EXHIBIT 99.03
SUPPLEMENT TO VOTING AND EXCHANGE TRUST AGREEMENT
THIS AGREEMENT is entered into as of -, 2002, by and among
Xxxxxx-PRI Automation, Inc., a corporation formerly known as Xxxxxx Automation,
Inc., existing under the laws of the State of Delaware ("Xxxxxx-PRI"), 1325949
Ontario Inc., a corporation existing under the laws of Ontario and a
wholly-owned subsidiary of Xxxxxx-PRI ("Subco"), Xxxxxx-PRI Automation (Canada),
Inc., a corporation existing under the laws of Canada (the "Company"), and
Computershare Trust Company of Canada, a trust company incorporated under the
laws of Canada (the "Trustee").
WHEREAS Xxxxxx-PRI is the surviving corporation after two mergers
pursuant to an Amended and Restated Agreement and Plan of Merger dated as of
December 18, 2001 among Xxxxxx-PRI, PRI and a wholly owned subsidiary of
Xxxxxx-PRI, Pontiac Acquisition Corp., a corporation formerly existing under the
laws of the Commonwealth of Massachusetts and a wholly owned subsidiary of
Xxxxxx-PRI ("Xxxxxx Merger Sub"), and PRI Automation, Inc., a corporation
formerly existing under the laws of the Commonwealth of Massachusetts ("PRI"),
which agreement provided for (a) the merger of Xxxxxx Merger Sub into PRI (the
"First Merger"), pursuant to which each share of common stock of PRI was
exchanged for 0.52 of a share of common stock of Xxxxxx-PRI; and (b) the merger
of PRI into Xxxxxx-PRI immediately following the First Merger (the "Second
Merger");
AND WHEREAS PRI, the Company (then named Promis Systems Corporation
Ltd.), Subco and Montreal Trust Company of Canada are parties to a Voting and
Exchange Trust Agreement dated as of March 2, 1999 (the "Voting and Exchange
Trust Agreement");
AND WHEREAS the Trustee has purchased the corporate trust business of
Montreal Trust Company of Canada including the rights and obligations of
Montreal Trust Company of Canada under the Voting and Exchange Trust Agreement.
AND WHEREAS Xxxxxx-PRI agreed in the Merger Agreement to enter into,
and become bound by, inter alia, the Voting and Exchange Trust Agreement upon
consummation of the First Merger and the Second Merger (collectively, the
"Mergers");
AND WHEREAS the Mergers have been consummated;
AND WHEREAS, the parties hereto desire to execute this supplemental
agreement (the "Agreement") to evidence and confirm Xxxxxx-PRI as the successor
to PRI under the Voting and Exchange Trust Agreement pursuant to Section 12.5
thereof;
AND WHEREAS the Trustee is satisfied and has received a legal opinion
to the effect that the Mergers are on terms which substantially preserve and do
not impair in any material respect any of the rights, duties, powers and
authorities of the Trustee or of the Holders (as defined in the Voting and
Exchange Trust Agreement) under the Voting and Exchange Trust Agreement;
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NOW THEREFORE in consideration of the respective covenants and
agreements provided herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Xxxxxx-PRI is confirmed as the "Parent Successor" to PRI pursuant to
the provisions of Article 11 of the Voting and Exchange Trust
Agreement, and all references in the Voting and Exchange Trust
Agreement to "Parent" shall be deemed to be references to Xxxxxx-PRI.
Xxxxxx-PRI hereby accepts and agrees to such succession and confirms
and agrees that it shall be subject to and assume all rights,
liabilities, covenants and obligations of Parent under the Voting and
Exchange Trust Agreement and shall observe and perform all the
covenants and obligations of Parent thereunder.
2. Xxxxxx-PRI has issued to and deposited with the Trustee a special
voting share of Xxxxxx-PRI (the "Xxxxxx-PRI Special Voting Share"),
which was issued upon the conversion of the Voting Share (as defined in
the Voting and Exchange Trust Agreement) pursuant to the First Merger.
The Trustee acknowledges receipt of such Xxxxxx-PRI Special Voting
Share and has surrendered to Xxxxxx-PRI the certificate formerly
representing the Voting Share of PRI. The parties confirm that the
Xxxxxx-PRI Special Voting Share shall be the "Voting Share" for the
purposes of the Voting and Exchange Trust Agreement immediately upon
execution of this Agreement and acknowledge that the Xxxxxx-PRI Special
Voting Share provides that it shall carry that number of votes in the
aggregate as is equal to the number of Exchangeable Shares from time to
time outstanding (other than Exchangeable Shares held by Xxxxxx-PRI or
an affiliate) multiplied by 0.52, provided that fractional votes shall
be disregarded in the aggregate and in respect of the direction of
votes by each registered holder of Exchangeable Shares.
3. For greater certainty, as a result of the Mergers and the operation of
the Exchangeable Share Provisions (as defined in the Voting and Trust
Exchange Agreement), the definitions of "Aggregate Equivalent Vote
Amount", "Equivalent Vote Amount", "Exchangeable Share Consideration",
"Exchangeable Share Price" and "Holder Votes" contained in, and any
rights, liabilities, covenants and obligations of Parent or Subco
under, the Voting and Exchange Trust Agreement as supplemented by this
Agreement, including the obligation to deliver Exchangeable Share
Consideration thereunder, shall be construed and shall operate on the
basis that each Exchangeable Share has become exchangeable, redeemable
or retractable for 0.52 shares of Parent Common Stock, rather than for
one share of Parent Common Stock, subject to the treatment of
fractional interests as set forth in Section 4 below. In addition, the
reference in such definitions of "Aggregate Equivalent Vote Amount" and
"Equivalent Vote Amount" to "one share of Parent Common Stock" shall be
deemed to read "0.52 shares of Parent Common Stock".
4. No certificates will be issued representing fractional interests in
Parent Common Stock delivered upon exchange, redemption or retraction
of Exchangeable Shares, and any such fractional interests will not
entitle the holder thereof to any rights of a holder of Parent Common
Stock. In lieu thereof, each such holder will receive an amount of cash
(rounded down to the nearest whole cent), without interest, equal to
the product of such fraction multiplied by the market value of the
Parent Common Stock. For this purpose,
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market value means the closing price per share of Parent Common Stock
(rounded to the nearest whole cent) on the Nasdaq National Market on
the day the Exchangeable Share is exchanged, redeemed or retracted.
5. For the purposes of notices pursuant to the Voting and Exchange Trust
Agreement as supplemented by this Agreement, the notice particulars
are:
Parent or Subco:
Xxxxxx-PRI Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx, XXX
00000
Attention: Chief Financial Officer
Facsimile Number: (000) 000-0000
With a copy to:
Xxxxx, Xxxxxxx Xxxxx & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile Number (000) 000-0000
The Company:
Xxxxxx-PRI Automation (Canada), Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0
Attention: [-]
Facsimile Number:
With a copy to:
XxxxXxxxxx XXX
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
P.O. Box 480, 130 King Street West
Toronto, Ontario Canada M5X 1J5
Attention: Xxxxxxx X. Wozenilek, Esq.
Facsimile Number: (000) 000-0000
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The Trustee:
Computershare Trust Company of Canada
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Manager, Corporate Trust
Facsimile Number: (000) 000-0000
6. The Voting and Exchange Trust Agreement shall continue in full force
and effect, as supplemented by this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officers thereunto duly authorized, all as of the date first
written above.
XXXXXX-PRI AUTOMATION, INC.
By:
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1325949 ONTARIO INC.
By:
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XXXXXX-PRI AUTOMATION (CANADA), INC.
By:
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COMPUTERSHARE TRUST COMPANY OF CANADA
By:
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By:
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