EXHIBIT 10.31
AMENDMENT TO CONTROL CHANGE AGREEMENT
THIS AMENDING AGREEMENT is made the 30th day of September, 2002
BETWEEN:
NORSKE XXXX CANADA LIMITED, a corporation continued and
amalgamated under the laws of Canada
(the "Company")
OF THE FIRST PART,
AND:
XXXXXXX X. XXXXXX, of 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
(the "Executive")
OF THE SECOND PART.
WHEREAS:
A. The parties entered into an agreement (the "Control Change Agreement")
dated as of August 29, 2001; and
B. The parties wish to enter into this Amending Agreement for the purpose
of amending the Control Change Agreement;
NOW THEREFORE in consideration of the premises, the respective covenants and
agreements herein contained and other good and valuable consideration (the
receipt and sufficiency of which the parties acknowledge) the parties covenant
and agree as follows:
1. INTERPRETATION
1.1. In this Agreement, capitalized words or phrases that are not defined
but that are defined in the Control Change Agreement shall have the
meanings ascribed to them in the Control Change Agreement;
2. AMENDMENT OF DEFINITION OF CONTROL CHANGE
2.1. The definition of "Control Change" contained in clause 2.3(c) of the
Control Change Agreement is hereby amended by deleting the same and
substituting the following:
"(c) "Control Change" shall mean any of the following:
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(i) any change in ownership, direct or indirect, of
shares of the Company and/or securities
("Convertible Securities") convertible into,
exchangeable for or representing the right to
acquire shares of the Company, as a result of or
following which Norske Skogindustrier ASA ("NSI")
beneficially owns, directly or indirectly, or
exercises control or direction over, shares of the
Company and/or Convertible Securities such that,
assuming only the conversion, exchange or exercise
of Convertible Securities beneficially owned by
NSI, NSI would beneficially own, directly or
indirectly, or exercise control or direction over,
shares of the Company that would entitle the
holders thereof to cast more than 50% of the votes
attaching to all shares of the Company that may be
cast to elect directors of the Company;
(ii) any change in ownership, direct or indirect, of
shares of the Company and/or Convertible
Securities, as a result of or following which an
Acquiror (as defined in paragraph (vi) below)
beneficially owns, directly or indirectly, or
exercises control or direction over, shares of the
Company and/or Convertible Securities such that,
assuming only the conversion, exchange or exercise
of Convertible Securities beneficially owned by
the Acquiror,
A. the Acquiror would beneficially own,
directly or indirectly, or exercise
control or direction over, shares of the
Company that would entitle the holders
thereof to cast more than 35% of the
votes attaching to all shares of the
Company that may be cast to elect
directors of the Company, and
B. if NSI then beneficially owns, directly
or indirectly, or exercises control or
direction over, shares of the Company
that would entitle holders thereof to
cast more than 35% of the votes attaching
to all shares of the Company that may be
cast to elect directors of the Company,
the Acquiror would beneficially own,
directly or indirectly, or exercise
control or direction over, shares of the
Company that would entitle the holders
thereof to cast more of the votes
attaching to all shares of the Company
that may be cast to elect directors of
the Company than may be cast by holders
of shares of the Company beneficially
owned, directly or indirectly, or over
which control or direction is exercised,
by NSI;
(iii) the acquisition by NSI or an Acquiror of all or
substantially all of the assets of the Company; or
(iv) a merger of the Company with or into one or more
other companies, corporations, trusts or other
entities (other than subsidiaries of, or trusts or
other entities controlled by, the Company):
A. where the members of the Board of
Directors of the Company immediately
prior to the consummation of the merger
do not
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constitute a majority of the directors,
trustees or other governing body of the
company, corporation, trust or other
entity surviving or continuing from the
merger; or
B. that results in the securityholders of
the parties to the merger other than the
Company owning, directly or indirectly,
securities of the company, corporation,
trust or other entity surviving or
continuing from the merger that entitle
the holders thereof to cast more than 35%
of the votes attaching to all securities
of the surviving or continuing company,
corporation, trust or other entity that
may be cast to elect its directors,
trustees or other governing body; or
C. that has been designated by resolution of
the directors of the Company as a Control
Change prior to the consummation of the
merger;
and for the purposes of this clause 2.3(c)
(v) the expression "NSI" shall include any group of
persons which includes NSI, any persons acting
jointly or in concert with NSI and any persons
associated or affiliated within the meaning of the
SECURITIES ACT (British Columbia) with NSI, or any
such group of persons or persons acting jointly or
in concert;
(vi) the expression "Acquiror" shall mean a person,
group of persons or persons acting jointly or in
concert, or persons associated or affiliated
within the meaning of the SECURITIES ACT (British
Columbia) with any such person, group of persons
or persons acting jointly or in concert, but shall
not include an Acquiror as so defined which
consists of or includes NSI; and
(vii) the expressions "change in ownership",
"acquisition" and "merger" include, as the context
may require, a transaction or series of
transactions by way of takeover bid, purchase,
exchange, lease, statutory amalgamation, statutory
merger, reorganization, consolidation, statutory
arrangement, recapitalization, liquidation or
other business combination;".
3. AMENDMENT OF DEFINITION OF RESIGNATION
3.1. The definition of "Resignation" contained in clause 2.3(k) of the
Control Change Agreement is amended by deleting the same and
substituting the following:
"(k) "Resignation" shall mean, if there is a Control Change, the
Executive giving the Company not less than 30 days prior
written notice of his resignation, provided that such notice
is given to the Company not later than one year after the
Executive learns of the Control Change and makes express
reference to the Control Change; and".
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4. AMENDMENT OF TERM
4.1. Section 3.1 of the Control Change Agreement is amended by deleting the
same and substituting the following:
"3.1 This Agreement shall apply if a Control Change occurs within the
term commencing on the 29th day of August 2001 and ending on the 30th
day of September 2004 or such date later than the 30th day of September
2004 as the Company may from time to time specify by notice to the
Executive. The obligations of the Company under section 5 shall survive
the expiration of this Agreement if there is a Control Change prior to
the end of the term of this Agreement."
5. GENERAL
5.1. The Control Change Agreement, as amended by this Amending Agreement,
shall be, and continues in all respects to be, in full force and effect
and is hereby confirmed unamended other than as expressly set forth
herein.
5.2. This Amending Agreement shall enure to the benefit of and be binding
upon the Executive and his heirs, executors and administrators and upon
the Company and its successors and assigns.
5.3. This Amending Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which shall
constitute one and the same instrument. Counterparts may be delivered
by facsimile transmission.
IN WITNESS WHEREOF the parties hereto have executed this Amending Agreement as
of the day and year first above written.
NORSKE XXXX CANADA LIMITED
By: /s/ W. Xxxxxx Xxxxxxxx
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Director
/s/ X. Xxxxxx
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Xxxxxxx X. Xxxxxx
