EXHIBIT 7(I)
EXECUTION COPY
CONVERSION INDUCEMENT AGREEMENT
CONVERSION INDUCEMENT AGREEMENT (the "AGREEMENT") dated as of
December 28, 2001 between XXXXX CORPORATION LIMITED, a corporation incorporated
under the laws of the Province of Ontario (the "CORPORATION") and Chancery
Lane/GSC Investors L.P., a Delaware limited partnership (together with its
permitted assigns, the "PARTNERSHIP"). Capitalized terms used herein but not
defined when used shall have the meanings ascribed to such terms in Section 1.1.
WITNESSETH:
WHEREAS, the Corporation and the Partnership entered into that
certain Debenture Purchase Agreement dated as of December 12, 2000 (the
"DEBENTURE PURCHASE AGREEMENT");
WHEREAS, as contemplated under the Debenture Purchase Agreement,
on December 21, 2000, the Partnership purchased, and the Corporation sold and
issued to the Partnership, 8.70% Subordinated Convertible Debentures due 2009 in
the original aggregate principal amount of $70,500,000 (the "DEBENTURES");
WHEREAS, the Corporation has paid to the Partnership all interest
accrued under the Debentures through the Closing Date;
WHEREAS, the Corporation desires that the Partnership effect the
conversion in full of the Debentures into Common Shares pursuant to the terms of
the Debentures;
WHEREAS, in order to induce the Partnership to effect the
conversion in full of the Debentures prior to the time at which the Partnership
otherwise would have effected such conversion, the Corporation will cause Xxxxx
Holdings U.S.A. Inc., a corporation incorporated under the laws of the State of
Delaware and a wholly-owned subsidiary of the Corporation ("SUBCO"), to issue to
the Partnership an aggregate amount of 1,650,000 Preferred Shares (the "SUBCO
PREFERRED SHARES") and will deliver the Contingent Consideration, if any, upon
the terms and conditions hereof; and
WHEREAS, following the issuance and delivery of the Subco
Preferred Shares by Subco to the Partnership and the conversion in full of the
Debentures into Common Shares, the Subco Preferred Shares will be transferred to
the Corporation in exchange for 1,650,000 Common Shares (the "INITIAL SHARES"),
upon the terms and conditions under the Transfer Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each party), the
parties hereto agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS. Where used in this Agreement and any Schedule annexed hereto
or in any amendments hereto, the following terms shall have the following
meanings, respectively:
"2002 ADDITIONAL SHARES" has the meaning set out in Section 2.2(b);
"2003 ADDITIONAL SHARES" has the meaning set out in Section 2.2(c);
"2002 CONTINGENT CASH PAYMENT" has the meaning set out in Section 2.2(b);
"2003 CONTINGENT CASH PAYMENT" has the meaning set out in Section 2.2(c);
"2002 PRICE" has the meaning set out in Section 2.2(b);
"2003 PRICE" has the meaning set out in Section 2.2(c);
"ADDITIONAL SHARES" means the 2002 Additional Shares, if any, and the 2003
Additional Shares, if any;
"AFFILIATE" means, at any time, and with respect to any Person, any other Person
that at such time directly or indirectly through one or more intermediaries
Controls, or is Controlled by, or is under common Control with, such first
Person. As used in this definition, "CONTROL" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Corporation;
"ANCILLARY AGREEMENTS" means, collectively, the Registration Rights Agreement
and the Transfer Agreement and any agreements or other documents delivered
pursuant to this Agreement or thereto;
"BOARD" means the Board of Directors of the Corporation;
"BUSINESS DAY" means a day which is not a Saturday, a Sunday or a day observed
as a banking holiday in Toronto, Ontario or New York, New York;
"CAPITAL LEASE" means, at any time, a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP;
"CLAIM" has the meaning set out in Section 7.2;
"CLOSING" has the meaning set out in Section 3.1;
"CLOSING DATE" has the meaning set out in Section 3.1;
"COMMON SHARES" means the common shares in the capital of the Corporation as
currently constituted, any shares resulting from the change of the designation
of such common shares, and any shares into which such common shares may be
changed, converted, exchanged or reclassified;
"CONTINGENT CASH PAYMENTS" means the 2002 Contingent Cash Payment, if any, and
the 2003 Contingent Cash Payment, if any;
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"CONTINGENT CONSIDERATION" means (i) the 2002 Contingent Cash Payment or, at the
option of the Corporation as provided in Section 2.2(b), the 2002 Additional
Shares and (ii) the 2003 Contingent Cash Payment or, at the option of the
Corporation as provided in Section 2.2(c), the 2003 Additional Shares, as the
case may be;
"CORPORATION" has the meaning set out in the Preamble;
"DEBENTURE PURCHASE AGREEMENT" has the meaning set out in the Recitals;
"DEBENTURES" has the meaning set out in the Recitals;
"DOJ" has the meaning set out in Section 5.3;
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended;
"EXCHANGES" means The Toronto Stock Exchange and the NYSE;
"FTC" has the meaning set out in Section 5.3;
"GAAP", in respect of any Person, means generally accepted accounting principles
as in effect from time to time in the country of organization of such Person (it
being understood that for the Corporation, GAAP means Canadian GAAP);
"GENERAL PARTNER" means MIC Investors, Inc.;
"GOVERNMENTAL AUTHORITY" means any national, federal, state, provincial, county,
municipal, district or local government or government body, or any public
administrative or regulatory agency, political subdivision, commission, court,
arbitral body, board or body, or representative of any of the foregoing, foreign
or domestic, of, or established by any such government or government body which
has authority in respect of a particular matter or any quasi-governmental body
having the right to exercise any regulatory authority thereunder;
"GUARANTEE" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person (other than
Guarantees between members of such Person's consolidated financial reporting
group) in any manner, whether directly or indirectly, including (without
limitation) obligations incurred through an agreement, contingent or otherwise,
by such Person:
(a) to purchase such Indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
Indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness
or obligation;
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(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of any other Person to
make payment of the Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or obligation
against loss in respect thereof;
"HSR ACT" has the meaning set out in Section 5.3;
"INDEBTEDNESS" means, in respect of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other than
trade payables incurred in the ordinary course of such Person's business), (c)
all obligations of such Person evidenced by notes, bonds, debentures (including
the Debentures) or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all Capital Leases of such
Person, (f) all obligations of such Person, contingent or otherwise, as an
account party under acceptance, letter of credit or similar facilities, (g) all
obligations of such Person, contingent or otherwise, to purchase, redeem, retire
or otherwise acquire for value any capital stock (other than common shares) of
such Person, (h) all Guarantees of such Person in respect of obligations of the
kind referred to in clauses (a) through (g) above to the extent quantified as
liabilities, contingent obligations or like term in accordance with GAAP on the
balance sheet (including notes thereto) of such Person, (i) all obligations of
the kind referred to in clauses (a) through (h) above secured by (or for which
the holder of such obligation has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, (but only to the extent of the
fair market value of such Property), (j) all Swaps of such Person and (k) the
liquidation value of any preferred capital stock of such Person or its
Subsidiaries held by any Person other than such Person and its Wholly-Owned
Subsidiaries;
"INDEMNIFIED PARTY" has the meaning set out in Section 7.2;
"INDEMNIFYING PARTY" has the meaning set out in Section 7.2;
"INITIAL SHARES" has the meaning set out in the Recitals;
"ITA" means the Income Tax Act (Canada);
"LIEN" means, with respect to any Person, any voluntary or involuntary,
mortgage, lien, pledge, charge, security interest, right of first offer, right
of first refusal or other similar right or obligation under a shareholders or
similar agreement, or other encumbrance, or any interest or title of any vendor,
lessor, lender or other secured party to or of such Person under any conditional
sale or other title retention agreement or Capital Lease, upon or with respect
to any property or asset of such Person (including in the case of shares,
shareholder agreements, voting trust agreements and all similar arrangements);
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"LOSSES", in respect of any matter, means all claims, demands, proceedings,
losses, damages (other than punitive, special or consequential damages and
including incidental damages), liabilities, diminution in value, deficiencies,
costs and expenses (including, without limitation, all reasonable legal and
other professional fees and disbursements and all interest, penalties and
amounts paid in settlement) arising directly or indirectly as a consequence of
such matter;
"MATERIAL" means material in relation to the business, operations, results of
operations, financial or other condition, assets, properties or liabilities of
the Corporation and its Subsidiaries taken as a whole;
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the business,
operations, results of operations, financial or other condition, assets,
properties or liabilities of the Corporation and its Subsidiaries taken as a
whole, or (b) the ability of the Corporation to perform its obligations under
this Agreement and the Ancillary Agreements, or (c) the validity or
enforceability of this Agreement or the Ancillary Agreements;
"MATERIAL CONTRACT" means all of the Corporation's material contracts (including
any contract evidencing Indebtedness) which a corporation registered under
Section 12 of the Exchange Act would be required to file in response to Item 10
of Rule 601 of Regulation S-K promulgated under the U.S. Securities Act;
"NYSE" means The New York Stock Exchange, Inc.;
"OBCA" means the BUSINESS CORPORATIONS ACT (Ontario);
"ONTARIO SECURITIES ACT" means the SECURITIES ACT (Ontario), as the same may be
amended, re-enacted or replaced from time to time;
"OSC" means the Ontario Securities Commission;
"PARTNERSHIP" has the meaning set out in the Preamble;
"PARTNERSHIP AGREEMENT" means that certain Partnership Agreement of the
Partnership dated as of December 12, 2000, as amended, supplemented, changed or
modified from time to time;
"PERSON" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or Governmental
Authority;
"PREFERRED SHARES" means the exchangeable preferred stock, no par value per
share, of Subco;
"PROPERTY" or "PROPERTIES" means, unless otherwise specifically limited, real or
personal property of any kind, tangible or intangible, xxxxxx or inchoate;
"PUBLIC FILINGS" has the meaning set out in Section 4.1(l);
"REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement to be
entered into by the Corporation, the Partnership and certain limited partners of
the Partnership on the Closing
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Date, substantially in the form annexed hereto as EXHIBIT 1, as amended,
supplemented, changed or modified from time to time;
"RESPONSIBLE OFFICERS" means, with respect to any Person, any chief financial
officer, treasurer or controller of the Person and any other officer of the
Person reasonably expected to have knowledge of the matter as to which such
officer's knowledge is required;
"SEC" means the United States Securities and Exchange Commission;
"SIGNIFICANT SUBSIDIARY" means (i) any Subsidiary that, as of the relevant date
of determination, had assets that had a fair market value representing 10% or
more of the total consolidated assets of the Corporation and its Subsidiaries or
revenues representing 10% or more of the total consolidated revenues of the
Corporation and its Subsidiaries and (ii) Subco (for the purposes of this
Agreement);
"SUBCO" has the meaning set out in the Preamble;
"SUBCO PREFERRED SHARES" has the meaning set out in the Recitals;
"SUBSIDIARY" means, as to any Person, any corporation, association or other
business entity in which such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership, limited liability
company or joint venture if more than a 50% interest in the profits or capital
thereof is owned by such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries (unless such partnership, limited
liability company or joint venture can and does ordinarily take major business
actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Corporation;
"SWAPS" means, with respect to any Person, payment obligations with respect to
interest rate swaps, currency swaps and similar obligations obligating such
Person to make payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount of the obligation
under any Swap shall be the amount determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person, based on the
assumption that such Swap had terminated at the end of such fiscal quarter, and
in making such determination, if any agreement relating to such Swap provides
for the netting of amounts payable by and to such Person thereunder or if any
such agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined;
"TRANSFER AGREEMENT" means the Transfer Agreement to be entered into by and
among the Corporation and the Partnership or its permitted assignees on the
Closing Date;
"TSE NOTICE" means the notice required to be filed by the Corporation with, and
accepted by, The Toronto Stock Exchange pursuant to Section 619 of the Company
Manual of The Toronto Stock Exchange;
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"U.S. SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time; and
"WEIGHTED AVERAGE TRADING PRICE PER SHARE" means the weighted average of the
reported per share prices at which transactions in the Common Shares are
executed on the NYSE during the twenty consecutive NYSE trading days (defined as
9:30 a.m. through 4:00 p.m., Eastern Time) ending on the trading day immediately
prior to the date of determination (weighted based on the number of shares of
Common Shares traded), as such weighted average price appears on the Bloomberg
screen "Volume at Price" page for the Common Shares.
1.2 RULES OF CONSTRUCTION. Unless the context otherwise requires, in this
Agreement:
(a) "Agreement", "this Agreement", "the Agreement", "hereto",
"hereof", "herein", "hereby", "hereunder" and similar expressions
mean or refer to this Agreement as amended from time to time,
including the Schedules and Exhibits annexed hereto or to any
amendment to this Agreement, and any agreement or instrument
supplemental hereto and the expressions "Article", "Section",
"Schedule" and "Exhibit" followed by a number or letter mean and
refer to the specified Article, Section, Schedule or Exhibit of
this Agreement;
(b) the division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation thereof;
(c) words importing the singular number only shall include the plural
and vice versa and words importing the use of any gender shall
include all genders;
(d) reference to any agreement, indenture or other instrument in
writing means such agreement, indenture or other instrument in
writing as amended, modified, replaced or supplemented from time
to time;
(e) reference to any statute shall be deemed to be a reference to such
statute as amended, re-enacted or replaced from time to time;
(f) if there is any conflict or inconsistency between the provisions
contained in the body of this Agreement and those of any Schedule
or Exhibit (other than the Ancillary Agreements) hereto, the
provisions contained in the body of this Agreement shall prevail;
(g) time periods within which a payment is to be made or any other
action is to be taken hereunder shall be calculated excluding the
day on which the period commences and including the day on which
the period ends; and
(h) whenever any payment to be made or action to be taken hereunder is
required to be made or taken on a day other than a Business Day,
such payment shall be made or action taken on the next following
Business Day.
1.3 SEVERABILITY. If any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such determination shall not
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impair or affect the validity, legality or enforceability of the remaining
provisions hereof, and each provision is hereby declared to be separate,
severable and distinct. To the extent that any such provision is found to be
invalid, illegal or unenforceable, the parties hereto shall act in good faith to
substitute for such provision, to the extent possible, a new provision with
content and purpose as close as possible to the provision so determined to be
invalid, illegal or unenforceable.
1.4 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
construed, interpreted and enforced in accordance with, and the respective
rights and obligations of the parties shall be governed by, the laws of the
State of New York, without regard to principles governing conflicts of law. Each
of the parties hereby submits to the exclusive jurisdiction of the courts of the
State of New York and all courts competent to hear appeals therefrom, and waives
any objection as to venue in the County of New York, State of New York with
respect to any suit, claim or other dispute arising out of or related to this
Agreement or the Ancillary Agreements.
1.5 WAIVER OF IMMUNITY. To the extent that any of the parties hereto has or
hereafter may be entitled to claim or may acquire, for itself or any of its
assets, any immunity from suit, jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, or otherwise) with respect to itself or its
property, it hereby irrevocably waives such immunity in respect of its
obligations hereunder or under the Ancillary Agreements to which it may be a
party to the fullest extent permitted by applicable law and, without limiting
the generality of the foregoing, agrees that the waivers set forth in this
Section 1.5 shall be effective to the fullest extent now or hereafter permitted
under the Foreign Sovereign Immunities Act of 1976 of the United States of
America and are intended to be irrevocable for purposes of such Act.
1.6 WAIVER OF JURY TRIAL. Each party hereto hereby waives, to the fullest
extent permitted by applicable laws, any right it may have to a trial by jury in
respect of any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the Ancillary Agreements. Each party hereto
(a) certifies that no representative, agent or counsel of the other party has
represented expressly or otherwise that the other party would not, in the event
of litigation, seek to enforce the foregoing waiver, and (b) acknowledges that
it and the other party hereto have been induced to enter into this Agreement and
the Ancillary Agreements by, among other things, the mutual waivers and
certifications contained in this Section 1.6.
1.7 CURRENCY. All references to currency herein are to lawful money of the
United States of America.
1.8 TAX EFFECT. The parties hereto intend, for United States federal income
tax purposes, that the transactions contemplated hereby qualify as a
reorganization within the meaning of Section 368(a)(1)(E) of the United States
Internal Revenue Code of 1986, as amended, and shall file all United States
federal income tax returns consistently with such treatment.
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2. ISSUANCE AND EXCHANGE OF SUBCO PREFERRED SHARES; CONTINGENT CONSIDERATION
2.1 INITIAL SHARES.
(a) Upon the terms and subject to the conditions of this Agreement, at
the Closing, the Corporation shall cause Subco to issue to the
Partnership the Subco Preferred Shares, free and clear of any
Liens, other than Liens created under this Agreement or the
Transfer Agreement and shall deliver to the Partnership the
Contingent Consideration in accordance with the terms of Section
2.2.
(b) Upon the terms and subject to the conditions of this Agreement and
the Transfer Agreement, the Subco Preferred Shares shall be
transferred to the Corporation in exchange for the Initial Shares,
free and clear of any Liens, other than Liens created under this
Agreement or the Transfer Agreement.
2.2 CONTINGENT CONSIDERATION.
(a) Upon the terms and subject to the conditions of this Agreement and
the Transfer Agreement, the Corporation shall issue or pay the
Contingent Consideration to the Partnership in accordance with the
terms of this Section 2.2.
(b) If the Weighted Average Trading Price Per Share determined as of
December 31, 2002 (as adjusted pursuant to paragraph (e) of this
Section 2.2, the "2002 PRICE") is less than $8.00 per share (as
adjusted pursuant to paragraph (e) of this Section 2.2), then the
Corporation shall pay to the Partnership, on December 31, 2002, an
amount in cash (the "2002 CONTINGENT CASH PAYMENT") equal to the
lesser of : (i) (A) $14,000,000 minus (B) the value of the Initial
Shares on such date, determined by multiplying the number of
Initial Shares (as adjusted pursuant to paragraph (e) of this
Section 2.2) by the 2002 Price; and (ii) the value of 3,000,000
Common Shares (as adjusted pursuant to paragraph (e) of this
Section 2.2), on such date, determined by multiplying 3,000,000 by
the 2002 Price. At the option of the Corporation, the Corporation
may satisfy the 2002 Contingent Cash Payment obligation by issuing
to the Partnership, on December 31, 2002, instead of the 2002
Contingent Cash Payment, an additional number of Common Shares,
free and clear of any Liens other than Liens created under this
Agreement or the Transfer Agreement (the "2002 ADDITIONAL SHARES")
equal to the number obtained by dividing the 2002 Contingent Cash
Payment by the 2002 Price.
(c) If the Weighted Average Trading Price Per Share determined as of
December 31, 2003 (as adjusted pursuant to paragraph (e) of this
Section 2.2, the "2003 PRICE") is less than $10.83 per share (as
adjusted pursuant to paragraph (e) of this Section 2.2), then the
Corporation shall pay to the Partnership, on December 31, 2003, an
amount in cash (the "2003 CONTINGENT CASH PAYMENT") equal to the
lesser of : (i) $9,000,000 and (B) the value of 6,000,000 Common
Shares (as adjusted pursuant to paragraph (e) of this Section
2.2), on such date, determined by multiplying 6,000,000 by the
2003 Price; PROVIDED, HOWEVER, that if, prior to
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December 31, 2003, the Partnership sells any of the Initial Shares
or the 2002 Additional Shares issued pursuant to paragraph (b) of
this Section 2.2 to any Person (other than any permitted assignee
of the Partnership or an Affiliate of a permitted assignee), then
the foregoing amount shall be reduced on a dollar-for-dollar basis
by the amount, if any, that the aggregate cash proceeds received
from any such sale(s) prior to December 31, 2003 of Initial Shares
or 2002 Additional Shares exceeds the product of (i) the number of
such Initial Shares and 2002 Additional Shares that have been sold
prior to December 31, 2003 and (ii) the Weighted Average Trading
Price Per Share determined as of the Closing Date. At the option
of the Corporation, the Corporation may satisfy the 2003
Contingent Cash Payment obligation by issuing to the Partnership,
on December 31, 2003, instead of the 2003 Contingent Cash Payment,
an additional number of Common Shares, free and clear of any Liens
other than Liens created under this Agreement or the Transfer
Agreement (the "2003 ADDITIONAL SHARES") equal to the number
obtained by dividing the 2003 Contingent Cash Payment by the 2003
Price. In order to determine whether any Initial Shares or 2002
Additional Shares have been sold as provided in the proviso of the
first sentence of this paragraph (c), all Common Shares received
by the Partnership (or any permitted assignee of the Partnership,
as the case may be) upon conversion of the Debentures shall be
deemed to have been sold first and shall not be considered in the
application of such proviso. In addition, the Initial Shares and
any 2002 Additional Shares that were issued pursuant to paragraph
(b) of Section 2.1 and paragraph (b) of this Section 2.2 shall be
kept in a segregated account separate and apart from any shares
issued upon conversion of the Debentures or otherwise acquired by
the Partnership (or such permitted assignee or an Affiliate of
such permitted assignee). Prior to issuing any of the 2003
Additional Shares, the Partnership shall provide a certificate to
the Corporation certifying the number and sale price of any
Initial Shares and any 2002 Additional Shares that were issued
pursuant to paragraph (b) of Section 2.1 and paragraph (b) of this
Section 2.2 that were sold by the Partnership (or such permitted
assignee or an Affiliate of such permitted assignee) prior to
December 31, 2003 (other than to any permitted assignee of the
Partnership or an Affiliate of a permitted assignee), together
with a copy of the broker's account statement for such sales if
requested by the Corporation.
(d) Any Additional Shares issued in satisfaction of the Contingent
Cash Payments may be issued to the Partnership on exchange of
exchangeable preferred shares of a wholly-owned non-Canadian
subsidiary of the Corporation using the structure contemplated in
Sections 3.2(a), 3.2(b) and 3.3(a) hereof; PROVIDED, that, at the
time of such issuance, the Corporation makes representations,
warranties, covenants and indemnities to the Partnership with
respect to such exchangeable preferred shares that are
substantially the same as those made by the Corporation to the
Partnership with respect to the Subco Preferred Shares.
(e) The number of Common Shares used to determine the 2002 Contingent
Cash Payment and the 2003 Contingent Cash Payment pursuant to
paragraphs (b) and (c) above and the 2002 Price and the 2003 Price
shall be adjusted in the event of a merger, consolidation,
recapitalization, stock split, reclassification or other similar
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event or distribution in which the Common Shares are converted,
exchanged or otherwise changed. The Corporation shall forthwith
give notice to the Partnership in the manner provided in Section
11 specifying the event requiring such adjustment or readjustment
and the results thereof, including the number of Common Shares
used to determine the 2002 Contingent Cash Payment and the 2003
Contingent Cash Payment pursuant to paragraphs (b) or (c) above
and the resulting 2002 Price and 2003 Price. Furthermore, the
Corporation shall give notice to the Partnership, in the manner
provided in Section 11, of its intention to take any action that
may give rise to any such adjustment or readjustment at the same
time as any public announcement thereof and in any event no later
than the time at which holders of Common Shares are notified of
any such action, and, in each case, such notice shall specify the
particulars of such event and the record date and the effective
date for such event; PROVIDED, that the Corporation shall only be
required to specify in such notice such -------- particulars of
such event as shall have been fixed and determined on the date on
which such notice is given. Such notice shall be given not less
than 7 days in each case prior to such applicable record date or
effective date, whichever is earlier.
(f) Upon the issuance of any 2002 Additional Shares and 2003
Additional Shares as contemplated by this Section 2.2, the
Corporation shall deliver to the Partnership a duly executed stock
certificate or certificates representing such shares registered in
the name of the Partnership as requested by the Partnership as
promptly on or after the relevant December 31 delivery date as the
Corporation's transfer agent can prepare such certificate or
certificates for such delivery. In addition, the Corporation shall
issue the opinions of counsel to the Corporation, dated the
issuance dates of the 2002 Additional Shares and the 2003
Additional Shares, with respect to the issuance of such Additional
Shares, each substantially in the form of the opinions deliverable
to the Partnership pursuant to Section 3.2(d)(ii).
3. CLOSING; DELIVERY
3.1 CLOSING. The closing of the transactions contemplated by Section 3 (the
"CLOSING") shall take place at 10:00 a.m. (New York City time) at the offices of
Squadron Ellenoff Plesent & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
xx December 28, 2001 (such closing day or such other time being hereinafter
referred to as the "CLOSING DATE") or at such other time or place as may be
agreed by the parties hereto in writing.
3.2 ACTIONS BY THE CORPORATION AT CLOSING. At the Closing, the Corporation
shall undertake the following steps in the following order and the completion of
the action set out in Section 3.3(a) is a condition precedent to the issuance of
the Subco Preferred Shares and the covenant to pay the Contingent Consideration:
(a) immediately after the action set forth in Section 3.3(a) below is
taken, cause Subco to deliver to the Partnership a duly executed
stock certificate or certificates registering the Subco Preferred
Shares in the name of the Partnership;
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(b) against delivery of the Subco Preferred Shares as contemplated in
Section 3.3(c) below, deliver to the holder(s) of the Subco
Preferred Shares a duly executed stock certificate or certificates
registering the Initial Shares as directed by the holder(s) of the
Subco Preferred Shares;
(c) deliver to the Partnership the Ancillary Agreements duly executed
by the Corporation; and
(d) deliver or cause to be delivered to the Partnership the following:
(i) copies of resolutions of the Board and the board of
directors of Subco authorizing the transactions
contemplated by this Agreement and the Ancillary
Agreements, each certified as being true and correct
and not having been modified or rescinded since
their adoption by the Secretary or Assistant
Secretary of each of the Corporation and Subco,
together with incumbency certificates duly executed
by the Secretary or Assistant Secretary of each of
the Corporation and Subco for those officers of the
Corporation and Subco executing this Agreement and
any of the Ancillary Agreements on their behalf;
(ii) opinions of counsel addressed to the Partnership,
each dated the Closing Date, covering the matters
set forth on EXHIBIT 2; and
(iii) such other documents and certificates duly executed
as the Partnership may reasonably request in order
to effect the transactions contemplated hereby.
3.3 ACTIONS BY THE PARTNERSHIP AT CLOSING. At the Closing, the Partnership
shall:
(a) exchange an aggregate of $18 million principal amount of
Debentures for the entire Class B limited partnership interest of
two Class B limited partners of the Partnership, subject to the
agreement of such Class B limited partners immediately to convert
such Debentures in accordance with the terms of the Debentures;
(b) effect the conversion of the remaining Debentures into Common
Shares (either by converting or causing its remaining limited
partners to convert) in accordance with the terms of the
Debentures;
(c) upon receipt from Subco of the Subco Preferred Shares, deliver or
cause its permitted assigns to deliver the Subco Preferred Shares
to the Corporation in exchange for the Initial Shares contemplated
in Section 3.2(b) above;
(d) deliver to the Corporation the Ancillary Agreements fully executed
by the parties thereto other than the Corporation; and;
(e) deliver or cause to be delivered to the Corporation the following:
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(i) copies of resolutions of the board of directors of the
General Partner authorizing the transactions contemplated
by this Agreement and the transactions being entered into
by the Partnership as contemplated in the Ancillary
Agreements to which it is a party, each certified as being
true and correct and not having been modified or rescinded
since their adoption by the Secretary or Assistant
Secretary of the General Partner, together with incumbency
certificates duly executed by the Secretary or Assistant
Secretary of the General Partner for those officers of the
General Partner executing this Agreement and any of the
Ancillary Agreements on its behalf;
(ii) the opinion of counsel addressed to the Corporation, each
dated the Closing Date, covering the matters set forth on
EXHIBIT 3; and
(iii) such other documents and certificates duly executed as the
Corporation may reasonably request in order to effect the
transactions contemplated hereby.
4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The Corporation
represents and warrants to the Partnership as follows (in each case except as
disclosed in the applicable referenced paragraphs of the Disclosure Schedule
Letter of even date herewith delivered by the Corporation to the Partnership in
connection with the transactions contemplated hereby (the "DISCLOSURE LETTER"))
and acknowledges that the Partnership is relying upon such representations and
warranties in connection with their entering into this Agreement:
(a) ORGANIZATION; POWER AND AUTHORITY. Each of the Corporation and
Subco is duly incorporated or organized and is validly subsisting
under the laws of its jurisdiction of incorporation or
organization; each of the Corporation and Subco has all necessary
corporate or other legal power and authority to own or lease its
property and to carry on its business as presently carried on by
it and the Corporation has all necessary corporate power and
authority to execute and deliver this Agreement and the Ancillary
Agreements and to comply with its obligations hereunder and
thereunder. Each of the Corporation and Subco is duly qualified as
a corporation or other applicable legal entity to carry on
business and is in good standing in each jurisdiction in which the
nature of the business conducted by it or the property owned or
leased by it makes such qualification necessary except where any
failure to so qualify would not, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect.
(b) AUTHORIZED CAPITAL. The authorized capital of the Corporation
consists of an unlimited number of preference shares issuable in
series and an unlimited number of Common Shares, of which, on
December 28, 2001, no preference shares and 88,456,940 Common
Shares are issued and outstanding and all of which are validly
issued, fully paid, non-assessable and free of pre-emptive rights.
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(c) NO OPTIONS, ETC. As of December 28, 2001, there are no outstanding
agreements, warrants, options, rights or privileges, pre-emptive
or contractual, capable of becoming an agreement, including
convertible or exchangeable securities, to subscribe for, purchase
or otherwise acquire, or otherwise obligating the Corporation or
any of its Subsidiaries to issue, any shares of the Corporation or
any of its Subsidiaries or securities convertible into or
exchangeable for shares of the Corporation or any of its
Subsidiaries, other than: (i) options to purchase an aggregate of
5,193,000 Common Shares held by employees of the Corporation and
its Subsidiaries, of which options to purchase 3,228,000 Common
Shares are vested and exercisable, and the remaining options to
acquire 1,965,000 Common Shares are not vested or exercisable, and
which become vested and exercisable in accordance with the terms
of the relevant plans; (ii) rights under joint venture and similar
agreements governing Subsidiaries that are not Significant
Subsidiaries; and (iii) as contemplated by this Agreement. Neither
the Corporation nor any of its Subsidiaries is a party to any
voting or sale agreements with respect to the Corporation's or any
Subsidiary's share capital. Except as provided in this Agreement
and the Transfer Agreement and except as set forth in the Public
Filings, neither the Corporation nor any of its Subsidiaries is
under any obligation to redeem or purchase any of the
Corporation's or any Subsidiary's outstanding securities. The
Compensation Committee of the Board has proposed option grants
covering approximately 1,000,000 Common Shares under the
Corporation's 2001 Long Term Incentive Plan. The proposed grants
have been approved by the Board and will become effective upon the
determination of an officer of the Corporation to whom the
authority to make the grants has been delegated.
(d) AUTHORIZATION, ETC.
(i) The directors of the Corporation have taken all
necessary corporate action to authorize the
execution, delivery and performance of this
Agreement and the Ancillary Agreements, including
the due creation, issuance and delivery of the
Initial Shares and the payment of the Contingent
Cash Payments. No action of the shareholders of the
Corporation is required to authorize the execution,
delivery and performance of this Agreement and the
Ancillary Agreements, including the due creation,
issuance and delivery of the Initial Shares and the
payment of the Contingent Cash Payments. Each of
this Agreement and the Ancillary Agreements has been
duly executed and delivered on behalf of the
Corporation and constitute and will constitute
legal, valid and binding obligations of the
Corporation enforceable by the Partnership in
accordance with their respective terms, except as
the enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general
application affecting the enforcement of creditors'
rights and subject to the qualification that
specific performance and injunction, being equitable
remedies, may be granted only in the discretion of a
court of competent jurisdiction.
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(ii) The directors of Subco have taken all necessary
corporate action to authorize the issuance and
delivery of the Subco Preferred Shares, including
the due creation, issuance and delivery of the Subco
Preferred Shares. No action of the shareholders of
Subco which has not been taken is required to
authorize the issuance and delivery of the Subco
Preferred Shares.
(e) TITLE TO SECURITIES.
(i) Upon the issuance thereof, the Initial Shares will
be validly issued, fully paid, non-assessable and
free of pre-emptive rights or any other Liens, other
than any Liens created by the Partnership, this
Agreement or the Ancillary Agreements.
(ii) Upon the issuance thereof, the Subco Preferred
Shares will be validly issued, fully paid,
non-assessable and free of pre-emptive rights or any
other Liens, other than any Liens created by the
Partnership, this Agreement or the Ancillary
Agreements.
(f) COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. None of: (i) the
authorization, execution, delivery or performance by the
Corporation of this Agreement and the Ancillary Agreements,
including, without limitation, the allotment and issuance of the
Initial Shares and the Subco Preferred Shares; or (ii) the
issuance or the acquisition of the Initial Shares and the Subco
Preferred Shares as provided herein, (A) will violate the
provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Corporation or any of its
Subsidiaries, except the HSR Act, or (B) will contravene, result
in any breach of or is in conflict with and does not and will not
result in a breach of and does not and will not create a state of
facts which after notice or lapse of time or both will result in a
breach of any of the terms or provisions of the articles or
by-laws of the Corporation or Subco, the resolutions of the
directors or shareholders of the Corporation or Subco or any
Material Contract to which the Corporation or any of its
Subsidiaries is a party or by which the Corporation or any of its
Subsidiaries or the properties or assets of the Corporation or any
of its Subsidiaries are or may become bound or results or would
result in the creation or imposition of any Lien upon any of the
Material Properties or assets of the Corporation or any of its
Subsidiaries pursuant to the terms of any such contract or result
in any acceleration or other change in rights of others or an
imposition of any penalty or other payments under any of the
foregoing. All legal, regulatory, administrative, corporate and
shareholder approvals, consents, authorizations, rulings, orders
and permits, including, without limitation, the TSE Notice, which
are necessary for completion of all of the transactions
contemplated hereby, including the issuance of the Initial Shares
by the Corporation and the Subco Preferred Shares by Subco and any
required approvals, have been obtained and are in full force and
effect. The issuance to and receipt by the Partnership of the
Subco Preferred Shares and the Initial Shares do not (x) violate
any applicable law or regulation other than violations that do not
have a material adverse effect on the transactions
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contemplated hereby or by the Ancillary Agreements and (y) subject
the Corporation or Subco to any material Canadian tax, penalty or
liability under or pursuant to any applicable law or regulation.
(g) NO ACTION, ORDERS, ETC. No order suspending the sale or ceasing
the trading of the Common Shares, or the issuance of the Initial
Shares, the Subco Preferred Shares or the payment of the
Contingent Cash Payments, has been issued by any court, securities
commission or regulatory authority in Canada or the United States.
There is no action or proceeding in Canada or in the United States
in front of any Governmental Authority shall be (i) pending or, to
the knowledge of the Responsible Officers of the Corporation and
Subco after reasonable inquiry, threatened by any Governmental
Authority to cease trade, enjoin or prohibit or (ii) pending or,
to the knowledge of the Responsible Officers of the Corporation
and Subco after reasonable inquiry, threatened in writing by any
other Person where such action or proceeding would be reasonably
likely to cease trade, enjoin or prohibit, in either such case,
the issuance of the Initial Shares, the Subco Preferred Shares and
the payment of the Contingent Cash Payments contemplated hereby,
or the obligation of the Corporation to issue Common Shares upon
the valid conversion right of the Debentures.
(h) REPORTING ISSUER STATUS. The Corporation is a "reporting issuer",
as defined in the Ontario Securities Act, has been a reporting
issuer in Ontario and the other Provinces of Canada that have a
"reporting issuer" concept for at least six months prior to the
date hereof, and is not in material default of any filings
required to be made pursuant to the Ontario Securities Act and the
regulations made thereunder or pursuant to other securities laws
and regulations and rules made thereunder or under the securities
laws of the other Provinces of Canada and applicable to the
Corporation.
(i) SECURITIES LAWS. Subject to the filing by the Corporation of a
Form 45-501F1 or Form 45-501F2 pursuant to Rule 45-501 of the OSC
within 10 days following the Closing Date, compliance with the
requirements of the Exchanges and the Partnership and each of its
limited partners meeting applicable reporting requirements and
requirements as to its status (including purchasing as principal,
investment intent and status as an accredited investor), the
allotment and issuance of the Initial Shares and the allotment and
issuance of the Subco Preferred Shares will not require
registration under the U.S. Securities Act and will be exempt from
the registration and prospectus requirements of the Ontario
Securities Act and will not result in any contravention of such
securities laws of the United States (other than blue sky laws) or
Canada or the securities laws of any other applicable jurisdiction
(other than blue sky laws), and regulations and rules made
thereunder and applicable to the Corporation. The Corporation is a
"qualifying issuer" within the meaning of Multilateral Instrument
45-102.
(j) LITIGATION, ETC. There is not pending against the Corporation or
any of its Subsidiaries or, to the knowledge of the Responsible
Officers of the Corporation, threatened against the Corporation or
any of its Subsidiaries, any litigation, action,
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suit or other proceeding by or before any court, tribunal,
Governmental Authority, securities commission or regulatory body
that, individually or in the aggregate, would reasonably be
expected to adversely affect the ability of the Corporation or
Subco to consummate the transactions contemplated in this
Agreement or the Ancillary Agreements.
(k) TAXES. There is no Canadian non-resident withholding tax under
Part XIII of the ITA and, provided: (i) none of the Partnership,
any of its partners and any person with whom the Partnership or
its partners does not deal at arm's length for purposes of the ITA
owns (or, at any time during the 60 month period that ends on the
Closing Date, owned), or has (or at any time during the 60 month
period that ends on the Closing Date, had) an absolute or
contingent right to acquire, any shares of the Corporation other
than as contemplated in this Agreement or the Ancillary Agreements
,which ownership or right, either by itself or together, or when
combined with the right of the Partnership and its partners to
acquire shares of the Corporation as contemplated by this
Agreement and the Ancillary Agreements, would result in the
Debentures constituting taxable Canadian property of the
Partnership or any of its partners for purposes of the ITA; (ii)
each of DB Capital Investors, L.P. and BTIP/Xxxxxxxx Xxxxxxx deals
at arm's length with each other, the Partnership and all the other
partners of the Partnership for purposes of the ITA; (iii) for
purposes of the ITA, the Debentures are not used or held by the
Partnership or any of its partners in carrying on business in
Canada and do not constitute designated insurance property of any
partner that is an insurer; and (iv) no partner of the Partnership
or of any partnership that is directly or indirectly a member of
the partnership, and no beneficiary of a trust that is a member of
any such partnership, is a resident of Canada for purposes of the
ITA, there is no other Canadian tax or Canadian tax filing
requirement applicable in respect of the transactions contemplated
in this Agreement or the Ancilllary Agreements.
(l) FILED DOCUMENTS AND FINANCIAL STATEMENTS. Each of the documents
filed by the Corporation with the SEC under the U.S. Securities
Act and the Exchange Act and the OSC under the Ontario Securities
Act and other Canadian securities regulatory authorities under
Canadian securities legislation since December 31, 2000 (the
"PUBLIC FILINGS") complied as to form in all material respects
with all of the applicable requirements of the Ontario Securities
Act, the U.S. Securities Act, the Exchange Act and other
applicable Canadian securities legislation, as applicable, and did
not contain any untrue statement of a material fact or omit to
state any material fact required to be contained therein or
necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not
misleading, except to the extent superseded by subsequent filings
in effect as of the date of this Agreement and included in the
Public Filings.
(m) LISTING AND STOCK EXCHANGE APPROVALS. The Common Shares are listed
and posted for trading on the Exchanges. The Corporation is in
good standing with the Exchanges and in full compliance with the
rules and regulations thereof. To
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the extent required under the rules thereof, the Exchanges have
approved the issuance of the Subco Preferred Shares and the
Initial Shares in accordance with the terms of this Agreement and
the Transfer Agreement pursuant to all applicable by-laws, rules,
policies and regulations of the Exchanges, and each of the
Exchanges have accepted as at such time the listing or posting for
trading of that number of Initial Shares which shall be issued
under Section 2.1(b) hereof, subject to the filing of required
documents and payment of the necessary listing fees by the
Corporation.
(n) STATUS UNDER CERTAIN STATUTES. Neither the Corporation nor any of
its Subsidiaries is subject to regulation under the Investment
Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Interstate Commerce Act, as
amended, or the Federal Power Act, as amended.
(o) FOREIGN CORRUPT PRACTICES ACT. The Corporation and its
Subsidiaries and each of their respective officers, directors and
employees are not in violation of section 30A of the Exchange Act
or any similar non-U.S. statute or law.
(p) NO BROKERS OR FINDERS. Except for the financial advisor retained
by the Independent Committee of the Board, no agent, broker,
finder, or investment or commercial banker or other Person or firm
engaged by or acting on behalf of the Corporation or any
Subsidiary in connection with the negotiation, execution or
performance of this Agreement or the transactions contemplated by
this Agreement, is or will be entitled to any brokerage or
finder's or similar fee or other commission as a result of this
Agreement or such transactions.
(q) STATE TAKEOVER STATUS. No takeover statute or regulation having
consequences similar to Section 203 of the Delaware General
Corporation Law applies to this Agreement, the Ancillary
Agreements or the Initial Shares or any of the transactions
contemplated hereby and thereby. Neither the Corporation nor any
of its Subsidiaries has any rights plan, preference shares or
similar arrangement which have any of the aforementioned
consequences in respect of the transactions contemplated hereby.
4.2 REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership
represents and warrants to the Corporation as follows and acknowledges that the
Corporation is relying upon such representations and warranties in connection
with its entering into this Agreement:
(a) ORGANIZATION; POWER AND AUTHORITY. The Partnership is a limited
partnership duly organized and is validly existing under the laws
of Delaware; the General Partner is the sole general partner of
the Partnership; the General Partner has all necessary corporate
power to execute and deliver this Agreement and the Ancillary
Agreements to which the Partnership is a party on behalf of the
Partnership and the Partnership has all necessary partnership
power to enter into this Agreement and the Ancillary Agreements to
which the Partnership is a party and to comply with its
obligations hereunder and thereunder.
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(b) AUTHORIZATION, ETC. The General Partner has taken all necessary
corporate action to authorize the execution, delivery and
performance of this Agreement and the Ancillary Agreements to
which the Partnership is a party; this Agreement and the Ancillary
Agreements to which the Partnership is a party has been duly
executed and delivered by the General Partner on behalf of the
Partnership and constitutes the legal, valid and binding
obligations of the Partnership enforceable by the Corporation in
accordance with their respective terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws of
general application affecting the enforcement of creditors' rights
and subject to the qualification that specific performance and
injunction, being equitable remedies, may be granted only in the
discretion of a court of competent jurisdiction.
(c) COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither: (i) the
authorization, execution, delivery or performance by the
Partnership of this Agreement and the Ancillary Agreements to
which it is a party; (ii) the conversion of the Debentures or
(iii) the acquisition of the Subco Preferred Shares as provided
herein, is in conflict with and does not and will not result in
any breach of and does not and will not create a state of facts
which after notice or lapse of time or both will result in a
breach of any of the terms or provisions of the Partnership
Agreement, the resolutions of the board of directors of the
General Partner, or results or would result in the creation or
imposition of any security interest, mortgage, Lien, charge or
encumbrance of any nature whatsoever upon any of the Material
Properties or assets of the Partnership pursuant to the terms of
any indenture, instrument, agreement or undertaking.
(d) NO ORDERS. To the knowledge of the General Partner, after
reasonable inquiry, no order suspending the acquisition of the the
Subco Preferred Shares by the Partnership or the conversion of the
Debentures has been issued by any court, securities commission or
regulatory authority in Canada or the United States, and no
proceedings for such purpose are pending or threatened.
(e) INVESTMENT REPRESENTATIONS. Except as contemplated herein
(including the distribution of the Subco Preferred Shares or the
Debentures to certain of the Partnership's limited partners), the
Partnership is acquiring the Subco Preferred Shares for investment
purposes only, and not with a view to, or for, resale,
distribution or any present intention of distributing or selling
the Initial Shares or the Subco Preferred Shares or any part
thereof. The Partnership and each partner of the Partnership is an
"accredited investor" as the term is defined in Regulation D under
the U.S. Securities Act and OSC Rule 45-501. The Partnership and
its partners are not residents of Canada.
(f) ACKNOWLEDGEMENT RE: SECURITIES LAWS. The Partnership understands,
recognizes and acknowledges that the Subco Preferred Shares have
not been qualified for distribution or registered under any
applicable securities legislation, including the Ontario
Securities Act, the U.S. Securities Act or any other applicable
federal, provincial or state securities laws by reason of
exemptions from such requirements being available, and that the
Subco Preferred Shares and
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the Initial Shares may not be sold, pledged, assigned or otherwise
disposed of in the absence of compliance with such law or unless
an exemption from the application of such law is applicable, and
certificates issued in respect of the Subco Preferred Shares and
the Initial Shares will be legended to reflect such restrictions.
4.3 SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES. All covenants,
representations and warranties of each party made herein and in any certificate
or other document delivered by it or on its behalf pursuant to the provisions
hereof or otherwise with respect to this Agreement and the transactions
contemplated hereby, shall survive the Closing and, notwithstanding such
closing, nor any investigation made by or on behalf of such party, shall
continue in full force and effect, subject as hereinafter provided, for a period
of eighteen months from the Closing Date for the benefit of the party to whom
the covenants, representations and warranties are made; PROVIDED, HOWEVER, that
notwithstanding anything herein contained, the representations and warranties
contained in Sections 4.1(b), (c), (d) and (e) hereof shall survive the Closing
and shall continue in full force and effect for the benefit the Partnership
without any limitation period and the representation and warranty contained in
Section 4.1(k) hereof shall survive the Closing and shall continue in full force
and effect for the benefit of the Partnership until the 60th day after the
expiration of the relevant statute of limitations period.
5. COVENANTS OF THE PARTIES
5.1 AFFIRMATIVE COVENANTS OF THE CORPORATION. The Corporation covenants and
agrees with the Partnership that it will do or cause to be done, and, as
applicable, will cause Subco to do or cause to be done, the following:
(a) use its reasonable best efforts to comply with, satisfy and
fulfill promptly all prerequisites, conditions and requirements
imposed by or arising out of legal, regulatory and administrative
requirements applicable to the Corporation with respect to the
consummation of the transactions contemplated hereby, including,
without limiting the generality of the foregoing, (i) filing or
causing to be filed all documents, certificates, opinions, forms
or undertakings required to be filed by the Corporation in
connection with the acquisition by the Partnership of the Initial
Shares, the issuance of the Initial Shares and the listing and
posting for trading of the Initial Shares on the Exchanges, and
(ii) subject to Section 5.3, obtaining all necessary legal,
regulatory and administrative approvals, consents, authorizations,
rulings, orders and permits;
(b) maintain its status as a "reporting issuer" in good standing under
the Ontario Securities Act and other applicable Canadian
securities legislation and as a "registrant" in good standing
under the Exchange Act;
(c) maintain the listing or posting for trading of the Common Shares
(including the Initial Shares) on the NYSE; and
(d) pay all stamp or duty or similar taxes, if any, associated with
the issuance and/or delivery of the Initial Shares and the Subco
Preferred Shares.
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5.2 AFFIRMATIVE COVENANTS OF THE PARTNERSHIP. Subject to Section 5.3, the
Partnership covenants and agrees with the Corporation that it will use its
reasonable best efforts to comply with, satisfy and fulfill promptly all
prerequisites, conditions and requirements imposed by or arising out of legal,
regulatory and administrative requirements applicable to the Partnership with
respect to the consummation of the transactions contemplated hereby, including,
without limiting the generality of the foregoing, (i) filing or causing to be
filed all documents, certificates, opinions, forms or undertakings required to
be filed by the Partnership in connection with the acquisition by the
Partnership of the Initial Shares and the Subco Preferred Shares and the
issuance of the Initial Shares and the Subco Preferred Shares, and (ii)
obtaining all necessary legal, regulatory and administrative approvals,
consents, authorizations, rulings, orders and permits.
5.3 HSR ACT. The Corporation has filed or will file concurrently with the
execution of this Agreement (a) all Notification and Report Forms and related
material required to be filed by it with the Federal Trade Commission ("FTC")
and the Antitrust Division of the United States Department of Justice ("DOJ")
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and
the rules and regulations promulgated thereunder (the "HSR ACT") with respect to
the transactions contemplated hereby and by the Ancillary Agreements and (b) the
necessary filings and notifications with any other jurisdictions with respect to
the transactions contemplated hereby and the Ancillary Agreements to the extent
required to effect the conversion of the Debentures and, in each case, shall
promptly make any further filings pursuant thereto that may be required by law.
The Corporation shall use its commercially reasonable efforts to furnish to the
Partnership such information, cooperation and assistance as the Partnership
reasonably may request in connection with the submissions to, or agency
proceedings by, any Governmental Authority under the HSR Act, or any comparable
laws of foreign jurisdictions, and each of the parties hereto shall keep the
other promptly apprised of any communications with, and inquiries or requests
for information from, such Governmental Authorities.
6. [INTENTIONALLY DELETED]
7. INDEMNIFICATION
7.1 INDEMNIFICATION BY THE CORPORATION. From and after the Closing, the
Corporation agrees to indemnify and save harmless the Partnership and its
Affiliates and the directors, officers, general partners, employees,
shareholders, representatives and agents of the Partnership and its Affiliates
(collectively, the "INDEMNITEES") from all Losses suffered or incurred by any of
them as a result of or arising directly or indirectly out of or in connection
with: (a) any breach by the Corporation of or any inaccuracy of any
representation or warranty of the Corporation contained in this Agreement, the
Ancillary Agreements or in any agreement, certificate or other document
delivered pursuant hereto and (b) any breach or non-performance by the
Corporation of any covenant to be performed by any of them which is contained in
this Agreement, the Ancillary Agreements or in any agreement, certificate or
other document delivered pursuant hereto. Notwithstanding anything contained
herein to the contrary, the indemnification provided above (except with respect
to any breach of Sections 4.1(b), (c), (d), (e) and (k) hereof) shall (i) only
apply to the extent that, and not until, the aggregate of all amounts subject to
indemnification under clause (a) of this Section 7.1 exceeds $1,000,000 (in
which event, the
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Indemnitees shall be entitled to indemnification as provided herein for all such
Losses and not just the excess over $1,000,000) and (ii) not exceed $23,000,000
in the aggregate. The indemnification with respect to any breach of Section
4.1(k) hereof shall be increased by an amount such that the Indemnitees will
receive cash, after taking into account any Canadian non-resident withholding
tax imposed under Part XIII of the ITA, equal to the amount owing pursuant to
this Section 7.1 (without regard to this sentence) as a result of the breach of
Section 4.1(k).
7.2 NOTICE OF CLAIM; INVESTIGATIONS; DETERMINATION. Subject to Section 7.3,
in the event that a party (the "INDEMNIFIED PARTY") shall become aware of any
claim, proceeding or other matter (a "CLAIM") in respect of which another party
(the "INDEMNIFYING PARTY") agreed to indemnify the Indemnified Party pursuant to
this Agreement and, if a claim for breach of representation and warranty of the
Indemnifying Party, in respect of which the applicable survival period shall not
have lapsed, the Indemnified Party shall promptly give written notice thereof to
the Indemnifying Party. Such notice shall specify the factual basis for the
Claim and the amount of the Claim, if known. Following receipt of notice from
the Indemnified Party of the Claim, the Indemnifying Party shall have 60 days to
make such investigation of the Claim as is considered necessary or desirable.
For the purpose of such investigation, the Indemnified Party shall make
available to the Indemnifying Party the information relied upon by the
Indemnified Party to substantiate the Claim, together with all such other
information as the Indemnifying Party may reasonably request. If both parties
agree at or prior to the expiration of such 60-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such Claim, the
Indemnifying Party shall immediately pay to the Indemnified Party the full
agreed upon amount of the Claim.
7.3 CERTAIN CLAIMS. If any Claim arises directly or indirectly out of or in
connection with the Corporation's execution, delivery and performance of this
Agreement or the Ancillary Agreements and is asserted against any Indemnitee,
such Indemnitee shall promptly give the Corporation notice thereof in accordance
with Section 7.2. The Corporation shall have the right to control negotiations
toward resolution of such Claim without the necessity of litigation, and, if
litigation ensues, to defend the same with counsel chosen by the Corporation and
reasonably acceptable to the such Indemnitee, at the Corporation's expense with
respect to the conduct of such defense, and such Indemnitee shall in such case
extend reasonable cooperation in connection with such negotiation and defense
and the Corporation shall keep such Indemnitee reasonably informed as to such
case. If the Corporation fails to assume control of the negotiations prior to
litigation or to defend such action within a reasonable time, such Indemnitee
shall be entitled, but not obligated, to assume control of such negotiations or
defense of such action, and the Corporation shall be liable to such Indemnitee
for its expenses reasonably incurred in connection therewith which the
Corporation shall promptly pay. Neither party shall settle, compromise, or make
any other disposition of any Claims, which would or might result in any
liability to the Indemnitee or the Corporation, respectively, under this Section
7 without the written consent of the Indemnitee or the Corporation,
respectively, which consent shall not be unreasonably withheld.
7.4 THIRD PARTY CLAIMS. If any Claim covered by the foregoing indemnities is
asserted against any Indemnified Party, it shall be a condition to the
obligations under this Section 7 that the Indemnified Party shall promptly give
the Indemnifying Party notice thereof in accordance
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with Section 7.2. The Indemnifying Party shall be entitled to control
negotiations toward resolution of such claim without the necessity of
litigation, and, if litigation ensues, to defend the same with counsel
reasonably acceptable to the Indemnified Party, at the Indemnifying Party's
expense, and the Indemnified Party shall in such case extend reasonable
cooperation in connection with such negotiation and defense. If the Indemnifying
Party fails to assume control of the negotiations prior to litigation or to
defend such action within a reasonable time, the Indemnified Party shall be
entitled, but not obligated, to assume control of such negotiations or defense
of such action, and the Indemnifying Party shall be liable to the Indemnified
Party for its expenses reasonably incurred in connection therewith which the
Indemnifying Party shall promptly pay. Neither the Indemnifying Party nor the
Indemnified Party shall settle, compromise, or make any other disposition of any
Claims, which would or might result in any liability to the Indemnified Party or
the Indemnifying Party, respectively, under this Section 7 without the written
consent of the Indemnified Party or the Indemnifying Party, respectively, which
consent shall not be unreasonably withheld.
7.5 EXCLUSIVITY. The provisions of this Section 7 shall be the exclusive
remedy with respect to any Claim for breach by the Corporation of any of its
covenants, representations, warranties or agreements under this Agreement or the
Ancillary Agreements, or any agreement, certificate or other document delivered
pursuant thereto (other than a Claim for specific performance or injunctive
relief) and all such Claims against the Corporation shall be subject to the
limitations and other provisions contained in this Section 7, other than claims
against the Corporation for fraud or fraudulent misrepresentation.
8. [INTENTIONALLY DELETED]
9. EXPENSES, ETC.
The Corporation shall pay the reasonable costs and expenses (including
legal fees, disbursements and related charges) incurred by the Partnership in
connection with the transactions contemplated by this Agreement and the
Ancillary Agreements. Such expenses shall be paid in cash at the Closing by way
of wire transfer of immediately available funds in accordance with the
Partnership's instructions.
10. CONFIDENTIALITY
Neither the Partnership nor the Corporation shall make any public
disclosure, except to the extent required by law or the rules and procedures of
the Exchanges, of the terms of this Agreement or regarding the transaction
contemplated hereby without the prior consent of the other, such consent not to
be unreasonably withheld. The wording of any public disclosure to be made in
respect of the transactions contemplated by this Agreement must be approved by
each of the Corporation and the Partnership. This Section 10 shall survive any
termination of this Agreement.
11. GENERAL PROVISIONS
11.1 NOTICES. Any notice, direction or other instrument required or permitted
to be given or made hereunder shall be in writing and shall be sufficiently
given or made if delivered in person
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to the address set forth below or if facsimiled or sent by other means of
recorded electronic communication and confirmed by delivery as soon as
practicable thereafter.
Notices to the Corporation shall be addressed as follows:
Xxxxx Corporation Limited
c/x Xxxxx Executive Xxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
with copies to:
Xxxxx Corporation Limited
c/x Xxxxx Executive Xxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Fax: 000-000-0000
Notices to the Partnership shall be addressed as follows:
Chancery Lane/GSC Investors, L.P.
c/o MIC Investors, Inc.
c/o Xxxx Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
with copies to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Fax: 000-000-0000
and to:
Squadron Ellenoff Plesent & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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Attention: Xxxxxxxx X. Xxxx
Fax: 000-000-0000
Any notice, direction or other communication so given or made shall be deemed to
have been given or made and to have been received on the day of delivery, if
delivered, or on the day of sending if sent by facsimile or other means of
recorded electronic communication (provided such day of delivery or sending is a
Business Day and, if not, then on the first Business Day thereafter). Any party
hereto may change its address for notice to the other parties by notice given in
the manner aforesaid.
11.2 ASSIGNMENT. No party hereto may assign this Agreement or its rights or
obligations hereunder without the prior written consent of the other parties,
except that the Partnership may assign its rights and obligations hereunder to
any limited partner of the Partnership; PROVIDED, that (i) any such assignee
agrees to be bound by the terms and conditions of this Agreement relating to the
assigned portion of the Agreement and (ii) Xxxxx is released from its
obligations to the Partnership under Sections 2.1(b), 2.2 and 3.2(b) if and to
the extent that the Partnership assigns such obligations pursuant to this
Section 11.2.
11.3 ENUREMENT. This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
11.4 FURTHER ASSURANCES. Each of the parties agrees to take all such
reasonable actions as may be requested by any other party hereto to implement
and give full effect to the provisions of this Agreement.
11.5 TIME OF THE ESSENCE. Time shall be of the essence of this Agreement.
11.6 ENTIRE AGREEMENT. This Agreement and the Ancillary Agreements constitute
the entire agreement between the parties hereto pertaining to the effectuation
of the conversion of the Debentures by the Partnership as described herein and
supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties and there are no other agreements
between the parties in connection with such subject matter. No supplement,
modification or termination of this Agreement and the Ancillary Agreements shall
be binding unless executed in writing by both of the parties hereto.
11.7 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which when taken together shall constitute this Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above stated.
XXXXX CORPORATION LIMITED
By: /s/ XXXXXX X. XXXXX
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
CHANCERY LANE/GSC INVESTORS, L.P.
By: MIC Investors, Inc., its General Partner
By: /s/ XXXX X. XXXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary
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EXHIBIT 1
---------
FORM OF REGISTRATION RIGHTS AGREEMENT
-------------------------------------
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EXHIBIT 2
---------
OPINIONS TO BE DELIVERED BY THE CORPORATION
-------------------------------------------
(a) Favorable written opinions from nationally-recognized counsel (in
the appropriate jurisdiction) (reasonably satisfactory to the
Partnership) to the Corporation (who may rely on certificates from
the Corporation with respect to factual matters), dated the
Closing Date and satisfactory in scope and substance to the
Partnership and its counsel, acting reasonably, with respect to
the following substantive matters:
(i) the Corporation is a corporation incorporated under
the laws of the Province of Ontario and has all
necessary corporate power and authority to own its
property and to execute and deliver this Agreement
and the Ancillary Agreements and to perform all its
respective obligations hereunder and thereunder;
(ii) all necessary corporate action has been taken by the
Corporation to authorize the issuance of the Initial
Shares and the execution and delivery of this
Agreement and the Ancillary Agreements and, upon
issuance the Initial Shares will have been validly
issued, as fully paid and non-assessable Common
Shares;
(iii) no action of the shareholders of the Corporation is
required to authorize the issuance of the Initial
Shares and the execution and delivery of this
Agreement and the Ancillary Agreements;
(iv) each of this Agreement and the Ancillary Agreements
has been duly executed and delivered by the
Corporation; and
(v) the authorization, execution, delivery and
performance by the Corporation of this Agreement and
the Ancillary Agreements and the issuance of the
Initial Shares do not conflict with, and do not
result in a breach of, the articles or by-laws of
the Corporation.
(b) Favorable written opinion from in-house counsel or any reputable
outside counsel to the Corporation (at the Corporation's
election), dated the Closing Date and satisfactory in scope and
substance to the Partnership and its counsel, acting reasonably,
with respect to the following substantive matters:
(i) the Corporation is duly qualified to carry on
business in all jurisdictions in which it currently
carries on business, and has all necessary corporate
power and authority to carry on its business as
aforesaid; and
(ii) none of: (A) the authorization, execution, delivery
or performance by the Corporation of this Agreement
or the Ancillary Agreements,
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including, without limitation, or (B) the allotment
and issuance of the Initial Shares as provided
herein, will contravene, result in any breach of or
is in conflict with and does not and will not result
in a breach of and does not and will not create a
state of facts which after notice or lapse of time
or both will result in a breach of any of the terms
or provisions of the articles or by-laws of the
Corporation, the resolutions of the directors or
shareholders of the Corporation or any Material
Contract to which the Corporation is a party or by
which the Corporation or the Properties or assets of
the Corporation are bound or results in the creation
or imposition of any Lien upon any of the Material
Properties or assets of the Corporation pursuant to
the terms of any Material Contract.
(c) Favorable written opinions from nationally-recognized counsel (in
the appropriate jurisdiction) (reasonably satisfactory to the
Partnership) to Subco (who may rely on certificates from Subco
with respect to factual matters), dated the Closing Date and
satisfactory in scope and substance to the Partnership and its
counsel, acting reasonably, with respect to the following
substantive matters:
(i) Subco is a corporation incorporated under the laws
of the State of Delaware and has all necessary
corporate power and authority to own its property
and to execute and deliver this Agreement and to
perform all its obligations hereunder;
(ii) all necessary corporate action has been taken by
Subco to authorize the issuance of the Subco
Preferred Shares and the execution and delivery of
this Agreement and, upon issuance the Subco
Preferred Shares will have been validly issued, as
fully paid and non-assessable shares;
(iii) all necessary action of the shareholders of Subco
has been taken to authorize the creation of the
Subco Preferred Shares and the execution and
delivery of this Agreement;
(iv) the authorization, execution, delivery and
performance by Subco of this Agreement and the
issuance of the Subco Preferred Shares do not
conflict with, and do not result in a breach of, the
articles or by-laws of Subco;
(v) the issuance of the Subco Preferred Shares to the
Partnership pursuant to this Agreement are exempt
from the registration and prospectus requirements of
the Ontario Securities Act; and
(vi) the issuance of the Subco Preferred Shares to the
Partnership pursuant to this Agreement are not in
violation of United States federal securities laws.
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(d) A favorable written opinion from in-house counsel or any reputable
outside counsel to Subco (at Subco's election), dated the Closing
Date and satisfactory in scope and substance to the Partnership
and its counsel, acting reasonably, with respect to the following
substantive matters:
(i) Subco is duly qualified to carry on business in all
jurisdictions in which it currently carries on
business, and has all necessary corporate power and
authority to carry on its business as aforesaid; and
(ii) none of: (A) the authorization, execution, delivery
or performance by Subco of this Agreement,
including, without limitation, the allotment and
issuance of the Subco Preferred Shares; or (B) the
issuance of the Subco Preferred Shares as provided
herein, (x) will violate the provision of any
statute or other rule or regulation of any
Governmental Authority applicable to Subco or (y)
will contravene, result in any breach of or is in
conflict with and does not and will not result in a
breach of and does not and will not create a state
of facts which after notice or lapse of time or both
will result in a breach of any of the terms or
provisions of the articles or by-laws of Subco.
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EXHIBIT 3
---------
OPINION TO BE DELIVERED BY THE PARTNERSHIP
------------------------------------------
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