1
EXHIBIT 10(ii)
November 30, 1995
Mr. J.P. Fruchet
Guardian Timing Services, Inc.
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Dear Mr. Fruchet:
Re: Letter of Understanding (the "Letter")
As a condition precedent to our execution of an Investment Management Agreement
pursuant to which The Bank of Nova Scotia (BNS) will retain the services of
your firm with regard to the management of an investment portfolio with a
minimum size of $10,000,000, we wish to obtain your confirmation of our
understanding of the agreement amongst Bearhill Limited ("Bearhill"), Guardian
Timing Services Inc. ("GTS"), InterUnion Financial Corporation ("InterUnion"),
Havensight Holdings Corp. ("Havensight") and ourselves with regard to the ITM
Software ("ITM") and certain related matters.
ITM was developed by GTS on behalf of Bearhill pursuant to the ITM Software
Development Agreement, dated September 9, 1994, (the "ITM Agreement") and
Bearhill has absolute title to ITM. GTS has agreed and is bound to continue to
develop and operate (the "Services") the ITM for an indefinite period and GTS
has retained J.P. Fruchet in such regard and is entitled to certain
compensation as contemplated in sections 4.1, 4.3, and 6.4 of the ITM
Agreement. Upon the exercise of the Option, GTS shall be entitled to receive
15% of Bearhill's gross revenues for providing the Services until the Note is
satisfied in full and GTS and Bearhill have agreed that neither will be
entitled to receive compensation as contemplated in sections 4.1, 4.3 and 6.4
of the ITM Agreement in such regard.
In consideration of BNS entering into the Investment Management Agreement,
Bearhill grants to BNS an irrevocable option (the "Option") to acquire the ITM
as it may be modified from time to time in furtherance of the ITM Agreement. In
the event that BNS wishes to exercise the Option, BNS shall acquire 100% of the
Class B Shares of Bearhill, which Class B shares shall represent 30% of equity
of Bearhill for $750,000 and shall enter into an agreement to acquire the ITM
for $30 million. The acquisition price of $30 million shall be financed by $10
million in cash and a $20 million dollar 15 year non-recourse note bearing
interest at 8.00 percent per annum, with the principal amount payable at the
end of the term (the "Note"), provided that BNS shall have the right to
accelerate payment of part or all of the Note at anytime without penalty and
without notice. The principal terms of the Option are outlined in Schedule "A"
hereto. All interest paid on the Note shall be credited to the Trust Account.
GTS and Bearhill have advised that the ITM is Class 12 software for purposes of
the Income Tax Act (Canada) and have agreed to provide a legal opinion in form
satisfactory to BNS, in such regard, at the closing of the exercise of the
Option.
Notwithstanding the exercise of the Option, GTS shall, provided that J.P.
Fruchet is in its employment, have the right to be provided and use the market
signals generated by the ITM at no charge or cost, provided that no more than
$200 million of assets or such larger amount of assets as may then be managed
by GTS at the time of the giving of notice of the exercise of the Option (the
"Limit on Assets"), at book value, are managed using such signals. The Limit on
Assets shall not apply on the occurrence of either of the events described in
clauses (c) or (d) below.
Page E - 42 of E - 69
2
Upon acquisition of the ITM, BNS shall enter into a non-exclusive agreement
with Bearhill to provide Bearhill with the timing signals generated by the ITM,
and Bearhill shall use such signals in managing the Nirvana Fund, and may use
such signals in the management of funds for third parties. Bearhill will not be
permitted to disclose the timing signals to any third party, without the prior
written consent of BNS. The Nirvana Fund will be managed by Bearhill, and the
management of the Nirvana Fund may not be assigned or changed without the prior
written consent of the Bank.
Bearhill shall apply the funds obtained from BNS as follows. The $750,000
obtained for the Class B Shares shall be used as working capital. The proceeds
of $10 million shall be divided with $1.6 million being placed in a trust
account (the "Trust Account") and $8.4 million invested in Class 1 Shares of
the Nirvana Fund (the "Fund"). All principal amounts received by Bearhill on
the Note shall be invested in Class 1 Shares. The Class 1 Shares cannot be
redeemed prior to the Note being satisfied or without the approval of the Board
of Directors.
Class 1 Shares shall rank superior to all other shares issued by the Fund. The
Fund shall be managed by GTS on behalf of Bearhill using market signals
generated by the ITM. Bearhill shall pay to BNS for use of the timing signals
generated by the ITM, 15% of its gross revenue as a user fee (the "Fee"). In
the event that the Fee is not sufficient to satisfy BNS interest obligations
under the Note, any deficiency (a "Deficiency") shall be satisfied by Bearhill,
first from the interest earned on the Trust Account, and then from its own
assets.
Bearhill may not give any security to any party in order to borrow funds to
satisfy a Deficiency. In the event that Bearhill cannot satisfy a Deficiency,
Bearhill will be deemed to be in default, for purposes of clause (c) below.
The monies held within the Trust Account shall be retained in such account,
along with any interest earned thereon, until the Note is satisfied in full,
provided that in the event that any portion of the principal amount of the Note
is repaid, a pro-rata share of the balance of the Trust Account as of the date
of such repayment shall be released to Bearhill and Bearhill shall use such
funds to acquire Class 1 Shares.
The Class 1 Shares shall distribute all earned interest, dividends received and
crystallized capital gains annually.
The only other securities, either equity or debt, issued, or to be issued, by
Bearhill are Class A Shares, currently representing 100% of the equity of
Bearhill. The Class A Shares are held equally by InterUnion and Havensight. The
holdings of Class A Shares may not be altered prior to the exercise of the
Option. The Class A Shares and the Class B Shares shall have identical share
provisions, save for entitlement to dividends. The Class B. Shareholder shall
receive 80% of all dividends paid by Bearhill, to such point in time (the
"Preferred Period") as Class B Shareholder has received $20 million, after
which time Class B shareholders shall rank evenly with Class A Shareholders.
During the Preferred Period, all dividends received from the Class B Shares
shall be applied to the principal amount of the Note. After the Preferred
Period, dividends received on both Class A and Class B Shares shall be invested
in Class 2 Shares.
Each of the three shareholders shall have equal representation on the Board of
Directors of Bearhill, and matters coming to the Board of Directors shall
require unanimous approval. All dividends received by Class A and Class B
shareholders once they rank equally shall be invested in Class 2 Shares of the
Nirvana Fund, which will rank equally with the Class 1 Shares, save that the
Class 2 Shares will not distribute interest, dividends or capital gains. Class
2 Shares may be redeemed.
InterUnion and Havensight, each grant to BNS an immediate option to acquire
their respective Class A Shares at a price equal to 90% of book value, upon the
occurrence of one or more of the following:
(a) the Note is satisfied in full prior to its maturity,
Page E - 43 of E - 69
3
(b) the Class B Shareholders have received and aggregate of $25,000,000 in
dividends from Bearhill,
(c) Bearhill defaults on any of its obligations to BNS, becomes insolvent
or commits an act of bankruptcy, or
(d) the Nirvana Fund underperforms.
The Nirvana Fund shall be deemed to have underperformed if its return averages
less than 10% per annum compounded annually over any 36 month period.
It is agreed that BNS can assign its rights and obligations hereunder to any
subsidiary or affiliate without the consent of any other party.
It is also agreed that notwithstanding that Bearhill is currently incorporated
under the laws of the British Virgin Islands, that Bearhill will at the request
of BNS take such steps as may be necessary to change the laws pursuant to which
it is incorporated and/or continued, provided that such action is acceptable to
all shareholders.
All documentation required to complete the transactions and other steps
contemplated above shall be prepared in accordance with normal commercial
terms. In the event that the parties are unable to come to an agreement on any
term or terms, the parties agree to submit to binding arbitration in accordance
with the terms of the Arbitrations Act (Ontario).
If the above conforms to your understanding of the agreement reached amongst
ourselves, please execute the four enclosed copies of this letter, and return
same to the undersigned.
Yours truly,
The Bank of Nova Scotia
-----------------------------------
/s/ Xxxxxx X. Xxxxxx
Agreed and accepted,
/s/ J.P. Fruchet
-----------------------------------
Guardian Timing Services, Inc.
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
InterUnion Financial Corporation
/s/ F.P. Polo
-----------------------------------
Havensight Holdings Corp.
/s/ F.P. Polo
-----------------------------------
Bearhill Limited
Page E - 44 of E - 69
4
SCHEDULE A
The Option shall be exercised in accordance with the following terms:
The Bank of Nova Scotia shall give notice to Bearhill of its intention to
exercise the Option in writing. Such notice shall be accompanied by a bank
draft in an amount equal to ten times the then current option fee. This sum
shall be a non-refundable deposit to be held in escrow and is to be applied
against the purchase price upon closing of the Option. In the event that The
Bank of Nova Scotia fails to proceed to the closing of the Option within 90
days of giving notice of its intention to exercise the Option, for any reason
other than the failure of Bearhill or any other interested party to negotiate
in good faith and/or to abide by the terms of any decision of any arbitration
panel, then the deposit shall be released from escrow to Bearhill.
The Option shall be renewable for a three year indefinite term at the
discretion of the Bank of Nova Scotia subject to the payment of an option fee
annually, in advance, in accordance with the following schedule commencing on
January 1, 1996.
For the 1996 calendar year $25,000
For the 1997 calendar year $50,000
For the 1998 calendar year $75,000
In the event that Bearhill should receive a bona fide offer to acquire the ITM
Software from a third party, which Bearhill is prepared to accept, Bearhill
shall immediately forward a copy of such offer to the Bank and the Bank shall
have a period of three weeks from the time it receives a copy of such offer to
match such offer or exercise the Option by giving notice in accordance with the
first paragraph above, at its sole discretion. If the Bank fails to match such
offer, then Bearhill shall pay to the Bank a sum equal to ten times the then
current option fee, and the Option shall terminate immediately thereafter.
This Option shall terminate in the event the Investment Management Agreement
between the Bank of Nova Scotia and Guardian Timing Service, dated as of
December 20, 1995 is terminated by either party thereto, provided that the Bank
shall have a three week period after the date of termination of the Investment
Management Agreement to exercise the Option by giving notice in accordance with
the first paragraph above.
Page E - 45 of E - 69
