EXHIBIT 4.4
COVENANT AGREEMENT entered into by and
between: XXXXXXXXXXX.XXX INC., a corporation incorporated under
the laws of the State of Delaware (U.S.A.), having its
registered office at One Xxxxxx Square, 00xx Xxxxx,
Xxxxx xxx Xxxx Xxxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of
New Castle, State of Delaware (U.S.A.) 19801,
represented hereunder by Xx. Xxxxxx Xxxxxxx, its
President, duly authorized as he so declares;
("Xxxxxxxxxxx.xxx")
and: VIASITE INC., a company incorporated under the laws of
the Province of Quebec (Canada), having its head
office at 000 Xx-Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx,
Xxxxxxxx of Quebec (Canada) G1K 3P6, represented
hereunder by Xx. Xxxxxx Xxxxxxx, its President, duly
authorized as he so declares ;
("ViaSite")
WITNESSETH:
WHEREAS Xxxxxxxxxxx.xxx has been incorporated under the General
Corporation Law (Delaware) by Certificate of Incorporation dated May 25, 1999,
as amended and restated by Amended and Restated Certificate of Incorporation,
dated November 23, 1999, a copy of which is annexed hereto as Schedule A (the
"Amended and Restated Certificate of Incorporation");
WHEREAS ViaSite has been amalgamated under Part 1A of the Companies Act
(Quebec) by Certificate and Articles of Amalgamation dated April 30, 1999, as
amended by Certificate and Articles of Amendment dated November 23, 1999, a copy
of which is annexed hereto as Schedule B (the "Certificate and Articles of
Amendment");
WHEREAS, under the Amended and Restated Certificate of Incorporation, the
authorized capital stock of Xxxxxxxxxxx.xxx consists of 130,800,162 shares, of
which (i) 124,449,762 shares shall be Common Stock, par value US$0.00001 per
share, of which Common Stock, a total of 100,000,000 shall be designated Series
A Common and a total of 24,449,762 shall be designated Series B Common, and (ii)
6,350,400 shares shall be Preferred Stock, par value US$0.00001 per share, of
which Preferred Stock a total of 6,350,400 shall be designated Series A
Preferred.
WHEREAS, as of the date hereof, of the Series B Common Stock of
Xxxxxxxxxxx.xxx, 24,449,762 shares are issued and outstanding and no other share
of the capital stock of Xxxxxxxxxxx.xxx is issued.
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WHEREAS, under the Certificate and Articles of Amendment, the share
capital of ViaSite consists (i) of an unlimited number of class A common shares,
(ii) of 18,099,362 class A preferred exchangeable shares, (iii) of 6,350,400
class B preferred exchangeable shares, and (iv) of 24,449,762 class C preferred
voting shares, all without par value.
WHEREAS, as of the date hereof, 1,000 class A common shares, 18,099,362
class A preferred exchangeable shares, 6,350,400 class B preferred exchangeable
shares and 24,449,762 class C preferred voting shares are issued and
outstanding, and no other share of the share capital of ViaSite is issued.
WHEREAS the Certificate and Articles of Amendment of ViaSite contains
provisions regarding the class A preferred exchangeable shares (the "Class A
Preferred Exchangeable Shares") and the class B preferred exchangeable shares
(the "Class B Preferred Exchangeable Shares") of the share capital of ViaSite
respecting, without limitation, (i) the declaration and payment by ViaSite of
dividends in case of declaration and payment by Xxxxxxxxxxx.xxx of dividends on
Series A Common Stock ("Series A Common Stock") or Series A Preferred Stock
("Series A Preferred Stock") of its capital stock, (ii) a certain Liquidation
Call Right (as defined in the Certificate and Articles of Amendment) in favour
of Xxxxxxxxxxx.xxx in case of liquidation, dissolution or winding-up of ViaSite,
(iii) a certain Call Right (as defined in the Certificate and Articles of
Amendment) in favour of Xxxxxxxxxxx.xxx in case of retraction of Class A
Preferred Exchangeable Shares or Class B Preferred Exchangeable Shares by a
shareholder of ViaSite and (iv) a certain Redemption Call Right (as defined in
the Certificate and Articles of Amendment) in favour of Xxxxxxxxxxx.xxx in case
of redemption by ViaSite of Class A Preferred Exchangeable Shares or Class B
Preferred Exchangeable Shares.
NOW, THEREFORE, THE PARTIES HERETO DO HEREBY AGREE WITH EACH OTHER AS
FOLLOWS:
1. PREAMBLE
1.1 The preamble to this Covenant Agreement shall form integral part thereof.
1.2 Unless otherwise defined in this Covenant Agreement, the words and
expressions used herein which are defined in the Certificate and Articles
of Amendment of ViaSite shall have the same meaning as in the Certificate
and Articles of Amendment.
2. DIVIDENDS
2.1 In each case mentioned in sub-paragraph 3.3.1 (dividend by Xxxxxxxxxxx.xxx
in US$ its Series A Common Stock), sub-paragraph 3.3.3 (dividend by
Xxxxxxxxxxx.xxx in property other than US$ or Series A Common Stock on
Series A Common Stock), sub-paragraph 4.3.1 (dividend by Xxxxxxxxxxx.xxx
in US$ on Series A Preferred Stock) and sub-paragraph 4.3.3 (dividend by
Xxxxxxxxxxx.xxx in property other than US$ or Series A Preferred Stock on
Series A Preferred Stock) of the Certificate and Articles of Amendment,
Xxxxxxxxxxx.xxx hereby irrevocably agrees and covenants to provide
ViaSite, whether as a loan or otherwise, with the amount in US$ or
Canadian Dollars Equivalent thereof, or with the type and amount
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of property or the Economic Equivalent thereof, as the case may be, in a
timely manner, in order to allow ViaSite to declare and pay the dividends
mentioned in paragraph 3.3 and 4.3 of the Certificate and Articles of
Amendment, in accordance with paragraphs 3.4 to 3.7 inclusive or
paragraphs 4.4 to 4.7 inclusive, as the case may be, of the Certificate
and Articles of Amendment.
3. LIQUIDATION CALL RIGHTS
3.1 In each case mentioned in paragraphs 3.10 and 4.10 (liquidation,
dissolution or winding-up of ViaSite) of the Certificate and Articles of
Amendment, Xxxxxxxxxxx.xxx hereby irrevocably agrees and covenants to
fully exercise its Liquidation Call Right, in a timely manner, in
accordance with paragraphs 3.11 to 3.16 inclusive and paragraphs 4.11 to
4.16 inclusive of the Certificate and Articles of Amendment.
4. CALL RIGHTS
4.1 In each case mentioned in paragraphs 3.19 and 4.19 (retraction of Class A
Preferred Exchangeable Shares or Class B Preferred Exchangeable Shares, as
the case may be, by a shareholder of ViaSite) of the Certificate and
Articles of Amendment, Xxxxxxxxxxx.xxx hereby irrevocably agrees and
covenants to fully exercise its Call Right, in a timely manner, in
accordance with paragraphs 3.20 to 3.26 inclusive or paragraphs 4.20 to
4.26 inclusive, as the case may be, of the Certificate and Articles of
Amendment.
5. REDEMPTION CALL RIGHTS
5.1 In each case mentioned in paragraphs 3.27 and 4.27 (redemption by ViaSite
of Class A Preferred Exchangeable Shares or Class B Preferred Exchangeable
Shares, as the case may be) of the Certificate and Articles of Amendment,
Xxxxxxxxxxx.xxx hereby irrevocably agrees and covenants to fully exercise
its Redemption Call Right, in a timely manner, in accordance with
paragraphs 3.28 to 3.33 inclusive or paragraphs 4.28 to 4.33 inclusive, as
the case may be, of the Certificate and Articles of Amendment.
6. DURATION
6.1 Notwithstanding the place and date of its execution, as the case may be,
this Covenant Agreement shall enter into force and have full effect as of,
and may be referred to as an agreement entered into in Quebec (Quebec) as
of November 24, 1999.
6.2 This Covenant Agreement shall remain into force and have full effect as
long as there is at least one (1) Class A Preferred Exchangeable Share or
one (1) Class B Preferred Exchangeable Share still outstanding.
7. OTHER PROVISIONS
7.1 The parties hereto shall take all such actions and do all such things as
shall be necessary or advisable to perform and comply with and to ensure
performance and compliance by each of
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them with all provisions of this Covenant Agreement and consequently, of
the Certificate and Articles of Amendment.
7.2 Any notice or demand to or upon the respective parties hereto under this
Covenant Agreement or the Certificate and Articles of Amendment, shall be
deemed to have been duly given or made to the party to which such notice
or demand is made, when delivered to such party, by certified mail,
postage prepaid, or by telecopier or hand delivery, at the addresses
hereafter, or at such other address as any of the parties hereto may
hereafter notify the other in writing in accordance with these provisions:
7.2.1 In the case of Xxxxxxxxxxx.xxx:
000 Xx-Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx City, Province xx Xxxxxx
Xxxxxx
X0X 0X0
telecopier: (000) 000-0000
Attention of the President
7.2.2 in the case of ViaSite:
000 Xx-Xxxxxxx Xxxx
Xxxxx 00
Xxxxxx City, Province xx Xxxxxx
Xxxxxx
X0X 0X0
telecopier: (000) 000-0000
Attention of the President
7.3 This Covenant Agreement shall be governed by and in accordance with the
laws of the Province of Quebec and the laws of Canada applicable therein,
and the courts having jurisdiction in the Province of Quebec shall have
exclusive jurisdiction to settle any dispute regarding this Covenant
Agreement and the Certificate and Articles of Amendments which may arise
between the parties hereto.
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7.4 This Covenant Agreement may be executed and signed in counterparts; all
signed copies hereof shall be deemed to be originals of one and same
agreement.
IN WITNESS WHEREOF the parties hereto have executed this Covenant
Agreement.
IN THE PRESENCE OF: XXXXXXXXXXX.XXX INC.
____________________________ per: Xxxxxx Xxxxxxx
(witness)
VIASITE INC.
____________________________ per: Xxxxxx Xxxxxxx
(witness)
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