Exhibit 3
Execution Copy
SHAREHOLDER AGREEMENT, dated as of May 18, 2001 (the "Agreement"),
is by and among America Online, Inc., a Delaware corporation ("Parent"), IAN
Acquisition ULC, a Nova Scotia unlimited liability company and an indirect
wholly owned subsidiary of Parent ("Acquiror"), and the directors, officers
and employees of InfoInterActive Inc., a corporation incorporated under the
Business Corporations Act (Alberta) (the "Company"), who are signatories
hereto (each, a "Shareholder").
WHEREAS, Parent, Acquiror and the Company are, concurrently with the
execution and delivery of this Agreement, entering into an Acquisition
Agreement, dated as of the date hereof (the "Acquisition Agreement"; terms
used without definition herein having the meanings assigned to them in the
Acquisition Agreement), pursuant to which Acquiror agrees, among other things,
to acquire all of the common shares of the Company ("Common Shares") pursuant
to an arrangement (the "Arrangement") under the Business Corporations Act
(Alberta);
WHEREAS, as of the date hereof, each Shareholder beneficially owns
the number of Common Shares and options, convertible securities and warrants
to acquire Common Shares or other voting securities of the Company
("Exercisable Securities") set forth opposite such Shareholder's name on the
signature pages hereto (such Common Shares and Exercisable Securities, such
Shareholder's "Existing Securities" and together with any Common Shares or
other voting securities of the Company, the beneficial ownership of which is
acquired after the date hereof, whether upon the exercise of options,
conversion of convertible securities, exercise of warrants or otherwise or any
other Exercisable Securities, collectively referred to herein as the
"Securities"); and
WHEREAS, as a condition to their willingness to enter into the
Acquisition Agreement, Parent and Acquiror have required that each Shareholder
agree, and each Shareholder has agreed, among other things, to vote in favor
of the Arrangement and grant Parent an option to purchase all of the
Securities owned by such Shareholder, on the terms and conditions provided for
herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Agreement to Vote; Proxy; Agreement to Tender.
SECTION 1.01. Voting. Subject to the provisions of Article II,
each Shareholder hereby agrees that, during the time this Agreement is in
effect, at any meeting of the shareholders of the Company, however called and
at any adjournment thereof, or pursuant to any action by written consent, such
Shareholder shall appear at such meeting or otherwise cause its Securities to
be counted as present thereat for purposes of establishing a quorum and (a)
vote (or cause to be voted) all of its Securities in favor of the approval,
adoption, consent and ratification of the Arrangement, the Acquisition
Agreement, the Plan of Arrangement thereunder, the terms thereof and all the
other transactions contemplated thereby (including but not limited to the
Tender Offer (as defined below)) (collectively, the "Transactions"); (b) vote
(or cause to be voted) all of its Securities against any action or agreement
that would delay, impede, interfere with or discourage the consummation of the
Transactions or would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Acquisition Agreement or of such Shareholder under this Agreement; and (c)
vote (or cause to be voted) all of its Securities against any of the following
(other than the Acquisition Agreement, including as it may have been, or may
have been proposed by Parent or Acquiror to be, amended) or the other
Transactions: (i) any extraordinary corporate transaction or agreement
therefor, including without limitation any amalgamation, plan of arrangement,
merger, consolidation, recapitalization, reorganization, takeover bid, share
exchange, liquidation, dissolution, business combination or similar
transaction involving the Company or its Subsidiaries (including a Competing
Proposal), (ii) a Transfer of a material amount of assets of the Company or
its Subsidiaries, (iii) any change in the majority of the Board of Directors
of the Company, (iv) any change in the present capitalization of the Company,
(v) any amendment of the Company's Articles of Incorporation or By-laws, or
(vi) any other material change in the Company's corporate structure or
business or change in any manner of the voting rights of the Common Stock (any
matter under clauses (a), (b) or (c), a "Subject Proposal"). Each Shareholder
shall not enter into any agreement or understanding with any person prior to
the termination of this Agreement to vote in any manner inconsistent herewith.
SECTION 1.02. Proxy. (a) During the time this Agreement is in
effect, each Shareholder hereby irrevocably grants to, and appoints, and
agrees from time to time to grant to, and appoint, Parent and Acquiror, or any
of them, and any individual designated in writing by any of them, and each of
them individually, as such Shareholder's proxy, agent and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of
such Shareholder, to vote (or cause to be voted) its Securities, or grant a
consent or approval in respect of its Securities, in each case, with respect
to any Subject Proposal, in a manner consistent with Section 1.01 above.
(b) Each Shareholder understands and acknowledges that Parent and
Acquiror are entering into the Acquisition Agreement in reliance upon such
Shareholder's execution and delivery of this Agreement. Each Shareholder
hereby affirms that the proxy set forth in this Section 1.02 is given in
connection with the execution of this Agreement, and that such proxy is given
to secure the performance of the duties of such Shareholder under this
Agreement. Each Shareholder hereby ratifies and confirms all that such proxy
may lawfully do or cause to be done by virtue hereof. Each Shareholder will
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy and hereby revokes any proxy previously
granted by it with respect to its Securities that would be inconsistent with
the proxy granted pursuant to Section 1.02(a). Each Shareholder shall not
hereafter, unless and until this Agreement terminates pursuant to Section 5.01
hereof, purport to vote (or execute a consent with respect to) its Securities
with respect to any Subject Proposal (other than through this irrevocable
proxy) or grant any other proxy or power of attorney with respect to any of
its Securities to vote with respect to any Subject Proposal, deposit any of
its Securities into a voting trust or enter into any agreement (other than
this Agreement), arrangement or understanding with any person, directly or
indirectly, to vote with respect to any such Subject Proposal, grant any proxy
or give instructions with respect to the voting of such Securities with
respect to any Subject Proposal.
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SECTION 1.03. Tender. Upon the election of Parent to make a tender
offer for any Securities of the Company pursuant to Section 2.3 of the
Acquisition Agreement (the "Tender Offer"), each Shareholder hereby agrees to
validly tender (or cause the record owners to validly tender) to Parent or any
Subsidiary of Parent making the Tender Offer, pursuant to and in accordance
with the terms of the Tender Offer, as soon as practicable after commencement
of the Tender Offer, but in no event later than five Business Days following
the commencement of the Tender Offer, all of such Securities by physical
delivery of the certificates therefor (or by book entry or appropriate
instructions to brokers or custodians thereof, as the case may be) and to not
withdraw such Securities, except following termination of the Tender Offer
without the purchase by Parent or any of its Subsidiaries of Securities
thereunder. Each Shareholder hereby acknowledges and agrees that Parent's (or
any of its Subsidiary's) obligation to accept for payment and pay for such
Securities shall be subject to the terms and conditions of the Tender Offer.
Each Shareholder hereby permits Parent and Acquiror to publish and disclose in
the documents required to be prepared, filed or delivered by applicable law in
the Tender Offer and, if approval of the Company's shareholders is required
under applicable law, the proxy statement and in any other public statement,
its identity and ownership of Securities and the nature of its commitments,
arrangements and understandings under this Agreement.
ARTICLE II
Option To Purchase Securities; Assignment of Profit.
SECTION 2.01. Grant of Option. Without limiting any other rights
or remedies of Parent, each Shareholder hereby grants to Parent an
irrevocable, unconditional option to purchase any or all of its Securities
(such number of Securities to be determined in Parent's sole discretion), on
the terms and subject to the conditions set forth herein (the "Option").
SECTION 2.02. Exercise of Option. (a) The Option may be exercised
by Parent, in whole or in part, at any time, or from time to time, and from
any or all Shareholders, commencing upon the Exercise Date and prior to the
Expiration Date.
As used herein, the term "Exercise Date" means the first to occur of
(i) any event or condition as a result of which Parent would be entitled to
terminate the Acquisition Agreement pursuant to Section 8.1(d) (provided that
with respect to Section 8.1(d), at the time of such termination, a Competing
Proposal has been publicly announced or is generally known by the Company's
shareholders), Section 8.1(e), or Section 8.1(f) or otherwise to receive the
Termination Fee pursuant to Section 8.3(b) of the Acquisition Agreement (in
each case, whether or not the Acquisition Agreement is terminated) or (ii)
with respect to the Option from any particular Shareholder, any material
breach by such Shareholder of any provision of this Agreement.
As used herein, the term "Expiration Date" means the first to occur
of (i) the Effective Time, (ii) with respect to any particular Shareholder,
receipt by such Shareholder of written notice of termination of this Agreement
by Parent, or (iii) the date that is thirteen months from the date of
termination of the Acquisition Agreement.
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(b) In the event Parent wishes to exercise the Option with respect
to any Shareholder, Parent shall send a written notice to such Shareholder of
its intention to so exercise the Option (a "Notice"), specifying the place,
time and date of the closing (the "Option Closing") of such purchase (such
date on which the Option Closing occurs, the "Option Closing Date"), which
date shall not be less than two Business Days nor more than ten Business Days
from the date on which a Notice is delivered; provided, that the Option
Closing shall be held only if (i) such purchase would not otherwise violate or
cause the violation of, any applicable law or regulations (including, without
limitation, the U.S. Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), the Competition Act (Canada), as amended (the
"Competition Act"), or the applicable rules or regulations of the stock
exchanges on which the Common Shares are traded, including but not limited to
the Toronto Stock Exchange, and (ii) no statute, rule, regulation, decree,
order or injunction shall have been promulgated, enacted, entered into, or
enforced by any Governmental Authority which prohibits delivery of such
Shareholder's Securities (provided, however, that the parties hereto shall use
their respective reasonable best efforts to have any such order, decree or
injunction vacated or reversed); in the event the Option Closing is delayed
pursuant to clause (i) or (ii) above, the Option Closing Date shall be within
five Business Days following the cessation of such restriction, violation,
potential violation, order, decree or injunction, as the case may be;
provided, further, that, notwithstanding any prior Notice, Parent prior to the
Option Closing shall be entitled to rescind any Notice and shall not be
obligated to purchase any Securities in connection with such exercise upon
written notice to such effect to such Shareholder.
(c) At any Option Closing, such Shareholder shall deliver to Parent
all of its Securities to be purchased by delivery of certificates or other
instruments evidencing such Securities, properly endorsed by such Shareholder
and accompanied by such stock powers and other documents as may be necessary
to transfer record ownership of such Securities into Parent's name on the
stock transfer books of the Company, together with evidence of payment of all
applicable transfer and documentary stamp taxes and other fees; provided that
with respect to a Shareholder's employee stock options (the "Employee Stock
Option Securities") issued under the Company's February 10, 1999 Amended and
Restated Stock Option Plan and January 3, 2000 Stock Option Plan, as amended
(collectively, the "Stock Option Plans"), such Shareholder shall, at the
request of Parent, exercise, simultaneously with the Option Closing, all
Employee Stock Option Securities having an exercise price per Common Shares
less than the Exercise Price (as defined below) and sell such Common Shares to
Parent pursuant to the Option.
SECTION 2.03. Payments.
(a) The purchase and sale of any Common Shares pursuant to Section
2.02 of this Agreement shall be at a purchase price per Common Share equal to
the Consideration (as defined in the Acquisition Agreement) (the "Exercise
Price"). At any Option Closing, Parent shall pay to the applicable Shareholder
by wire transfer of immediately available funds to an account specified by
such Shareholder an amount equal to the Exercise Price multiplied by the
number of Common Shares purchased pursuant to this Article II.
(b) In the event of a stock dividend or distribution, or any change
in the Common Shares by reason of any stock dividend, split-up,
reclassification, recapitalization, combination or the exchange of shares, the
term "Securities", whenever used in this Agreement, shall be
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deemed to refer to and include the Securities as well as all such stock
dividends and distributions and any shares into which or for which any or all
of the Securities may be changed or exchanged. In such event, the amount to be
paid per Security by Parent pursuant to this Section 2.03 shall be
proportionately adjusted.
SECTION 2.04. Assignment of Profit. From and after the Exercise
Date and until the Expiration Date, each Shareholder hereby irrevocably
assigns and agrees to pay to Parent any and all amounts received by such
Shareholder in excess of the Exercise Price in respect of each of its
Securities in any sale, transfer, pledge, encumbrance, assignment or other
disposition of, or execution of any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition (including but not limited to by way of
amalgamation, plan of arrangement, takeover bid, merger, consolidation,
recapitalization or any other similar transaction) of, any of its Securities
or any interest therein (collectively, a "Transfer"), whether or not in
violation of Section 4.01(b) and whether or not in connection with a Competing
Proposal or any acquisition by a person or group in a single transaction or a
series of related transactions after the date hereof. Upon the consummation of
a Transfer, such Shareholder shall pay Parent by wire transfer of immediately
available funds to an account specified by Parent an amount in cash equal to
the excess of the price per share paid in such Transfer over the Exercise
Price multiplied by the Securities Transferred.
ARTICLE III
Representation And Warranties.
SECTION 3.01. Representation and Warranties of Parent. Parent
hereby represents and warrants to each Shareholder that Parent has the
corporate power and authority to enter into this Agreement and perform all of
its obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by Parent and constitutes a valid and binding agreement
of Parent, enforceable against Parent in accordance with its terms.
SECTION 3.02. Representations and Warranties of the Shareholder.
Each Shareholder, severally and not jointly, hereby represents and warrants to
Parent and Acquiror as follows:
(a) Ownership of Securities and Options. Such Shareholder (or
accounts or trusts controlled or beneficially owned by such Shareholder) is
the record and beneficial owner of the Existing Securities set forth opposite
its name on the signature pages hereto. To such Shareholder's knowledge, the
Existing Securities are, and the Common Shares upon issuance or receipt will
be, validly issued, fully paid and nonassessable. On the date hereof, the
Existing Securities constitute all of the Securities owned of record or
beneficially by such Shareholder. Such Shareholder has, with respect to the
Existing Securities, or ill have, with respect to any other Securities, sole
voting power, sole power of disposition and sole power to agree to all of the
matters set forth in this Agreement with respect to all of its Securities,
with no restrictions, subject to applicable securities laws, on such
Shareholder's voting power or rights of disposition pertaining thereto. On the
date hereof, such Shareholder has, and at all times during the term hereof and
on the date of any Option Closing hereunder, such Shareholder will have with
respect
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to its Securities to be sold on such date, good, valid and marketable
title to its Securities, free and clear of all claims, liens, encumbrances,
security interests and charges of any nature whatsoever (other than the
encumbrance created by this Agreement), and shall not be subject to any
preemptive right of any shareholder of the Company. The sale of the Securities
of such Shareholder to Parent hereunder will transfer to Parent good, valid
and marketable title to such Securities, free and clear of all claims, liens,
encumbrances, security interests, rights of first refusal and charges of any
nature whatsoever.
(b) Power; Binding Agreement. Such Shareholder has the legal
capacity, power and authority to enter into and perform all of its obligations
under this Agreement, including, without limitation, power and authority to
sell, assign, transfer and deliver its Securities to Parent pursuant to the
terms and conditions of this Agreement, except with respect to Employee Stock
Option Securities, subject to the rules of the Toronto Stock Exchange, the
consent of the shareholders and directors of the Company and the terms of the
applicable Stock Option Plan. The execution, delivery and performance of this
Agreement by such Shareholder have been duly and validly authorized and no
other actions or proceedings on the part of such Shareholder are necessary to
authorize this Agreement or to consummate the transactions contemplated
herein. The execution, delivery and performance of this Agreement by such
Shareholder will not violate any other agreement to which such Shareholder is
a party including, without limitation, any voting agreement, shareholders
agreement or voting trust. This Agreement has been duly and validly executed
and delivered by such Shareholder and constitutes a valid and binding
agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms.
(c) No Conflicts. Except for (i) filings under the Competition Act
and the HSR Act, if applicable, (ii) compliance with the applicable
requirements of the Legislation, and (iii) with respect to Employee Stock
Option Securities, the consent of the Toronto Stock Exchange and the other
consents required by the applicable Stock Option Plan, (A) no filing with, and
no permit, authorization, consent or approval of, any Governmental Authority
is necessary for the execution of this Agreement by such Shareholder and the
consummation by such Shareholder of the transactions contemplated hereby and
(B) neither the execution and delivery of this Agreement by such Shareholder
nor the consummation by such Shareholder of the transactions contemplated
hereby nor compliance by such Shareholder with any of the provisions hereof
shall (1) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, agreement or other instrument or obligation to
which such Shareholder is a party or by which such Shareholder or any of its
properties or assets may be bound or (2) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to such Shareholder or any of
its properties or assets.
(d) No Claims. Such Shareholder in its capacity as a shareholder,
director, officer or employee of the Company or in any other capacity, has no
knowledge of any Claims (as defined hereinafter) that he, she or it may have
against the Released Parties (as defined hereinafter).
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(e) No Group. Such Shareholder is acting individually and not as
part of a "group" as defined in the U.S. Securities Exchange Act of 1934, as
amended.
ARTICLE IV
Certain Covenants of the Shareholder
SECTION 4.01. Certain Covenants of the Shareholder. Such
Shareholder hereby covenants and agrees as follows:
(a) No Solicitation. Such Shareholder shall not, and shall not
authorize or permit any shareholder, director, officer, employee, Affiliate,
representative or agent of such Shareholder to, directly or indirectly, (i)
solicit, facilitate, initiate, entertain, encourage or take any action to
facilitate, initiate, entertain or encourage any inquiries or communications
or the making of any proposal or offer that constitutes or may constitute a
Competing Proposal or a sale of any of its Securities or (ii) participate or
engage in any discussions or negotiations with, or provide any information to
or take any other action with the intent to facilitate the efforts of, any
person concerning any possible Competing Proposal or a sale of any of its
Securities or any inquiry or communication which might reasonably be expected
to result in a Competing Proposal or a sale of any of its Securities. If such
Shareholder or any representative or agent of such Shareholder receives an
inquiry or proposal with respect to any Competing Proposal or any sale of its
Securities, then such Shareholder shall promptly inform Parent of the terms
and conditions, if any, of such inquiry or proposal and the identity of the
person making it. Such Shareholder shall, and shall cause its representatives
or agents to, immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing. Notwithstanding the foregoing, nothing
herein shall in any way restrict or limit such Shareholder from taking any
action in his capacity as a director or officer of the Company to fulfill his
duties and fiduciary obligations as a director or officer of the Company in a
manner consistent with the terms of the Acquisition Agreement.
(b) Restriction on Transfer, Proxies and Non-Interference. Such
Shareholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (i) Transfer any of its Securities or any interest
therein, (ii) grant any proxies with respect to any of its Securities or
deposit any of its Securities into a voting trust or enter into a voting
agreement with respect to any of its Securities, or (iii) take any action that
would make any representation or warranty of such Shareholder contained herein
untrue or incorrect or have the effect of preventing or disabling such
Shareholder from performing its obligations under this Agreement. Any action
described in the foregoing clauses (i) through (iii) in violation of this
Agreement shall be void ab initio.
(c) Legending of Certificates; Nominees Securities. If requested by
Parent, such Shareholder agrees to submit to the Company contemporaneously
with or as promptly as practicable following such request all certificates
representing its Securities so that the Company may note thereon a legend, in
form and substance reasonably satisfactory to Parent, referring to the proxy
and other rights granted to Parent by this Agreement. If any of the Securities
beneficially owned by such Shareholder are held of record by a brokerage firm
in "street name" or in the name of any other nominee (a "Nominee", and, as to
such Securities, "Nominee
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Securities"), such Shareholder shall, within five days following such request
by Parent execute and deliver to Parent a limited power of attorney, in form
and substance reasonably satisfactory to Parent, enabling Parent to require
the Nominee to (i) grant to Parent an irrevocable proxy to the same effect as
Section 1.02 hereof with respect to the Nominee Securities held by such
Nominee, and (ii) submit to the Company the certificates representing such
Nominee Securities for notation of the above-referenced legend thereon, and
(iii) tender such Nominee Securities in the Tender Offer pursuant to Section
1.03 hereof.
(d) Additional Securities. Such Shareholder hereby agrees, while
this Agreement is in effect, to promptly notify Parent of the number of any
new Securities acquired by such Shareholder, if any, after the date hereof.
(e) Cooperation. Such Shareholder will not take any action, which
could reasonably (i) result in any restriction on or delay in the consummation
of the transactions contemplated by the Acquisition Agreement (including but
not limited to the Arrangement or any other Transaction), the Related
Agreements or this Agreement or (ii) render any of such transactions
undesirable or impractical for Parent.
(f) Dissenter's Rights. Such Shareholder agrees that it will not
exercise any right to dissent or any similar rights of appraisal, which it may
have under any applicable Law with respect to any transaction contemplated by
the Acquisition Agreement or any Related Agreement.
SECTION 4.02. Release. Effective as of the Effective Time and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, such Shareholder on its behalf and on behalf of its (i) heirs,
executors, administrators, agents, successors and assigns or (ii)
predecessors, Subsidiaries, Affiliates and other related entities, as well as
any current or former benefit plan administrators and trustees, officers,
directors, shareholders or members (whether their ownership interests are held
directly or indirectly), partners, agents, attorneys, employees, successors
and assigns (the "Releasor Persons"), as applicable, hereby releases, waives
and discharges Parent, Acquiror and the Company, and their respective
Affiliates, officers, directors, shareholders, agents, successors and assigns
(collectively, the "Released Parties"), from any and all actions, causes of
action, suits, debts, dues, sums of money, accounts, bonds, bills, covenants,
contracts, controversies, agreements, promises, variances, trespasses,
damages, judgments, executions, claims and demands whatsoever, known or
unknown, in law or equity (each, a "Claim" and, collectively, the "Claims"),
arising from the Releasor's relationship with the Company prior to and
including the date of the consummation of the Arrangement or the Tender Offer,
as the case may be, or arising under any legislation (including but not
limited to the Labor Standards Code and the Human Rights Act) or otherwise, or
the Releasor's status as a shareholder, director, officer or employee of the
Company prior to and including the date of the consummation of the Arrangement
or the Tender Offer, as the case may be, except for any Claim (i) for Parent's
breach of this Agreement, (ii) for compensation owed to an employee or
director in the ordinary course under existing employment agreements, (iii)
for professional fees owed to advisors, lawyers and other professionals in the
ordinary course under existing arrangements with them, or (iv) with respect to
each Shareholder who is an officer or a director of the Company, for breach of
the rights of indemnification pursuant to Section 7.15 of the Acquisition
Agreement.
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SECTION 4.03. Stop Transfer Order. In furtherance of this
Agreement, each Shareholder hereby authorizes and directs the Company's
counsel to notify the Company's transfer agent that there is a stop transfer
order with respect to all of its Existing Securities (and that this Agreement
places limits on the voting and transfer of such Securities).
SECTION 4.04. Public Announcements. Each Shareholder shall consult
with Parent before issuing, and shall first provide Parent the reasonable
opportunity to review and comment upon, any press release or other public
statements by such Shareholder with respect to the existence or terms of this
Agreement, the Acquisition, the Arrangement and the other Transactions, and
shall not issue any such press release or make any such public statement
without the prior written consent of Parent, except to the extent necessary in
response to a judicial or similar investigative inquiry (including a discovery
request in a lawsuit), in which case such Shareholder shall make such
disclosure pursuant thereto only after first providing reasonable notice to
Parent and affording Parent the opportunity to seek to limit, prevent or
protect such disclosure.
SECTION 4.05. Reasonable Best Efforts; Further Assurances. (a)
Each Shareholder shall use its reasonable best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Arrangement and the other Transactions.
(b) Each Shareholder shall, from time to time, execute and deliver,
or cause to be executed and delivered, such additional or further consents,
documents and other instruments and shall take all such further actions as
Parent or Acquiror may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement, the Acquisition
Agreement and the other Related Agreements.
SECTION 4.06. Cooperation as to Regulatory Matters. If so
requested by Parent, promptly after the date hereof, each Shareholder will use
its reasonable best efforts to, and cause the Company (if required) to, make
all filings, which are required under the Competition Act, the HSR Act, the
Legislation or other applicable Laws, and to seek all regulatory approvals
required in connection with the Transactions. Each Shareholder shall furnish
all such necessary information and reasonable assistance as may be requested
in connection with the preparation of filings and submissions to any
Governmental Authority, including, without limitation, filings under the
provisions of the Competition Act, the HSR Act, the Legislation or other
applicable Laws. Each Shareholder shall supply, and use its reasonable best
efforts to cause the Company to supply, to Parent copies of all
correspondence, filings or communications (or memoranda setting forth the
substance thereof) with Governmental Authorities with respect to this
Agreement and the transactions contemplated hereby.
ARTICLE V
Miscellaneous
SECTION 5.01. Termination; Survival of Representations and
Warranties. This Agreement shall terminate on the Expiration Date, and upon
such termination, this
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Agreement shall terminate and be of no further force and effect; provided that
(i) if the Option has been exercised prior to such date, Articles II, III, IV
and V shall remain in effect until the Option Closing is completed, and (ii)
if the Exercise Date has occurred and any agreement for a Transfer is entered
into prior to the Expiration Date, Section 2.04 shall remain in effect with
respect to such Transfer. The respective representations and warranties of the
Shareholders and Parent contained in Article III or in any certificates or
other documents delivered at or prior to any Option Closing shall not be
deemed waived or otherwise affected by any investigation made by the other
party hereto, and shall survive the termination of this Agreement for one
year. The provisions of Section 4.02 shall terminate upon the termination of
the Acquisition Agreement pursuant to the terms thereof but shall not
terminate on or after the Effective Time of the Arrangement. The provisions of
Articles IV (other than the provisions of Section 4.02) and Article V shall
survive the termination of this Agreement indefinitely in accordance with
their terms.
SECTION 5.02. Amendments. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties.
SECTION 5.03. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if
delivered personally or sent by nationally recognized overnight courier or by
registered or certified mail, postage prepaid, return receipt requested, or by
electronic mail, with a copy thereof to be delivered or sent as provided above
or by facsimile or telecopier, as follows:
if to Parent or Acquiror, to
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Senior Vice President for Business Affairs
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esq.
if to the Shareholders:
to the addresses set forth opposite their names on the
signature pages hereto
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All such
notices or communications shall be
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deemed to be received (i) in the case of personal delivery, nationally
recognized overnight courier or registered or certified mail, on the date of
such delivery and (ii) in the case of facsimile or telecopier or electronic
mail, upon confirmed receipt.
SECTION 5.04. Descriptive Headings; Interpretation. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. The terms
"hereof," "herein," "hereby," and derivative or similar words refer to this
entire Agreement. Unless the context otherwise requires words of any gender
include each other gender, and words using the singular or plural number also
include the plural or singular number, respectively. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation". All references to
currency herein are to United States dollars unless otherwise specified.
SECTION 5.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
SECTION 5.06. Entire Agreement. This Agreement (including any
exhibits and schedules hereto) and the other documents and instruments
delivered in connection herewith constitute the entire agreement and supersede
all prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and
thereof.
SECTION 5.07. Assignment. This Agreement may not and shall not be
assigned by operation of Law or otherwise, except that Parent and Acquiror may
assign all or any of their rights hereunder to any Affiliate, provided that no
such assignment shall relieve the assigning party of its obligations
hereunder. Any assignment in violation of this Agreement shall be void.
SECTION 5.08. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 5.09. Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of any party hereto in the exercise of any
right hereunder will impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement
herein, nor will any single or partial exercise of any such right preclude
other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are cumulative to, and not exclusive
to, and not exclusive of, any rights or remedies otherwise available.
-11-
SECTION 5.10. Governing Law; Enforcement. This Agreement and the
rights and duties of the parties hereunder shall be governed by, and construed
in accordance with, the Law of the State of New York. The parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement in any
Federal court sitting in the Southern District of New York, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto, (a) consents to submit itself to the
exclusive personal jurisdiction of any Federal court sitting in the Southern
District of New York in the event any dispute arises out of this Agreement or
any transaction contemplated hereby, (b) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court, (c) agrees that it will not bring any action relating to
this Agreement or any transaction contemplated hereby in any court other than
any Federal court sitting in the Southern District of New York and (d) waives
any right to trial by jury with respect to any action related to or arising
out of this Agreement or any transaction contemplated hereby.
SECTION 5.11. No Third-Party Beneficiaries. Nothing in this
Agreement, express or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 5.12. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
[Remainder of this page intentionally left blank]
-12-
IN WITNESS WHEREOF, Parent, Acquiror and the Shareholders have
caused this Agreement to be duly executed as of the day and year first above
written.
AMERICA ONLINE, INC.
By: /s/ Xxxxx Xxxxxxxx
_____________________________________
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
IAN ACQUISITION ULC
By: /s/ Xxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxx
Title: President
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
1,044,321 Common Shares
and Employee Options to /s/ Xxxxxxx XxXxxxxx
acquire 135,000 Common ____________________________________
Shares Xxxxxxx XxXxxxxx
Address for Notices:
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX
XXXXXX X0X 0X0
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
22,000 Common Shares and
Employee Options to acquire
200,000 Common Shares /s/ Xxxxxxxx Xxxxxx Xxxxx
____________________________________
Xxxxxxxx Xxxxxx Xxxxx
Address for Notices:
00 Xxxxxxxxx Xxxxx Xxxx
XX#0 Xxxxxxxxxx Xxxxx
Xxxxxxx Reg. Municipality, NS
CANADA B0J 1G0
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
220,400 Common Shares and
Employee Options to acquire
125,000 Common Shares /s/ Xxxxxxx Xxxxx
___________________________________
Xxxxxxx Xxxxx
Address for Notices:
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX
XXXXXX X0X 0X0
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
Employee Options to acquire
140,000 Common Shares /s/ Xxxxxx Xxxxxx
__________________________________
Xxxxxx Xxxxxx
Address for Notices:
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX
XXXXXX X0X 0X0
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
Employee Options to acquire
14,500 Common Shares /s/ Xxxxxx Xxxx
_________________________________
Xxxxxx Xxxx
Address for Notices:
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX
XXXXXX X0X 0X0
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
Employee Options to acquire
13,000 Common Shares /s/ Xxxx Xxxxxxxx
________________________________
Xxxx Xxxxxxxx
Address for Notices:
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX
XXXXXX X0X 0X0
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
Employee Options to acquire
17,910 Common Shares /s/ Xxxx Xxxxx
________________________________
Xxxx Xxxxx
Address for Notices:
00 Xxxxxx Xxxx
Xxxxxxx, XX
XXXXXX X0X 0X0
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
Employee Options to acquire
39,983 Common Shares /s/ Xxxxx Xxxxxxx
________________________________
Xxxxx Xxxxxxx
Address for Notices:
000 Xxxxx Xxxx
Xxxxxxx, XX
XXXXXX X0X 0X0
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
Employee Options to acquire
1,125 Common Shares /s/ Xxxxx Xxxxxxxx
________________________________
Xxxxx Xxxxxxxx
Address for Notices:
00 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Xxxx Xxxxxx
X0X 0X0
Directors, Officers, Key Employees Shareholder Agreement
Existing Securities
Employee Options to acquire
8,600 Common Shares /s/ Xxxx Xxxxxxx
________________________________
Xxxx Xxxxxxx
Address for Notices:
Apt 306, 7 Vimy Avenue
Halifax, Nova Scotia
CANADA X0X 0X0
Directors, Officers, Key Employees Shareholder Agreement
