EXHIBIT 4.5
AMENDED SUPPORT AGREEMENT
This Amended Support Agreement (this "Agreement"), dated for reference May 10,
1997, is by and among Apple Orthodontix Inc., a Delaware corporation ("AOI"),
000000 Xxxxxxx Inc., an Alberta corporation ("Apple") and Texas Commerce Bank
National Association, a national banking association having an office in the
City of Houston, Texas (the "Trustee").
WITNESSETH:
WHEREAS AOI is the sole holder of Apple's issued and outstanding Class A
Common Shares (the "Apple Common Stock");
AND WHEREAS certain shares of Class A Common Stock of AOI, having voting
rights of one vote per share (the "AOI Common Stock") are in the process of
being listed on the American Exchange;
AND WHEREAS pursuant to a consulting agreement with Xx. Xxxxxx X. Xxxxx
Apple issued certain Class A Non-Voting, Exchangeable Shares of Apple (the
"Class A Exchangeable Shares") which are exchangeable for AOI Common Stock.
AND WHEREAS pursuant to an acquisition agreement, Apple acquired certain
assets and issued in consideration therefore certain Class B Non-Voting
Exchangeable Shares of Apple (the "Class B Exchangeable Shares") which are
exchangeable for AOI Common Stock;
AND WHEREAS Apple reorganized its capital by filing articles of amendment
dated effective May 10, 1997 and such articles of amendment set forth the
rights, privileges, restrictions and conditions (collectively the "Exchangeable
Share Provisions") attaching to the Class A and Class B Exchangeable Shares
(collectively, the "Exchangeable Shares");
AND WHEREAS the Trustee holds the voting, rights with respect to certain
AOI Common Stock for the benefit of the holders of the Exchangeable Shares;
AND WHEREAS the parties hereto desire to establish a procedure whereby AOI
will take certain actions and make certain payments and deliveries necessary to
ensure that Apple will be able to make certain payments and to deliver or cause
to be delivered shares of AOI Common Stock in satisfaction of the obligations of
Apple under the Exchangeable Share Provisions with respect to the payment and
satisfaction of dividends, Liquidation Price and Retraction Price, all in
accordance with the Exchangeable Share Provisions;
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this Agreement and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties agree as
follows:
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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 has the meaning ascribed thereto in the Exchangeable
Share Provisions, unless the context requires otherwise.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this Agreement
into articles, sections and paragraphs and the insertion of headings are for
convenience of reference only and will not affect the construction or
interpretation of this Agreement.
1.3 NUMBER, GENDER, ETC. Words imparting the singular number only include the
plural and vice versa. Words imparting the use of any gender 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 is required to be taken
on the next succeeding Business Day. For the purposes of this Agreement, a
"Business Day" means a day other than a Saturday, a Sunday or a statutory
holiday in the City of Calgary, Alberta or the City of Houston, Texas.
ARTICLE 2
COVENANTS OF AOI AND APPLE
2.1 COVENANTS OF PARENT REGARDING EXCHANGEABLE SHARES. So long as any
Exchangeable Shares are outstanding, AOI will:
(a) not declare or pay any dividend on AOI Common Stock unless (i) Apple
has sufficient assets, funds or other property available to enable the due
declaration and the due and punctual payment in accordance with applicable
law, of an equivalent dividend on the Class B Exchangeable Shares and (ii)
Apple simultaneously declares or pays, as the case may be, an equivalent
dividend on the Class B Exchangeable Shares;
(b) cause Apple to declare simultaneously with the declaration of any
dividend on AOI Common Stock an equivalent dividend on the Class B
Exchangeable Shares and, when such dividend is paid on AOI Common Stock,
cause Apple to pay simultaneously therewith such equivalent dividend on
the Class B Exchangeable Shares, in each case in accordance with the
Exchangeable Share Provisions;
(c) advise Apple sufficiently in advance of the declaration by AOI of any
dividend on AOI Common Stock and take all such other actions as are
necessary, in cooperation
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with Apple, to ensure that the respective declaration date, record date and
payment date for a dividend on the Class B Exchangeable Shares will be the same
as the record date, declaration date and payment date for the corresponding
dividend on AOI Common Stock and such dividend on the Class B Exchangeable
Shares will correspond with any requirement of the stock exchange on which the
Exchangeable Shares are listed;
(d) ensure that the record date for any dividend declared on AOI Common
Stock is not less than 1O Business Days after the declaration date for
such dividend;
(e) take all such actions and do all such things as are necessary or
desirable to enable and permit Apple, in accordance with applicable law,
to pay and otherwise perform its obligations with respect to the
satisfaction of the Liquidation Price with respect to each issued and
outstanding Exchangeable Share upon the liquidation, dissolution or
winding-up of Apple, including without limitation all such actions and all
such things as are necessary or desirable to enable and permit Apple to
cause to be delivered shares of AOI Common Stock to the holders of
Exchangeable Shares in accordance with the provisions of Article 6 of the
Exchangeable Share Provisions;
(f) take all such actions and do all such things as are necessary or
desirable to enable and permit Apple, in accordance with applicable law,
to pay and otherwise perform its obligations with respect to the
satisfaction of the Retraction Price, including without limitation of such
actions and all such things as are necessary or desirable to enable and
permit Apple to cause to be delivered shares of AOI Common Stock to the
holders of Exchangeable Shares upon the retraction of the Exchangeable
Share;
(g) not exercise its vote as a shareholder to initiate the voluntary
liquidation, dissolution or winding-up of Apple nor take any action or
omit to take any action that is designed to or may result in the
liquidation, dissolution or winding-up of Apple; and
(h) not Transfer to any person in the business of providing management
services to orthodontic practices in Canada any interest in any of the
Apple Common Stock it owns and will take all such actions and do all such
things as are necessary or desirable to cause Apple not to issue any
securities, or grant or commit to grant any rights with respect to any
securities, other than its Exchangeable Shares, to any such person other
than AOI, and any attempt to do so will be void and, because the parties
hereto acknowledge the inadequacies of money damages in such
circumstances, will be subject to one or both of specific performance and
injunctive relief at the instance of any of the parties hereto.
For purposes of this Agreement, Transfer includes to issue, sell, assign,
surrender, gift, bequest, lease, license, pledge, mortgage, charge, create a
security interest, hypothecate or otherwise dispose of, exchange, encumber or
deal with any Apple Common Stock or any interest, whether legal or beneficial,
in any Apple Common Stock whether voluntarily, involuntarily, directly or
indirectly, conditionally, contingently or otherwise, by operation of law or
otherwise or to enter
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into any agreement, arrangement or undertaking or any action which results or
may result in the foregoing.
2.2 SEGREGATION OF FUNDS. AOI will cause Apple to deposit sufficient funds in a
separate account and segregate a sufficient amount of such assets and other
property as is necessary to enable Apple to pay or otherwise satisfy the
applicable dividends, Liquidation Price or Retraction Price, in each case for
the benefit of holders from time to time of the Exchangeable Shares, and will
use such funds, assets and other property so segregated exclusively for the
payment of dividends and the payment or other satisfaction of the Liquidation
Price or the Retraction Price, as applicable.
2.3 RESERVATION OF SHARES OF AOI COMMON STOCK. AOI hereby represents, warrants
and covenants that it has irrevocably reserved for issuance and will at all
times keep available, free from pre-emptive and other rights, out of its
authorized and unissued capital stock such number of shares of AOI Common Stock
(or other shares or securities into which AOI Common Stock 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 Apple to meet its
obligations hereunder, under the Voting and Exchange Agreement, under the
Exchangeable Share Provisions and under any other security or commitment
pursuant to which AOI may now or hereafter be required to issue shares of AOI
Common Stock.
2.4 NOTIFICATION OF CERTAIN EVENTS. In order to assist AOI to comply with its
obligations hereunder, Apple will give AOI notice 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 Apple
to institute voluntary liquidation, dissolution or winding up
proceedings with respect to Apple or to effect any other
distribution of the assets to Apple 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) immediately, upon the earlier of (i) receipt by Apple of notice, and
(ii) Apple 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 Apple or to
effect any other distribution of the assets of Apple among its
shareholders for the purpose of winding up its affairs;
(c) immediately, upon receipt by Apple of a Retraction Request (as
defined in the Exchangeable Share Provisions); and
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(d) as soon as practicable upon the issuance by Apple of any
Exchangeable Shares or rights to acquire Exchangeable Shares.
2.5 DELIVERY OF SHARES OF AOI COMMON STOCK. In furtherance of its obligations
under sections 2. 1 (e) and 2. 1 (f) hereof, upon notice of any event which
requires Apple to cause to be delivered shares of AOI Common Stock to any holder
of Exchangeable Shares, AOI will forthwith issue and deliver the requisite
shares of AOI Common Stock to or to the order of the former holder of the
surrendered Exchangeable Shares, as Apple directs. All such shares of AOI Common
Stock will be duly issued as fully paid and non-assessable and will be free and
clear of any lien, claim, encumbrance, security interest or adverse claim.
2.6 QUALIFICATION OF SHARES OF AOI COMMON STOCK. AOI covenants that if any
shares of AOI Common Stock (or other shares or securities into which AOI Common
Stock may be reclassified or changed as contemplated by Section 2.7 hereof) to
be issued and delivered hereunder, including for greater certainty, pursuant to
the Exchangeable Share Provisions, or pursuant to the Exchange Right as defined
in the Voting and Exchange Agreement 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 law or regulation or
pursuant to the rules and regulations of any regulatory authority or the
fulfilment of any other legal requirement (collectively, the "Applicable Laws")
before such shares (or other shares or securities into which AOI Common Stock
may be reclassified or changed as contemplated by Section 2.7 hereof may be
issued and delivered by AOI to the initial holder thereof, AOI will
expeditiously take all such actions and do all such things as are necessary to
cause such shares of AOI Common Stock (or other shares or securities into which
AOI Common Stock may be reclassified or changed as contemplated by Section 2.7
hereof to be and to remain duly registered, qualified or approved. In addition
to the foregoing, AOI represents, warrants and covenants that it will take all
action and do all things as are necessary under Applicable Laws as they exist on
the particular date thereof to cause the shares of AOI Common Stock (or other
shares or securities into which AOI Common Stock may be reclassified or changed
as contemplated by Section 2.7 hereof) to be issued and delivered hereunder,
including for greater certainty, pursuant to the Exchangeable Share Provisions,
or pursuant to the Exchange Right as defined in the Voting and Exchange
Agreement to be eligible for resale in the United States and Canada by the
initial holder thereof upon the expiration of the Restricted Period, as defined
in any agreement pursuant to which Apple or any affiliate of Apple (being any
natural person, sole proprietorship, corporation, partnership of any kind having
a separate legal status, limited liability company, business trust,
unincorporated organization or association, mutual company, joint stock company,
joint venture, estate trust, union or employee organization or government body
that directly or indirectly through one or more intermediaries or otherwise,
controls, is controlled by or is under common control with Apple) has acquired
property and issued shares in consideration therefore (an "Acquisition
Agreement"); provided however that the transfer of such shares to a person
related to the Holder is not restricted by this Section 2.6 (other than
restrictions on transfer by reason of
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a holder being a "control person" of AOI for purposes of Canadian federal or
provincial securities law or an "affiliate" of AOI for purposes of United States
federal or state securities law). AOI will expeditiously take all such actions
and do all such things as are necessary to cause all shares of AOI Common Stock
(or other shares or securities into which AOI Common Stock may be reclassified
or changed as contemplated by Section 2.7 hereof) to be delivered hereunder,
including for greater certainty, pursuant to the Exchangeable Share Provisions,
or pursuant to the Exchange Right as defined in the Voting and Exchange
Agreement, to be listed, quoted or posted for trading on all stock exchanges and
quotation systems on which such shares are listed, quoted or posted for trading
at such time.
2.7 ECONOMIC EQUIVALENCE
(a) In the event that AOI determines to:
(i) issue or distribute shares of AOI Common Stock (or securities
exchangeable for or convertible into or carrying rights to acquire
shares of AOI Common Stock) to the holders of all or substantially
all of the then outstanding AOI Common Stock by way of stock
dividend or other distribution, other than an issue of shares of AOI
Common Stock (or securities exchangeable for or convertible into or
carrying rights to acquire shares of AOI Common Stock) to holders of
shares of AOI Common Stock who exercise an option to receive
dividends in AOI Common Stock (or securities exchangeable for or
convertible into or carrying rights to acquire shares of AOI Common
Stock) 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 shares of AOI
Common Stock entitling them to subscribe for or to purchase shares
of AOI Common Stock (or securities exchangeable for or convertible
into or carrying rights to acquire shares of AOI Common Stock); or
(iii) issue or distribute to the holders of all or substantially all of
the then outstanding shares of AOI Common Stock (A) shares or
securities of AOI of any class other than AOI Common Stock (other
than shares convertible into or exchangeable for or carrying rights
to acquire shares of AOI Common Stock), (B) rights, options or
warrants other than those referred to in subsection 2.7(a)(ii)
above, (C) evidences of indebtedness of AOI or (D) assets of AOI;
AOI will cause Apple to simultaneously issue or distribute the economic
equivalent on an after tax basis, if any, on a per share basis of such rights,
options, securities, shares, evidences of indebtedness or other assets to
holders of the Class B Exchangeable Shares.
(b) In the event that AOI determines to:
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(i) subdivide, redivide or change the then outstanding shares of
AOI Common Stock into a greater number of shares of AOI Common
Stock; or
(ii) reduce, combine or consolidate or change the then outstanding
shares of AOI Common Stock into a lesser number of shares of
AOI Common Stock; or
(iii) reclassify or otherwise change the shares of AOI Common Stock
or effect an amalgamation, merger, reorganization or other
transaction affecting the shares of AOI Common Stock;
AOI will cause Apple to simultaneously make the same or an economically
equivalent change with respect to the rights of holders of the Class B
Exchangeable Shares.
(c) AOI 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 20 Business Days
after the date on which such event is declared or announced by AOI (with
simultaneous notice thereof to be given by AOI to Apple).
(d) The Board of Directors of AOI will determine, in good faith and in its
sole discretion (with the assistance of such reputable and qualified independent
financial advisors and/or other experts as the board may require), economic
equivalence for the purposes of any event referred to in sections 2.7(a) or
2.7(b) above. In making each such determination, the following factors will,
without excluding other factors determined by the Board to be relevant, be
considered by the Board of Directors of AOI:
(i) in the case of any stock dividend or other distribution
payable in shares of AOI Common Stock, the number of such
shares issued in proportion to the number of shares of AOI
Common Stock previously outstanding;
(ii) in the case of the issuance or distribution of any rights,
options or warrants to subscribe for or purchase shares of AOI
Common Stock (or securities exchangeable for or convertible
into or carrying rights to acquire shares of AOI Common
Stock), 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 AOI in the manner
above contemplated) of a share of AOI Common Stock;
(iii) in the case of the issuance or distribution of any other form
of property (including without limitation any shares or
securities of AOI of any class other than AOI Common Stock,
any rights options or warrants other than
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those referred to in subsection 2.7(d)(ii) above, any
evidences of indebtedness of AOI or any assets of AOI), the
relationship between the fair market value (as determined by
the Board of Directors of AOI in the manner above
contemplated) of such property to be issued or distributed
with respect to each outstanding share of AOI Common Stock and
the current market value (as determined by the Board of
Directors of Apple in the manner above contemplated) of a
share of AOI Common Stock;
(iv) in the case of any subdivision, redivision or change of the
then outstanding shares of AOI Common Stock into a greater
number of shares of AOI Common Stock or the reduction,
combination or consolidation or change of the then outstanding
shares of AOI Common Stock into a lesser number of shares of
AOI Common Stock or any amalgamation, merger, reorganization
or other transaction affecting AOI Common Stock, the effect
thereof upon the then outstanding shares of AOI Common Stock;
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 shares of AOI Common Stock 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).
For purposes of the foregoing determinations, the current market value of any
security listed and traded or quoted on a securities exchange will 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 five 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 AOI, acting reasonably, 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 will be determined by the Board of Directors of
AOI, in good faith and in its sole discretion.
2.8 TENDER OFFERS, ETC. In the event that a tender offer, share exchange offer,
issuer bid, take-over bid or similar transaction with respect to AOI Common
Stock (an "Offer") is proposed by AOI or is proposed to AOI or its shareholders
and is recommended by the Board of Directors of AOI, or is otherwise effected or
to be effected with the consent or approval of the Board of Directors of AOI,
AOI will use its best 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 shares of AOI
Common Stock, without discrimination.
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Without limiting the generality of the foregoing, AOI will use its best efforts
expeditiously and in good faith to ensure that holders of Exchangeable Shares
may participate in all such Offers without being required to retract
Exchangeable Shares as against Apple (or, if so required, to ensure that any
such retraction will be effective only upon, and will be conditional upon, the
closing of the Offer and only to the extent necessary to tender or deposit to
the Offer).
2.9 OWNERSHIP OF OUTSTANDING SHARES. Without the prior approval of Apple and the
prior approval of the holders of the Exchangeable Shares given in accordance
with Section 8.2 of the Exchangeable Share Provisions, AOI covenants and agrees
in favour of Apple that, as long as any outstanding Exchangeable Shares are
owned by any person or entity other than AOI or any of its Affiliates, AOI will
be and remain the direct or indirect beneficial owner of all issued and
outstanding shares in the capital of Apple and all outstanding securities of
Apple carrying or otherwise entitled to voting rights in any circumstances, in
each case other than the Exchangeable Shares.
2.10 PARENT NOT TO VOTE EXCHANGEABLE SHARES. AOI covenants and agrees that it
will appoint and cause to be appointed proxyholders with respect to all
Exchangeable Shares held by AOI and its subsidiaries for the sole purpose of
attending each meeting of holders of Exchangeable Shares in order to be counted
as part of the quorum for each such meeting. AOI further covenants and agrees
that it will not, and will cause its subsidiaries not to, exercise any voting
rights which may be exercisable by holders of Exchangeable Shares from time to
time pursuant to the Exchangeable Share Provisions or pursuant to the provisions
of the Business Corporations Act (Alberta) (or any successor or other corporate
statute by which Apple may in the future be governed) with respect to any
Exchangeable Shares held by it or by its subsidiaries in respect of any matter
considered at any meeting of holders of Exchangeable Shares.
2.11 DUE PERFORMANCE. On and after the effective date hereof, AOI will duly and
timely perform all of its obligations provided for in this Agreement and all
agreements related hereto, including without limitation any obligations that may
arise upon the exercise of AOI's rights under the Exchangeable Share Provisions.
2.12 NO SPECIFIED FINANCIAL INSTITUTIONS. On and after the effective date hereof
and until Apple no longer has any Class B Exchangeable Shares issued and
outstanding, neither AOI nor any of its Affiliates will be a "specified
financial institution" as that term is defined in the Income Tax Act (Canada).
ARTICLE 3
GENERAL
3.1 TERM. This Agreement will come into force and be effective as of the date
hereof and
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will terminate and be of no further force and effect at such time as no
Exchangeable Shares (or securities or rights convertible into or exchangeable
for or carrying rights to acquire Exchangeable Shares) are held by any party
other than AOI and any of its Affiliates.
3.2 CHANGES IN CAPITAL OF PARENT AND APPLE. Notwithstanding the provisions of
section 3.4 hereof, at all times after the occurrence of any event effected
pursuant to section 2.7 or 2.8 hereof, as a result of which either AOI Common
Stock or the Exchangeable Shares or both are in any way changed, this Agreement
will forthwith be amended and modified as necessary in order that it will apply
with full force and effect, MUTATIS MUTANDIS, to all new securities into which
AOI Common Stock or the Exchangeable Shares or both are so changed and the
parties hereto will execute and deliver an agreement in writing giving effect
to and evidencing such necessary amendments and modifications.
3.3 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 will not in any way be affected or impaired thereby
and this Agreement will be carried out as nearly as possible in accordance with
its original terms and conditions.
3.4 AMENDMENTS, MODIFICATIONS, ETC. This Agreement may not be amended or
modified except by an agreement in writing executed by Apple and AOI and
approved by the holders of the Exchangeable Shares in accordance with Section
8.2 of the Exchangeable Share Provisions.
3.5 MINISTERIAL AMENDMENTS. Notwithstanding the provisions of section 3.4, 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 either or both parties for the protection
of the holders of the Exchangeable Shares;
(b) making such amendments or modifications not inconsistent with this
Agreement as may be necessary or desirable with respect to matters
or questions which, in the opinion of the Board of Directors of each
of Apple and AOI, it may be expedient to make, provided that each
such board of directors is of the opinion that such amendments or
modifications will not be prejudicial to the interests of the
holders of the Exchangeable Shares; or
(c) making such changes or corrections which, on the advice of counsel
to Apple and AOI, 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 Apple and AOI are of the opinion that
such changes or corrections will not be prejudicial to the interests
of the holders of the Exchangeable Shares.
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3.6 MEETING TO CONSIDER AMENDMENTS. Apple, at the request of AOI, will 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 3.4 hereof. Any such meeting or meetings will be called and held in
accordance with the by-laws of Apple, the Exchangeable Share Provisions and all
applicable laws.
3.7 AMENDMENTS ONLY IN WRITING. No amendment to or modification or waiver of any
of the provisions of this Agreement otherwise permitted hereunder will be
effective unless made in writing and signed by both of the parties hereto.
3.8 ENUREMENT. This Agreement will be binding upon and enure to the benefit of
the parties hereto and their respective successors and assigns.
3.9 NOTICES TO PARTIES. Whenever this Agreement requires or permits any notice,
request, or demand from one party to another, the notice, request, or demand
must be in writing to be effective and will be deemed to be delivered and
received (i) if personally delivered or if delivered by telex, telegram, or
courier service, when actually received by the party to whom notice is sent (ii)
if delivered by telecopier, on the date of sending provided such sending is
evidenced by electronic verification or receipt and is and a hard copy is sent
by regular mail, or (iii) if delivered by mail, upon receipt by the party
addressed at the address of such party set forth below (or at such other address
as such party may designate by written notice to all other parties in accordance
herewith):
If to AOI:
Apple Orthondontix Inc.
000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention:Xxxxx Xxxxxx
with a copy to:
Xxxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention:Xxxxxxx X. Xxxx
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If to Apple:
718842 Alberta Inc.
290, 00000 Xxxxxxxxx Xx. X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0XX
Fax No.: (000) 000-0000
Attention:Xx. Xxxxxx X. Xxxxx
with a copy to:
Code Xxxxxx Xxxxxxxx
1400, 000 0xx Xx. X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
Fax No.: (000) 000-0000
Attention:Xxxxx X. Xxxxx
If to the Trustee:
Texas Commerce Bank National Association
Global Trust Services
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention:XxXxxx X. Xxxxxxxx
3.10 COUNTERPARTS. This Agreement may be executed in counterparts each of which
will be deemed an original, and all of which taken together will constitute one
and the same instrument.
3.11 JURISDICTION. This Agreement shall be construed under, and governed by the
laws of the State of Texas, excluding, however, (a) its choice of law rules and
(b) the portions of the Texas Trust Code Sec. 111.001, ET SEQ. of the Texas
Property Code concerning fiduciary duties and liabilities of trustees. All of
the Trustee's rights hereunder are cumulative of any other rights it may have at
law, in equity or otherwise.
3.12 ATTORNMENT. The parties hereto agree that the forum for resolution of any
dispute arising under this Agreement shall be Xxxxxx County, Texas, and AOI and
Apple hereby consent, and submit themselves to the jurisdiction of any state or
federal court sitting in Xxxxxx County, Texas.
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3.13 TRUSTEE. Any rights in this Agreement which enure to the benefit of holders
of Exchangeable Shares may be enforced on behalf of such holders by the Trustee.
3.14 FURTHER ASSURANCES. The parties hereto will promptly do all such acts and
things and execute and deliver all such further agreements, instruments, deeds
and documents, as may be required to carry out the transactions contemplated by
this Agreement to give effect to the intent of said agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly signed, sealed and delivered as of the date first above written.
718842 ALBERTA INC.
By:__________________________
APPLE ORTHONDONTIX, INC.
By:__________________________
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, AS TRUSTEE
By: (Seal)
Name:
Title:
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