SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the day of the 15 day of February 2000
AMONG:
BIO SYNTECH INC. (formerly Dream Team International Inc.), a
corporation subsisting under the laws of the State of Nevada;
(hereinafter referred to as the "Parent")
AND:
0000-0000 XXXXXX INC., a corporation incorporated under the
laws of the Province of Quebec;
(hereinafter referred to as the "Purchaser"),
AND:
BIO SYNTECH LTD., a corporation incorporated under the laws of
the Province of Quebec;
(hereinafter referred to as the "Biosyntech")
WHEREAS in connection with an amalgamation agreement (the "Amalgamation
Agreement") made as of between Parent, BioSyntech and Purchaser, Bio Syntech and
Purchaser are to amalgamate to create Bio Syntech Canada Inc. ("Mergeco.").
WHEREAS upon the amalgamation, Mergeco is to issue Exchangeable Non-Voting
Preferred Shares (the Exchangeable Shares") to the shareholders of securities of
Bio Syntech.
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:
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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 attached as Appendix 1 hereto, unless the context
requires otherwise.
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 importing the singular number only shall include the plural and vice
versa. Words importing 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. For the purposes of this agreement, a "Business Day"
means any day on which commercial banks are open for business in Montreal other
than a Saturday, a Sunday or a day observed as a holiday in Montreal, under the
laws of the Province of Quebec or the federal laws of Canada.
ARTICLE 2
COVENANTS OF PARENT AND PURCHASER
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2.1 Covenants Regarding Exchangeable Shares
So long as any Exchangeable Shares not owned by Parent or its Affiliates are
outstanding, Parent covenants that it will:
(a) not declare or pay any dividend on the Parent Common Shares
unless (i) Mergeco 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) Mergeco
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 Mergeco sufficiently in advance of the declaration by
Parent of any dividend on Parent Common Shares and take all
such other actions as are reasonably necessary, in
co-operation with Mergeco, 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 Parent Common Shares;
(c) ensure that the record date for any dividend declared on
Parent 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 Mergeco, 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 (other than Exchangeable Shares owned by Parent or its
Affiliates) upon the liquidation, dissolution or winding-up of
Mergeco, the delivery of a Retraction Request by a holder of
Exchangeable Shares or a redemption of Exchangeable Shares by
Mergeco, as the case may be, including without limitation all
such actions and all such things as are necessary or desirable
to enable and permit Mergeco to cause to be delivered Parent
Common Shares to the holders of Exchangeable Shares in
accordance with the provisions of Article 5, 6 or 7, as the
case may be, of the Share Provisions; and
(e) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit Parent, in
accordance with applicable law, to perform its obligations
arising upon the exercise by it of the Call Rights, including
without limitation all such actions and all such things as are
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necessary or desirable to enable and permit Parent to cause to
be delivered Parent Common Shares to the holders of
Exchangeable Shares in accordance with the provisions of the
Call Rights.
2.2 Segregation of Funds
Parent further covenants that it will cause Mergeco to deposit a sufficient
amount of funds in a separate account of Mergeco and segregate a sufficient
amount of such other assets and property, as is necessary to enable Mergeco to
pay dividends when due and to pay or otherwise satisfy its obligations under
Article 5, 6 or 7 of the Share Provisions, as applicable.
2.3 Reservation of Parent Common Shares
Parent hereby represents, warrants and covenants in favour of Purchaser and Bio
Syntech that Parent has reserved for issuance and will, at all times while any
Exchangeable Shares (other than Exchangeable Shares held by Parent 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 Parent
Common Shares (or other shares or securities into which Parent 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
Parent to meet its obligations under the Voting and Exchange Trust Agreement and
under any other security or commitment pursuant to which Parent may now or
hereafter be required to issue Parent Common Shares, to enable and permit Parent
to meet its obligations under the Call Rights and to enable and permit Mergeco
to meet its respective obligations hereunder and under the Share Provisions.
2.4 Notification of Certain Events
In order to assist Parent to comply with its obligations hereunder and to permit
Parent to exercise the Call Rights, Mergeco will notify Parent 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
Mergeco to institute voluntary liquidation, dissolution or
winding-up proceedings with respect to Mergeco or to effect
any other distribution of the assets of Mergeco 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;
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(b) promptly, upon the earlier of receipt by Mergeco of notice of
and Mergeco 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 Mergeco or to effect any other distribution of
the assets of Mergeco among its shareholders for the purpose
of winding up its affairs;
(c) immediately, upon receipt by Mergeco 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 Mergeco of any
Exchangeable Shares or rights to acquire Exchangeable Shares
(other than the issuance of Exchangeable Shares and rights to
acquire Exchangeable Shares in exchange for outstanding Bio
Syntech common shares pursuant to the Amalgamation).
2.5 Delivery of Common Shares to Mergeco
In furtherance of its obligations under sections 2.1(d) and (e) hereof, upon
notice from Mergeco of any event that requires Mergeco to cause to be delivered
Parent Common Shares to any holder of Exchangeable Shares, Parent shall
forthwith cause to be delivered to Mergeco the requisite number of Parent Common
Shares to be received by, and issued to or to the order of, the former holder of
the surrendered Exchangeable Shares, as Mergeco shall direct. All such Parent
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 Parent Common Share,
Mergeco shall pay a cash purchase price equal to the fair market value of such
Parent Common Shares.
2.6 Intentionnaly Deleted
2.7 Economic Equivalence
So long as any Exchangeable Shares not owned by Parent or its Affiliates are
outstanding:
(a) Parent will not without prior approval of Mergeco and the
prior approval of the holders of the Exchangeable Shares given
in accordance with section 10.2 of the Share Provisions:
(i) issue or distribute Parent Common Shares (or
securities exchangeable for or convertible into or
carrying rights to acquire Parent Common Shares) to
the holders of all or substantially all of the then
outstanding
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Parent Common Shares by way of stock dividend or other
distribution, other than an issue of Parent Common
Shares (or securities exchangeable for or convertible
into or carrying rights to acquire Parent Common
Shares) to holders of Parent Common Shares who
exercise an option to receive dividends in Parent
Common Shares (or securities exchangeable for or
convertible into or carrying rights to acquire Parent
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 Parent Common Shares entitling them to
subscribe for or to purchase Parent Common Shares (or
securities exchangeable for or convertible into or
carrying rights to acquire Parent Common Shares); or
(iii) issue or distribute to the holders of all or
substantially all of the then outstanding Parent
Common Shares (A) shares or securities of Parent of
any class other than Parent Common Shares (other than
shares convertible into or exchangeable for or
carrying rights to acquire Parent Common Shares), (B)
rights, options or warrants other than those referred
to in section 2.7(a)(ii) above, (C) evidences of
indebtedness of Parent or (D) assets of Parent,
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 Parent in
order to give effect to and to consummate the transactions contemplated
by, and in accordance with, the Amalgamation Agreement.
(b) Parent will not without the prior approval of Mergeco and the
prior approval of the holders of the Exchangeable Shares given
in accordance with section 10.2 of the Share Provisions:
(i) subdivide, redivide or change the then outstanding
Parent Common Shares into a greater number of Parent
Common Shares; or
(ii) reduce, combine, consolidate or change the then
outstanding Parent Common Shares into a lesser number
of Parent Common Shares; or
(iii) reclassify or otherwise change Parent Common Shares or
effect an amalgamation, merger, reorganization or
other transaction affecting Parent Common Shares,
unless the same or an economically equivalent
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change shall simultaneously be made to, or in the
rights of the holders of, the Exchangeable Shares.
(c) Parent 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 Parent (with
contemporaneous notification thereof by Parent to Mergeco).
(d) The Board of Directors of Mergeco shall determine, in good
faith and in its sole discretion, economic equivalence for the
purposes of any event referred to in section 2.7(a) or 2.7(b)
above and each such determination shall be conclusive and
binding on Parent. In making each such determination, the
following factors shall, without excluding other factors
determined by the Board of Directors of Mergeco to be
relevant, be considered by the Board of Directors of Mergeco:
(i) in the case of any stock dividend or other
distribution payable in Parent Common Shares, the
number of such shares issued in proportion to the
number of Parent Common Shares previously outstanding;
(ii) in the case of the issuance or distribution of any
rights, options or warrants to subscribe for or
purchase Parent Common Shares (or securities
exchangeable for or convertible into or carrying
rights to acquire Parent Common Shares), the
relationship between the exercise price of each such
right, option or warrant and the Current Market Price;
(iii) in the case of the issuance or distribution of any
other form of property (including without limitation
any shares or securities of Parent of any class other
than Parent Common Shares, any rights, options or
warrants other than those referred to in section 2.7
(d) (ii) above, any evidences of indebtedness of
Parent or any assets of Parent), the relationship
between the fair market value (as determined by the
Board of Directors of Mergeco in the manner above
contemplated) of such property to be issued or
distributed with respect to each outstanding Parent
Common Share and the Current Market Price;
(iv) in the case of any subdivision, redivision or change
of the then outstanding Parent Common Shares into a
greater number of Parent Common Shares or the
reduction, combination, consolidation or change of the
then outstanding Parent Common Shares into a lesser
number of Parent Common Shares or any amalgamation,
merger,
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reorganization or other transaction affecting Parent
Common Shares, the effect thereof upon the then
outstanding Parent 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 Parent
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).
(c) Purchaser agrees that, to the extent required, upon due notice
from Parent, Mergeco 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 Mergeco, or subdivisions,
redivisions or changes are made to the Exchangeable Shares, in
order to implement the required economic equivalent with
respect to the Parent 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 Parent Common Shares (an "Offer") is
proposed by Parent or is proposed to Parent or its shareholders and is
recommended by the Board of Directors of Parent, or is otherwise effected or to
be effected with the consent or approval of the Board of Directors of Parent,
and the Exchangeable Shares are not redeemed by Mergeco or purchased by Parent
pursuant to the Call Rights, Parent 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 (other than Parent and its Affiliates) to participate in such Offer to
the same extent and on an economically equivalent basis as the holders of Parent
Common Shares, without discrimination. Without limiting the generality of the
foregoing, Parent will use its reasonable efforts expeditiously and in good
faith to ensure that holders of Exchangeable Shares may participate in each such
Offer without being required to retract Exchangeable Shares as against Mergeco
(or, if so required, to ensure that any such retraction, shall be effective only
upon, and shall be conditional upon, the closing of such Offer and only to the
extent necessary to tender or deposit to the Offer). Nothing herein shall affect
the rights of Mergeco to redeem (or Parent to purchase pursuant to the Call
Rights) Exchangeable Shares, as applicable, in the event of a Parent Control
Transaction.
2.9 Ownership of Outstanding Shares
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Without the prior approval of Mergeco and the prior approval of the holders of
the Exchangeable Shares given in accordance with section 10.2 of the Share
Provisions, Parent covenants and agrees in favour of Purchaser that, as long as
any outstanding Exchangeable Shares are owned by any Person other than Parent or
any of its Affiliates, Parent will be and remain the direct or indirect
beneficial owner of all issued and outstanding voting shares in the capital of
Mergeco.
2.10 Parent and Affiliates Not to Vote Exchangeable Shares
Parent 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. Parent 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 Act (or any successor or other
corporate statute by which Mergeco 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 Parent contained in section 2.8 hereof, shall limit the
ability of Parent or Mergeco to make a "Rule 10b-18 Purchase" of Parent Common
Shares pursuant to Rule 10b- 18 of the United States Securities Exchange Act of
1934, as amended.
ARTICLE 3
PARENT SUCCESSORS
3.1 Certain Requirements in Respect of Combination, etc.
Parent shall not consummate any transaction (whether by way of reconstruction,
reorganization, consolidation, merger, transfer, sale, lease or other-wise)
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 "Parent
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
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supplemental hereto and such other instruments (if any) as are
reasonably necessary or advisable to evidence the assumption
by the Parent Successor of liability for all moneys payable
and property deliverable hereunder and the covenant of such
Parent 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 Parent 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 the
supplemental agreement provided for in section 3.1(a) and thereupon the Parent
Successor shall possess and from time to time may exercise each and every right
and power of Parent under this Agreement in the name of Parent 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 Parent or any officers of Parent may be
done and performed with like force and effect by the directors or officers of
such Parent 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 Parent with or into Parent or
the winding-up, liquidation or dissolution of any wholly-owned subsidiary of
Parent provided that all of the assets of such subsidiary are transferred to
Parent or another wholly-owned direct or indirect subsidiary of Parent 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
other than Parent and any of its Affiliates.
4.2 Changes in Capital of Parent and Mergeco
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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 Parent 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 Parent 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 Mergeco and Parent and approved by the holders of the Exchangeable
Shares in accordance with section 10.2 of the Share Provisions.
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
holders of the Exchangeable Shares, amend or modify this Agreement for the
purposes of:
(a) adding to the covenants of any or all parties provided that
the Board of Directors of each of Mergeco and Parent 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 Mergeco and Parent, 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 Mergeco and Parent, are required for the purpose of
curing or correcting any ambiguity or defect or inconsistent
provision or clerical omission or mistake
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or manifest error, provided that the Boards of Directors of
each of Mergeco and Parent 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
Mergeco, at the request of Parent, 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 Mergeco, 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 hall
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 any such party as shall be specified in like notice):
BioSyntech Inc.
000 Xxxxxx Xxxxxxxx
Xxxxx (Xxxxxx) X0X 0X0
Attention: Mr. Amine Selmani
Telecopier No.: 000-000-0000
with a copy to:
De Grandpre Chaurette Xxxxxxxx
0000 XxXxxx Xxxxxxx Xxxxxx
Xxxxx 0000
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Montreal (Quebec) H3B 3H3
Attention: Xx. Xxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Bio Syntech, Inc.
c/o Lanham & Associates
00 Xxxx Xxxx, Xxxx X
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Telecopier No. (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 Quebec and the laws of Canada applicable therein.
4.12 Attornment
Each of the parties hereto agrees that any action or proceeding arising out of
or relating to this Agreement may be instituted in the courts of the Province of
Quebec, 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 Parent hereby
appoints Mergeco at its registered office in the Province of Quebec as attorney
for service of process.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
BIO SYNTECH INC. (formerly Dream Team Inc.)
By: /s/ Amine Selmani
-----------------------------------------
Name: Amine Selmani
Title: President
0000-0000 XXXXXX INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
BIO SYNTECH LTD.
By: /s/ Amine Selmani
-----------------------------------------
Name: Amine Selmani
Title: President
