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Exhibit 10.15
AMENDMENT NO. 1 DATED FEBRUARY 7, 2000 TO THE AMALGAMATION AGREEMENT MADE
AS OF THE 30TH DAY OF NOVEMBER, 1999.
B E T W E E N:
DELANO TECHNOLOGY CORPORATION, a corporation governed by the
Business Corporations Act (Ontario), ("Delano")
- and -
XDL DELANO HOLDINGS INC., a corporation governed by the
Business Corporations Act (Ontario), ("Holdings")
RECITALS:
X. Xxxxxx and Holdings have entered into an Amalgamation Agreement dated as of
the 30th day of November, 1999;
X. Xxxxxx and Holdings wish to amend the Amalgamation Agreement in certain
respects, which amendments have been approved in writing by the
shareholders of each of Delano and Holdings.
NOW THEREFORE, the parties agree as follows:
ARTICLE 1
1.1 Section 4.2 of the Amalgamation Agreement is hereby deleted in its entirety
and replaced by the following:
4.2 AUTHORIZED CAPITAL
The Corporation shall be authorized to issue the following shares:
(a) an unlimited number of Common Shares;
(b) an unlimited number of Class A Special Shares;
(c) an unlimited number of Class B Special Shares; and
(d) an unlimited number of Class C Special Shares.
provided that, notwithstanding the foregoing, in the event that the issued
and outstanding Special Shares of Delano have been converted to Common
Shares of Delano in accordance with their terms prior to the effective time
of the amalgamation, the Corporation shall be authorized to issue an
unlimited number of Common Shares and an unlimited number of Preference
Shares.
The holders of the Common Shares, the Class A Special Shares, the Class B
Special Shares the Class C Special Shares and Preference Shares shall have
the rights, privileges, and are subject to the restrictions and conditions
set out in Schedule A to this Agreement
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or, in the event that the issued and outstanding Special Shares of Delano
have been converted to Common Shares of Delano in accordance with their
terms prior to the effective time of the amalgamation, the holders of
Common Shares and Preference Shares shall have the rights, privileges, and
are subject to the restrictions and conditions set out in Schedule B to
this Agreement.
1.2 Section 6.1 of the Amalgamation Agreement is hereby amended by deleting
Section 6.1(c) in its entirety and replacing it with the following:
(c) Common Shares - all of the issued and outstanding Common Shares in the
capital of Delano held by shareholders other than Holdings shall be
converted into fully paid and non-assessable Common Shares of the
Corporation on the basis of one Common Share of the Corporation for each
Common Share of Delano.
1.3 Section 6.2 of the Amalgamation Agreement is hereby deleted in its entirety
and replaced by the following:
6.2 CONVERSION TO COMMON SHARES OF DELANO
In the event that the issued and outstanding preferred shares of Delano
have been converted to Common Shares of Delano in accordance with their
terms prior to the effective time of the amalgamation, all references in
this Agreement to Special Shares of the Corporation shall be deemed to be
references to Common Shares of the Corporation, as if such Special Shares
were Class A Preferred Shares, Class B Preferred Shares or Class C
Preferred Shares of Delano, as the case may be, and were converted to
Common Shares in accordance with their terms and, in the case of the Class
C Preferred Shares (in addition to and in the same manner as the Class A
Preferred Shares and Class B Preferred Shares), as adjusted to give effect
to any stock split in respect of the Common Shares.
1.4 Section 6.5 of the Amalgamation Agreement is hereby deleted in its entirety
and replaced by the following:
6.5 SHARE CERTIFICATES
After the amalgamation becomes effective, the shareholders of Delano and
Holdings, if and when requested by the Corporation, shall surrender for
cancellation the certificates representing shares held by them in Delano
and Holdings, respectively, and shall be entitled to receive, upon request,
certificates for shares of the Corporation on the basis aforesaid.
1.5 Schedule A of the Amalgamation Agreement is hereby amended by adding at the
end thereof the following:
PREFERENCE SHARES
The Preference Shares, as a class, shall have the following rights,
privileges, restrictions and conditions:
1. One or more series - The Preference Shares may from time to time be
issued in one or more series;
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2. Terms of each series - Subject to the following provisions, and subject
to the filing of articles of amendment in prescribed form and the
endorsement thereon of a certificate of amendment, in accordance with the
Business Corporations Act (Ontario), the directors may fix from time to
time before such issue the number of shares that is to comprise each series
and the designation, rights, privileges, restrictions and conditions
attaching to each series of Preference Shares including, without limiting
the generality of the foregoing, the issue price per share, the rate or
amount of any dividends or the method of calculating any dividends, the
dates of payment thereof, any redemption, purchase and/or conversion prices
and terms and conditions of any redemption, purchase and/or conversion, and
any sinking fund or other provisions;
3. Ranking of Preference Shares - The Preference Shares of each series
shall, with respect to the payment of any dividends and any distribution of
assets or return of capital in the event of liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, or any
other return of capital or distribution of the assets of the Corporation
among its shareholders for the purpose of winding up its affairs, rank on a
parity with the Preference Shares of every other series and be entitled to
a preference over the Common Shares, and over any other shares of the
Corporation ranking junior to the Preference Shares. The Preference Shares
of any series may also be given such other preferences, not inconsistent
with these articles, over the Common Shares, and any other shares of the
Corporation ranking junior to such Preference Shares as may be fixed in
accordance with section 2;
4. Cumulative Dividends and Payments on the Return of Capital - If any
cumulative dividends, whether or not declared, or any amounts payable on
the return of capital in the event of the liquidation, dissolution or
winding up of the Corporation, in respect of a series of Preference Shares
are not paid in full, the shares of such series of Preference Shares shall
participate rateably with the shares of all other series of Preference
Shares in respect of, all accumulated cumulative dividends, whether or not
declared, or all amounts payable on the return of capital in the event of
the liquidation, dissolution or winding up of the Corporation, as the case
may be.
5. Conversion into Common Shares - The Preference Shares of any series may
be made convertible into Common Shares;
6. Voting - Subject to the provisions of the Business Corporations Act
(Ontario), and section 7 below, the Preference Shares shall have no voting
rights as a class;
7. Variation of rights - The provisions attaching to the Preference Shares
as a class may be amended or repealed at any time with such approval as may
then be required by law to be given by the holders of the Preference Shares
as a class.
1.6 The Amalgamation Agreement is hereby amended by adding the following as
Schedule B thereto:
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SCHEDULE B
COMMON SHARES
1. VOTING RIGHTS
Each holder of Common Shares shall be entitled to receive notice of and to
attend all meetings of shareholders of the Corporation and to vote thereat,
except meetings at which only holders of a specified class of shares (other
than Common Shares) or specified series of shares are entitled to vote. At
all meetings of holders of Common Shares, each holder of Common Shares
shall be entitled to one vote in respect of each Common Share held by such
holder.
2. DIVIDENDS
The Common Shares shall be entitled, subject to the rights, privileges,
restrictions and conditions attaching to any other class of shares of the
Corporation, to receive any dividend declared by the Board of Directors of
the Corporation.
3. LIQUIDATION, DISSOLUTION OR WINDING-UP
In the event of any liquidation, dissolution or winding-up of the
Corporation or other distribution of assets of the Corporation among its
shareholders for the purpose of winding-up its affairs, subject to the
rights, privileges, restrictions and conditions attaching to any other
class of shares of the Corporation, the assets and funds of the Corporation
available for distribution to shareholders shall be distributed among the
holders of the Common Shares, pro rata based on the number of Common Shares
held by each holder and any other participating outstanding series or class
of shares convertible into Common Shares.
PREFERENCE SHARES
The Preference Shares, as a class, shall have the following rights,
privileges, restrictions and conditions:
1. One or more series - The Preference Shares may from time to time be
issued in one or more series;
2. Terms of each series - Subject to the following provisions, and subject
to the filing of articles of amendment in prescribed form and the
endorsement thereon of a certificate of amendment, in accordance with the
Business Corporations Act (Ontario), the directors may fix from time to
time before such issue the number of shares that is to comprise each series
and the designation, rights, privileges, restrictions and conditions
attaching to each series of Preference Shares including, without limiting
the generality of the foregoing, the issue price per share, the rate or
amount of any dividends or the method of calculating any dividends, the
dates of payment thereof, any redemption, purchase and/or conversion prices
and terms and conditions of any redemption, purchase and/or conversion, and
any sinking fund or other provisions;
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3. Ranking of Preference Shares - The Preference Shares of each series
shall, with respect to the payment of any dividends and any distribution of
assets or return of capital in the event of liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, or any
other return of capital or distribution of the assets of the Corporation
among its shareholders for the purpose of winding up its affairs, rank on a
parity with the Preference Shares of every other series and be entitled to
a preference over the Common Shares, and over any other shares of the
Corporation ranking junior to the Preference Shares. The Preference Shares
of any series may also be given such other preferences, not inconsistent
with these articles, over the Common Shares, and any other shares of the
Corporation ranking junior to such Preference Shares as may be fixed in
accordance with section 2;
4. Cumulative Dividends and Payments on the Return of Capital - If any
cumulative dividends, whether or not declared, or any amounts payable on
the return of capital in the event of the liquidation, dissolution or
winding up of the Corporation, in respect of a series of Preference Shares
are not paid in full, the shares of such series of Preference Shares shall
participate rateably with the shares of all other series of Preference
Shares in respect of, all accumulated cumulative dividends, whether or not
declared, or all amounts payable on the return of capital in the event of
the liquidation, dissolution or winding up of the Corporation, as the case
may be.
5. Conversion into Common Shares - The Preference Shares of any series may
be made convertible into Common Shares;
6. Voting - Subject to the provisions of the Business Corporations Act
(Ontario), and section 7 below, the Preference Shares shall have no voting
rights as a class;
7. Variation of rights - The provisions attaching to the Preference Shares
as a class may be amended or repealed at any time with such approval as may
then be required by law to be given by the holders of the Preference Shares
as a class.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first
written above.
DELANO TECHNOLOGY CORPORATION
By: ____________________________________
Name: Xxxxx Xxxxxx
Title: Secretary
XDL DELANO HOLDINGS INC.
By: ____________________________________
Name: Xxxxx Xxxxxx
Title: Vice President and Secretary
