EXHIBIT 99.3
EXCHANGEABLE SHARE SUPPORT AGREEMENT
This AGREEMENT is made the . day of September, 1999
BETWEEN:
XXXXXXXXX.XXX, INC., a corporation incorporated under the laws of
Delaware
("Infospace")
- and -
XXXXXXXXX.XXX NOVA SCOTIA COMPANY, an unlimited liability company
existing under the laws of the Province of Nova Scotia
("Infospace Nova Scotia")
- and -
XXXXXXXXX.XXX CANADA HOLDINGS INC., a corporation amalgamated under
the laws of Ontario
("Infospace Canada")
MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated under
the laws of Canada,
(the"Trustee")
Background:
1. Pursuant to that certain Agreement and Plan of Acquisition and
Arrangement dated as of the 13th day of August, 1999 (the "Arrangement and
Acquisition Agreement"), entered into between Infospace and INEX Corporation
("INEX" and collectively the "Parties"), the Parties have agreed to the
acquisition of INEX Corporation by Infospace, pursuant to a court sanctioned
plan of arrangement (the "Arrangement").
2. Pursuant to the Arrangement and Acquisition Agreement, common
shareholders of INEX will have the option of exchanging their common shares of
INEX ("INEX Common Shares"), for common shares in the capital of Infospace
("Infospace Common Shares") or exchangeable shares in the capital of Infospace
Canada (the "Exchangeable Shares") on the basis
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of .20405 of an Exchangeable Share or an Infospace Common Share for each INEX
Common Share.
3. In accordance with the Arrangement and Acquisition Agreement,
Infospace and Infospace Canada are hereby entering into this support agreement
with a trustee appointed by the holders of such Exchangeable Shares.
4. The Trustee has been appointed and his duties and powers and ancillary
matters have been set out in a Voting and Exchange Trust Agreement dated the
date hereof.
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 hereto covenant and agree as follows:
ARTICLE 1
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 rights,
privileges, restrictions and conditions (collectively, the "Share Provisions")
attaching to the Exchangeable Shares. "Special Voting Share" means the one share
of special voting stock to be issued by Infospace and deposited with the Trustee
pursuant to the Voting and Exchange Trust Agreement.
1.2 Interpretation Not Affected by Headings
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 of this agreement. 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 and not to any particular Article,
section or other portion hereof and include any agreement or instrument
supplementary or ancillary hereto.
1.3 Number, Gender
Words in the singular number only shall include the plural and vice
versa. Words in one 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.
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1.5 Trustee
The Trustee shall have the powers and duties set out in the Voting and
Exchange Trust Agreement and shall be compensated and replaced as provided for
therein.
ARTICLE 2
COVENANTS OF INFOSPACE AND INFOSPACE CANADA
2.1 Covenants Regarding Exchangeable Shares
So long as any Exchangeable Shares not owned by Infospace or its
Affiliates are outstanding, Infospace shall:
(a) not declare or pay any dividend on the Infospace Common Shares
unless (i) Infospace Canada shall simultaneously declare or pay,
as the case may be, an equivalent dividend (as provided for in
the Share Provisions) on the Exchangeable Shares and (ii)
Infospace Canada 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 such dividend on the Exchangeable Shares;
(b) advise Infospace Canada sufficiently in advance of the
declaration by Infospace of any dividend on Infospace Common
Shares and take all such other actions as are reasonably
necessary, in cooperation with Infospace Canada, 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
declaration date, record date and payment date for the
corresponding dividend on the Infospace Common Shares;
(c) ensure that the record date for any dividend declared on
Infospace Common Shares is not less than 10 Business Days after
the declaration date of such dividend;
(d) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit Infospace Canada, 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 upon the
liquidation, dissolution or winding-up of Infospace Canada, the
delivery of a Retraction Request by a holder of Exchangeable
Shares or a redemption of Exchangeable Shares by Infospace
Canada, as the case may be, including without limitation all such
actions and all such things as are necessary or desirable to
enable and permit Infospace Canada to cause to be delivered
Infospace Common Shares to the holders of Exchangeable Shares in
accordance with the provisions of Section 5, 6 or 7, as the case
may be, of the Share Provisions;
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(e) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit Infospace Nova
Scotia, in accordance with applicable law, to perform its
obligations arising upon the exercise by it of the Liquidation
Call Right, the Retraction Call Right or the Redemption Call
Right including without limitation all such actions and all such
things as are necessary or desirable to enable and permit
Infospace Nova Scotia to cause to be delivered Infospace Common
Shares to the holders of Exchangeable Shares in accordance with
the provisions of Section [8], as the case may be, of the Share
Provisions; and
(f) not exercise its vote as a direct or indirect shareholder to
initiate the voluntary liquidation, dissolution or winding-up of
Infospace Canada nor take any action or omit to take any action
that is designed to result in the liquidation, dissolution or
winding-up of Infospace Canada.
2.2 Segregation of Funds
Infospace will cause Infospace Canada to deposit a sufficient amount
of funds in a separate account of Infospace Canada and segregate a sufficient
amount of such other assets and property as is necessary to enable Infospace
Canada to pay dividends when due and to pay or otherwise satisfy its respective
obligations under Section 5, 6 or 7 of the Share Provisions, as applicable and
Infospace Canada will use such funds or other assets exclusively to pay such
dividends or satisfy its obligations under Sections 5, 6 or 7 of the Share
Provisions.
2.3 Reservation of Infospace Common Shares
Infospace hereby represents, warrants and covenants in favour of
Infospace Nova Scotia, Infospace Canada and the Trustee that Infospace has
reserved for issuance and will, at all times while any Exchangeable Shares
(other than Exchangeable Shares held by Infospace or its affiliates) are
outstanding, keep available, free from pre-emptive and other rights, out of its
authorized and unissued capital stock such number of Infospace Common Shares (or
other shares or securities into which Infospace 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 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
Infospace to meet its obligations under the Voting and Exchange Trust Agreement
and under any other security or commitment pursuant to which Infospace may now
or hereafter be required to issue Infospace Common Shares, to enable and permit
Infospace Nova Scotia and Infospace Canada to meet its respective obligations
hereunder and under the Share Provisions.
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2.4 Notification of Certain Events
In order to assist Infospace and to permit Infospace Nova Scotia to
exercise the Liquidation Call Right, Retraction Call Right and Redemption Call
Right, Infospace Canada will notify Infospace, Infospace Nova Scotia and the
Trustee 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
Infospace Canada to institute voluntary liquidation, dissolution
or winding-up proceedings with respect to Infospace Canada or to
effect any other distribution of the assets of Infospace Canada
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) promptly, upon the earlier of receipt by Infospace Canada of
notice of and Infospace Canada 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 Infospace Canada or to effect any
other distribution of the assets of Infospace Canada among its
shareholders for the purpose of winding up its affairs;
(c) immediately, upon receipt by Infospace Canada of a Retraction
Request;
(d) on the same date on which notice of redemption is given to
holders of Exchangeable Shares, upon the determination of a
Redemption Date in accordance with the Share Provisions; and
(e) as soon as practicable upon the issuance by Infospace Canada of
any Exchangeable Shares or rights to acquire Exchangeable Shares.
2.5 Delivery of Common Shares to Infospace Canada and Infospace Nova
Scotia
Upon notice from Infospace Canada or Infospace Nova Scotia of any
event that requires Infospace Canada or Infospace Nova Scotia to cause to be
delivered Infospace Common Shares to any holder of Exchangeable Shares,
Infospace shall forthwith issue and deliver or cause to be delivered to
Infospace Canada or Infospace Nova Scotia the requisite number of Infospace
Common Shares to be received by, and issued to or to the order of, the former
holder of the surrendered Exchangeable Shares, as Infospace Canada or Infospace
Nova Scotia shall direct. All such Infospace Common Shares shall be duly
authorized and validly issued as fully paid and non-assessable and shall be free
and clear of any lien, claim or encumbrance. In consideration of the issuance
and delivery of each such Infospace Common Share, Infospace Canada or Infospace
Nova Scotia, as the case may be, shall issue to Infospace, or as Infospace shall
direct, common shares of Infospace Canada or Infospace Nova Scotia having
equivalent value.
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2.6 Qualification of Infospace Common Shares
If any Infospace Common Shares (or other shares or securities into
which Infospace Common Shares may be reclassified or changed as contemplated by
section 2.7 hereof) to be issued and delivered hereunder require registration or
qualification with or approval of or the filing of any document, including any
prospectus or similar document or the taking of any proceeding with or the
obtaining of any order, ruling or consent from any governmental or regulatory
authority under any Canadian or United States federal, provincial or state
securities or other law or regulation or pursuant to the rules and regulations
of any securities or other regulatory authority or the fulfillment of any other
United States or Canadian legal requirement before such shares (or such other
shares or securities) may be issued by Infospace and delivered by Infospace at
the direction of Infospace Canada or Infospace Nova Scotia, if applicable, to
the holder of surrendered Exchangeable Shares or in order that such shares (or
such other shares or securities) may be freely traded thereafter in Canada and
the United States (other than any restrictions of general application on
transfer by reason of a holder being a "control person" for purposes of Canadian
provincial securities law or an "affiliate" of Infospace for purposes of United
States federal or state securities law), Infospace will in good faith
expeditiously take all such actions and do all such things as are necessary or
desirable to cause such Infospace Common Shares (or such other shares or
securities) to be and remain duly registered, qualified or approved under United
States and/or Canadian law, as the case may be. Infospace will in good faith
expeditiously take all such actions and do all such things as are reasonably
necessary or desirable to cause all Infospace Common Shares (or such other
shares or securities) to be delivered hereunder to be listed, quoted or posted
for trading on all stock exchanges and quotation systems on which outstanding
Infospace Common Shares (or such other shares or securities) have been listed by
Infospace and remain listed and are quoted or posted for trading at such time.
2.7 Economic Equivalence.
(a) Infospace will not without prior approval of Infospace Canada and
the prior approval of the holders of the Exchangeable Shares
given in accordance with section [11 or 12] of the Share
Provisions:
(i) issue or distribute Infospace Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire Infospace Common Shares) to the holders of all or
substantially all of the then outstanding Infospace Common
Shares by way of stock dividend or other distribution,
other than an issue of Infospace Common Shares (or
securities exchangeable for or convertible into or carrying
rights to acquire Infospace Common Shares) to holders of
Infospace Common Shares who exercise an option to receive
dividends in Infospace Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire Infospace Common Shares) in lieu of receiving cash
dividends; or
(ii) issue or distribute rights, options or warrants to the
holders of all or substantially all of the then outstanding
Infospace Common Shares
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entitling them to subscribe for or to purchase Infospace
Common Shares (or securities exchangeable for or
convertible into or carrying rights to acquire Infospace
Common Shares); or
(iii) issue or distribute to the holders of all or substantially
all of the then outstanding Infospace Common Shares (A)
shares or securities of Infospace of any class other than
Infospace Common Shares (other than shares convertible
into or exchangeable for or carrying rights to acquire
Infospace Common Shares), (B) rights, options or warrants
other than those referred to in section 2.7(a)(ii) above,
(C) evidences of indebtedness of Infospace or (D) assets
of Infospace,
unless the economic equivalent on a per share basis of such rights,
options, securities, shares, evidences of indebtedness or other assets
is issued or distributed simultaneously to holders of the Exchangeable
Shares; provided that, for greater certainty, the above restrictions
shall not apply to any securities issued or distributed by Infospace
in order to give effect to and to consummate the transactions
contemplated by, and in accordance with, the Arrangement and
Acquisition Agreement.
(b) Infospace will not without the prior approval of Infospace Canada and
the prior approval of the holders of the Exchangeable Shares given in
accordance with section [11 or 12] of the Share Provisions:
(i) subdivide, redivide or change the then outstanding Infospace
Common Shares into a greater number of Infospace Common Shares;
or
(ii) reduce, combine, consolidate or change the then outstanding
Infospace Common Shares into a lesser number of Infospace
Common Shares; or
(iii) reclassify or otherwise change Infospace Common Shares or
effect an amalgamation, merger, reorganization or other
transaction affecting Infospace Common Shares,
unless the same or an economically equivalent change shall
simultaneously be made to, or in the rights of the holders of, the
Exchangeable Shares.
(c) Infospace will ensure that the record date for any event referred to
in section 2.7 (a) or 2.7 (b) above, or (if no record date is
applicable for such event) the effective date for any such event, is
not less than five Business Days after the date on which such event is
declared or announced by Infospace (with contemporaneous notification
thereof by Infospace to Infospace Canada).
(d) The Board of Directors of Infospace Canada shall determine, in good
faith and in its sole discretion acting reasonably, economic
equivalence for the purposes of any event referred to in section
2.7(a) or 2.7(b) above and each such
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determination shall be conclusive and binding on Infospace. In making
each such determination, the following factors shall, without
excluding other factors determined by the Board of Directors of
Infospace Canada to be relevant, be considered by the Board of
Directors of Infospace Canada:
(i) in the case of any stock dividend or other distribution payable
in Infospace Common Shares, the number of such shares issued in
proportion to the number of Infospace Common Shares previously
outstanding;
(ii) in the case of the issuance or distribution of any rights,
options or warrants to subscribe for or purchase Infospace
Common Shares (or securities exchangeable for or convertible
into or carrying rights to acquire Infospace Common Shares),
the relationship between the exercise price of each such right,
option or warrant and the current market value (as determined
by the Board of Directors of Infospace Canada in the manner
above contemplated) of an Infospace Common Share;
(iii) in the case of the issuance or distribution of any other form
of property (including without limitation any shares or
securities of Infospace of any class other than Infospace
Common Shares, any rights, options or warrants other than those
referred to in section 2.7(d)(ii) above, any evidences of
indebtedness of Infospace or any assets of Infospace), the
relationship between the fair market value (as determined by
the Board of Directors of Infospace Canada in the manner above
contemplated) of such property to be issued or distributed with
respect to each outstanding Infospace Common Share and the
current market value (as determined by the Board of Directors
of Infospace Canada in the manner above contemplated) of an
Infospace Common Share;
(iv) in the case of any subdivision, redivision or change of the
then outstanding Infospace Common Shares into a greater number
of Infospace Common Shares or the reduction, combination,
consolidation or change of the then outstanding Infospace
Common Shares into a lesser number of Infospace Common Shares
or any amalgamation, merger, reorganization or other
transaction affecting Infospace Common Shares, the effect
thereof upon the then outstanding Infospace Common Shares; and
(v) in all such cases, 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 Infospace Common Shares as a result
of differences between taxation laws of Canada 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).
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For purposes of the foregoing determinations, the current market value
of any security listed and traded or quoted on a securities exchange
shall be the weighted average of the daily trading prices of such
security during a period of not less than 20 consecutive trading days
ending not more than three trading days before the date of
determination on the principal securities exchange on which such
securities are listed and traded or quoted; provided, however, that if
in the opinion of the Board of Directors of Infospace Canada the
public distribution or trading activity of such securities during such
period does not create a market which reflects the fair market value
of such securities, then the current market value thereof shall be
determined by the Board of Directors of Infospace Canada, in good
faith and in its sole discretion, and provided further that any such
determination by the Board of Directors of Infospace Canada shall be
conclusive and binding on Infospace.
(e) Infospace Canada agrees that, to the extent required, upon due notice
from Infospace, Infospace Canada 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 Infospace Canada, or subdivisions, redivisions or changes
are made to the Exchangeable Shares, in order to implement the
required economic equivalent with respect to the Infospace Common
Shares and Exchangeable Shares as provided for in this section 2.7.
2.8 Tender Offers
In the event that a tender offer, share exchange offer, issuer bid, take-
over bid or similar transaction with respect to Infospace Common Shares (an
"Offer") is proposed by Infospace or is proposed to Infospace or its
shareholders and is recommended by the Board of Directors of Infospace, or is
otherwise effected or to be effected with the consent or approval of the Board
of Directors of Infospace, and the Exchangeable Shares are not redeemed by
Infospace Canada or purchased by Infospace Nova Scotia, Infospace will use its
reasonable efforts expeditiously and in good faith to 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
economically equivalent basis as the holders of Infospace Common Shares, without
discrimination. Without limiting the generality of the foregoing, Infospace will
use its reasonable efforts expeditiously and in good faith (and shall, in the
case of a transaction by Infospace or where Infospace is a participant in the
negotiation thereof) to ensure that holders of Exchangeable Shares may
participate in all such Offers without being required to retract Exchangeable
Shares as against Infospace Canada (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). Nothing herein shall affect the rights of Infospace Canada to redeem
(or Infospace Nova Scotia to purchase pursuant to the Redemption Right)
Exchangeable Shares, as applicable, in the event of an Infospace Control
Transaction.
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2.9 Ownership of Outstanding Shares
Without the prior approval of Infospace Canada and the prior approval of
the holders of the Exchangeable Shares given in accordance with section [11] of
the Share Provisions, Infospace covenants and agrees in favour of Infospace
Canada and the Trustee on behalf of holders of Exchangeable Shares that, as long
as any outstanding Exchangeable Shares are owned by any person or entity other
than Infospace or any of its Affiliates, Infospace will be and remain the direct
or indirect beneficial owner of all issued and outstanding voting shares in the
capital of Infospace Canada and Infospace Nova Scotia.
2.10 Infospace and Affiliates Not to Vote Exchangeable Shares
Infospace covenants and agrees that it will appoint and cause to be
appointed proxyholders with respect to all Exchangeable Shares held by it and
its Affiliates 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. Infospace further covenants and agrees that it will not, and will cause
its Affiliates not to, exercise any voting rights which may be exercisable by
holders of Exchangeable Shares from time to time pursuant to the Share
Provisions or pursuant to the provisions of the Business Corporations Act
(Ontario) (or any successor or other corporate statute by which Infospace Canada
may in the future be governed) with respect to any Exchangeable Shares held by
it or by its Affiliates in respect of any matter considered at any meeting of
holders of Exchangeable Shares.
2.11 Rule 10b-18 Purchases
For certainty, nothing contained in this Agreement, including without
limitation the obligations of Infospace contained in section 2.8 hereof, shall
limit the ability of Infospace or Infospace Canada to make a "Rule 10b-18
Purchase" of Infospace Common Shares pursuant to Rule 10b-18 of the U.S.
Securities Exchange Act of 1934, as amended, or any successor provisions
thereof.
2.12 Special Voting Shares
During the term of this Agreement, Infospace will not issue any additional
Special Voting Shares and will not amend, alter, change or repeal the terms of
the Special Voting Shares without the prior approval of the holders of
Exchangeable Shares in accordance with section [11] of the Share Provisions.
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ARTICLE 3
INFOSPACE SUCCESSORS
3.1 Certain Requirements in Respect of Combination, etc.
Infospace shall not consummate any transaction (whether by way of
reconstruction, reorganization, consolidation, merger, transfer, sale, lease or
otherwise) whereby all or substantially all of its undertaking, property and
assets would become the property of any other person or, in the case of a
merger, of the continuing corporation resulting therefrom unless, but may do so
if:
(a) such other person or continuing corporation (the "Infospace
Successor") by operation of law, becomes, without more, bound by the
terms and provisions of this Agreement or, if not so bound, executes,
prior to or contemporaneously with the consummation of such
transaction, an agreement supplemental hereto and such other
instruments (if any) as are reasonably necessary or advisable to
evidence the assumption by the Infospace Successor of liability for
all moneys payable and property deliverable hereunder and the covenant
of such Infospace Successor to pay and deliver or cause to be
delivered the same and its agreement to observe and perform all the
covenants and obligations of Infospace under this Agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material respect
any of the rights, duties, powers and authorities of the other parties
hereunder.
3.2 Vesting of Powers in Successor
Whenever the conditions of section 3.1 have been duly observed and
performed, the parties, if required by section 3.1, shall execute and deliver a
supplemental agreement hereto and thereupon Infospace Successor shall possess
and from time to time may exercise each and every right and power of Infospace
under this Agreement in the name of Infospace or otherwise and any act or
proceeding by any provision of this Agreement required to be done or performed
by the Board of Directors of Infospace or any officers of Infospace may be done
and performed with like force and effect by the directors or officers of such
Infospace Successor.
3.3 Wholly-Owned Subsidiaries
Nothing herein shall be construed as preventing the amalgamation or merger
of any wholly-owned direct or indirect subsidiary of Infospace, except for
Infospace Canada, with or into Infospace or the winding-up, liquidation or
dissolution of any wholly-owned subsidiary of Infospace, except for Infospace
Canada, provided that all of the assets of such subsidiary are
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transferred to Infospace or another wholly-owned direct or indirect subsidiary
of Infospace and any such transactions are expressly permitted by this Article
3.
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 person or
entity other than Infospace and any of its Affiliates.
4.2 Changes in Capital of Infospace and Infospace Canada
At all times after the occurrence of any event contemplated pursuant to
sections 2.7 and 2.8 hereof or otherwise, as a result of which either Infospace
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, with the appropriate changes, to all new
securities into which Infospace 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
This Agreement may not be amended or modified except by an agreement in
writing executed by Infospace Canada, Infospace Nova Scotia, the Trustee and
Infospace.
4.5 Ministerial Amendments
Notwithstanding the provisions of section 4.4, the parties to this
Agreement may in writing at any time and from time to time, without the approval
of the Trustee or the holders of the Exchangeable Shares, amend or modify this
Agreement for the purposes of:
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(a) adding to the covenants of Infospace Canada, Infospace Nova Scotia or
Infospace provided that the Board of Directors of each of Infospace
Canada, Infospace Nova Scotia and Infospace shall be of the good faith
opinion that such additions will not be prejudicial to the rights or
interests 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 good faith opinion of the Board of Directors
of each of Infospace Canada, Infospace Nova Scotia and Infospace, it
may be expedient to make, provided that each such Board of Directors
shall be of the good faith opinion that such amendments or
modifications will not be prejudicial to the rights or interests of
the holders of the Exchangeable Shares; or
(c) making such changes or corrections which, on the advice of counsel to
Infospace Canada, Infospace Nova Scotia and Infospace, 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 Infospace
Canada, Infospace Nova Scotia and Infospace shall be of the good faith
opinion that such changes or corrections will not be prejudicial to
the rights or interests of the holders of the Exchangeable Shares.
4.6 Meeting to Consider Amendments
Infospace Canada, at the request of Infospace, 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 4.4 hereof. Any such meeting or meetings shall be called and held in
accordance with the bylaws of Infospace Canada, the 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 all of the parties hereto.
4.8 Enurement
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and assigns.
4.9 Notices to Parties
All notices and other communications between the parties to this Agreement
shall be in writing and shall be deemed to have been given if delivered
personally or by confirmed telecopy
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to the parties at the following addresses (or at such other address for any such
party as shall be specified in like notice):
(a) if to the Trustee:
Montreal Trust Company of Canada
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Manager, Corporate Trust
Telecopier No.: 000-000-0000
(b) if to Infospace:
Attention: General Counsel
Telecopier No.:
(c) if to Infospace Canada or Infospace Nova Scotia:
Attention: General Counsel
Telecopier No.:
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.
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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
Each of Infospace, Infospace Nova Scotia and the Trustee agrees that any
action or proceeding arising out of or relating to this Agreement may be
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 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 and hereby appoints Infospace Canada at its registered office in
the Province of Ontario as attorney for service of process.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXXXXXX.XXX, INC.
By:_______________________________
Name:
Title:
XXXXXXXXX.XXX NOVA SCOTIA COMPANY
By:_______________________________
Name:
Title:
16
XXXXXXXXX.XXX CANADA HOLDINGS INC.
By:_______________________________
Name:
Title:
MONTREAL TRUST COMPANY OF CANADA
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title
