AMENDED AND RESTATED SUPPORT AGREEMENT
AMENDED
AND RESTATED
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED SUPPORT AGREEMENT is entered into on this 11th day
of August 2005 nunc pro tunc as of June 30, 2005, between AdValiant USA,
Inc., a
corporation existing under the laws of the State of Delaware (“AdValiant USA”),
AdValiant Inc., a corporation incorporated under the laws of Ontario (the
“Corporation”) and Dialog Group, Inc., a corporation incorporated under the laws
of the State of Delaware (“DGI”);
WHEREAS,
pursuant to a merger agreement dated as of June 30, 2005, (such agreement
as it
may be amended or restated is hereinafter referred to as the “Merger Agreement”)
by and between, DGI, AdValiant USA, AdValiant Acquisition Corp., Empire Media,
Inc., Xxxxxxx Xxxx, Xxxxx Xxxxxx and the Corporation, the parties agreed
that on
the closing of the transaction contemplated under the Merger Agreement,
AdValiant USA, the Corporation and DGI would execute and deliver a Support
Agreement containing the terms and conditions set forth in an Exhibit to
the
Merger Agreement together with such other terms and conditions as may be
agreed
to by the parties to the Merger Agreement acting reasonably;
AND
WHEREAS, pursuant to a reorganization of the capital of the Corporation
(the “Reorganization”) contemplated in the Merger Agreement, the Corporation and
Shareholders agreed that all of the outstanding Common Shares of the Corporation
were reclassified as exchangeable shares (the “Exchangeable Shares”) having the
rights, privileges, restrictions and conditions (collectively, the “Exchangeable
Share Provisions”) and the Corporation would issue a specified number of
Exchangeable Shares to each Shareholder;
AND
WHEREAS, pursuant to the Merger Agreement, AdValiant USA and AdValiant
Acquisition Corp., a wholly-owned subsidiary of DGI, shall merge (the “Merger”)
and, upon the merger, outstanding shares of common stock of AdValiant USA
will
be cancelled and holders of Exchangeable Shares will be entitled to a specified
number of shares of common stock of DGI;
AND
WHEREAS all references to “ParentCo” in this Agreement shall mean
AdValiant USA if the reference is made to any action to be taken by or in
respect of ParentCo prior to the effective time of the Merger and shall mean
DGI
on and after the effective time of the Merger if the reference is made to
any
action to be taken by or in respect of ParentCo;
AND
WHEREAS, the parties hereto desire to make appropriate provision and to
establish a procedure whereby AdValiant USA and, following the Merger, DGI
will
take certain actions and make certain payments and deliveries necessary to
ensure that the Corporation will be able to make certain payments and to
deliver
or cause to be delivered ParentCo Common Shares in satisfaction of the
obligations of the Corporation 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, the parties desire to amend and restate the Support
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
1
DEFINITIONS
AND INTERPRETATION
1.1 Defined
Terms. Except as expressed in the following sentence, each term denoted
herein by initial capital letters and not otherwise defined herein shall
have
the meaning attributed thereto in the Exchangeable Share Provisions, unless
the
context requires otherwise.
1.2 Interpretation
Not Affected by Headings, Etc. The division of this agreement into articles,
sections and paragraphs and the insertion of headings are for convenience
of
reference only and shall not affect the construction or interpretation of
this
agreement.
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
2
COVENANTS
OF PARENTCO AND THE CORPORATION
2.1 Covenants
of ParentCo Regarding Exchangeable Shares. So long as any Exchangeable
Shares are outstanding, AdValiant USA (prior to the effective time of the
Merger) and DGI (on and after the effective time of the Merger)
will:
| (a) |
not
declare or pay any dividend on ParentCo Common Shares unless (A)
the
Corporation will have sufficient assets, funds and other property
available to enable the due declaration and the due and punctual
payment
in accordance with applicable law of an equivalent dividend on
the
Exchangeable Shares and (B) subsection 2.1(b) shall be complied
with in
connection with such dividend;
|
| (b) |
cause
the Corporation to declare simultaneously with the declaration
of any
dividend on ParentCo Common Shares an equivalent dividend on the
Exchangeable Shares and, when such dividend is paid on ParentCo
Common
Shares, cause the Corporation to pay simultaneously therewith such
equivalent dividend on the Exchangeable Shares, in each case in
accordance
with the Exchangeable Share
Provisions;
|
| (c) |
advise
the Corporation sufficiently in advance of the declaration by ParentCo
of
any dividend on ParentCo Common Shares and take all such other
actions as
are necessary, in cooperation with the Corporation, to ensure that
the
respective declaration date, record date and payment date for a
dividend
on the Exchangeable Shares shall be the same as the record date,
declaration date and payment date for the corresponding dividend
on
ParentCo Common Shares;
|
-2-
| (d) |
take
all such actions and do all such things as are necessary or desirable
to
enable and permit the Corporation, in accordance with applicable
law, to
pay and otherwise perform its obligations with respect to the satisfaction
of the Exchangeable Share Consideration representing the Liquidation
Amount in respect of each issued and outstanding Exchangeable Share
upon
the liquidation, dissolution or winding-up of the Corporation or
any other
distribution of the assets of the Corporation for the purpose of
winding
up its affairs, including without limitation all such actions and
all such
things as are necessary or desirable to enable and permit the Corporation
to cause to be delivered ParentCo Common Shares to the holders
of
Exchangeable Shares in accordance with the provisions of Article
5 of the
Exchangeable Share Provisions;
|
| (e) |
take
all such actions and do all such things as are necessary or desirable
to
enable and permit the Corporation, in accordance with applicable
law, to
pay and otherwise perform its obligations with respect to the satisfaction
of the Exchangeable Share Consideration representing the Retraction
Price
and the Redemption Price, including without limitation all such
actions
and all such things as are necessary or desirable to enable and
permit the
Corporation to cause to be delivered ParentCo Common Shares to
the holders
of Exchangeable Shares, upon the retraction or redemption of the
Exchangeable Shares in accordance with the provisions of Article
6 or
Article 7 of the Exchangeable Share Provisions, as the case may
be;
and
|
| (f) |
not
exercise its vote, or cause any of its subsidiaries to exercise
their
votes, as a shareholder of the Corporation to initiate the amalgamation
or
voluntary liquidation, dissolution or winding-up of the Corporation
nor
take any action or omit to take any action that is designed to
result in
the liquidation, dissolution or winding-up of the
Corporation.
|
2.2 {Intentionally
omitted}
2.3 Notification
of Certain Events. In order to assist ParentCo to comply with its
obligations hereunder, the Corporation will give notice of each of the following
events at the times set forth below to AdValiant USA if such notice is given
prior to the effective time of the Merger and to DGI if such notice is given
on
or after the effective time of the Merger:
| (a) |
in
the event of any determination by the Board of Directors of the
Corporation in accordance with the Articles of the Corporation
to
institute voluntary liquidation, dissolution or winding-up proceedings
with respect to the Corporation or to effect any other distribution
of the
assets of the Corporation among its shareholders for the purpose
of
winding-up its affairs, at least 30 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 the Corporation of notice of,
and (ii)
the Corporation 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 the Corporation or to
effect any
other distribution of the assets of the Corporation among its shareholders
for the purpose of winding-up its
affairs;
|
-3-
| (c) |
immediately,
upon receipt by the Corporation of a Retraction Request (as defined
in the
Exchangeable Share Provisions);
|
| (d) |
at
least 30 days prior to any accelerated Automatic Redemption Date
determined by the Board of Directors of the Corporation in accordance
with
the Exchangeable Share Provisions;
and
|
| (e) |
as
soon as practicable upon the issuance by the Corporation of any
Exchangeable Shares.
|
2.4 Delivery
of ParentCo Common Shares. In furtherance of its obligations hereunder, upon
notice of any event which requires the Corporation to cause to be delivered
ParentCo Common Shares to any holder of Exchangeable Shares, ParentCo shall
forthwith issue and deliver, against proper delivery, the requisite ParentCo
Common Shares to or to the order of the former holder of the surrendered
Exchangeable Shares as the Corporation shall direct. Delivery of the ParentCo
Common Shares shall be made against receipt of either an endorsed Exchangeable
Share certificate with a medallion guarantee or an affidavit of loss and
indemnity agreement satisfactory to ParentCo’s counsel. All the ParentCo Common
Shares shall be duly issued as fully paid and non-assessable and shall be
free
and clear of any lien, claim, encumbrance, security interest or adverse claim
or
interest created by or through ParentCo.
2.5 Equivalence.
ParentCo hereby covenants and agrees to cause the Corporation to effect the
necessary amendments to the Articles of the Corporation to ensure that the
Exchangeable Shares are adjusted to fully reflect the effect of any stock
split,
reverse split, stock dividend (including any dividend or distribution of
securities convertible into ParentCo Common Shares), reorganization,
recapitalization or other like change with respect to, or amalgamation, merger
or other similar transaction affecting ParentCo Common Stock occurring after
the
Effective Date.
2.6 Tenders
Offers, Etc. In the event that a tender offer, share exchange offer, issuer
bid, take-over bid or similar transaction with respect to ParentCo Common
Shares
(an “Offer”) is proposed by ParentCo or is proposed to ParentCo or its
shareholders and is recommended by the Board of Directors of ParentCo, or
is
otherwise effected or to be effected with the consent or approval of the
Board
of Directors of ParentCo, ParentCo shall, in good faith, take all such actions
and do all such things as are necessary or desirable to enable and permit
holders of Exchangeable Shares to participate in such Offer to the same extent
and on an equivalent basis as the holders of ParentCo Common Shares, without
discrimination, including, without limiting the generality of the foregoing,
ParentCo will use its reasonable best efforts expeditiously to (and shall,
in
the case of a transaction proposed by ParentCo or where ParentCo is a
participant in the negotiation thereof) ensure that holders of Exchangeable
Shares may participate in all such Offers without being required to retract
Exchangeable Shares as against the Corporation (or, if so required, to ensure
that any such retraction shall be effective only upon, and shall be conditional
upon, the closing of the Offer and only to the extent necessary to tender
or
deposit to the Offer).
2.7 Ownership
of Outstanding Shares. Without the prior approval of the Corporation and the
prior approval of the holders of the Exchangeable Shares given in accordance
with Article 9 of the Exchangeable Share Provisions, ParentCo covenants and
agrees in favour of the Corporation that, following the effective time of
the
Merger and as long as any outstanding Exchangeable Shares are owned by any
person or entity other than ParentCo or any of its Subsidiaries, ParentCo
will
be and remain the direct or indirect beneficial owner of securities of the
Corporation carrying or entitled to not less than 51% of the voting rights
for
the election of directors, in each case other than the Exchangeable Shares.
Notwithstanding the foregoing sentence, ParentCo shall not be in violation
of
this section 2.7 if any person or group of persons acquires ParentCo Common
Shares pursuant to any merger of ParentCo in which ParentCo was not the
surviving corporation.
-4-
2.8 ParentCo
Not to Vote Exchangeable Shares. ParentCo covenants and agrees that it will
appoint and cause to be appointed proxy holders with respect to all Exchangeable
Shares held by ParentCo and its Subsidiaries 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. ParentCo further covenants and agrees that
it
will not, and will cause its Subsidiaries not to, exercise any voting rights
which 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 Act with respect to any Exchangeable Shares held by it or by its
Subsidiaries in respect of any matter considered at any meeting of holders
of
Exchangeable Shares. Not withstanding the foregoing, the Exchangeable shares
held by ParentCo, its Subsidiaries, or the Escrow Agent may be voted if Parent
Co and all the holders of the Exchangeable Shares agree.
2.9 Due
Performance. On and after the Effective Date, ParentCo shall duly and timely
perform all of its obligations under the Merger Agreement and related agreements
in respect of the Reorganization, including any obligations that may arise
upon
the exercise of ParentCo's rights under the Exchangeable Share
Provisions.
ARTICLE
3
RIGHTS
OF PARENTCO AND PARENTCO SUB TO ACQUIRE EXCHANGEABLE
SHARES
3.1 Liquidation
Call Right.
| (a) |
ParentCo
or, at ParentCo’s option, ParentCo Sub shall have the overriding right
(the “Liquidation Call Right”), in the event of and notwithstanding the
proposed liquidation, dissolution or winding-up of the Corporation
as
referred to in Article 5 of the Exchangeable Share Provisions,
to purchase
from all, but not less than all, of the holders of Exchangeable
Shares on
the Liquidation Date all but not less than all of the Exchangeable
Shares
held by each such holder on payment by whichever of ParentCo and
ParentCo
Sub is exercising such right (the “LCR Exercising Party”) to each holder
of the Exchangeable Share Price applicable on the last Business
Day prior
to the Liquidation Date (the “Liquidation Call Purchase Price”), which as
provided in this section 3.1, shall be fully paid and satisfied
by the
delivery by, or on behalf of, the LCR Exercising Party of the Exchangeable
Share Consideration representing the Liquidation Call Purchase
Price. In
the event of the exercise of the Liquidation Call Right, it is
intended
that each holder shall be obligated to sell all the Exchangeable
Shares
held by the holder to the LCR Exercising Party on the Liquidation
Date on
payment by the LCR Exercising Party to the holder of the Exchange
Share
Consideration representing the Liquidation Call Purchase Price
for each
such share, as provided in section 5.4 of the Exchangeable Share
Provisions. The Corporation agrees, for the benefit of the LCR
Exercising
Party, to enforce against the holders of Exchangeable Shares the
provisions of section 5.4 of the Exchangeable Share Provisions
to such
effect.
|
-5-
| (b) |
To
exercise the Liquidation Call Right, an LCR Exercising Party must
notify
the Corporation of its intention to exercise such right at least
60 days
before the Liquidation Date in the case of a voluntary liquidation,
dissolution or winding-up of the Corporation and at least five
Business
Days before the Liquidation Date in the case of an involuntary
liquidation, dissolution or winding-up of the Corporation. The
Corporation
will notify the holders of Exchangeable Shares as to whether or
not
ParentCo or ParentCo Sub has exercised the Liquidation Call Right
forthwith after the expiry of the latest date on which the same
may be
exercised by ParentCo or ParentCo Sub. If an LCR Exercising Party
exercises the Liquidation Call Right, on the Liquidation Date,
the LCR
Exercising Party will purchase all of the Exchangeable Shares then
outstanding for the Exchangeable Share Consideration representing
the
total Liquidation Call Purchase
Price.
|
| (c) |
For
the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Liquidation Call Right, the LCR Exercising Party
shall
deposit with the Corporation, on or before the Liquidation Date,
the
Exchangeable Share Consideration for all of the Exchangeable Shares.
Provided that such Exchangeable Share Consideration has been so
deposited
with the Corporation, on and after the Liquidation Date the right
of each
holder of Exchangeable Shares will be limited to receiving such
holder's
proportionate share of such Exchangeable Share Consideration representing
the total Liquidation Call Purchase Price payable by the LCR Exercising
Party without interest upon presentation and surrender by the holder
of
certificates representing the Exchangeable Shares held by such
holder and
the holder shall on and after the Liquidation Date be considered
and
deemed for all purposes to be the holder of the ParentCo Common
Share
delivered to it. Upon surrender to the Corporation of a certificate
or
certificates representing the Exchangeable Shares, together with
such
other documents and instruments as may be required to effect a
transfer of
Exchangeable Shares under the Act and the by-laws of the Corporation
and
such additional documents and instruments as the Corporation may
reasonably require, the holder of such surrendered certificate
or
certificates shall be entitled to receive in exchange therefor,
and the
Corporation on behalf of ParentCo shall deliver to such holder,
the
Exchangeable Share Consideration to which the holder is entitled.
If
ParentCo and ParentCo Sub do not exercise the Liquidation Call
Right in
the manner described above, on the Liquidation Date the holders
of the
Exchangeable Shares will be entitled to receive in exchange therefor
the
Exchangeable Share Consideration representing the Liquidation Amount
otherwise payable by the Corporation in connection with the liquidation,
dissolution or winding-up of the Corporation pursuant to Article
5 of the
Exchangeable Share Provisions. Notwithstanding the foregoing, until
such
Exchangeable Share Consideration is delivered to the holder, the
holder
shall be deemed to still be a holder of Exchangeable Shares for
purposes
of all voting rights in ParentCo with respect thereto under the
Voting and
Exchange Trust Agreement.
|
-6-
| 3.2 |
Redemption
Call Right.
|
| (a) |
ParentCo
or, at ParentCo’s option, ParentCo Sub shall have the overriding right (
the “Redemption Call Right”), notwithstanding the proposed redemption of
the Exchangeable Shares by the Corporation pursuant to Article
7 of the
Exchangeable Share Provisions, to purchase from all, but not less
than
all, of the holders of Exchangeable Shares on the Automatic Redemption
Date all but not less than all of the Exchangeable Shares held
by each
such holder, other than any Subsidiary of ParentCo, on payment
by
whichever of ParentCo and ParentCo Sub exercises such right (the
“RCR
Exercising Party”) to the holder of the Exchangeable Share Price
applicable on the last Business Day prior to the Automatic Redemption
Date
(the “Redemption Call Purchase Price”), which as provided in this section
3.2, shall be fully paid and satisfied by the delivery by or on
behalf of
the RCR Exercising Party of the Exchangeable Share Consideration
representing the Redemption Call Purchase Price. In the event of
the
exercise of the Redemption Call Right by the RCR Exercising Party,
it is
intended that each holder shall be obligated to sell all the Exchangeable
Shares held by the holder to the RCR Exercising Party on the Automatic
Redemption Date on payment or on behalf of the ParentCo to the
holder of
the Exchangeable Share Consideration representing the Redemption
Call
Purchase Price for each such share as provided in section 7.4 of
the
Exchangeable Share provisions. The Corporation agrees, for the
benefit of
the RCR Exercising Party, to enforce against the holders of Exchangeable
Shares the provisions of section 7.4 of the Exchangeable Share
Provisions
to such effect.
|
| (b) |
To
exercise the Redemption Call Right, an RCR Exercising Party must
notify
the Corporation of its intention to exercise such right at least
60 days
before the Automatic Redemption Date. The Corporation will notify
the
holders of the Exchangeable Shares as to whether or not the Redemption
Call Right has been exercised forthwith after the expiry of the
latest
date on which the same may be exercised. If an RCR Exercising Party
exercises its Redemption Call Right, on the Automatic Redemption
Date, the
RCR Exercising Party will purchase all of the Exchangeable Shares
then
outstanding for the Exchangeable Share Consideration representing
the
total Redemption Call Purchase
Price.
|
| (c) |
For
the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Redemption Call Right, the RCR Exercising Party
shall
deposit with the Corporation, on or before the Automatic Redemption
Date,
the Exchangeable Share Consideration for all the then outstanding
Exchangeable Shares representing the total Redemption Call Purchase
Price.
Provided that such Exchangeable Share Consideration has been so
deposited
with the Corporation, on and after the Automatic Redemption Date,
the
rights of each holder of Exchangeable Shares will be limited to
receiving
such holder’s proportionate share of the Exchangeable Share Consideration
representing the total Redemption Call Purchase Price payable by
the RCR
Exercising Party upon presentation and surrender by the holder
of
certificates representing the Exchangeable Shares held by such
holder and
the holder shall on and after the Automatic Redemption Date be
considered
and deemed for all purposes to be the holder of the Exchangeable
Share
Consideration delivered by such holder. Upon surrender to the Corporation
of a certificate or certificates representing Exchangeable Shares,
together with such other documents and instruments as may be required
to
effect a transfer of Exchangeable Shares under the Act and the
by-laws of
the Corporation and such additional documents and instruments as
the
Corporation may reasonably require, the holder of such surrendered
certificate or certificates shall be entitled to receive in exchange
therefor, and the Corporation shall deliver to such holder, the
Exchangeable Share Consideration to which the holder is entitled.
If
ParentCo or ParentCo Sub do not exercise the Redemption Call Right
in the
manner described above, on the Automatic Redemption Date, the holders
of
the Exchangeable Shares will be entitled to receive in exchange
therefor
the Exchangeable Share Consideration representing the Redemption
Price
otherwise payable by the Corporation in connection with the redemption
of
the Exchangeable Shares pursuant to Article 7 of the Exchangeable
Share
Provisions. Notwithstanding the foregoing, until such Exchangeable
Share
Consideration is delivered to the holder, the holder shall be deemed
to
still be a holder of Exchangeable Shares for purposes of all voting
rights
with respect thereto under the Voting and Exchange Trust
Agreement.
|
-7-
ARTICLE
4
GENERAL
4.1 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 ParentCo and any of its Subsidiaries.
4.2 Changes
in Capital of ParentCo and the Corporation. Notwithstanding the provisions
of section 4.4 hereof, at all times after the occurrence of any event effected
pursuant to Section 2.5 or 2.6 hereof, as a result of which either ParentCo
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 ParentCo 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.
4.3 Severability.
If any provision of this agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder
of this
agreement shall not in any way be affected or impaired thereby and this
agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
4.4 Amendments,
Modifications, Etc. This agreement may not be amended or modified except by
an agreement in writing executed by the Corporation and ParentCo and approved
by
the holders of the Exchangeable Shares in accordance with Article 9 of the
Exchangeable Share Provisions.
4.5 Ministerial
Amendments. Notwithstanding the provisions of Section 4.4 hereof, 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 for the purposes of:
| (a) |
adding
to the covenants of either or both parties for the protection of
the
holders of the Exchangeable Shares;
|
| (b) |
making
such amendments or modifications not inconsistent with this agreement
as
may be necessary or desirable with respect to matters or questions
which,
in the opinion of the board of directors of each of the Corporation
and
ParentCo, it may be expedient to make, provided that each such
board of
directors shall be of the opinion that such amendments or modifications
will not be prejudicial to the interests of the holders of the
Exchangeable Shares; or
|
| (c) |
making
such changes or corrections which, on the advice of counsel to
the
Corporation and ParentCo, are 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 the boards
of
directors of each of the Corporation and ParentCo shall be of the
opinion
that such changes or corrections will not be prejudicial to the
interests
of the holders of the Exchangeable
Shares.
|
-8-
4.6 Meeting
to Consider Amendments. The Corporation, at the request of ParentCo, 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
of such shareholders. Any such meeting or meetings shall be called and held
in
accordance with the by-laws of the Corporation, the Exchangeable Share
Provisions and all applicable laws.
4.7 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 both of the parties hereto.
4.8 Enurement.
This agreement shall be binding upon and enure to the benefit of the parties
hereto and the holders, from time to time, of Exchangeable Shares and each
of
their respective heirs, successors and assigns.
4.9 Notices
to Parties. All notices and other communications between the parties shall
be in writing and shall be deemed to have been given if delivered personally
or
by confirmed telecopy to the parties at the following addresses (or at such
other address for either such party as shall be specified in like
notice):
| (a) |
if
to ParentCo in connection with the period prior to the effective
time of
the Merger to:
|
| AdValiant USA, Inc. |
| 000 Xxxx Xxxxxx Xxxxx |
| Xxxxx 0000 |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx Xxxxxx |
| Fax: (000) 000-0000 |
| Tel: (000) 000-0000 |
-9-
| (b) |
if
to ParentCo in connection with the period on or after the effective
time
of the Merger to:
|
| Dialog Group, Inc. |
| Twelfth Floor |
| 000 Xxxx Xxxxxx Xxxxx |
| Xxx Xxxx, XX 00000 |
| Attn: Xxxxx XxXxxxxxxxx |
| Fax: 000-000-0000 |
| Tel: 000-000-0000 |
| (c) |
if
to the Corporation to:
|
| AdValiant Inc. |
| 0 Xx. Xxxxx Xxxxxx Xxxx |
| Xxxxx 000 |
| Xxxxxxx, Xxxxxxx X0X 0X0 |
| Attn: Xxxxx Xxxxxx |
| Fax: (000) 000-0000 |
| Tel: 000-000-0000 |
Any
notice or other communication given personally shall be deemed to have been
given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and received on the date of confirmed receipt thereof,
unless such day is not a Business Day, in which case it shall be deemed to
have
been given and received upon the immediately following Business
Day.
4.10 Counterparts.
This agreement may be executed in counterparts, each of which shall be deemed
an
original, and all of which taken together shall constitute one and the same
instrument.
4.11 Jurisdiction.
This agreement shall be construed and enforced in accordance with the laws
of
the Province of Ontario and the laws of Canada applicable therein.
4.12 Attornment.
ParentCo agrees that any action or proceeding arising out of or relating
to this
agreement maybe instituted in the courts of Ontario, 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 such courts in any such action
or
proceeding, agrees to be bound by any judgment of such courts and not to
seek,
and hereby waives, any review of the merits of any such judgment by the courts
of any other jurisdiction and hereby appoints the Corporation at its registered
office in the Province of Ontario as ParentCo's attorney for service of
process.
-10-
IN
WITNESS WHEREOF, AdValiant USA, DGI and the Corporation have caused this
agreement to be signed by their respective officers thereunder duly authorized,
all as of the date first written above.
| ADVALIANT INC. | ||
| |
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| By: | /s/ Xxxxx Xxxxxx | |
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| Xxxxx Xxxxxx, President | ||
| ADVALIANT USA, INC. | ||
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| By: | /s/ Xxxxx Xxxxxx | |
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| Xxxxx Xxxxxx, President | ||
| DIALOG GROUP, INC. | ||
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| By: | /s/ Xxxxx XxXxxxxxxxx | |
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| Xxxxx XxXxxxxxxxx, President | ||
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