Execution Copy
11
SUPPORT AGREEMENT
SUPPORT AGREEMENT, dated as of January 11, 2001, among
Transaction Systems Architects, Inc., a Delaware corporation ("TSA"),
Transaction Systems Architects Nova Scotia Company, a Nova Scotia unlimited
company ("TSA Holdco"), and TSA Exchangeco Limited, a Nova Scotia limited
company ("TSA Exchangeco").
WHEREAS in connection with a combination agreement dated as of
October 24, 2000 among TSA, TSA Holdco, TSA Exchangeco and MessagingDirect
Ltd., an Alberta Corporation ("MDL"), (the "Combination Agreement"), TSA
Exchangeco is to issue exchangeable shares (the "Exchangeable Shares") to
certain holders of securities of MDL pursuant to the plan of arrangement to be
effected by Articles of Arrangement filed under the Business Corporations Act
(Alberta) contemplated by the Combination Agreement and attached as an exhibit
thereto (the "Plan of Arrangement");
WHEREAS, the Plan of Arrangement sets forth the rights,
privileges, restrictions and conditions (collectively, the "Exchangeable Share
Provisions") attaching to the Exchangeable Shares;
WHEREAS, the parties to the Combination Agreement desire to
make appropriate provision and to establish a procedure whereby TSA, TSA
Holdco and TSA Exchangeco will take certain actions and make certain payments
and deliveries necessary to ensure that TSA Exchangeco will be able to make
certain payments and to deliver or cause to be delivered TSA Class A Common
Shares ("TSA Class A Common Shares") in satisfaction of the obligations of TSA
Exchangeco under the Exchangeable Share Provisions with respect to the payment
and satisfaction of dividends, Liquidation Amounts, Retraction Prices and
Redemption Prices, all in accordance with the Exchangeable Share Provisions;
and
WHEREAS, as part of the Plan of Arrangement and pursuant to
the Combination Agreement, the parties hereto are to execute and deliver a
Support Agreement substantially in the form of this Agreement on the Effective
Date (as defined in the Combination Agreement);
NOW THEREFORE in consideration of the respective covenants
and agreements provided in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms
Each term denoted herein by initial capital letters and not
otherwise defined herein shall have the meaning ascribed thereto in the
Exchangeable Share Provisions, unless the content requires otherwise.
1.2 Interpretation Not Affected by Headings, Etc.
The division of this Agreement into Articles, Sections and
other portions and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation hereof. Unless
otherwise indicated, all references to an "Article" or "Section" followed by a
number and/or a letter refer to the specified Article or Section of this
Agreement. The terms "this Agreement", "hereof", "herein" and "hereunder" and
similar expressions refer to this Agreement (including the Schedules and
Exhibits hereto) and not to any particular Article, Section or other portion
hereof, but do not include any agreement or instrument supplementary or
ancillary hereto.
1.3 Number, Gender, Etc.
Words importing the singular number only shall include the
plural and vice versa. Words importing the use of any gender shall include all
genders.
1.4 Date For Any Action
If any date on which any action is required to be taken under
this Agreement is not a Business Day, such action shall be required to be
taken on the next succeeding Business Day.
ARTICLE II
COVENANTS OF TSA, TSA HOLDCO AND TSA EXCHANGECO
2.1 Covenants of TSA Regarding Exchangeable Shares
So long as any Exchangeable Shares not owned by TSA or its
Affiliates are outstanding, TSA will:
(a) not declare or pay any dividend on the TSA Class A Common Shares
unless: (i) TSA Exchangeco shall comply with the
provisions of Section 3.1 of the Exchangeable Share
Provisions; and (ii) TSA Exchangeco shall have
sufficient money or other assets or authorized but
unissued securities available to enable the due
declaration and the due and punctual payment, in
accordance with applicable Law, of any dividend to be
declared and paid by TSA Exchangeco all in accordance
with Section 3.1 of the Exchangeable Share
Provisions;
(b) advise TSA Exchangeco sufficiently in advance of the declaration by
TSA of any dividend on the TSA Class A Common
Shares and take all such other actions as are
necessary, in cooperation with TSA Exchangeco, to
ensure that: (i) the respective declaration date,
record date and payment date for a dividend on the
Exchangeable Shares shall be the same declaration
date, record date and payment date for the
corresponding dividend on the TSA Class A Common
Shares; or, (ii) the effective date for an
Equivalent Stock Subdivision or Equivalent Ratio
Adjustment, as the case may be, shall be the same
as the payment date for the corresponding stock
dividend on the TSA Class A Common Shares;
(c) take all such actions and do all such things as are necessary or
desirable to enable and permit TSA Exchangeco, in
accordance with applicable Law, to pay and
otherwise perform its obligations with respect to
the satisfaction of the Liquidation Amount, the
Retraction Price or the Redemption Price in respect
of each issued and outstanding Exchangeable Share
(other than Exchangeable Shares owned by TSA or its
Affiliates) upon the liquidation, dissolution or
winding up of TSA Exchangeco, or any other
distribution of the assets of TSA Exchangeco among
its Shareholders for the purpose of winding up its
affairs, the delivery of a Retraction Request by a
holder of Exchangeable Shares or a redemption of
Exchangeable Shares by TSA Exchangeco, as the case
may be, including, without limitation, all such
actions and all such things as are necessary or
desirable to enable and permit TSA Exchangeco to
cause to be delivered TSA Class A Common Shares to
the holders of Exchangeable Shares in accordance
with the provisions of Articles 5, 6 or 7, as the
case may be, of the Exchangeable Share Provisions;
(d) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit TSA
Exchangeco, TSA Holdco or TSA, in accordance with
applicable Law, to perform its obligations
contemplated in the Plan of Arrangement (including
the Exchangeable Share Provisions), including
without limitation, those obligations arising upon
the exercise by it of the Liquidation Call Right,
the Retraction Call Right or the Redemption Call
Right, and further including, without limitation,
all such actions and all such things as are
necessary or desirable to enable and permit TSA
Exchangeco, TSA Holdco or TSA to cause TSA Class A
Common Shares to be delivered to the holders of
Exchangeable Shares, in accordance with the
provisions of the Liquidation Call Right, the
Retraction Call Right or the Redemption Call Right,
as the case may be; and
(e) not exercise its vote as a shareholder, directly or indirectly, to
initiate the voluntary liquidation, dissolution or
winding up of TSA Exchangeco or any other
distribution of the assets of TSA Exchangeco among
its shareholders for the purpose of winding up its
affairs, nor take any action or omit to take,
directly or indirectly, any action that is designed
to result in the liquidation, dissolution or
winding up of TSA Exchangeco or any other
distribution of the assets of TSA Exchangeco among
its shareholders for the purpose of winding up its
affairs, subject to the provision in section 2.9
herein that a reorganization of TSA Exchangeco
shall not be prohibited in circumstances outlined
therein.
2.2 Segregation of Funds
TSA will cause TSA Exchangeco to deposit a sufficient amount
of funds in a separate account of TSA Exchangeco and segregate a sufficient
amount of such assets and other property as is necessary to enable TSA
Exchangeco to pay dividends when due and to pay or otherwise satisfy the
applicable dividends, Liquidation Amount, Retraction Price or Redemption
Price, in each case for the benefit of holders from time to time of the
Exchangeable Shares (other than TSA and its Affiliates), and TSA Exchangeco
will use such funds, assets and other property so segregated exclusively for
the payment of dividends and the payment or other satisfaction of the
Liquidation Amount, the Retraction Price or the Redemption Price, as
applicable, net of any corresponding withholding tax obligations and for the
remittance of such withholding tax obligations.
2.3 Reservation of TSA Class A Common Shares
TSA hereby represents, warrants and covenants that it has
irrevocably reserved for issuance and will at all times while any Exchangeable
Shares (other than Exchangeable Shares held by TSA or its Affiliates) are
outstanding, keep available, free from pre-emptive and other rights, out of
its authorized and unissued share capital such number of TSA Class A Common
Shares (or other shares or securities into which TSA Class A Common Shares may
be reclassified or changed as contemplated by Section 2.7 hereof): (a) as is
equal to the sum of: (i) the number of Exchangeable Shares issued and
outstanding from time to time (other than those Exchangeable Shares that have
been acquired by TSA or its Affiliates); and (ii) the number of Exchangeable
Shares issuable upon the exercise of all rights to acquire Exchangeable Shares
outstanding from time to time; and (b) as are now and may hereafter be
required to enable and permit TSA Exchangeco to meet its obligations
hereunder, under the Voting and Exchange Trust Agreement, under the
Exchangeable Share Provisions and under any other security or commitment
pursuant to the Plan of Arrangement with respect to which TSA may now or
hereafter be required to issue TSA Class A Common Shares and to enable and
permit TSA Exchangeco, TSA Holdco, or TSA to meet its obligations under the
Automatic Exchange Rights (as defined in the Voting and Exchange Trust
Agreement), Exchangeable Share Provisions, Liquidation Call Right, the
Retraction Call Right and the Redemption Call Right.
2.4 Notification of Certain Events
In order to assist TSA in complying with its obligations
hereunder and to permit TSA Exchangeco, TSA Holdco, or TSA to exercise the
Liquidation Call Right, the Retraction Call Right and the Redemption Call
Right, TSA Exchangeco will notify TSA, and TSA Holdco (and with respect to (a)
below, the transfer agent of the Exchangeable Shares) of each of the following
events at the time set forth below:
(a) in the event of any determination by the Board of Directors of TSA
Exchangeco to institute voluntary liquidation,
dissolution or winding up proceedings with respect
to TSA Exchangeco or to effect any other
distribution of the assets of TSA Exchangeco among
its shareholders for the purpose of winding up its
affairs, at least 60 days prior to the proposed
effective date of such liquidation, dissolution,
winding up or other distribution;
(b) immediately, upon the earlier of: (i) receipt by TSA Exchangeco of
notice of; and (ii) TSA Exchangeco otherwise
becoming aware of, any threatened or instituted
claim, suit, petition or other proceedings with
respect to the involuntary liquidation, dissolution
or winding up of TSA Exchangeco or to effect any
other distribution of the assets of TSA Exchangeco
among its shareholders for the purpose of winding
up its affairs;
(c) immediately, upon receipt by TSA Exchangeco of a Retraction Request;
(d) on the same date on which notice of redemption is
given to the holders of Exchangeable Shares, upon the
determination of a Redemption Date in accordance with
the Exchangeable Share Provisions; and
(e) as soon as practicable upon the issue by TSA
Exchangeco of any Exchangeable Shares or rights to
acquire Exchangeable Shares (other than the issue of
Exchangeable Shares and rights to acquire
Exchangeable Shares in exchange for MDL Class A
Shares pursuant to the Arrangement).
2.5 Delivery of TSA Class A Common Shares
In furtherance of TSA's obligations under Sections 2.1 (c)
and 2.1 (d) hereof, upon notice from TSA Exchangeco, TSA Holdco or TSA of any
event that requires any such party to cause TSA Class A Common Shares to be
delivered to any holder of Exchangeable Shares, TSA shall forthwith allot or
reserve, issue and deliver or cause to be delivered to the relevant holder of
Exchangeable Shares as directed by TSA Exchangeco, TSA Holdco or TSA of the
requisite number of TSA Class A Common Shares to be allotted to or reserved
for, and received by and issued to the former holder of the surrendered
Exchangeable Shares. All such TSA Class A Common Shares shall be validly
issued, fully paid, non-assessable, and will be free and clear of any lien,
claim or encumbrance attributable to, or arising due to, any action or
omission of the issuer.
2.6 Issuance, Listing and Registration of TSA Class A Common
Shares
So long as any Exchangeable Shares not owned by TSA or its
Affiliates are outstanding, TSA will cause the TSA Class A Common Shares to be
issued from time to time upon exchange of the Exchangeable Shares to be quoted
on the NASDAQ or such other exchange or quotation system to the same extent as
TSA stock is quoted generally, subject only to official notice of issuance.
TSA will prepare and file the Registration Statement (as defined in the
Combination Agreement) with the SEC.
2.7 Economic Equivalence
So long as any Exchangeable Shares not owned by TSA or its
Affiliates are outstanding:
(a) TSA will not without the prior approval of TSA
Exchangeco and the prior approval of the holders of
the Exchangeable Shares given in accordance with
Section 9.2 of the Exchangeable Share Provisions:
(i) issue or distribute TSA Class A Common
Shares (or securities exchangeable for or
convertible into or carrying rights to
acquire TSA Class A Common Shares) to the
holders of all or substantially all of the
then outstanding TSA Class A Common Shares
by way of stock dividend (including a
stock split payable as a stock dividend)
or other distribution, other than an issue
of TSA Class A Common Shares (or
securities exchangeable for or convertible
into or carrying rights to acquire TSA
Class A Common Shares) to holders of TSA
Class A Common Shares who exercise an
option to receive dividends in TSA Class A
Common Shares (or securities exchangeable
for or convertible into or carrying rights
to acquire TSA Class A Common Shares) in
lieu of receiving cash dividends;
(ii) issue or distribute rights, options or
warrants to the holders of all or
substantially all of the then outstanding
TSA Class A Common Shares entitling them
to subscribe for or to purchase TSA Class
A Common Shares (or securities
exchangeable for or convertible into or
carrying rights to acquire TSA Class A
Common Shares); or
(iii) issue or distribute to the holders of all or
substantially all of the then outstanding
TSA Class A Common Shares:
(A) shares or securities of TSA of any
class other than TSA Class A Common
Shares (other than shares
convertible into or exchangeable for
or carrying rights to acquire TSA
Class A Common Shares);
(B) rights, options or warrants other than those referred to in Section
2.7(a)(ii) above;
(C) evidences of indebtedness of TSA; or
(D) assets of TSA;
unless TSA or TSA Exchangeco is permitted under
applicable Law to issue or distribute the same, or
the economic equivalent on a per share basis of, such
rights, options, securities, shares, evidences of
indebtedness or other assets to holders of the
Exchangeable Shares other than TSA and its Affiliates
or to effect an Equivalent Stock Subdivision or
Equivalent Ratio Adjustment and TSA or TSA Exchangeco
issues or distributes the same, or the economic
equivalent of, such rights, options, securities,
shares, evidences of indebtedness or other assets
simultaneously to holders of the Exchangeable Shares
or effects an Equivalent Stock Subdivision or
Equivalent Ratio Adjustment; provided that, for
greater certainty, the above restrictions shall not:
(i) apply to any securities issued or distributed by
TSA in order to give effect to and to consummate the
transactions contemplated by, and in accordance with,
the Plan of Arrangement or (ii) restrict TSA's
overriding Redemption Call Right in the event of a
TSA Spin-Out Decision Date.
(b) TSA will not without the prior approval of TSA
Exchangeco and the prior approval of the holders of
the Exchangeable Shares given in accordance with
Section 9.2 of the Exchangeable Share Provisions:
(i) subdivide, redivide or change the then
outstanding TSA Class A Common Shares into a
greater number of TSA Class A Common Shares;
or
(ii) reduce, combine, consolidate or change the
then outstanding TSA Class A Common Shares
into a lesser number of TSA Class A Common
Shares; or
(iii) reclassify or otherwise change the TSA Class
A Common Shares or effect an amalgamation,
merger, reorganization or other transaction
affecting the TSA Class A Common Shares;
unless (x) TSA Exchangeco is permitted under
applicable Law to make the same or an economically
equivalent change to, or in the rights of holders of,
the Exchangeable Shares and (y) the same or an
economically equivalent change is made to, or in the
rights of the holders of, the Exchangeable Shares.
(c) Should the board of directors of TSA Exchangeco determine, in good
faith and in its sole and absolute discretion, to
provide economic equivalence for the purposes of
any event referred to in section 2.7 (a) or (b)
above, the board of directors of TSA Exchangeco
shall determine, in its sole and absolute
discretion, (with the assistance of such reputable
and qualified independent financial advisors and/or
other experts as the board of directors of TSA
Exchangeco may require) such economic equivalence,
and each such determination shall be conclusive and
binding on TSA Exchangeco, all TSA Exchangeco
security holders and TSA. In making such
determination of economic equivalence, the
following factors shall, without excluding other
factors determined by the board of directors of TSA
Exchangeco to be relevant, be considered by the
board of directors of TSA Exchangeco :
(i) in the case of any stock dividend or other
distribution payable in TSA Class A Common
Shares, the number of such shares issued in
proportion to the number of TSA Class A
Common Shares previously outstanding;
(ii) in the case of the issuance or distribution of any rights, options or
warrants to subscribe for or purchase TSA
Class A Common Shares (or securities
exchangeable for or convertible into or
carrying rights to acquire TSA Class A
Common Shares), the relationship between
the exercise price of each such right,
option or warrant and the Current Market
Price;
(iii) in the case of the issuance or distribution of any other form of
property (including without limitation any
securities of TSA of any class other than
TSA Class A Common Shares, any rights,
options or warrants other than those
referred to in Subsection (b) above, any
evidences of indebtedness of TSA or any
assets of TSA), the relationship between
the fair market value (as determined by
the board of directors of TSA Exchangeco
in the manner above contemplated) of such
property to be issued or distributed with
respect to each outstanding TSA Class A
Common Share and the Current Market Price;
(iv) in the case of any subdivision, re-division or change of the then
outstanding TSA Class A Common Shares into
a greater number of TSA Class A Common
Shares or the reduction, combination or
consolidation or change of the then
outstanding TSA Class A Common Shares into
a lesser number of TSA Class A Common
Shares or any amalgamation, merger,
re-organization or other transaction
effecting the TSA Class A Common Shares,
the effect thereof on the then outstanding
shares of TSA Class A Common Shares; and
(v) the general taxation consequences of the relevant event to holders of
Exchangeable Shares to the extent that
such consequences may differ from the
taxation consequences to holders of TSA
Class A Common Shares as a result of
differences between Tax Laws of Canada,
the United Kingdom, and the United States
(except for any differing consequences
arising as a result of differing marginal
taxation rates and without regard to the
individual circumstances of holders of
Exchangeable Shares).
(d) TSA Exchangeco agrees that, to the extent required,
and subject to TSA's overriding Redemption Call
Right in the event of a TSA Spin-Out Decision Date,
upon due notice from TSA, TSA Exchangeco will use
its best efforts to take or cause to be taken such
steps as may be necessary for the purposes of
ensuring that appropriate dividends are paid or
other distributions are made by TSA Exchangeco, or
changes are made to the Exchangeable Shares or that
an Equivalent Ratio Adjustment is made, in order to
implement the required economic equivalence with
respect to TSA Class A Common Shares and
Exchangeable Shares as provided for in this Section
2.7.
2.8 Tender Offers, Etc.
In the event that a tender offer, share exchange offer, issuer
bid, take-over bid or similar transaction with respect to TSA Class A Common
Shares (an "Offer") is proposed by TSA or is proposed to TSA or its
shareholders and is recommended by the board of directors of TSA, or is
otherwise effected or to be effected with the consent or approval of the board
of directors of TSA and the Exchangeable Shares are not redeemed by TSA
Exchangeco or purchased by TSA Holdco (or TSA) pursuant to the Redemption Call
Right or Automatic Exchange Rights, TSA will use its reasonable efforts in
good faith to take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit holders of Exchangeable Shares
other than TSA and its Affiliates to participate in such Offer to the same
extent and on an economically equivalent basis as the holders of TSA Class A
Common Shares, without discrimination. Without limiting the generality of the
foregoing, TSA will use its reasonable efforts in good faith to ensure that
holders of Exchangeable Shares may participate in each such Offer without
being required to retract Exchangeable Shares as against TSA Exchangeco (or,
if so required, to ensure that any such retraction shall be effective only
upon, and shall be conditional upon, the closing of such Offer and only to the
extent necessary to tender or deposit to the Offer). Nothing herein shall
affect the rights of TSA Exchangeco to redeem (or TSA Holdco or TSA to
purchase pursuant to the Redemption Call Right or Automatic Exchange Rights)
Exchangeable Shares, as applicable, in the event of a TSA Control Transaction.
2.9 Ownership of Outstanding Shares of TSA Exchangeco
TSA covenants and agrees in favour of TSA Exchangeco that, as
long as any outstanding Exchangeable Shares are owned by any Person other than
TSA or its Affiliates, TSA will be and remain the direct or indirect
beneficial owner of all issued and outstanding voting shares in the capital of
TSA Exchangeco and of all of the issued and outstanding shares of TSA Holdco,
unless obtaining the prior approval of TSA Exchangeco and the prior approval
of the holders of the Exchangeable Shares given in accordance with Section 9.2
of the Exchangeable Share Provisions, and provided that this shall not
prohibit a reorganization of TSA Exchangeco or TSA Holdco which results in TSA
or its Affiliates assuming or succeeding to the rights and obligations of TSA
Exchangeco and TSA Holdco hereunder, but provided further that no such
reorganization shall result in the holders of Exchangeable Shares becoming
shareholders or otherwise beneficially interested in any body corporate or
other entity which does not afford its shareholders (or other equity holders)
limited liability.
2.10 TSA and Affiliates Not to Vote Exchangeable Shares
TSA covenants and agrees that it will appoint and cause to be
appointed proxy holders with respect to all Exchangeable Shares held by TSA
and its Affiliates, specifically including TSA Holdco, for the sole purpose of
attending each meeting of holders of Exchangeable Shares in order to be
counted as part of the quorum for each such meeting. TSA further covenants and
agrees that it will not, and will cause each of its Affiliates (including TSA
Holdco) not to, exercise any voting rights that may be exercisable by holders
of Exchangeable Shares from time to time pursuant to the Exchangeable Share
Provisions or pursuant to the provisions of the ABCA (or any successor or
other corporate statute by which TSA Exchangeco may in the future be governed)
with respect to any Exchangeable Shares held by it or by TSA Holdco, TSA or by
TSA's Affiliates in respect of any matter considered at any meeting of holders
of Exchangeable Shares.
2.11 Due Performance
On and after the Effective Date, TSA shall duly and timely
perform all of its obligations provided for in the Plan of Arrangement,
including any obligations that may arise upon the exercise of TSA's rights
under the Exchangeable Share Provisions.
ARTICLE III
GENERAL
3.1 Term
This Agreement shall come into force and be effective as of
the date hereof and shall terminate and be of no further force and effect at
such time as no Exchangeable Shares (or securities or rights convertible into
or exchangeable for or carrying rights to acquire Exchangeable Shares) are
held by any party other than TSA and any of its Affiliates.
3.2 Changes in Capital of TSA and TSA Exchangeco
Notwithstanding the provisions of Section 3.4 hereof, at all
times after the occurrence of any event effected pursuant to Section 2.7 or
2.8 hereof or otherwise, as a result of which either the TSA Class A Common
Shares or the Exchangeable Shares or both are in any way changed, this
Agreement shall forthwith be amended and modified as necessary in order that
it shall apply with full force and effect, mutatis mutandis, to all new
securities into which TSA Class A Common Shares or the Exchangeable Shares or
both are so changed and the parties hereto shall execute and deliver an
agreement in writing giving effect to and evidencing such necessary amendments
and modifications.
3.3 Severability
If any provision of this Agreement, or the application
thereof, will for any reason and to any extent be invalid or unenforceable,
the remainder of this Agreement and application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
businesses, legal and other purposes of the void or unenforceable provision.
3.4 Amendments, Modifications, Etc.
Subject to Section 3.2, 3.3 and 3.5, this Agreement may not
be amended or modified except by an agreement in writing executed by TSA
Exchangeco, TSA, and TSA Holdco and approved by the holders of the
Exchangeable Shares in accordance with Section 9.2 of the Exchangeable Share
Provisions.
3.5 Administrative Amendments
Notwithstanding the provisions of Section 3.4, the parties to
this Agreement may in writing, at any time and from time to time, without the
approval of the holders of the Exchangeable Shares, amend or modify this
Agreement as may be necessary or advisable for the purposes of:
(a) adding to the covenants of any or all parties to this
Agreement for the protection of TSA Exchangeco or the
holders of the Exchangeable Shares, provided that the
board of directors of each of TSA, TSA Exchangeco and
TSA Holdco shall be of the good faith opinion, after
consultation with counsel, that such additions will not
be prejudicial to the rights or interest of the holders
of Exchangeable Shares;
(b) making such provisions or modifications not inconsistent with this
Agreement as may be necessary or desirable with
respect to matters or questions which, in the good
faith opinion of the board of directors of each of
TSA Exchangeco, TSA Holdco and TSA, it may be
expedient to make, provided that each such board of
directors shall be of the good faith opinion, after
consultation with counsel, that such provisions or
modifications will not be prejudicial to the
interests of the holders of the Exchangeable Shares;
or
(c) making such changes or corrections to this Agreement, which, on the
advice of counsel, are reasonably required for the
purpose of curing or correcting any ambiguity or
defect or inconsistent provision or clerical omission
or mistake or manifest error, provided that in the
opinion of the board of directors of each of TSA
Exchangeco, TSA Holdco and TSA, after consultation
with counsel, such changes or corrections will not
be prejudicial to the interests of the holders of the
Exchangeable Shares.
3.6 Meeting to Consider Amendments
TSA Exchangeco, at the request of TSA, shall call a meeting
or meetings of the holders of the Exchangeable Shares for the purpose of
considering any proposed amendment or modification requiring approval pursuant
to Section 3.4 hereof. Any such meeting or meetings shall be called and held
in accordance with the by-laws of TSA Exchangeco, the Exchangeable Share
Provisions and all applicable Laws.
3.7 Amendments Only in Writing
No amendment to or modification or waiver of any of the
provisions of this Agreement otherwise permitted hereunder shall be effective
unless made in writing and signed by all of the parties hereto.
3.8 Inurement
This Agreement shall be binding upon and inure to the benefit
of the parties hereto, the holders from time to time of the Exchangeable
Shares and their respective successors and permitted assigns from time to
time, as well as to their respective heirs, executors, trustees,
administrators and other personal representatives.
3.9 Notices to Parties
All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally, by
facsimile, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to TSA, TSA Holdco or TSA Exchangeco:
Transaction Systems Architects, Inc.
000 Xxxxx 000xx Xxxxxx
Xxxxx 0
Xxxxx, Xxxxxxxx
00000
Attention: General Counsel and Secretary
Facsimile: (000) 000-0000
All such notices and other communications shall be deemed to have been received
(a) in the case of personal delivery, on the date of such delivery, (b) in the
case of a facsimile, when the party receiving such copy shall have confirmed
receipt of the communication, (c) in the case of delivery by
nationally-recognized overnight courier, on the business day following dispatch,
and (d) in the case of mailing, on the tenth business day following such
mailing.
3.10 Counterparts
This Agreement may be executed in any number of counterparts,
each of which will be an original as regards any party whose signature appears
thereon and all of which together will constitute one and the same instrument.
This Agreement will become binding when one or more counterparts hereof,
individually or taken together, will bear the signatures of all the parties
reflected hereon as signatories.
3.11 Jurisdiction
This Agreement shall be construed and enforced in accordance
with the laws of the Province of Alberta and the laws of Canada applicable
therein.
3.12 Attornment
Each of the parties hereto agrees that any action or
proceeding arising out of or relating to this Agreement may be instituted in
the courts of Alberta, waives any objection which it may have now or hereafter
to the venue of any such action or proceeding, irrevocably submits to the
jurisdiction of the said courts in any such action or proceeding, agrees to be
bound by any judgment of the said courts and not to seek, and hereby waives,
any review of the merits of any such judgment by the courts of any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
TRANSACTION SYSTEMS ARCHITECTS, INC.
By:
___________________________________
Name:
Title:
TRANSACTION SYSTEMS ARCHITECTS NOVA SCOTIA COMPANY
By:
___________________________________
Name:
Title:
\ TSA EXCHANGECO LIMITED
By:
___________________________________
Name:
Title:
