TSA pursuant to the
exercise by such person of the Retraction Call Right, the Redemption Call Right
or the Liquidation Call Right.
ARTICLE 5
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
5.1 Grant and Ownership of the Exchange Right and Automatic
Exchange Right
(a) In consideration of the granting of the Liquidation Call
Right, Redemption Call Right and Retraction Call Right to TSA,
TSA hereby grants to the Trustee as trustee for and on behalf
of, and for the use and benefit of, the Holders:
(i) the right (the "Exchange Right"), upon the occurrence
and during the continuance of a TSA Exchangeco
Insolvency Event, to require TSA to purchase from
each or any Holder all or any part of the
Exchangeable Shares held by the Holder; and
(ii) the Automatic Exchange Rights,
all in accordance with the provisions of this Agreement and
the Exchangeable Share Provisions, as the case may be.
(b) 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:
(i) 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
(ii) 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.
(c) TSA shall be permitted to delegate or assign its rights and
obligations in respect of the Exchange Right and Automatic
Exchange Right to TSA Holdco, with the result that all
references to TSA in this Agreement with respect to such
rights and obligations in respect of which the delegation or
assignment is made shall be deemed to refer to TSA Holdco.
5.2 Legended Share Certificates
TSA Exchangeco will 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 Rights
The Exchange Right shall be and remain vested in and exercised
by the Trustee. 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
Subject to an Equivalent Ratio Adjustment, the purchase price
payable by TSA Holdco or TSA for each Exchangeable Share to be purchased by TSA
Holdco or TSA under the Exchange Right shall be an amount per share equal to:
(a) the Current Market Price of a TSA Class A Common Shares on the
last Business Day prior to the day of closing of the purchase
and sale of such Exchangeable Share under the Exchange Right;
plus
(b) the Dividend Amount; plus
(c) the Fractional Share Amount.
In connection with each exercise of the Exchange Right, TSA Holdco or TSA will
provide to the Trustee an Officer's Certificate setting forth the calculation of
the purchase price for each Exchangeable Share. The purchase price for each such
Exchangeable Share so purchased shall be satisfied in full by TSA Holdco or TSA,
as applicable, issuing and delivering or causing to be delivered to the Trustee,
on behalf of the relevant Holder, one TSA Class A Common Shares plus a cheque
for the balance of the purchase price, if any, due under sub-paragraphs (b) and
(c) above, plus to the extent not paid by TSA Exchangeco, all dividends declared
on TSA Class A Common Shares that have not been declared on such Exchangeable
Shares or in respect of which economic equivalence therefor has not been
provided in accordance with Section 3.1 of the Exchangeable Share Provisions
(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 amounts equivalent to such declared and
unpaid dividends) without interest (but less any amounts withheld pursuant to
Section 5.13).
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 a TSA Exchangeco
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 TSA Exchangeco. To cause the exercise of the
Exchange Right by the Trustee, the Holder shall deliver to the Trustee, in
person or by mail, at its principal transfer office in Minneapolis, Minnesota,
or at such other places as the Trustee may from time to time designate by
written notice to the Holders, the certificates representing the Exchangeable
Shares which such Holder desires TSA Holdco or TSA 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 applicable Law and
under the Memorandum and Articles of Association of TSA Exchangeco 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) the tax residency of the holder;
(ii) that the Holder thereby instructs the Trustee to
exercise the Exchange Right so as to require TSA or
TSA Holdco to purchase from the Holder the number of
Exchangeable Shares specified therein;
(iii) that such Holder has good title to and owns all such
Exchangeable Shares to be acquired by TSA Holdco or
TSA free and clear of all liens, claims and
encumbrances;
(iv) the names in which the certificates representing TSA
Class A Common Shares issuable in connection with the
exercise of the Exchange Right are to be issued; and
(v) the names and addresses of the persons to whom such new certificates
should be delivered; and
(b) payment (or evidence satisfactory to the Trustee, TSA, TSA
Holdco and TSA Exchangeco 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 TSA Holdco or TSA
under the Exchange Right, a new certificate for the balance of such Exchangeable
Shares shall be issued by TSA Exchangeco to the Holder at the expense of TSA
Exchangeco.
5.6 Delivery of TSA Class A Common Shares; Effect of Exercise
Promptly after receipt of the certificates representing the Exchangeable Shares
which the Holder desires TSA Holdco or TSA 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,
payable as contemplated in Section 5.8 hereof or evidence thereof)), duly
endorsed in blank, the Trustee shall notify TSA Holdco, TSA Exchangeco and TSA
of its receipt of the same, which notice to TSA Holdco, TSA Exchangeco and TSA
shall constitute exercise of the Exchange Right by the Trustee on behalf of the
holder of such Exchangeable Shares, and TSA Holdco or TSA, as applicable, 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 TSA
Class A Common Shares issuable in connection with the exercise of the Exchange
Right, which shares shall be validly issued, fully paid, non-assessable, and
will be free and clear of Encumbrances attributable to, or arising due to, any
action or omission of TSA, and cheques for the balance, if any, of the total
purchase price therefor without interest, but less any amounts withheld pursuant
to Section 5.13 hereof; provided, however, that no such delivery shall be made
unless and until the Holder requesting the same shall have paid (or provided
evidence satisfactory to the Trustee, TSA Exchangeco, TSA and TSA Holdco of the
payment of) the Taxes (if any) payable as contemplated by Section 5.8 of this
Agreement. Immediately upon the giving of notice by the Trustee to TSA Nova
Holdco, TSA and TSA Exchangeco 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
TSA Holdco or TSA, as applicable, 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 his proportionate part of the total purchase price therefor,
unless the requisite number of TSA Class A Common Shares (together with a cheque
for the balance, if any, of the total purchase price therefor without interest)
is not allotted and delivered by TSA Holdco or TSA to the Trustee, for delivery
to such Holder (or to such 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 TSA Class A Common Shares are so allotted and delivered by TSA Holdco
or TSA and any such cheque is so delivered and paid. Upon delivery by TSA Holdco
or TSA to the Trustee of such TSA Class A Common Shares, the Trustee shall
deliver such TSA Class A Common Shares to such Holder (or to such other persons,
if any, properly designated by such Holder). 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 TSA Class A 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 6 of the Exchangeable Share Provisions to require TSA Exchangeco to
redeem any or all of the Exchangeable Shares held by the Holder (the "Retracted
Shares") and is notified by TSA Exchangeco pursuant to Section 6.7 of the
Exchangeable Share Provisions that TSA Exchangeco will not be permitted as a
result of solvency requirements of applicable Law to redeem all such Retracted
Shares, provided that TSA Holdco or TSA shall not have exercised the Retraction
Call Right with respect to the Retracted Shares and that the Holder has not
revoked the Retraction Request delivered by the Holder to TSA Exchangeco
pursuant to Section 6.1 of the Exchangeable Share Provisions, the Retraction
Request will constitute and will 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 which TSA Exchangeco is unable to redeem. In
any such event, TSA Exchangeco hereby agrees with the Trustee and in favor of
the Holder immediately to notify the Trustee of such prohibition against TSA
Exchangeco 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 TSA Exchangeco or to the transfer agent of the Exchangeable Shares
(including without limitation a copy of the retraction request delivered
pursuant to Section 6.1 of the Exchangeable Share Provisions) in connection with
such proposed redemption of the Retracted Shares and the Trustee will thereupon
exercise the Exchange Right with respect to the Retracted Shares that TSA
Exchangeco is not permitted to redeem and will require TSA Holdco or TSA 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 TSA Holdco or TSA
pursuant to the Exchange Right or the Automatic Exchange Rights, the share
certificate or certificates representing TSA Class A Common Shares to be
delivered in connection with the payment of the total 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 TSA Holdco, TSA, TSA Exchangeco 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 have established to the satisfaction of the Trustee,
TSA, TSA Holdco and TSA Exchangeco that such Taxes, if any,
have been paid.
5.9 Notice of TSA Exchangeco Insolvency Event
Immediately upon the occurrence of a TSA Exchangeco Insolvency
Event or any event which with the giving of notice or the passage of time or
both would be an TSA Exchangeco Insolvency Event, TSA Exchangeco and TSA shall
give written notice thereof to the Trustee. As soon as practicable after
receiving notice from TSA Exchangeco and TSA or from any other person of the
occurrence of an TSA Exchangeco Insolvency Event, the Trustee will mail to each
Holder, at the expense of TSA, a notice of such TSA Exchangeco Insolvency Event
in the form provided by TSA, which notice shall contain a brief statement of the
right of the Holders with respect to the Exchange Right.
5.10 Issuance and Listing of TSA Class A Common Shares
For so long as any Exchangeable Shares remain outstanding to
other than TSA and its Affiliates, TSA will cause the TSA Class A Common Shares
which are to be issued directly in consideration for MDL Class A Shares or to be
issued from time to time upon exchange of the Exchangeable Shares, to be quoted
on the NASDAQ or such other exchange or quotation system to the same extent as
TSA stock is quoted generally, subject only to official notice of issuance.
5.11 Reservation of TSA Class A Common Shares
TSA hereby represents, warrants and covenants for the benefit
of the holders of the Exchangeable Shares that it has irrevocably reserved for
issuance and will at all times keep available, free from pre-emptive and other
rights, out of its authorized and unissued capital stock such number of TSA
Class A Common Shares:
(a) as is equal to the sum of:
(i) the number of Exchangeable Shares issued and
outstanding to Holders from time to time; and
(ii) the number of Exchangeable Shares issuable upon the
exercise of all rights of Holders thereof to acquire
Exchangeable Shares outstanding from time to time;
and
(b) as are now and may hereafter be required to enable and
permit TSA Exchangeco and TSA Holdco and TSA to meet their
respective obligations hereunder, under the Support
Agreement, under the Exchangeable Share Provisions and under
any other security or commitment pursuant to which TSA, TSA
Holdco or TSA Exchangeco may now or hereafter be required to
issue or deliver TSA Class A Common Shares to Holders.
5.12 Automatic Exchange on Liquidation of TSA
(a) TSA will give the Trustee written notice of each of the
following events at the time set forth below:
(i) in the event of any determination by the board of
directors of TSA to institute voluntary
liquidation, dissolution or winding-up proceedings
with respect to TSA or to effect any other
distribution of assets of TSA 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; and
(ii) as soon as practicable following the earlier of:
(A) receipt by TSA of notice of ; and
(B) TSA 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 TSA or to
effect any other distribution of assets of TSA among
its shareholders for the purpose of winding up its
affairs, in each case where TSA has failed to contest
in good faith any such proceeding within 30 days of
becoming aware thereof.
(b) As soon as practicable following receipt by the Trustee from
TSA of notice of any event (a "TSA Liquidation Event")
contemplated by Subsection 5.12(a)(i) or 5.12(a)(ii) above,
the Trustee will give notice thereof to the Holders. Such
notice shall include a brief description of the automatic
exchange of Exchangeable Shares for TSA Class A Common
Shares provided for in Section 5.12 (c) below.
(c) In order that the Holders will be able to participate on a
pro rata basis with the holders of TSA Class A Common Shares
in the distribution of assets of TSA in connection with a
TSA Liquidation Event, on the fifth Business Day prior to
the effective date (the "TSA Liquidation Event Effective
Date") of a TSA Liquidation Event all of the
then-outstanding Exchangeable Shares held by Persons other
than TSA and its Affiliates shall be automatically exchanged
for TSA Class A Common Shares (the "Automatic Exchange"). To
effect such Automatic Exchange, TSA Holdco or TSA, as
applicable, shall purchase each Exchangeable Share held by
Persons other than TSA and its Affiliates outstanding on the
fifth Business Day prior to the TSA Liquidation Event
Effective Date, 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 of a TSA Class A
Common Shares on the fifth Business Day prior to the TSA
Liquidation Event Effective Date, which, subject to an
Equivalent Ratio Adjustment, shall be satisfied in full by
TSA issuing to the Holder one TSA Class A Common Share, plus
(b) the Dividend Amount; and plus (c) the Fractional Share
Amount; and plus (d) to the extent not paid by TSA
Exchangeco, all dividends declared on TSA Class A Common
Shares that have not been declared on such Exchangeable
Shares or in respect of which economic equivalence therefor
has not been provided in accordance with Section 3.1 of the
Exchangeable Share Provisions (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 amounts
equivalent to such declared and unpaid dividends). In
connection with such Automatic Exchange, TSA Holdco or TSA
will provide to the Trustee an Officer's Certificate setting
forth the calculation of the purchase price for each
Exchangeable Share.
(d) On the fifth Business Day prior to the TSA Liquidation Event
Effective Date, the closing of the transaction of purchase
and sale contemplated by the Automatic Exchange shall be
deemed to have occurred, and each Holder of Exchangeable
Shares shall be deemed to have transferred to TSA Holdco or
TSA 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 TSA Holdco or TSA shall deliver to
the Holder the TSA Class A Common Shares issuable upon such
Automatic Exchange and on the applicable payment date shall
deliver to the Trustee for delivery to the Holder a cheque
for the balance, if any, of the total purchase price for
such Exchangeable Shares without interest, but less any
amounts withheld pursuant to Section 5.13 hereof.
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 TSA Class A
Common Shares issued to it pursuant to the Automatic
Exchange of Exchangeable Shares for TSA Class A Common
Shares and the certificates held by the Holder previously
representing the Exchangeable Shares exchanged by the Holder
with TSA Holdco or TSA pursuant to such Automatic Exchange
shall thereafter be deemed to represent the TSA Class A
Common Shares delivered to the Holder by TSA Holdco or TSA
pursuant to such Automatic Exchange. Upon the request of a
Holder and the surrender by the Holder of Exchangeable Share
certificates deemed to represent shares of TSA Class A
Common Shares, duly endorsed in blank and accompanied by
such instruments of transfer as TSA and TSA Holdco may
reasonably require, TSA Holdco or TSA shall deliver or cause
to be delivered to the Holder certificates representing the
TSA Class A Common Shares of which the Holder is the holder.
5.13 Withholding Rights
Prior to the exchange or disposition of any Exchangeable
Shares in accordance with this Article, each Holder shall deliver to TSA Holdco
or TSA, at or before such time:
(a) a certificate confirming that such Holder is a resident of
Canada for the purposes of the ITA; or
(b) in the case of a Holder who is a non-resident of Canada for
the purposes of the ITA, a certificate satisfactory to TSA
Holdco or TSA acting reasonably, issued pursuant to
subsection 116(2) of the ITA, with respect to the
Exchangeable Shares, and having as the "certificate limit",
as defined in subsection 116(2) of the ITA, an amount no
less than the cost to TSA Holdco or TSA, as the case may be,
of the Exchangeable Shares (which may be equal to the fair
market value of the TSA Class A Common Shares receivable by
such Holder).
In the case of a Holder who is a partnership, the Holder shall
also provide a certificate confirming the name and address of each member
thereof and the percentage of partnership interest held by each member (which
partners and percentages are clearly contemplated in the applicable
certificate).
In the event that a Holder fails to deliver the requisite
certificates described above at or before the exchange or disposition of such
shares, or in the event that TSA Holdco or TSA is required to deduct or withhold
any amount under any other provision of applicable Tax law, TSA Holdco or TSA
shall be entitled to deduct and withhold from any consideration otherwise
payable to any Holder such amounts as TSA Holdco or TSA is required or permitted
to deduct and withhold with respect to such payment under the ITA or any
provision of provincial or governmental tax law, in each case, as amended or
succeeded, provided that such withheld amount shall not be remitted prior to two
business days prior to the date such amount is required by law to be remitted
(the "Remittance Date") and where such certificate, or a certificate issued
pursuant to subsection 116(4) of the ITA satisfactory to TSA Holdco and TSA
acting reasonably, is delivered prior to such Remittance Date, such withheld
amount shall be released, to such Holder except to the extent that amounts were
withheld or deducted pursuant to another provision of applicable Tax law. To the
extent that amounts are so withheld, such withheld amounts shall be treated for
all purposes hereof as having been paid to the Holder in respect of which such
deduction and withholding was made, provided that such withheld amounts are
actually remitted to the appropriate taxing authority. To the extent that the
amount so required or permitted to be deducted or withheld from any payment to a
Holder exceeds the cash portion of the consideration otherwise payable to the
Holder, TSA Holdco or TSA, as agent of such Holder, is hereby authorized to sell
or otherwise dispose of such portion of the consideration as is necessary to
provide sufficient funds to TSA Holdco or TSA to enable it to comply with such
deduction or withholding requirement and TSA Holdco or TSA shall notify the
Holder thereof and remit to such Holder any unapplied balance of the net
proceeds of such sale. If the proceeds of such sale are insufficient to fund the
required withholding, the Holder shall forthwith pay to TSA Holdco or TSA or
remit to the applicable taxing authority the deficiency. The Holder shall bear
all reasonable costs and expense associated with such sale by purchaser pursuant
to the two immediately preceding sentences.
ARTICLE 6
RESTRICTIONS ON ISSUE OF ADDITIONAL TSA SPECIAL VOTING SHARES
6.1 Issue of Additional TSA Special Voting Shares
During the term of this Agreement, TSA will not, without the
consent of the Holders, given in accordance with Section 9.2 of the Exchangeable
Share Provisions, issue any TSA Special Voting Shares in addition to the Special
Voting Share.
ARTICLE 7
CONCERNING THE TRUSTEE
7.1 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, without
limitation:
(a) receipt and deposit of the Special Voting Share from TSA 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 TSA 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 TSA Class A 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 monies forming, from time to time, a part of
the Trust Estate as provided in this Agreement;
(h) taking action at the direction of a Holder or Holders to
enforce the obligations hereunder of each other party
hereto; 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.
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.
7.2 No Conflict of Interest
The Trustee represents to each other party hereto 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 10 hereof. If, notwithstanding the foregoing
provisions of this Section 7.2, 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 7.2, any interested party may apply to the applicable
court for an order that the Trustee be replaced as trustee hereunder.
7.3 Dealings With Transfer Agents, Registrars, Etc.
TSA Exchangeco, TSA Holdco and TSA 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
the TSA Class A 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 the TSA Class A 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.
TSA Exchangeco and TSA shall irrevocably authorize their
respective registrars and transfer agents to comply with all such requests. TSA
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.
7.4 Books and Records
The Trustee shall keep available for inspection by TSA, TSA
Holdco and TSA Exchangeco, at the Trustee's principal office in Minneapolis,
Minnesota, correct and complete books and records of account relating to the
Trustee's actions under this Agreement, including without limitation, all
relevant data 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 December 1, 2001
and on or before December 1 in every year thereafter, so long as the Special
Voting Share is on deposit with the Trustee, the Trustee shall transmit to TSA
and TSA Exchangeco a brief report, dated as of the preceding September 30 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 delivery
by TSA, or TSA Holdco of TSA Class A 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 which in the Trustee's sole
judgement it had not previously reported and which, in the
Trustee's sole judgement and opinion, materially affects the
Trust Estate.
7.5 Income Tax Return and Reports
The Trustee shall, to the extent necessary, prepare and file
on behalf of the Trust appropriate 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. If requested by the Trustee, TSA shall retain such experts for
purposes of providing such advice and assistance.
7.6 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 (including
reasonable counsel fees) and liabilities which 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 the Special Voting Share pursuant to Article 4 hereof, and with respect to
the Exchange Right pursuant to Article 5 hereof, and with respect to 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, given funds, security and indemnified as aforesaid.
7.7 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 7.6 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.
7.8 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 statutory declarations, certificates,
opinions or reports 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 if such statutory declarations, certificates, opinions
or reports comply with the provisions of Section 7.9 hereof, if applicable, and
with any other applicable provisions of this Agreement.
7.9 Evidence and Authority to Trustee
TSA Exchangeco, TSA Holdco, and/or TSA 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
TSA Exchangeco, TSA Holdco, and/or TSA 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 or 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 TSA Exchangeco, TSA Holdco,
and/or TSA 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 7.9; or
(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this Agreement, gives TSA Exchangeco, TSA
Holdco, and/or TSA 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 TSA
Exchangeco, TSA Holdco, and/or TSA 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 or the Exchange Right or the Automatic Exchange Rights or, the
taking of any other action to be taken by the Trustee at the request or on the
application of TSA Exchangeco, TSA Holdco, and/or TSA, 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 TSA Exchangeco, TSA Holdco, and/or TSA it shall be in the
form of an Officer's Certificate or a statutory declaration.
Each statutory declaration, Officer's 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 trust 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.
7.10 Experts, Advisers and Agents
The Trustee may:
(a) in relation to these presents act and rely on the opinion or
advice of or information obtained from or prepared by any
solicitor, auditor, accountant, appraiser, valuer, engineer
or other expert, whether retained by the Trustee or by TSA
Exchangeco, TSA Holdco and/or TSA 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 (and shall be entitled to receive
reasonable remuneration for all services performed by 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.
7.11 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 or otherwise in respect of the premises.
7.12 Authority to Carry on Business
The Trustee represents to TSA Exchangeco, TSA Holdco, and TSA
that at the date of execution and delivery by it of this Agreement it is
authorized to carry on the business of a National Association in the United
States, with authority to carry out its obligations hereunder but if,
notwithstanding the provisions of this Section 7.12, it ceases to be so
authorized to carry on such business, 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 90 days after ceasing to be authorized to
carry on such business in the United States, either become so authorized or
resign in the manner and with the effect specified in Article 10 hereof.
7.13 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 8
COMPENSATION
8.1 Fees and Expenses of the Trustee
TSA shall pay to the Trustee its annual fees and other charges
for all of the services rendered by it under this Agreement and will reimburse
the Trustee for all reasonable expenses (including but not limited to taxes,
compensation paid to experts, agents and advisors and travel expenses) and
disbursements, (including the cost and expense of any suit or litigation of any
character and any proceedings before any governmental agency) reasonably
incurred by the Trustee in connection with its rights and duties under this
Agreement other than with respect to a dispute between one or more Holders and
TSA and/or its Affiliates, in which event the Trustees fees will be paid by the
non-prevailing party; provided that TSA and its Affiliates and the Holders 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 in bad faith or with gross negligence,
recklessness or willful misconduct.
ARTICLE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 Indemnification of the Trustee
TSA and TSA Exchangeco shall 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 Losses which, without fraud, negligence, recklessness,
willful 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 its compliance with, any written or
oral instructions delivered to the Trustee by TSA or its Affiliates pursuant
hereto. In no case shall TSA and its Affiliates be liable under this indemnity
for any claim against any of the Indemnified Parties unless TSA and TSA
Exchangeco 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, TSA and TSA Exchangeco shall be entitled to participate at their own
expense in the defense and, if TSA and TSA Exchangeco so elect at any time after
receipt of such notice, they may assume the defense 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 defense 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 TSA and TSA Exchangeco, such
authorization not to be unreasonably withheld; or (ii) the named parties to any
such suit include both the Trustee and TSA or TSA Exchangeco or other TSA
Affiliates and the Trustee shall have been advised by counsel acceptable to TSA
and TSA Exchangeco that there may be one or more legal defenses available to the
Trustee that are different from or in addition to those available to TSA or its
Affiliates and that an actual or potential conflict of interest exists (in which
case TSA and TSA Exchangeco shall not have the right to assume the defense of
such suit on behalf of the Trustee but shall be liable to pay the reasonable
fees and expenses of counsel for the Trustee).
ARTICLE 10
CHANGE OF TRUSTEE
10.1 Resignation
The Trustee, or any trustee hereafter appointed, may at any
time resign by giving written notice of such resignation to TSA, TSA Holdco and
TSA Exchangeco 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 TSA, TSA Holdco and TSA Exchangeco 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, TSA, TSA
Holdco and TSA Exchangeco 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 applicable
courts of the Province of Alberta upon application of one or more of the parties
hereto.
10.2 Removal
The Trustee, or any trustee hereafter appointed, may be
removed with or without cause, at any time on 30 days' prior notice by written
instrument executed by TSA, TSA Holdco and TSA Exchangeco, in duplicate, one
copy of which shall be delivered to the trustee so removed and one copy to the
successor trustee.
10.3 Successor Trustee
Any successor trustee appointed as provided under this
Agreement shall execute, acknowledge and deliver to TSA, TSA Holdco and TSA
Exchangeco 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 TSA, TSA Holdco and TSA Exchangeco 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, TSA, TSA Holdco, TSA
Exchangeco 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.
10.4 Notice of Successor Trustee
Upon acceptance of appointment by a successor trustee as
provided herein, TSA and TSA Exchangeco shall cause to be mailed notice of the
succession of such trustee hereunder to each Holder specified in a List. If TSA
or TSA Exchangeco 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 TSA Exchangeco.
ARTICLE 11
TSA SUCCESSORS
11.1 Certain Requirements in Respect of Combination, Etc.
Subject to and without limiting TSA's rights to redeem the
Exchangeable Shares TSA, directly or indirectly, 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: (i) such other person or continuing
corporation (herein called the "TSA 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 satisfactory to the Trustee and are reasonably necessary or
advisable to evidence the assumption by the TSA Successor of TSA's liability for
all monies payable and property deliverable by TSA hereunder and the covenant of
such TSA 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 TSA under
this Agreement; and (ii) such transaction shall, to the satisfaction of the
Trustee, acting reasonably, and in the opinion of legal counsel to the Trustee,
be upon such terms and conditions as substantially preserve and does not impair
in any material respect any of the rights, duties, powers and authorities of the
Trustee or of the Holders hereunder.
Nothing herein shall affect the rights of TSA Exchangeco to
redeem (or TSA Holdco or TSA to purchase pursuant to the Redemption Call Right)
Exchangeable Shares, as applicable.
11.2 Vesting of Powers in Successor
Whenever the conditions of Section 11. 1 hereof have been duly
observed and performed, the TSA Successor and the parties hereto, if required by
Section 11.1 hereof, shall execute and deliver the supplemental agreement
provided for in Section 12.5 hereof and thereupon TSA Successor shall possess
and from time to time may exercise each and every right and power of TSA under
this Agreement in the name of TSA 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 TSA or any officers of TSA may be done and performed with like
force and effect by the directors or officers of such TSA Successor.
11.3 Wholly-Owned Subsidiaries
Nothing herein shall be construed as preventing the
amalgamation, merger or other combination of any wholly-owned direct or indirect
subsidiary of TSA with or into TSA or with or into another wholly-owned direct
or indirect subsidiary of TSA or the winding-up, liquidation or dissolution of
any direct or indirect wholly-owned subsidiary of TSA provided that all of the
assets of such subsidiary are transferred to TSA or another direct or indirect
wholly-owned subsidiary of TSA, and any such transactions are expressly
permitted by this Section 11.3.
ARTICLE 12
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
12.1 Amendments, Modifications, Etc.
Subject to Sections 12.2 and 12.4, this Agreement may not be
amended or modified except by an agreement in writing executed by TSA, TSA
Holdco and TSA Exchangeco and the Trustee and approved by the Holders in
accordance with Section 9.2 of the Exchangeable Share Provisions.
12.2 Administrative Amendments
Notwithstanding the provisions of Section 12.1 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 parties hereto for the
protection of TSA Exchangeco or the Holders;
(b) making such amendments or modifications not inconsistent
with this Agreement as may be necessary or desirable with
respect to matters or questions which, in the good faith
opinion of the board of directors of each of TSA and TSA
Exchangeco and in the good faith 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 good faith 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 which, on the advice of
counsel to TSA Exchangeco, TSA and the Trustee, 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 Trustee and the
board of directors of each of TSA Exchangeco and TSA shall
be of the good faith opinion that such changes or
corrections will not be prejudicial to the interests of the
Holders as a whole.
12.3 Meeting to Consider Amendments
TSA Exchangeco, at the request of TSA, shall call a meeting or
meetings of the Holders for the purpose of considering any proposed amendment or
modification requiring approval pursuant hereto. Holders may also approve any
proposed amendment or modification by written consent of Holders holding not
less than the minimum number of Exchangeable Shares that would be necessary to
authorize or take such action at a meeting of Holders called for such purpose.
Any such meeting or meetings shall be called and held, or written consent given
shall be given in accordance with the by-laws of TSA Exchangeco, the
Exchangeable Share Provisions and all applicable Laws.
12.4 Changes in Capital of TSA and TSA Exchangeco
At all times after the occurrence of any event effected
pursuant to Section 2.7 or Section 2.8 of the Support Agreement or otherwise, as
a result of which either TSA Class A Common Shares or the Exchangeable 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 the TSA Class A 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.
12.5 Execution of Supplemental Agreements
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. From time to
time TSA, TSA Holdco, TSA Exchangeco and the Trustee may, subject to the
provisions of 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 TSA Successors to TSA and the
covenants of and obligations assumed by each such TSA
Successor in accordance with the provisions of Article 11 and
the successor of any successor trustee in accordance with the
provisions of Article 10;
(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 which, in
the opinion of the Trustee, will not be prejudicial to the
interests of the Holders as a whole or are in the opinion of
the Trustee necessary or advisable in order to incorporate,
reflect or comply with any legislation the provisions of
which apply to TSA, TSA Holdco, TSA Exchangeco, the Trustee
or this Agreement; and
(c) for any other purposes not inconsistent with the provisions
of this trust 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 and its counsel, the rights of the
Trustee and the Holders as a whole will not be prejudiced
thereby.
ARTICLE 13
TERMINATION
13.1 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 a Holder;
(b) each of TSA Exchangeco and TSA elects in writing to terminate
the Trust and such termination is approved by the Holders of
the Exchangeable Shares in accordance with Section 9.2 of the
Exchangeable Share Provisions; and
(c) 21 years from the date of this Agreement.
13.2 Survival of Agreement
This Agreement shall survive any termination of the Trust and
shall continue until there are no outstanding Holders of Exchangeable Shares;
provided, however, that the provisions of Articles 8 and 9 hereof shall survive
any such termination of this Agreement.
ARTICLE 14
GENERAL
14.1 Severability
If any provision of this Agreement, or the application
thereof, will for any reason and to any extent be invalid or unenforceable, the
remainder of this Agreement and application of such provision to other persons
or circumstances will be interpreted so as reasonably to effect the intent of
the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the greatest extent possible, the economic, businesses,
legal and other purposes of the void or unenforceable provision.
14.2 Inurement
This Agreement shall be binding upon and inure to the benefit
of the parties hereto, the holders of the Exchangeable Shares and their
respective successors and permitted assigns, as well as to their respective
heirs, executors, trustees, administrators and other personal representatives.
14.3 Notices to Parties
All notices and other communications between the parties hereunder shall be in
writing and shall be deemed given if delivered personally, by facsimile, sent by
nationally-recognized overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following address (or at such other address for a party as shall be specified by
like notice):
(a) if to TSA, TSA Holdco or TSA Exchangeco:
Transaction Systems Architects, Inc.
000 Xxxxx 000xx Xxxxxx
Xxxxx 0
Xxxxx, Xxxxxxxx
00000
Attention: General Counsel and Secretary
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx & XxXxxxxx
BCE Place
000 Xxx Xxxxxx, Xxxxx 0000
X.X. Xxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0
Attention: Xxxxxxxx X. Orysiuk
Facsimile: (000) 000-0000
(b) if to the Trustee to:
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Fargo Bank Center
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx
00000-0000 XXX
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Any notice or other communication given in accordance herewith shall be deemed
to have been given and received upon 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.
14.4 Notice of 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 of Exchangeable Shares in any manner permitted by the
by-laws of TSA Exchangeco from time to time in force in respect of notices to
shareholders and shall be deemed to be received (if given or sent in such
manner) at the time specified in such by-laws, the provisions of which by-laws
shall apply mutatis mutandis to notices or documents as aforesaid sent to such
Holders.
14.5 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 TSA Exchangeco, or by such Holder to the
Trustee or to TSA or TSA Exchangeco, the making of such payment or sending of
such document sent through the post shall be at the risk of TSA Exchangeco, in
the case of payments made or documents sent by the Trustee or TSA Exchangeco,
and the Holder, in the case of payments made or documents sent by the Holder.
14.6 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.
14.7 Jurisdiction; Attornment
The internal laws of the Province of Alberta, Canada
(irrespective of its choice of law principles) will govern the validity of this
Agreement, the construction of its terms and the interpretation and enforcement
of the rights and duties of the parties hereto. 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 Alberta, 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 executed this
Voting and Exchange Trust Agreement as of the date first above written.
TRANSACTION SYSTEMS ARCHITECTS, INC.
By:
______________________________________
Name:
Title:
TRANSACTION SYSTEMS ARCHITECTS NOVA SCOTIA COMPANY
By:
______________________________________
Name:
Title:
TSA EXCHANGECO LIMITED
By:
______________________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
______________________________________
Name:
Title:
SCHEDULE 1
SPECIAL VOTING SHARE ATTRIBUTES
CERTIFICATE OF DESIGNATIONS
OF
SPECIAL PREFERRED VOTING STOCK
OF
TRANSACTION SYSTEMS ARCHITECTS, INC.
Pursuant to the provisions of Section 151(g) of the General Corporation
Law of the State of Delaware (the "DGCL"), and pursuant to its Amended and
Restated Certificate of Incorporation, the undersigned, Transaction Systems
Architects, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in accordance with
the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in
accordance with the provisions of the Amended and Restated Certificate of
Incorporation of the Corporation, the Board of Directors on January 5, 2001,
adopted the following resolution creating a series of Preferred Stock, par value
$.01, designated as "Special Preferred Voting Stock":
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board by the Amended and Restated Certificate of Incorporation,
the Board hereby authorizes the creation of a series of preferred stock, par
value $.01 per share, of the Corporation, such series to be designated Special
Preferred Voting Stock (the "Special Preferred Voting Stock"), and hereby fixes
the designation and number of shares thereof and the other powers, preferences
and relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof as follows:
Section 1. Special Preferred Voting Stock Designated. A series of
Preferred Stock, consisting of one share of such stock, is hereby designated as
"Special Preferred Voting Stock." The outstanding share of Special Preferred
Voting Stock shall be entitled at any relevant date on all matters presented to
the holders of Class A Common Stock of the Corporation to the number of votes
equal to the number of Exchangeable Shares (as such term is defined in the
Voting and Exchange Trust Agreement dated as of January 11, 2001, among the
Corporation, Transaction Systems Architects Nova Scotia Company, TSA Exchangeco
Limited, and Xxxxx Fargo Bank Minnesota, National Association, a trust company
existing under the laws of the State of Minnesota) outstanding from time to
time, other than Exchangeable Shares held by the Corporation and its affiliates.
The Special Preferred Voting Stock and Class A Common Stock shall vote together
as a single class. The Special Preferred Voting Stock shall have no other voting
rights except as required by law. No dividend shall be paid to the holder of
Special Preferred Voting Stock. The Special Preferred Voting Stock is not
convertible into any other class or series of the capital stock of the
Corporation or into cash, property or other rights. The holder of the Special
Preferred Voting Stock shall not be entitled to participate in any payment or
distribution upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation. Any share of Special Preferred Voting Stock
purchased or otherwise acquired by the Corporation shall be deemed retired and
shall be canceled and may not thereafter be reissued or otherwise disposed of by
the Corporation. So long as any Exchangeable Shares shall be outstanding, the
number of shares comprising the Special Preferred Voting Stock shall not be
increased or decreased and no other term of the Special Preferred Voting Stock
shall be amended, except upon the approval of the holder of the outstanding
share of Special Preferred Voting Stock. At such time as no Exchangeable Shares
shall be outstanding, the Special Preferred Voting Stock shall automatically be
cancelled.
IN WITNESS WHEREOF, the undersigned has executed this Certificate and
does affirm the foregoing as true this day of ___________, 2000.
TRANSACTION SYSTEMS ARCHITECTS, INC.
By:/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
General Counsel and Secretary
