Exhibit 5
Execution Copy
SHAREHOLDER AGREEMENT, dated as of May 18, 2001 (the "Agreement"),
among America Online, Inc., a Delaware corporation ("Parent"), IAN Acquisition
ULC, a Nova Scotia unlimited liability company and an indirect wholly owned
subsidiary of Parent ("Acquiror"), ADC Telecommunications, Inc., a Minnesota
corporation ("ADC"), and ADC ESD, Inc., a Delaware corporation ("ADC
Subsidiary"), a wholly-owned subsidiary of ADC and a shareholder of
InfoInterActive Inc., a corporation incorporated under the Business
Corporations Act (Alberta) (the "Company"). As used in this Agreement, the
term "Shareholder" shall refer to ADC and ADC Subsidiary collectively, and the
representations, warranties and covenants of ADC and ADC Subsidiary in this
Agreement shall be joint and several.
WHEREAS, Parent, Acquiror and the Company are, concurrently with the
execution and delivery of this Agreement, entering into an Acquisition
Agreement, dated as of the date hereof (the "Acquisition Agreement"; terms
used without definition herein having the meanings assigned to them in the
Acquisition Agreement), pursuant to which Acquiror agrees, among other things,
to acquire all of the common shares of the Company ("Common Shares") pursuant
to an arrangement (the "Arrangement") under the Business Corporations Act
(Alberta);
WHEREAS, as of the date hereof, the Shareholder beneficially owns
the number of Common Shares and options, convertible securities and warrants
to acquire Common Shares or other voting securities of the Company
("Exercisable Securities") set forth opposite the Shareholder's name on the
signature pages hereto (such Common Shares and Exercisable Securities, the
Shareholder's "Existing Securities" and together with any Common Shares or
other voting securities of the Company, the beneficial ownership of which is
acquired after the date hereof, whether upon the exercise of options,
conversion of convertible securities, exercise of warrants or any other
Exercisable Securities or pursuant to any dividend, distribution, stock split,
combination, reclassification, recapitalization, exchange or otherwise,
collectively referred to herein as the "Securities"); and
WHEREAS, as a condition to their willingness to enter into the
Acquisition Agreement, Parent and Acquiror have required that the Shareholder
agree, and the Shareholder has agreed, among other things, to vote in favor of
the Arrangement, on the terms and conditions provided for herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Agreement to Vote; Proxy; Agreement to Tender.
SECTION 1.01. Voting. The Shareholder hereby agrees that, during
the time this Agreement is in effect, at any meeting of the shareholders of
the Company, however called and at any adjournment thereof, or pursuant to any
action by written consent, the Shareholder shall appear at such meeting or
otherwise cause its Securities to be counted as present thereat for
purposes of establishing a quorum and (a) vote (or cause to be voted) all of
its Securities in favor of the approval, adoption, consent and ratification of
the Arrangement, the Acquisition Agreement and the Plan of Arrangement
thereunder (including the Tender Offer (as defined below)) (collectively, the
"Transaction"); (b) vote (or cause to be voted) all of its Securities against
any action or agreement that would delay, impede, interfere with or discourage
the consummation of the Transaction or would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
the Shareholder under this Agreement; and (c) vote (or cause to be voted) all
of its Securities against any of the following (other than the Acquisition
Agreement, including as it may have been, or may have been proposed by Parent
or Acquiror to be, amended): (i) any extraordinary corporate transaction or
agreement therefor, including without limitation any amalgamation, plan of
arrangement, merger, consolidation, recapitalization, reorganization, takeover
bid, share exchange, liquidation, dissolution, business combination or similar
transaction involving the Company or its Subsidiaries (including a Competing
Proposal), (ii) a Transfer of a material amount of assets of the Company or
its Subsidiaries, (iii) any change in the majority of the Board of Directors
of the Company, (iv) any change in the present capitalization of the Company,
(v) any amendment of the Company's Articles of Incorporation or By-laws, or
(vi) any other material change in the Company's corporate structure or
business or change in any manner of the voting rights of the Common Stock (any
matter under clauses (a), (b) or (c), a "Subject Proposal"). The Shareholder
shall not enter into any agreement or understanding with any person prior to
the termination of this Agreement to vote in any manner inconsistent herewith.
SECTION 1.02. Proxy. (a) During the time this Agreement is in
effect, the Shareholder hereby irrevocably grants to, and appoints, and agrees
from time to time to grant to, and appoint, Parent and Acquiror, or either of
them, and any individual designated in writing by either of them, and each of
them individually, as the Shareholder's proxy, agent and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
Shareholder, to vote (or cause to be voted) its Securities, or grant a consent
or approval in respect of its Securities, in each case, with respect to any
Subject Proposal, in a manner consistent with Section 1.01 above.
(b) The Shareholder understands and acknowledges that Parent and
Acquiror are entering into the Acquisition Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder hereby
affirms that the proxy set forth in this Section 1.02 is given in connection
with the execution of this Agreement, and that such proxy is given to secure
the performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby ratifies and confirms all that such proxy may lawfully do
or cause to be done by virtue hereof. Shareholder will take such further
action or execute such other instruments as may be necessary to effectuate the
intent of this proxy and hereby revokes any proxy previously granted by it
with respect to its Securities that would be inconsistent with the proxy
granted pursuant to Section 1.02(a). Shareholder shall not hereafter, unless
and until this Agreement terminates pursuant to Section 4.01 hereof, purport
to vote (or execute a consent with respect to) its Securities with respect to
any Subject Proposal (other than through this irrevocable proxy) or grant any
other proxy or power of attorney with respect to any of its Securities to vote
with respect to any Subject Proposal, deposit any of its Securities into a
voting trust or enter into any agreement (other than this Agreement),
arrangement or understanding with any person, directly
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or indirectly, to vote with respect to any such Subject Proposal, grant any
proxy or give instructions with respect to the voting of such Securities with
respect to any Subject Proposal.
SECTION 1.03. Tender. Upon the election of Parent to make a tender
offer for any Securities of the Company pursuant to Section 2.3 of the
Acquisition Agreement (the "Tender Offer"), the Shareholder hereby agrees to
tender validly (or cause the record owners to tender validly) to Parent or any
Subsidiary of Parent making the Tender Offer, pursuant to and in accordance
with the terms of the Tender Offer, as soon as practicable after commencement
of the Tender Offer, but in no event later than five Business Days following
the commencement of the Tender Offer, all of such Securities by physical
delivery of the certificates therefor (or by book entry or appropriate
instructions to brokers or custodians thereof, as the case may be) and not to
withdraw such Securities, except following termination of the Tender Offer
without the purchase by Parent or any of its Subsidiaries of Securities
thereunder; provided that the Shareholder shall be entitled to withdraw such
Securities prior to the termination of such Tender Offer in the event that
Parent attempts to waive the Minimum Condition. The Shareholder hereby
acknowledges and agrees that Parent's (or any of its Subsidiary's) obligation
to accept for payment and pay for such Securities shall be subject to the
terms and conditions of the Tender Offer. The Shareholder hereby permits
Parent and Acquiror to publish and disclose in the documents required to be
prepared, filed or delivered by applicable law in the Tender Offer and, if
approval of the Company's shareholders is required under applicable law, the
proxy statement and, subject to Shareholder's prior review and consent
thereto, in any other public statement, its identity and ownership of
Securities and the nature of its commitments, arrangements and understandings
under this Agreement.
ARTICLE II
Representation And Warranties.
SECTION 2.01. Representation and Warranties of Parent. Parent
hereby represents and warrants to the Shareholder that Parent has the
corporate power and authority to enter into this Agreement and perform all of
its obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by Parent and constitutes a valid and binding agreement
of Parent, enforceable against Parent in accordance with its terms.
SECTION 2.02. Representations and Warranties of the Shareholder.
The Shareholder hereby represents and warrants to Parent and Acquiror as
follows:
(a) Ownership of Securities and Options. The Shareholder (or
accounts or trusts controlled or beneficially owned by the Shareholder) is the
record and beneficial owner of the Existing Securities set forth opposite its
name on the signature pages hereto. On the date hereof, the Existing
Securities constitute all of the Securities owned of record or beneficially by
the Shareholder. The Shareholder has, with respect to the Existing Securities,
or will have, with respect to any other Securities, sole voting power, sole
power of disposition and sole power to agree to all of the matters set forth
in this Agreement with respect to all of the Securities, with no restrictions,
subject to applicable securities laws, on the Shareholder's voting power or
rights of disposition pertaining thereto.
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(b) Power; Binding Agreement. The Shareholder has the legal
capacity, power and authority to enter into and perform all of its obligations
under this Agreement, including, without limitation, power and authority to
sell, assign, transfer and deliver the Securities to Parent pursuant to the
terms and conditions of this Agreement. The execution, delivery and
performance of this Agreement by the Shareholder have been duly and validly
authorized and no other actions or proceedings on the part of the Shareholder
are necessary to authorize this Agreement or to consummate the transactions
contemplated herein. The execution, delivery and performance of this Agreement
by the Shareholder will not violate any other agreement to which the
Shareholder is a party including, without limitation, any voting agreement,
shareholders agreement or voting trust. This Agreement has been duly and
validly executed and delivered by the Shareholder and constitutes a valid and
binding agreement of the Shareholder, enforceable against the Shareholder in
accordance with its terms, except to the extent that their enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
(c) No Conflicts. Except for compliance with the applicable
requirements of the Legislation, (A) no filing with, and no permit,
authorization, consent or approval of, any Governmental Authority is necessary
for the execution of this Agreement by the Shareholder and the consummation by
the Shareholder of the transactions contemplated hereby and (B) neither the
execution and delivery of this Agreement by the Shareholder nor the
consummation by the Shareholder of the transactions contemplated hereby nor
compliance by the Shareholder with any of the provisions hereof shall (1)
conflict with or result in any breach of any provision of the articles of
incorporation or by-laws of the Shareholder, (2) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
agreement or other instrument or obligation to which the Shareholder is a
party or by which the Shareholder or any of its properties or assets may be
bound or (3) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Shareholder or any of its properties or assets,
except in the case of clauses (2) and (3), in a manner that would not
materially affect the Shareholder's ability to perform its obligations under
this Agreement.
(d) No Group. The Shareholder is acting individually and not as part
of a "group" as defined in the U.S. Securities Exchange Act of 1934, as
amended.
ARTICLE III
Certain Covenants of the Shareholder.
SECTION 3.01. Certain Covenants of the Shareholder. The
Shareholder hereby covenants and agrees as follows:
(a) No Solicitation. The Shareholder shall not, and shall not
authorize or permit any shareholder, director, officer, employee, Affiliate,
representative or agent of the Shareholder to, directly or indirectly, (i)
solicit, facilitate, initiate, entertain, encourage or take any action to
facilitate, initiate, entertain or encourage any inquiries or communications
or the making of any
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proposal or offer that constitutes or may constitute a Competing Proposal or a
sale of any of the Securities or (ii) participate or engage in any discussions
or negotiations with, or provide any information to or take any other action
with the intent to facilitate the efforts of, any person concerning any
possible Competing Proposal or a sale of any of the Securities or any inquiry
or communication which might reasonably be expected to result in a Competing
Proposal or a sale of any of the Securities. If any executive officer of the
Shareholder, the general counsel of the Shareholder or any member of the staff
of such general counsel's office receives an inquiry or proposal with respect
to any Competing Proposal or any sale of Securities, then the Shareholder
shall promptly inform Parent of the terms and conditions, if any, of such
inquiry or proposal and the identity of the person making it. The Shareholder
shall, and shall cause its representatives or agents to, immediately cease and
cause to be terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any of the foregoing.
(b) Restriction on Transfer, Proxies and Non-Interference. The
Shareholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (i) sell, transfer, pledge, encumber, assign or
otherwise dispose of, or execute any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of (collectively, a "Transfer"), any of its
Securities or any interest therein, (ii) grant any proxies with respect to any
Securities or deposit any Securities into a voting trust or enter into a
voting agreement with respect to any Securities, or (iii) take any action that
would make any representation or warranty of the Shareholder contained herein
untrue or incorrect or have the effect of preventing or disabling the
Shareholder from performing its obligations under this Agreement. Any action
described in the foregoing clauses (i) through (iii) in violation of this
Agreement shall be void ab initio.
(c) Legending of Certificates; Nominees Securities. If requested by
Parent, the Shareholder agrees to submit to the Company contemporaneously with
or as promptly as practicable following execution of this Agreement all
certificates representing the Securities so that the Company may note thereon
a legend, in form and substance reasonably satisfactory to Parent and the
Shareholder, referring to the proxy and other rights granted to Parent by this
Agreement. If any of the Securities beneficially owned by the Shareholder are
held of record by a brokerage firm in "street name" or in the name of any
other nominee (a "Nominee", and, as to such Securities, "Nominee Securities"),
the Shareholder shall within five business days of the date of this Agreement
execute and deliver to Parent a limited power of attorney, in form and
substance reasonably satisfactory to Parent and the Shareholder, enabling
Parent to require the Nominee to (i) grant to Parent an irrevocable proxy to
the same effect as Section 1.02 hereof with respect to the Nominee Securities
held by such Nominee, and (ii) submit to the Company the certificates
representing such Nominee Securities for notation of the above-referenced
legend thereon, and (iii) tender such Nominee Securities in the Tender Offer
pursuant to Section 1.03 hereof.
(d) Additional Securities. The Shareholder hereby agrees, while this
Agreement is in effect, to promptly notify Parent of the number of any new
Securities acquired by the Shareholder, if any, after the date hereof.
(e) Dissenter's Rights. The Shareholder agrees that it will not
exercise any right to dissent or any similar rights of appraisal, which it may
have under any applicable Law with
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respect to any transaction contemplated by the Acquisition Agreement or the
Plan of Arrangement.
SECTION 3.02. Stop Transfer Order. In furtherance of this
Agreement, the Shareholder hereby authorizes and directs the Company's counsel
to notify the Company's transfer agent that there is a stop transfer order in
conformity with the terms of this Agreement (which order shall exist only
until the termination of this Agreement) with respect to all of the Existing
Securities (and that this Agreement places limits on the voting and transfer
of such Securities).
SECTION 3.03. Public Announcements. The Shareholder shall consult
with Parent before issuing, and shall first provide Parent the reasonable
opportunity to review and comment upon, any press release or other public
statements with respect to the existence or terms of this Agreement, the
Arrangement or any other part of the Transaction, and shall not issue any such
press release or make any such public statement without the prior written
consent of Parent, except (i) as may be required by any applicable securities
laws, rules or regulations or the rules or regulations of any self-regulatory
organization having jurisdiction over the Shareholder and (ii) to the extent
necessary in response to a judicial or similar investigative inquiry
(including a discovery request in a lawsuit), in which case (with respect to
clause (ii) only) the Shareholder shall make such disclosure pursuant thereto
only after first providing reasonable notice to Parent and affording Parent
the opportunity to seek to limit, prevent or protect such disclosure.
SECTION 3.04. Further Assurances. The Shareholder shall, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments and shall take
all such further actions as Parent or Acquiror may reasonably request for the
purpose of effectively carrying out the transactions contemplated by this
Agreement.
SECTION 3.05. Cooperation as to Regulatory Matters. If so
requested by Parent, promptly after the date hereof, and solely at Parent's
expense (which shall include, without limitation, reimbursement of all
reasonable out-of-pocket expenses incurred by the Shareholder in complying
with any such request), the Shareholder will use its commercially reasonable
efforts to make all filings, which are required under the Legislation or other
applicable Laws, and to seek all regulatory approvals required in connection
with the Transaction. The Shareholder shall, at Parent's expense (which shall
include, without limitation, reimbursement of all reasonable out-of-pocket
expenses incurred by the Shareholder in complying with any such request),
furnish all such necessary information and reasonable assistance as may be
requested in connection with the preparation of filings and submissions to any
Governmental Authority, including, without limitation, filings under the
provisions of the Legislation or other applicable Laws.
ARTICLE IV
Miscellaneous
SECTION 4.01. Termination; Survival of Representations and
Warranties. This Agreement shall terminate on the Expiration Date, and upon
such termination, this
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Agreement shall terminate and be of no further force and effect; provided that
the provisions of this Article IV shall survive the termination of this
Agreement indefinitely in accordance with their terms. As used herein, the
term "Expiration Date" means the first to occur of (i) the Effective Time,
(ii) receipt by the Shareholder of written notice of termination of this
Agreement by Parent, or (iii) the date of the termination of the Acquisition
Agreement.
SECTION 4.02. Amendments. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties.
SECTION 4.03. Notices. All notices or other communications which
are required or permitted hereunder shall be in writing and sufficient if
delivered personally or sent by nationally recognized overnight courier or by
registered or certified mail, postage prepaid, return receipt requested, or by
electronic mail, with a copy thereof to be delivered or sent as provided above
or by facsimile or telecopier, as follows:
if to Parent or Acquiror, to
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Senior Vice President for Business Affairs
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esq.
if to the Shareholder:
ADC Telecommunications, Inc.
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Office of General Counsel
with copies to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Tel: (000) 000-0000
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Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All such
notices or communications shall be deemed to be received (i) in the case of
personal delivery, nationally recognized overnight courier or registered or
certified mail, on the date of such delivery and (ii) in the case of facsimile
or telecopier or electronic mail, upon confirmed receipt.
SECTION 4.04. Descriptive Headings; Interpretation. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. The terms
"hereof," "herein," "hereby," and derivative or similar words refer to this
entire Agreement. Unless the context otherwise requires words of any gender
include each other gender, and words using the singular or plural number also
include the plural or singular number, respectively. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation". All references to
currency herein are to United States dollars unless otherwise specified.
SECTION 4.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to
the extent possible.
SECTION 4.06. Entire Agreement. This Agreement and the other
documents and instruments delivered in connection herewith constitute the
entire agreement and supersede all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof and thereof.
SECTION 4.07. Assignment. This Agreement may not and shall not be
assigned by operation of Law or otherwise, except that Parent and Acquiror may
assign all or any of their rights hereunder to any Affiliate, provided that no
such assignment shall relieve the assigning party of its obligations
hereunder. Any assignment in violation of this Agreement shall be void.
SECTION 4.08. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 4.09. Failure or Indulgence Not Waiver; Remedies
Cumulative. No failure or delay on the part of any party hereto in the
exercise of any right hereunder will impair
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such right or be construed to be a waiver of, or acquiescence in, any breach
of any representation, warranty or agreement herein, nor will any single or
partial exercise of any such right preclude other or further exercise thereof
or of any other right. All rights and remedies existing under this Agreement
are cumulative to, and not exclusive to, and not exclusive of, any rights or
remedies otherwise available.
SECTION 4.10. Governing Law; Enforcement. This Agreement and the
rights and duties of the parties hereunder shall be governed by, and construed
in accordance with, the Law of the State of New York. The parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement in any
Federal court sitting in the Southern District of New York or in the District
of Minnesota, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto, (a)
consents to submit itself to the exclusive personal jurisdiction of any
Federal court sitting in the Southern District of New York or in the District
of Minnesota in the event any dispute arises out of this Agreement or any
transaction contemplated hereby, (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
any such court, (c) agrees that it will not bring any action relating to this
Agreement or any transaction contemplated hereby in any court other than any
Federal court sitting in the Southern District of New York or in the District
of Minnesota and (d) waives any right to trial by jury with respect to any
action related to or arising out of this Agreement or any transaction
contemplated hereby.
SECTION 4.11. No Third-Party Beneficiaries. Nothing in this
Agreement, express or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 4.12. Counterparts. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, Parent, Acquiror and the Shareholder have caused
this Agreement to be duly executed as of the day and year first above written.
AMERICA ONLINE, INC.
By: /s/ Xxxxx Xxxxxxxx
______________________________________
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
IAN ACQUISITION ULC
By: /s/ Xxxxx X. Xxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxx
Title: President
Existing Securities
-------------------
ADC TELECOMMUNICATIONS, INC.
No Common Shares or
warrants other than By: /s/ Xxxxx X. Xxxxxxx
through ADC Subsidiary ______________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Treasurer
ADC ESD, INC.
1,475,000 Common Shares By: /s/ Xxxxx X. Xxxxxxx
Warrants to acquire ______________________________________
573,500 Common Shares Name: Xxxxx X. Xxxxxxx
Title: Vice President & Treasurer
