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EXHIBIT 10.19
EXHIBIT 2.3
SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 17th day of November, 1995.
B E T W E E N:
ORBITAL SCIENCES CORPORATION,
a corporation existing under the laws of the
State of Delaware,
(hereinafter referred to as "Orbital"),
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XXXXXXXXX XXXXXXXXX HOLDINGS INC.
(FORMERLY KNOWN AS 3173623 CANADA INC.),
a corporation existing under the laws of Canada.
(hereinafter referred to as "Corporation").
WHEREAS pursuant to a combination agreement dated as of August
31, 1995 (the "Combination Agreement") by and between Orbital, the Corporation
and XxxXxxxxx, Xxxxxxxxx and Associates Ltd. ("MDA") the parties agreed that on
the Effective Date (as defined in the Combination Agreement), Orbital and the
Corporation would execute and deliver a Support Agreement containing the terms
and conditions set forth in Exhibit 2.3 to the Combination Agreement together
with such other terms and conditions as may be agreed to by the parties to the
Combination Agreement acting reasonably;
AND WHEREAS pursuant to an arrangement (the "Arrangement")
effected by articles of arrangement filed pursuant to the Canada Business
Corporations Act on November ______, 1995, each issued and outstanding common
share of MDA (an "MDA Common Share") was exchanged directly or indirectly with
the Corporation for 0.3607 issued and outstanding Exchangeable Shares of the
Corporation (the "Exchangeable Shares");
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AND WHEREAS the aforesaid articles of arrangement set forth the
rights, privileges, restrictions and conditions (collectively the "Exchangeable
Share Provisions") attaching to the Exchangeable Shares;
AND WHEREAS the parties hereto desire to make appropriate
provision and to establish a procedure whereby Orbital will take certain
actions and make certain payments and deliveries necessary to ensure that the
Corporation will be able to make certain payments and to deliver or cause to be
delivered shares of Orbital Common Shares in satisfaction of the obligations of
the Corporation under the Exchangeable Share Provisions with respect to the
payment and satisfaction of dividends, Liquidation Amounts, Retraction Prices
and Redemption Prices all in accordance with the Exchangeable Share Provisions;
NOW THEREFORE in consideration of the respective covenants in
this agreement and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
.1 DEFINED TERMS. Each term denoted herein by initial capital letters
and not otherwise defined herein shall have the meaning ascribed thereto in the
Exchangeable Share Provisions, unless the context requires otherwise.
.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 shall not affect the construction or
interpretation of this agreement.
.3 NUMBER, GENDER, ETC. Words importing the singular number only shall
include the plural and vice versa. Words importing the use of any gender shall
include all genders.
.4 DATE FOR ANY ACTION. If any date on which any action is required to
be taken under this agreement is not a Business Day, such action shall be
required to be taken on the next succeeding Business Day.
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ARTICLE 2
COVENANTS OF ORBITAL AND THE CORPORATION
.1 COVENANTS OF ORBITAL REGARDING EXCHANGEABLE SHARES. So long as any
Exchangeable Shares are outstanding, Orbital will:
(a) not declare or pay any dividend on Orbital Common Shares unless (i)
the Corporation shall have sufficient assets, funds and other
property (including, where applicable, Orbital Common Shares or other
securities of Orbital) available to enable the due declaration and
the due and punctual payment in accordance with applicable law, of an
equivalent dividend on the Exchangeable Shares in accordance with the
Exchangeable Share Provisions and (ii) the Corporation shall
simultaneously declare or pay, as the case may be, an equivalent
dividend on the Exchangeable Shares in accordance with the
Exchangeable Share Provisions;
(b)cause the Corporation to declare simultaneously with the declaration of
any dividend on Orbital Common Shares an equivalent dividend on the
Exchangeable Shares and, when such dividend is paid on Orbital Common
Shares, cause the Corporation to pay simultaneously therewith such
equivalent dividend on the Exchangeable Shares, in each case in
accordance with the Exchangeable Share Provisions;
(c)advise the Corporation sufficiently in advance of the declaration by Orbital
of any dividend on Orbital Common Shares and take all such other
actions as are necessary, in cooperation with the Corporation, to
ensure that the declaration date, record date and payment date for
any dividend on the Exchangeable Shares shall be the same as the
record date, declaration date and payment date for the corresponding
dividend on Orbital Common Shares and such dates in respect of
dividends on the Exchangeable Shares shall be in accordance with any
requirement of the Exchangeable Share Provisions and the stock
exchange on which the Exchangeable Shares are listed;
(d)ensure that the record date for any dividend declared on Orbital Common
Shares, Orbital Common Share Reorganization, Rights Offering, Special
Distribution or Capital Reorganization is not less than 10 Business
Days after the declaration date for such dividend, Orbital Common
Share Reorganization, Rights Offering, Special Distribution or
Capital Reorganization;
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(e)take all such actions and do all such things as are necessary or desirable
to enable and permit the Corporation, in accordance with applicable
law, to pay and otherwise perform its obligations with respect to the
satisfaction of the Liquidation Amount in respect of each issued and
outstanding Exchangeable Share upon the liquidation, dissolution or
winding-up of the Corporation, including without limitation all such
actions and all such things as are necessary or desirable to enable
and permit the Corporation to cause to be delivered shares of Orbital
Common Shares to the holders of Exchangeable Shares in satisfaction
of the Liquidation Amount for each such Exchangeable Share, in
accordance with the provisions of Article 4 of the Exchangeable Share
Provisions;
(f)take all such actions and do all such things as are necessary or desirable
to enable and permit the Corporation, in accordance with applicable
law, to pay and otherwise perform its obligations with respect to the
satisfaction of the Retraction Price and the Redemption Price,
including without limitation all such actions and all such things as
are necessary or desirable to enable and permit the Corporation to
cause to be delivered shares of Orbital Common Shares to the holders
of Exchangeable Shares, upon the retraction or redemption of the
Exchangeable Shares in accordance with the provisions of Article 5 or
Article 6 of the Exchangeable Share Provisions, as the case may be;
(g) not exercise its vote as a shareholder of the Corporation to
initiate, consent to or approve the voluntary liquidation,
dissolution or winding-up of the Corporation nor take any action or
omit to take any action that is designed to result in the
liquidation, dissolution or winding-up of the Corporation; and
(h) not exercise its vote as a shareholder of the Corporation to
authorize the continuance or other transfer of the corporate
existence of the Corporation to any jurisdiction outside Canada.
.2 SEGREGATION OF FUNDS. Orbital will cause the Corporation to deposit
a sufficient amount of funds in a separate account and segregate a sufficient
amount of such assets and other property as is necessary to enable the
Corporation to pay or otherwise satisfy the applicable dividends, Liquidation
Amount, Retraction Price or Redemption Price, in each case for the benefit of
holders from time to time of the Exchangeable Shares, and will cause the
Corporation to use such funds, assets and other property so segregated
exclusively for the payment of dividends and the payment or other satisfaction
of the Liquidation Amount, the Retraction Price or the Redemption
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Price, as applicable, in each case in accordance with the Exchangeable Share
Provisions.
.3 RESERVATION OF ORBITAL COMMON SHARES. Orbital hereby represents and
warrants that it has irrevocably reserved for issuance out of its authorized
and unissued capital stock such number of Orbital Common Shares as is equal to
the number of Exchangeable Shares outstanding immediately following the
Effective Date and covenants that at all times in the future while any
Exchangeable Shares are outstanding it will keep available, free from
pre-emptive and other rights, out of its authorized and unissued capital stock
such number of Orbital Common Shares (or other shares or securities into which
Orbital Common Shares may be reclassified or changed) as is necessary to enable
Orbital and the Corporation to perform their respective obligations pursuant to
this agreement, the Exchangeable Share Provisions and the Voting and Exchange
Trust Agreement.
.4 NOTIFICATION OF CERTAIN EVENTS. In order to assist Orbital to comply
with its obligations hereunder, the Corporation will give, or cause the
Transfer Agent to give, Orbital 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 the
Corporation to institute voluntary liquidation, dissolution or
winding up proceedings with respect to the Corporation or to effect
any other distribution of the assets of the Corporation 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 the Corporation of notice
of, and (ii) the Corporation 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 the Corporation or to effect any other distribution of the
assets of the Corporation among its shareholders for the purpose of
winding up its affairs;
(c)immediately, upon receipt by the Transfer Agent of a Retraction Request; and
(d)as soon as practicable upon the issuance by the Corporation of any
Exchangeable Shares or rights to acquire Exchangeable Shares.
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.5 DELIVERY OF ORBITAL COMMON SHARES. In furtherance of its obligations
under subsections 2.1(e) and (f) hereof, upon notice of any event that requires
the Corporation to cause to be delivered Orbital Common Shares to any holder of
Exchangeable Shares, Orbital shall forthwith issue and deliver the requisite
Orbital Common Shares to or to the order of the former holder of the
surrendered Exchangeable Shares, as the Corporation shall direct. All such
Orbital Common Shares shall be duly issued as fully paid and non-assessable and
shall be free and clear of any Liens. In consideration of the issuance of each
such Orbital Common Share by Orbital, the Corporation shall issue to Orbital,
or as Orbital shall direct, such number of common shares of the Corporation as
is equal to the fair value of such Orbital Common Shares.
.6 QUALIFICATION OF ORBITAL COMMON SHARES. Unless the staff of the
United States Securities and Exchange Commission (the "SEC") has confirmed the
availability of an exemption from registration under the United States
Securities Act of 1933, as amended (the "Securities Act") as to the issuance of
the Orbital Common Shares in exchange for the Exchangeable Shares pursuant to
the Plan of Arrangement, the Exchangeable Share Provisions or the Voting and
Exchange Trust Agreement, in response to the No Action Request (as defined in
the Combination Agreement) or Orbital has received an opinion of counsel
reasonably satisfactory to the Corporation to such effect, then Orbital shall
cause such issuance to be registered under the Securities Act, and shall file a
registration statement covering such issuance with the SEC and use all
commercially reasonable efforts to cause such registration statement to become
effective as soon as practicable and remain effective throughout the period
during which the Exchangeable Shares may be exchanged in accordance with the
Plan of Arrangement, the Exchangeable Share Provisions or the Voting and
Exchange Trust Agreement. Orbital agrees to file any such required
registration statement as soon as reasonably practicable. Orbital shall use
all reasonable efforts to obtain all orders required from the applicable
Canadian securities authorities to permit the issuance of the Orbital Common
Shares upon any such exchange of the Exchangeable Shares without 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 federal or provincial law or regulation or
pursuant to the rules and regulations of any regulatory authority or the
fulfillment of any other legal requirement before such Orbital Common Shares
may be issued and delivered by the Corporation or Orbital to the holder thereof
or in order that such Orbital Common Shares may be freely traded thereafter
(other than any restrictions on transfer by reason of a holder being a "control
person" of the Corporation or Orbital for purposes of Canadian federal or
provincial securities law or an "affiliate" for purposes of United States
Federal or state securities law).
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.7 TENDER OFFERS, ETC. In the event that a tender offer, share exchange
offer, issuer bid, take-over bid or similar transaction with respect to Orbital
Common Shares (an "Offer") is proposed by Orbital or is proposed to Orbital or
its stockholders and is recommended by the Board of Directors of Orbital, or is
otherwise effected or to be effected with the consent or approval of the Board
of Directors of Orbital, Orbital will use all commercially reasonable efforts
expeditiously and in good faith to take all such actions and do all such things
as are necessary or desirable to enable and permit holders of Exchangeable
Shares to participate in such Offer to the same extent and on an economically
equivalent basis as the holders of Orbital Common Shares, without
discrimination. Without limiting the generality of the foregoing, Orbital will
use all commercially reasonable 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 the
Corporation (or, if so required, to ensure that any such retraction shall be
effective only upon, and shall be conditional upon, the closing of the Offer
and only to the extent necessary to tender or deposit to the Offer).
.8 OWNERSHIP OF OUTSTANDING SHARES. Orbital covenants and agrees in
favour of the Corporation that, as long as any outstanding Exchangeable Shares
are owned by any person or entity other than Orbital or any of its Affiliates,
Orbital will be and remain the direct or indirect beneficial owner of all
issued and outstanding shares in the capital of the Corporation (other than
Exchangeable Shares and the Class B Preferred Shares of the Corporation issued
to Canadian Imperial Bank of Commerce pursuant to the Arrangement) and all
outstanding securities of the Corporation carrying or otherwise entitled to
voting rights in any circumstances (other than Exchangeable Shares and the
Class B Preferred Shares of the Corporation issued to Canadian Imperial Bank of
Commerce pursuant to the Arrangement), unless Orbital shall have obtained the
prior approval of the Corporation and the holders of the Exchangeable Shares
given in accordance with section 8.2 of the Exchangeable Share Provisions.
.9 ORBITAL NOT TO VOTE EXCHANGEABLE SHARES. Orbital covenants and
agrees that it will appoint and cause to be appointed proxyholders with respect
to all Exchangeable Shares held by Orbital 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. Orbital further
covenants and agrees that it will not, and will cause its Affiliates not to,
exercise any voting rights that 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 CBCA 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, including without limitation any
approval to be
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given by holders of Exchangeable Shares pursuant to section 8.2 of the
Exchangeable Share Provision.
.10 DUE PERFORMANCE. On and after the Effective Date, Orbital shall
duly and timely perform all of its obligations provided for in the Plan of
Arrangement, including any obligations that may arise upon the exercise of
Orbital's rights under the Exchangeable Share Provisions.
.11 ECONOMIC EQUIVALENCE. Orbital hereby acknowledges that it will
be bound by any determination of economic equivalence made by the Board of
Directors pursuant to section 5.6 of the Plan of Arrangement or section 9.1 of
the Exchangeable Share Provisions, where applicable.
ARTICLE 3
GENERAL
.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 there are no Exchangeable Shares (or securities or rights
convertible into or exchangeable for or carrying rights to acquire Exchangeable
Shares) held by any party other than Orbital and its Affiliates.
.2 CHANGES IN CAPITAL OF ORBITAL AND THE CORPORATION. Notwithstanding
the provisions of section 3.4 hereof, at all times after the occurrence of any
event effected pursuant to section 2.7 hereof as a result of which either
Orbital 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 Orbital 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.
.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 AMENDMENTS, MODIFICATIONS, ETC. This agreement may not be amended
or modified except by an agreement in writing executed by the Corporation
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and Orbital and approved by the holders of the Exchangeable Shares in
accordance with section 10.2 of the Exchangeable Share Provisions.
.5 MINISTERIAL AMENDMENTS. Notwithstanding the provisions of section
3.4, the parties to this agreement may without the approval of the holders of
the Exchangeable Shares, at any time and from time to time, amend or modify
this agreement in writing 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
the Corporation and Orbital, it may be expedient to make, provided
that each such board of directors shall be 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 the
Corporation and Orbital, are required for the purpose of curing or
correcting any ambiguity or defect or inconsistent provision or
clerical omission or mistake or manifest error herein, provided that
the boards of directors of each of the Corporation and Orbital shall
be of the opinion that such changes or corrections will not be
prejudicial to the interests of the holders of the Exchangeable
Shares.
.6 MEETING TO CONSIDER AMENDMENTS. The Corporation, at the request of
Orbital, 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 3.4 hereof. Any such meeting or
meetings shall be called and held in accordance with the by-laws of the
Corporation and the Exchangeable Share Provisions.
.7 WAIVERS ONLY IN WRITING. No waiver of any of the provisions of this
agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by both of the parties hereto.
.8 INUREMENT. This agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
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.9 ORBITAL SUCCESSORS. Orbital shall not enter into any transaction
(whether by way of reconstruction, reorganization, consolidation, merger,
transfer, sale, lease or otherwise) whereby all or substantially all 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:
(a) such other person or continuing corporation is a corporation (the
"Orbital Successor") incorporated under the laws of any state of the
United States or the laws of Canada or any province thereof; and
(b) the Orbital 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 to be bound by the provisions
hereof as if it were an original party hereto and to observe and
perform all of the covenants and obligations of Orbital pursuant to
this agreement, in form satisfactory to the Corporation, acting
reasonably.
Nothing herein shall be construed as preventing the amalgamation or merger of
any wholly-owned subsidiary of Orbital with or into Orbital.
.10 NOTICES TO PARTIES. All notices and other communications between the
parties shall 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 either such party as shall be specified in like
notice):
(a)if to Orbital at:
Orbital Sciences Corporation
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(b) if to the Corporation at:
XxxXxxxxx Xxxxxxxxx Holdings Inc.
00000 Xxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
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Attention: President
Telecopy: (000) 000-0000
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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.
.11 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.
.12 JURISDICTION. This agreement shall be construed and enforced in
accordance with the laws of the Province of British Columbia and the laws of
Canada applicable therein.
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.00 XXXXXXXXXX. Xxxxxxx agrees that any action or proceeding arising out
of or relating to this agreement may be instituted in the courts of British
Columbia, waives any objection which it may have now or hereafter to the venue
of any such action or proceeding, irrevocably submits to the jurisdiction of
the said courts in any such action or proceeding, agrees to be bound by any
judgment of the said courts and not to seek, and hereby waives, any review of
the merits of any such judgment by the courts of any other jurisdiction and
hereby appoints the Corporation at its registered office as Orbital's attorney
for service of process.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be duly executed as of the date first above written.
ORBITAL SCIENCES CORPORATION
by /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Senior Vice President
XXXXXXXXX XXXXXXXXX HOLDINGS
INC.
By /s/ Xxxxxxx X. Xxxxxxxx
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Vice President
