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AMENDED AND RESTATED AGREEMENT MADE AND ENTERED INTO AMONG CERTAIN SHAREHOLDERS
OF TECHNICAL MAINTENANCE CORPORATION IN XXX XXXX XXX XXXXXXXX XX XXXXXXXX, XX
THE 11th DAY OF FEBRUARY, 1998
BY AND AMONG: TECHNO EXPRES S.A., a corporation duly constituted in
accordance with the laws of France, having its head office
and principal place of business at 00 xxx xx Xxxxxx, 00000
Xxxxxxxxxxx, Xxxxxx,
(hereinafter referred to as "Techno Expres")
PARTY OF THE FIRST PART
AND: SOCIETE INNOVATECH DU GRAND MONTREAL, a body politic duly
constituted according to An Act respecting Societe
Innovatech du Grand Montreal, R.S.Q., ch. S-17.2, having
its head office and principal place of business in the City
of Montreal, Province of Quebec,
(hereinafter referred to as "Innovatech")
PARTY OF THE SECOND PART
AND: SOFINOV SOCIETE FINANCIERE D'INNOVATION INC., a body
politic and corporate, duly incorporated according to the
Companies Act (Quebec), having its head office and
principal place of business in the City of Montreal,
Province of Quebec,
(hereinafter referred to as "Sofinov")
PARTY OF THE THIRD PART
AND: TECHNICAL MAINTENANCE CORPORATION, a body politic and
corporate, duly incorporated according to the laws of the
State of Nevada, having its head office and principal place
of business in the City of Las Vegas, Nevada,
(hereinafter referred to as the "Corporation")
PARTY OF THE FOURTH PART
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SECTION 1 - PREAMBLE
1.1 WHEREAS each of the Shareholders holds the following number and class
of Shares as of the date hereof:
Shareholder Number and Class
--------------- -------------------------
Techno Expres 10,000,000 Common Shares
Innovatech 40 Preferred Shares
Sofinov 60 Preferred Shares
1.2 WHEREAS upon the exchange of their Touchtunes Shares for Shares from
the treasury of the Corporation in accordance with the Stock Exchange
Agreement, each of Sofinov and Innovatech will hold a much more substantial
interest in the Corporation than is the case as of the date hereof;
1.3 WHEREAS upon the sale of their Debentures to the Corporation in
consideration for Shares from the treasury of the Corporation in accordance
with the Put Right Agreement, each of Sofinov and Innovatech will hold an even
more substantial interest in the Corporation than is the case as of the date
hereof;
1.4 WHEREAS the parties hereto wish to determine their respective rights,
duties and obligations in and to the Corporation and towards one another.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
SECTION 2 - INTERPRETATION
2.1 Definitions. In this Agreement:
2.1.1 "Accepting Investor" has the meaning ascribed thereto at
subsection 0;
2.1.2 "Accepting Offeree Shareholders" has the meaning ascribed
thereto at paragraph 0;
2.1.3 "Additional Offer" has the meaning ascribed thereto at
paragraph 0;
2.1.4 "Additional Shares" has the meaning ascribed thereto at
subsection 0;
2.1.5 "Affiliate" or "Affiliated" has the meaning ascribed thereto in
the Canada Business Corporations Act;
2.1.6 "Agreement" means this agreement and all instruments
supplemental hereto or in amendment or confirmation hereof; "herein",
"hereof", "hereto", "hereunder" and similar expressions mean and
refer to this Agreement and not to any particular Section, subsection
or other subdivision; "Section", "subsection" or other subdivision of
this Agreement means and refers to the specified Section, subsection
or other subdivision of this Agreement;
2.1.7 "Board" means the Board of Directors of the Corporation;
2.1.8 "Business Day" means any day, other than a Saturday or Sunday or
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a day on which the principal commercial banks in the State of Nevada
are not open for business during normal banking hours;
2.1.9 "Closing" means the sale of the Offered Shares by the Offering
Shareholder pursuant to subsection 0;
2.1.10 "Closing Date" means, pursuant to subsections 0 and 0, the date
which is sixty (60) days after the expiry of the last offer period
described therein in which the Purchaser agrees to purchase the
Offered Shares, provided, however, that if on the Closing Date all
Governmental Body and third party approvals, consents, notifications
and assurances (including, without limitation, approvals under the
Investment Canada Act) necessary to permit the consummation of the
transactions contemplated by the Closing have been applied for but
not yet received by the Purchaser, then the Closing Date shall be
postponed to the thirtieth (30th) day after the receipt by the
Purchaser of the last of the aforesaid approvals, consents,
notifications and assurances; notwithstanding the foregoing, the
Closing shall not be extended more than one hundred and eighty (180)
days after the date which was supposed to have been the original
Closing Date herein;
2.1.11 "Common Shares" means the shares of Class A voting common stock of
the Corporation, as such shares are described in the Amended and
Restated Articles of Incorporation of the Corporation dated March 19,
1997;
2.1.12 "Debentures" has the meaning ascribed thereto in the Debenture
Subscription Agreement;
2.1.13 "Debenture Subscription Agreement" means the subscription agreement
dated the date hereof among the Investors and Touchtunes setting
forth the rights and obligations of each of the Investors with
respect to its subscription for its respective Debenture;
2.1.14 "Declining Investor" has the meaning ascribed thereto at
subsection 0;
2.1.15 "Declining Investor's Shares" has the meaning ascribed thereto at
subsection 0;
2.1.16 "First Offer" has the meaning ascribed thereto at paragraph 0;
2.1.17 "Governmental Body" means (i) any domestic or foreign national,
federal, provincial, state, municipal or other government or body,
(ii) any multinational, multilateral or international body, (iii) any
subdivision, agent, commission, board, instrumentality or authority
of any of the foregoing governments or bodies, (iv) any
quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of
the foregoing governments or bodies, or (v) any domestic, foreign,
international, multilateral or multinational judicial,
quasi-judicial, arbitration or administrative court, tribunal,
commission, board or panel;
2.1.18 "Investors" means Innovatech and Sofinov, and all transferees of
Shares of Innovatech or Sofinov and all transferees of Shares of such
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transferees, collectively, and "Investor" means any one of them;
2.1.19 "I Offer" has the meaning ascribed thereto at subsection 0;
2.1.20 "New Meeting" has the meaning ascribed thereto at subsection 0;
2.1.21 "Offer" means for purposes of (i) subsection 0, each of the offers
made by an Investor; and (ii) subsection 0, each of the offers made
by Techno Expres;
2.1.22 "Offered Shares" has the meaning ascribed thereto at subsections 0 or
subsection 0, as the case may be;
2.1.23 "Offeree Shareholders" has the meaning ascribed thereto at
subsection 0;
2.1.24 "Offering Investor" has the meaning ascribed thereto at subsection 0;
2.1.25 "Offering Shareholder" has the meaning ascribed thereto at
subsection 0;
2.1.26 "Other Investor" has the meaning ascribed thereto at paragraph 0;
2.1.27 "Other Shareholders" has the meaning ascribed thereto at
subsections 0 or 0, as the case may be;
2.1.28 "Person" means an individual, corporation, company, cooperative,
partnership, trust, unincorporated association, entity with judicial
personality, Governmental Body; and pronouns when they refer to a
Person have a similarly extended meaning;
2.1.29 "Preferred Shares" means the shares of Series A preferred stock of
the Corporation, as such shares are described in the Amended and
Restated Articles of Incorporation of the Corporation dated March 19,
1997;
2.1.30 "Prime Rate" means the interest rate quoted publicly by the
Corporation's regular bankers as the reference rate of interest for
commercial demand loans made in U.S. dollars and commonly known as
such bank's prime rate, as adjusted from time to time, on the basis
of the Prime Rate in effect on the first day of each month;
2.1.31 "Prior Offers" has the meaning ascribed thereto at paragraph 0;
2.1.32 "Proportion" means a fraction, the numerator of which shall be the
number of Common Shares owned by the particular Shareholder to whom
reference is made and the denominator of which shall be the total of
the issued and outstanding Common Shares, it being understood that
for the purposes hereof, each Investor shall be deemed to hold that
number of Common Shares as would be issuable to such Investor upon
the conversion into Common Shares of (i) all Preferred Shares held by
such Investor and (ii) all Preferred Shares issuable to such Investor
upon the full exercise of (a) all of such Investor's exchange rights
under the Stock Exchange Agreement and (b) all of such Investor's put
rights under the Put Right Agreement;
2.1.33 "Proportionate Share" means, for purposes of subsection 0, the amount
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of the Offered Securities determined by multiplying the number of
Shares offered by a fraction, the numerator of which is the number of
Common Shares held by a particular Offeree Shareholder or Accepting
Offeree Shareholder, as the case may be, entitled to accept an offer
and the denominator of which is the total number of Common Shares
held by all Offeree Shareholders or all Accepting Offeree
Shareholders, as the case may be, entitled to accept the same offer,
it being understood that for the purposes hereof, each Investor shall
be deemed to hold that number of Common Shares as would be issuable
to such Investor upon the conversion into Common Shares of (i) all
Preferred Shares held by such Investor and (ii) all Preferred Shares
issuable to such Investor upon the full exercise of (a) all of such
Investor's exchange rights under the Stock Exchange Agreement and (b)
all of such Investor's put rights under the Put Right Agreement;
2.1.34 "Public Offering" means any offering by the Corporation of its Shares
for distribution to the public;
2.1.35 "Purchaser" has the meaning ascribed thereto at subparagraph 0;
2.1.36 "Put Right Agreement" means that certain agreement entered into among
the Corporation and the Investors on the date hereof pursuant to
which the Investors are entitled to oblige the Corporation to
purchase the Debentures in consideration for the issuance of shares
from the treasury of the Corporation;
2.1.37 "Related" means related as that term is used in the Income Tax Act
(Canada);
2.1.38 "Remaining Offered Shares" has the meaning ascribed thereto at
paragraph 0;
2.1.39 "Share(s)" means any share(s) of any class, series or category in the
capital stock of the Corporation;
2.1.40 "Shareholder" means any of the Shareholders;
2.1.41 "Shareholders" initially means Techno Expres, Innovatech and Sofinov,
and the definition shall be deemed to be modified from time to time
to (i) delete Persons who cease to hold Shares in accordance with the
terms of this Agreement, and (ii) add all Persons who, from time to
time, become holders of Shares and who undertake in writing to be
bound by the provisions of this Agreement;
2.1.42 "Stock Exchange Agreement" means the stock exchange agreement dated
March 21, 1997 among the Investors and the Corporation, providing
inter alia for the exchange by the Investors of the Touchtunes Shares
held by them for shares in the capital stock of the Corporation;
2.1.43 "TE Offer" has the meaning ascribed thereto at subsection 0;
2.1.44 "Third Party" has the meaning ascribed thereto at subsection 0 or 0,
as the case may be;
2.1.45 "TP Offer" has the meaning ascribed thereto at subsection 0 or 0, as
the case may be;
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2.1.46 "TP Offeror" has the meaning ascribed thereto at subsection 0 or 0,
as the case may be;
2.1.47 "Touchtunes" means Touchtunes Digital Jukebox Inc.;
2.1.48 "Touchtunes Shares" means shares in the capital stock of Touchtunes;
2.1.49 "Unaccepted Additional Shares" has the meaning ascribed thereto at
subsection 0;
2.1.50 "Unaccepted Offered Shares" has the meaning ascribed thereto at
subsection 0;
2.1.51 "Voting Shares" means Shares to which are attached votes that may be
cast to elect directors of the Corporation, including Common Shares.
2.2 Gender. Any reference in this Agreement to any gender shall include
both genders and the neutral, and words used herein importing the singular
number only shall include the plural and vice versa.
2.3 Headings. The division of this Agreement into Sections, subsections
and other subdivisions, and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in the construction or
interpretation of this Agreement.
2.4 Severability. Any Section, subsection or other subdivision of this
Agreement or any other provision of this Agreement which is, or becomes,
illegal, invalid or unenforceable shall be severed therefrom and shall be
ineffective to the extent of such illegality, invalidity or unenforceability
and shall not affect or impair the remaining provisions hereof, which
provisions shall be severed from an illegal or unenforceable Section,
subsection or other subdivision of this Agreement or any other provisions of
this Agreement.
2.5 Entire Agreement. This Agreement together with any other instruments
to be delivered pursuant hereto, constitute the entire agreement among the
parties pertaining to the subject matter hereof and supersede all prior
agreements, understandings, negotiations, and discussions, whether oral or
written, among any or all of the parties.
2.6 Amendments. No amendment of this Agreement shall be binding unless
otherwise expressly provided in an instrument duly executed by the Shareholders
and the Corporation.
2.7 Waiver. Except as otherwise provided in this Agreement, no waiver of
any of the provisions of this Agreement shall be deemed to constitute a waiver
of any other provisions (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided in an
instrument duly executed by the parties.
2.8 Delays. When calculating the period of time within which or
following which any act is to be done or step taken pursuant to this Agreement,
the day which is the reference day in calculating such period shall be
excluded. If the day on which such delay expires is not a Business Day, then
the delay shall be extended to the next succeeding Business Day.
2.9 Conflict. This Agreement shall override the Schedules annexed hereto
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to the extent of any inconsistency. If any conflict should appear between this
Agreement and the Articles, by-laws or resolutions of the Corporation, then the
provisions of this Agreement shall prevail.
2.10 Preamble. The preamble hereof shall form an integral part of this
Agreement.
2.11 Governing Law. This Agreement shall be governed in all respects by
the laws of the Province of Quebec and the laws of Canada applicable therein.
SECTION 3 - COMMISSIONS, FEES, ETC.
3.1 Commissions. No fee, rebate, commission or gain of whatsoever nature
shall be earned by any of the Shareholders as a result of that Shareholder
obtaining financing for or on behalf of the Corporation.
SECTION 4 - DIRECTORS
4.1 Board and Quorum. So long as the Investors collectively own at least
10% (assuming (i) the exercise in full by the Investors of their respective
rights pursuant to each of the Stock Exchange Agreement and the Put Right
Agreement and (ii) the conversion into Common Shares of all Preferred Shares
held by the Investors or to which the Investors would be entitled upon their
exercise, in full, of their respective rights pursuant to each of the Stock
Exchange Agreement and the Put Right Agreement) of the issued and outstanding
Common Shares, the Shareholders agree that (i) each time the shareholders of
the Corporation meet, or act by written consent in lieu of meeting, for the
purposes of electing the directors of the Corporation, they shall vote in such
a manner so as to ensure that at least six (6) directors be elected to the
Board, two (2) of which shall be nominees of the Investors; and (ii) each time
the shareholders of the Corporation meet or act for the purposes of electing or
replacing any of such six (6) directors of the Corporation, they shall vote in
such a manner so as to ensure that in the event that a director(s) nominated by
an Investor dies or resigns or an Investor wishes to replace its nominee
director(s) on the Board, the removal and/or election of such new nominee
director(s) as is(are) designated by the Investor whose nominee died, resigned
or was replaced. The number of nominees that each Investor is entitled to
appoint to the Board shall be determined between the Investors. Nominees of
the Investors must be employees or consultants of the Investors. In such
circumstances, a quorum of a meeting of directors shall be a majority of the
elected directors provided that one director appointed by the Investors forms
part of such quorum and all decisions having the object or purposes set forth
in subsection 0 shall be submitted to the Shareholders pursuant to subsection 0
hereof.
4.2 Designation of nominees. The Investors shall advise Techno Expres
and the Corporation in writing of the names of the individuals the Investors
have designated as their nominees to the Board as soon as practicable before
each meeting of Shareholders. In addition, the Corporation shall reimburse
each nominee to the Board that is an employee of an Investor his reasonable
out-of-pocket expenses (including travelling costs) incurred in connection with
his attendance at each meeting of the Board.
4.3 Non-Transferable. The parties hereto hereby agree that the right
granted to the Investors to designate nominees to the Board pursuant to this
Section 0 is non-transferable.
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4.4 Voting by nominees. Each Shareholder shall at all times carry out
and use its best efforts to cause the Corporation and its nominees on the Board
to carry out the provisions of this Agreement, subject to the fiduciary
obligations of the directors. Each Shareholder shall duly and punctually do,
or cause to be done, all such things, including, without limitation, voting or
causing to be voted all the Shares held by the Shareholder as shall be
necessary or desirable to give effect to this Agreement. In the event any of
the directors does not vote at meetings of the Board in a manner consistent
with this Agreement, all of the Shareholders shall cause a meeting of
Shareholders to be held and agree to vote their Shares either to remove and/or
replace such directors or take such other actions as shall be necessary or
desirable to give effect to this Agreement.
4.5 Directors and Officers Insurance. The Corporation shall as soon as
reasonably practicable but not later than thirty (30) days from the date hereof
take out and thereafter maintain in full force at all times insurance covering
directors and officers liability.
4.6 Matters Requiring Approval of Investors. Until the completion of the
Corporation's next Public Offering and for so long as the Investors
collectively own at least 10% (assuming (i) the exercise in full by the
Investors of their respective rights pursuant to each of the Stock Exchange
Agreement and the Put Right Agreement and (ii) the conversion into Common
Shares of all Preferred Shares held by the Investors or to which the Investors
would be entitled upon their exercise, in full, of their respective rights
pursuant to each of the Stock Exchange Agreement and the Put Right Agreement)
of the issued and outstanding Common Shares, the Shareholders agree to cause
the Corporation, by taking all necessary corporate action including, without
limitation, adopting a new by-law to such effect, to submit to the Investors
for their prior written approval any by-law, resolution or act of the
Shareholders, the Board or officers of the Corporation having any of the
following objects or purposes:
4.6.1 the approval of the annual research and development budget of the
Corporation, the annual operating budget of the Corporation and the
annual capital budget of the Corporation, and any amendments thereto.
Should the Investors refuse to approve the operating budget or the
capital budget for a given fiscal year, the Corporation must conduct
its business in conformity with the budgets of the preceding fiscal
year and the Corporation may not incur capital expenses for the
fiscal year then in progress unless the above-mentioned budgets have
been approved in accordance with the present provisions;
4.6.2 the hiring and firing of any of any senior officers, senior
executives or senior employees of the Corporation;
4.6.3 the engaging of any underwriters in connection with the Corporation's
next Public Offering;
4.6.4 the entering into of any underwriting or similar agreements in
connection with (i) any private placement pursuant to which the
Corporation raises funds in excess of $1,000,000 or (ii) the
Corporation's next Public Offering;
4.6.5 a decrease in the number of directors of the Corporation, except as
provided for in this Agreement;
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4.6.6 the filing of Articles of Amendment or Articles of Amalgamation by
the Corporation;
4.6.7 any change in or alteration to the share capital of the Corporation;
4.6.8 changes in the remuneration paid to the shareholders, directors or
officers of the Corporation or to Persons Related or Affiliated to
the shareholders, directors or officers of the Corporation;
4.6.9 payment of bonuses or other benefits to shareholders, directors or
officers of the Corporation or to Persons Related or Affiliated to
the shareholders, directors or officers of the Corporation;
4.6.10 granting or repayment of any loan to shareholders, directors or
officers of the Corporation or to Persons Related or Affiliated to
shareholders, directors or officers of the Corporation;
4.6.11 guaranteeing any obligations of shareholders, directors or officers
of the Corporation or of Persons Related or Affiliated to
shareholders, directors or officers of the Corporation;
4.6.12 the sale, issue or allotment of Shares from the treasury of the
Corporation, or the granting of options allowing for the subscription
thereof, other than in conformity with Section 5 of this Agreement;
4.6.13 the purchase or sale of any immoveable property on behalf of the
Corporation;
4.6.14 an assignment under the Bankruptcy and Insolvency Act or a proposal
made thereunder, or recourse to any other measure designed for the
protection of insolvent debtors pursuant to any other legislation in
connection with insolvency;
4.6.15 the judicial or voluntary winding-up of the Corporation or the
liquidation of the business or assets of the Corporation;
4.6.16 the entering into of any loan agreement on behalf of the Corporation,
or the granting of any security by the Corporation on any of its
movable or immovable property, except for loan agreements or security
interests in respect of borrowings of money from its bankers or other
reputable commercial lenders in respect of the financing of its
individual Juke-Boxes and other equipment in the manner set forth in
its Business Plan as adopted by the Board from time to time;
4.6.17 the sale of the whole or a substantial part of the assets of the
Corporation or the granting of an option for same or the merger or
consolidation of the Corporation with or into another entity;
4.6.18 the adoption for or on behalf of the Corporation of any contract not
in the ordinary course of the Corporation's business or any contract
with (i) any shareholder, director or officer of the Corporation or
any Person Related or Affiliated to such shareholder, director or
officer of the Corporation or (ii) any Person who is not dealing at
Arm's Length with the Corporation;
4.6.19 the conclusion of any partnership or joint venture agreement or the
creation of a subsidiary or acquisition of another business;
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4.6.20 the declaration of dividends by the Corporation or the redemption,
purchase or repurchase by the Corporation of its share capital;
4.6.21 the amendment, repeal or abrogation of any by-law of the Corporation;
4.6.22 the change in the powers of the directors in general or any one of
them in particular.
SECTION 5 - PREEMPTIVE RIGHT
5.1 Issuance of Common Shares. Should the Board decide that the
Corporation requires additional funds in an amount equal or greater to U.S.
$200,000 and is unable to obtain such funds from its bankers on commercially
reasonable terms, then the Shareholders hereby agree to cause the Corporation
to raise such funds by issuing Common Shares from treasury in accordance with
this Section 0. Each Shareholder shall have preemptive rights with respect to
the issue of such additional Common Shares (the "Additional Shares"), such that
the Corporation shall not issue any Additional Shares without offering to each
Shareholder the right to subscribe for its Proportion of the Additional Shares
to be issued by the Corporation.
The preemptive rights referred to in this Section 0 shall not, however,
apply to Shares and/or options, warrants or other Share purchase rights, and
the Shares issued pursuant to such options, warrants or other rights (as
adjusted for any stock dividends, combinations, splits, recapitalization and
the like) issued or to be issued to employees, officers, or directors of, or
consultants or advisors to the Corporation or any subsidiary pursuant to stock
purchase or stock option plans or other arrangements that have been or are
approved by the Board.
5.2 Notice to Shareholders. If the Corporation decides to issue any
Additional Shares, then the Corporation shall give detailed notice thereof to
each Shareholder, describing the Additional Shares, the price, and the general
terms upon which the Corporation proposes to issue the same. Each Investor may
assign to the other Investor all or a portion of its right to subscribe for its
Proportion of the Additional Shares. Each Shareholder shall have thirty (30)
days from the receipt of such notice within which to notify the Corporation of
its intent to exercise its right under subsections 0 and 0 in connection with
such issue of Additional Shares. If a Shareholder fails to so notify the
Corporation within the prescribed delay, then such Shareholder shall be
conclusively deemed to have waived its preemptive right in connection with such
issue of Additional Shares. If all of the Shareholders waive or are deemed to
have waived their preemptive rights in connection with such issue of Additional
Shares, then the Corporation shall be free for a period of ninety (90) days
thereafter to sell such Additional Shares to any Person not Affiliated or
Related to any Shareholder, on terms not more favourable than those provided in
the original offer of the Corporation to issue Additional Shares, provided,
however, that it is a condition precedent to such sale that such Person has
executed a counterpart of this Agreement in accordance with subsection 0 and
has agreed to be bound by the terms and conditions of this Agreement and any
other agreement executed by the parties in connection with this Agreement.
5.3 Declining Investor. If only one of the Investors has agreed to
exercise its right under subsections 0 and 0 hereof to subscribe for its
Proportion of the Additional Shares (the "Accepting Investor") and the other
Investor has, or is deemed to have, declined to exercise such preemptive right
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(the "Declining Investor"), the Corporation shall, within seven (7) days of the
end of the above thirty (30) day period, be required to offer by written notice
to the Accepting Investor all of the Additional Shares which could have been
subscribed for by the Declining Investor (the "Declining Investor's Shares")
before Techno Expres is offered pursuant to subsection 0 its pro rata share of
such Declining Investor's Shares. The Accepting Investor shall have thirty
(30) days from the receipt of the notice mentioned above to notify the
Corporation of its intent to exercise its right to subscribe for the Declining
Investors' Shares, failing which the Accepting Investor shall be deemed to have
waived its preemptive right in connection with the issue of the Declining
Investors' Shares.
5.4 Shareholders Rights. If (i) one (1) or more Shareholders has or is
deemed to have declined its right to subscribe for its Proportion of the
Additional Shares, and, in the event such Additional Shares were offered to the
Accepting Investor pursuant to subsection 0 and the Accepting Investor has or
is deemed to have declined to exercise its right to acquire all of the
Declining Investor's Shares, or (ii) if one (1) or more Shareholders has or is
deemed to have declined its right to subscribe for its Proportion of the
Additional Shares and subsection 0 is not applicable, then the Corporation,
within five (5) days of the end of the above thirty (30) day period provided
for in subsection 0 or within seven (7) days of the end of the seven (7) day
period provided for in subsection 0, shall be required to offer by written
notice to the Shareholder(s) who agreed to exercise its or their right under
subsections 0 and 0 in connection with the initial issue of Additional Shares,
to issue to such Shareholder(s), in addition to any Additional Shares such
Shareholder(s) agreed to subscribe for, its or their pro rata share of the
Additional Shares for which any other Shareholder(s) has, or is deemed to have,
waived its or their preemptive right hereunder (collectively the "Unaccepted
Additional Shares").
5.5 Notice for Unaccepted Additional Shares. Each Shareholder who has
been offered to subscribe for Unaccepted Additional Shares by the Corporation
pursuant to subsection 0 shall have thirty (30) days from the receipt of the
notice mentioned therein to notify the Corporation of its intent to exercise
its right to subscribe for its pro rata share of such Unaccepted Additional
Shares, failing which such Shareholder shall be deemed to have waived its
preemptive right in connection with the issue of such Unaccepted Additional
Shares.
5.6 Sale to any Person. The procedures set forth in subsections 0 and 0
shall be repeated, mutatis mutandis, with respect to any Unaccepted Additional
Shares which have not been subscribed for by a Shareholder until (i) all
Shareholders who have been made the most recent additional offer shall have or
be deemed to have declined it, or (ii) all Additional Shares (including
Unaccepted Additional Shares) which have been offered by the Corporation
pursuant to this Section 0 shall have been subscribed for by some or all of the
Shareholders. If upon completion of the above procedures some or all of the
Additional Shares which the Corporation intended to issue will not be purchased
by the Shareholders pursuant to the exercise of their preemptive rights, the
Corporation shall be free for a period of ninety (90) days thereafter to sell
such Additional Shares, which will not be purchased by a Shareholder, to any
Person not Affiliated or Related to any Shareholder, on terms not more
favourable than those provided in the original offer of the Corporation to
issue Additional Shares, provided, however, that it shall be a condition
precedent to such sale that such Person has executed a counterpart of this
Agreement in accordance with subsection 0 and has agreed to be bound by the
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terms and conditions of this Agreement. The purchase of Additional Shares
(including Unaccepted Additional Shares) by one (1) or more Shareholders, shall
be suspended until the day of the sale by the Corporation to such Person of the
Additional Shares (including Unaccepted Additional Shares) which have not been
subscribed for by a Shareholder. If the Corporation is unable to sell such
Additional Shares which have not been subscribed for by a Shareholder to a
Person as provided for in this subsection 0, then the Corporation shall
forthwith advise the Shareholders of same in writing and any Shareholder who
has agreed to subscribe for Additional Shares (including Unaccepted Additional
Shares) shall have the right to decide not to purchase such Additional Shares
by notifying the Corporation in writing thereof within five (5) days of having
been advised by the Corporation that the Corporation was unable to sell such
Additional Shares to such Person.
5.7 Closing. Subject to subsection 0, the closing in connection with the
issuance of Additional Shares to any Shareholder or Person pursuant to
subsections 0 to 0 shall be held at the principal offices of the Corporation at
10:00 a.m. on the date which is thirty (30) days after the expiry of the
applicable period under subsections 0 to 0, as the case may be, or at such
other place, at such other time or on such other date as the parties thereto
may agree. Payment for the Additional Shares being issued shall be made in
full at such closing. All payments shall be made by way of bank draft or
electronic fund transfer to the Corporation's account.
SECTION 6 - ALIENATION OF SHARES
6.1 Alienation prohibited. Unless otherwise provided for in accordance with
the terms hereof, no Shareholder shall transfer, assign, cede, pledge,
mortgage, hypothecate, charge or otherwise encumber, alienate or dispose of in
any manner whatsoever the whole or any part of its Shares without first
obtaining the written consent of all of the other Shareholders.
6.2 Transfers between Sofinov and Innovatech. Notwithstanding any provision of
this Agreement, each of Sofinov and Innovatech may transfer all or part of its
Shares to each other, or to any Governmental Body of or controlled by the
Government of Quebec or to the Caisse de depot et placement du Quebec or any
Person controlled by the Caisse de depot et placement du Quebec, at any time
and from time to time without being subject to the other terms and conditions
in this Section 0 or in Section 0; provided however, that neither of Sofinov or
Innovatech shall be permitted to transfer its Shares to any Governmental Body
of or controlled by the Government of Quebec unless such Governmental Body
shall have first executed a counterpart of this Agreement in accordance with
subsection 0, and agreed that as long as it shall hold such Shares it shall be
bound by the terms and conditions of this Agreement, as if such Governmental
Body had been an original party to this Agreement as a Shareholder and an
Investor.
6.3 Unrestricted Transfers. Notwithstanding any provision of this Agreement:
6.3.1 in the event of (i) any transaction resulting in the reorganization
of the Corporation or (ii) any third party obtaining control of the
Corporation, the Investors shall be entitled, upon written notice to
the other Shareholders, to transfer to any party, without being
subject to the other terms and conditions in this Section 0 or in
Section 0, all or a portion of the total number of Common Shares held
by them;
- 13 -
6.3.2 Techno Expres shall be entitled, upon written notice to each of the
Investors, to transfer to any party from time to time at any time on
or prior to March 31, 2003, without being subject to the other terms
and conditions in this Section 0 or in Section 0, up to a total of
100,000 Common Shares, provided that any such transfer is not by way
of solicitation or public offering, but by way of private placement
only in conformity with (i) all applicable securities laws and (ii)
all requirements imposed by any agent or underwriter engaged by the
Corporation as of the date of such transfer.
6.4 Shareholdings of Techno Expres. Xxx Xxxxxx and Xxxx Xxxxxxxxxxx hereby
intervene into the present Agreement and hereby solidarily acknowledge and
confirm that at present they have and that at all times while Techno Expres is
a Shareholder they shall retain control of not less than sixty percent (60%) of
the outstanding securities of Techno Expres carrying voting rights in all
circumstances and they hereby further solidarily undertake that, except for
transfers to members of their immediate families (which shall be permitted
provided that any such transferee shall undertake in writing in favour of the
remaining Shareholders to be bound solidarily with the transferor by the
provisions of this subsection 6.4), neither of them will transfer, assign,
cede, pledge, mortgage, hypothecate, charge or otherwise encumber, alienate or
dispose of in any manner whatsoever the whole or any part of any of his shares
of Techno Expres without first obtaining the written consent of all of the
other Shareholders, and in all cases the transferor shall cause the transferee
to undertake in writing in favour of the remaining Shareholders to be bound
solidarily with the transferor by the provisions hereof.
SECTION 7 - RIGHTS OF FIRST REFUSAL AND PIGGY BACK
7.1 Alienation by Investors. Notwithstanding subsection 0, if, at any time
after the date hereof, (i) one or both of the Investors (the "Offering
Investor") receives an irrevocable offer (the "TP Offer") from a Person acting
at Arm's Length to the Offering Investor (the "TP Offeror") to purchase for
cash, securities, property and/or any other form of consideration (all of which
is payable at closing) 50% or more of the Shares held by the Offering Investor
(including by way of prospectus, whether underwritten or not), which TP Offer
the Offering Investor wishes to accept, in accordance with the procedures set
forth hereinafter, or (ii) the Offering Investor wishes to sell all (but not
less than all) of the Shares held by the Offering Investor, the Offering
Investor shall make an irrevocable offer (the "I Offer") in accordance with the
procedures set forth hereinafter (the TP Offer and I Offer are hereinafter
referred to collectively as the "Investor Offer"):
7.1.1 If there is only one Offering Investor, such Offering Investor shall
first offer to the other Investor (the "Other Investor") the option
to purchase such Shares (the "Offered Shares") in accordance with
subsection 0. Should the Other Investor exercise such option so as
to purchase all of the Offered Shares, the Offering Investor shall
sell to the Other Investor the Offered Shares, for which it has
delivered a notice of exercise, in accordance with this Agreement and
the terms and conditions of the Investor Offer.
7.1.2 Unless the Other Investor elects within the time required to exercise
the option pursuant to subsection 0 such that all of the Offered
Shares shall be purchased by the Other Investor (or if there are two
Offering Investors and, as a result, there is no Other Investor),
then the Offering Investor shall offer the Offered Shares which were
- 14 -
unaccepted by the Other Investor or, if there is no Other Investor,
all of the Offered Shares (in either case, the "Unaccepted Offered
Shares") to Techno Expres in accordance with the procedures set forth
in subsection 0.
7.1.3 Should Techno Expres exercise its option pursuant to subsection 0 so
as to purchase all of the Unaccepted Offered Shares, the Offering
Investor shall sell to (i) the Other Investor the Offered Shares, if
any, for which it has delivered notice of exercise and (ii) Techno
Expres the Unaccepted Offered Shares for which it has delivered
notice of exercise, in accordance with this Agreement and the terms
and conditions of the TP Offer, or the I Offer, as the case may be.
7.1.4 Unless the Other Investor and/or Techno Expres (the "Other
Shareholders") have elected within the time required to exercise
their options pursuant to subsections 0 and/or 0 such that all of the
Offered Shares shall be purchased by the Other Shareholders, the
option of the Other Shareholders shall expire, none of the Other
Shareholders shall be eligible to purchase the Offered Shares, and
the Offering Investor shall be free for a period of ninety (90) days
from the end of the expiration of the last offer period to sell all
(but not less than all) of the Offered Shares to either (i) the TP
Offeror on the terms and conditions provided in the TP Offer, or (ii)
in the event of an I Offer, to a Person acting at Arm's Length to the
Offering Investor (the "Third Party") on the terms and conditions
provided in the I Offer, provided, however, that, in both cases, it
shall be a condition precedent to the right of the Offering Investor
to sell the Offered Shares that the TP Offeror or Third Party, as the
case may be, has executed a counterpart of this Agreement in
accordance with subsection 0 and has agreed to be bound by the terms
and conditions of this Agreement, as if the TP Offeror or the Third
Party, as the case may be, had been an original party to this
Agreement in place of the Offering Investor. If no sale takes place
within the ninety (90) day period referred to in this subsection,
then the Offering Investor shall not transfer the Offered Shares
without again following and being subject to this Section 0.
7.2 Alienation by Techno Expres. Notwithstanding subsection 0, if, at any
time after the date hereof, (i) Techno Expres receives an irrevocable offer
(the "TP Offer") from a Person acting at Arm's Length to Techno Expres (the "TP
Offeror") to purchase for cash, securities, property and/or any other form of
consideration (all of which is payable at closing) all (but not less than all)
of the Shares held by Techno Expres (the "Offered Shares") (including by way of
prospectus, whether underwritten or not), which Techno Expres wishes to accept,
in accordance with the procedures set forth hereinafter, or (ii) Techno Expres
wishes to sell all (but not less than all) of the Shares held by Techno Expres,
Techno Expres shall make an irrevocable offer (the "TE Offer") in accordance
with the procedures set forth hereinafter (the TP Offer and TE Offer are
hereinafter collectively referred to as the "Techno Offer"):
7.2.1 Techno Expres shall offer the Offered Shares to the Investors
(together the "Other Shareholders") in accordance with the procedures
set forth in subsection 0.
7.2.2 Should one or both of the Other Shareholders exercise options
pursuant to subsection 0 so as to purchase all of the Offered Shares,
Techno Expres shall sell to each such Other Shareholder the Offered
- 15 -
Shares for which it has delivered notice(s) of exercise, in
accordance with this Agreement and the terms and conditions of the
Techno Offer.
7.2.3 Unless one or both of the Other Shareholders elects within the time
required to exercise its options pursuant to subsection 0 such that
all of the Offered Shares shall be purchased by the Other
Shareholders, the option of the Other Shareholders shall expire, none
of the Other Shareholders shall be eligible to purchase the Offered
Shares, and Techno Expres shall be free for a period of ninety (90)
days from the end of the expiration of the last offer period to sell
all (but not less than all) of the Offered Shares to either (i) the
TP Offeror on the terms and conditions provided in the TP Offer, or
(ii) in the event of a TE Offer, to a Person acting at Arm's Length
to Techno Expres (the "Third Party") on the terms and conditions
provided in the TE Offer, provided, however, that, in both cases, it
shall be a condition precedent to the right of Techno Expres to sell
the Offered Shares that the TP Offeror or Third Party, as the case
may be, has executed a counterpart of this Agreement in accordance
with subsection 0 and has agreed to be bound by the terms and
conditions of this Agreement, as if the TP Offeror or Third Party, as
the case may be, had been an original party to this Agreement in
place of Techno Expres. If no sale takes place within the ninety
(90) day period referred to in this subsection, then Techno Expres
shall not transfer the Offered Shares without again following and
being subject to this Section 0.
7.3 Procedure for Offers. Offers by the Offering Investor (pursuant to
subsection 0) or Techno Expres (pursuant to subsection 0) (the "Offering
Shareholder") to the Other Investors (pursuant to subsection 0), Techno Expres
(pursuant to subsection 0) or the Other Shareholders (pursuant to subsection 0)
(the "Offeree Shareholders") shall be conducted in accordance with the
following procedures:
7.3.1 The Offering Shareholder shall deliver a notice of its desire to sell
the Offered Shares in accordance with the terms of the Offer to the
Offeree Shareholders (a copy of which notice will be forwarded to all
parties hereto), and then each of the Offeree Shareholders shall have
an option to acquire its Proportionate Share of the Offered Shares
or, if subsection 0 applies, the Unaccepted Offered Shares (the
"First Offer"). Each of the Offeree Shareholders who elects to
exercise its option under this subsection shall deliver a notice to
the Offering Shareholder, each other Offeree Shareholder and the
Corporation indicating its exercise of the option, such notice to be
sent no later than [twenty (20] days after the date on which the
notice is received, after which time the option hereby granted to the
Offeree Shareholders shall expire.
7.3.2 If after the First Offer or any Additional Offer made pursuant to
this paragraph 0 (the "Prior Offers"), there remains Offered Shares
that the Offeree Shareholders have not accepted in the Prior Offers
(the "Remaining Offered Shares"), the Offering Shareholder shall
deliver a notice to the Offeree Shareholders that accepted the last
such offer (the "Accepting Offeree Shareholders"), of each such
Accepting Offeree Shareholder's option to purchase its Proportionate
Share of the Remaining Offered Shares (an "Additional Offer"). Each
Accepting Offeree Shareholders who elects to exercise its option
- 16 -
under this subsection shall deliver a notice to the Offering
Shareholder, each other Accepting Offeree Shareholder and the
Corporation indicating its exercise of the option, such notice to be
sent no later than ten (10) days after the date on which the notice
of the Additional Offer is received, after which time the option
hereby granted to the Accepting Offeree Shareholders shall expire.
The Offering Shareholder shall continue to make offers pursuant to
this paragraph 0 until there are no Accepting Offeree Shareholders or
no Remaining Offered Shares.
7.3.3 In the event of any sale by the Offering Shareholder to the Offeree
Shareholders pursuant to an Offer which provides that the purchase
price is to be payable, in whole or in part, by a non-cash
consideration, the Offeree Shareholders shall be entitled to pay to
the Offering Shareholder the cash equivalent of such non-cash
consideration based upon the fair market value of such non-cash
consideration as of the date of the receipt by the Offeree
Shareholders of the notice from the Offering Shareholder to sell the
Offered Shares in accordance with paragraph 0. The fair market value
of such non-cash consideration shall be the value agreed upon by the
parties to such transaction. If no such value has been agreed upon
in writing by the parties to such transaction within ten (10) days
after the receipt by the Offeree Shareholders of the notice from the
Offering Shareholder to sell the Offered Shares in accordance with
paragraph 0, any of such parties shall be entitled to appoint the
auditors of the Corporation to determine such value. The
determination of the auditors shall be final and binding on the
parties without right of appeal and such auditors shall make such
determination within ten (10) days of their appointment.
7.4 Validity of Offer and Closing provisions. Each Offer made pursuant to
subsections 0 and 0 shall be in a writing signed by the Offering Shareholder
and addressed to the Offeree Shareholders and shall:
7.4.1 state the purchase price per Offered Share, which purchase price
shall be payable in full, at Closing;
7.4.2 state the name and address of the TP Offeror to whom it proposes to
sell the Offered Shares, and include a copy of the TP Offer; (this
provision shall not apply in the event of an I Offer or a TE Offer);
7.4.3 provide that the Closing shall be held at the principal offices of
the Corporation at 10:00 a.m. on the Closing Date, or at such other
place, at such other time or on such other date as the parties
thereto may agree, in accordance with the following terms and
conditions:
7.4.3.1 at Closing, the Offering Shareholder shall deliver to the
Offeree Shareholders who have accepted an Offer (the "Purchaser")
certificates representing the Offered Shares being transferred, which
certificates shall be accompanied by a duly executed assignment of the
Offered Shares to the Purchaser;
7.4.3.2 payment for the Offered Shares being transferred shall be made
in full at Closing;
7.4.3.3 such transfer shall be effected in conformity with all
- 17 -
applicable securities laws;
7.4.3.4 if any of the conditions set forth in this paragraph 0 made for
the exclusive benefit of the Purchaser are not satisfied at the Closing,
then the Purchaser may, at its option, either:
7.4.3.4.1 refuse to proceed with the Closing, or
7.4.3.4.2 proceed with the Closing,
in either case without prejudice to its remedies and recourses against the
Offering Shareholder as a result of such condition not being satisfied;
7.4.3.5 however, if at Closing the Offered Shares being transferred are
not free and clear of all claims, liens and other encumbrances whatsoever,
the Purchaser may, without prejudice to any other rights which it may
have, purchase such Offered Shares subject to such claims, liens and other
encumbrances. In that event, the Purchaser shall at the Closing assume
all obligations and liabilities with respect to such claims, liens and
encumbrances and the purchase price payable by the Purchaser for such
Offered Shares shall be satisfied, in whole or in part, as the case may
be, by such assumption in the amount agreed to by the Offering Shareholder
and the Purchaser. The amount so assumed shall reduce the purchase price
payable at Closing;
7.4.3.6 if the Offering Shareholder fails to complete the transaction,
then the amount which the Purchaser would otherwise be required to pay to
the Offering Shareholder at Closing may be deposited by the Purchaser into
an interest-bearing trust account in the name of the Offering Shareholder
at the bank branch used by the Corporation. Upon making such deposit and
giving the Offering Shareholder notice thereof, the purchase of the
Offering Shareholder's Offered Shares by that Purchaser shall be deemed to
have been fully completed and all right, title, benefit and interest in
and to the Offered Shares to which the Purchaser is entitled shall be
deemed to have been transferred and assigned to and vested in the
Purchaser. The Offering Shareholder shall be entitled to receive the
amount deposited in the trust account upon satisfying the Offering
Shareholder's obligations pursuant to subsection 0;
7.4.3.7 the Offering Shareholder hereby irrevocably nominates,
constitutes and appoints each Purchaser as its true and lawful mandatary
and agent for, in the name of and on behalf of the Offering Shareholder to
execute and deliver in the name of the Offering Shareholder all such
instruments as may be necessary to effectively transfer the Offered Shares
being sold to the Purchaser. The Offering Shareholder hereby ratifies and
confirms, and agrees to ratify and confirm, all that the Purchaser may
lawfully do or cause to be done by virtue of such appointment and power of
attorney;
7.4.3.8 it is recognized that serious and irreparable damage for which
monetary damages would not be an adequate remedy would result to the
Purchaser from the violation of the provisions of this Section 0. Each
party agrees that, in addition to any and all remedies available to the
Purchaser in the event of a violation of such covenants, such Purchaser
shall have the immediate remedy of injunction or such other relief as may
be decreed or issued by any court of competent jurisdiction to enforce
this Section 0.
- 18 -
7.5 Piggy Back - Investors. Provided that Techno Expres owns more than [20%]
of the issued and outstanding Shares (assuming (i) the exercise in full by the
Investors of their respective rights pursuant to each of the Stock Exchange
Agreement and the Put Right Agreement and (ii) the conversion into Common
Shares of all Preferred Shares held by the Investors or to which the Investors
would be entitled upon their exercise, in full, of their respective rights
pursuant to each of the Stock Exchange Agreement and the Put Right Agreement),
if Techno Expres receives a TP Offer or makes a TE Offer pursuant to
subsection 0, each Investor shall have the right, at such Investor's option, in
lieu of exercising options to purchase Offered Shares, to require that all of
the Shares held by such Investor (including any Shares issuable upon the
exercise in full by such Investor of its rights pursuant to each of the Stock
Exchange Agreement and the Put Right Agreement and assuming the conversion into
Common Shares of all Preferred Shares held by such Investor or to which such
Investor would be entitled upon its exercise, in full, of its rights pursuant
to each of the Stock Exchange Agreement and the Put Right Agreement) be
included in any sale to the TP Offeror or Third Party, as the case may be,
together with the Offered Shares, on terms and conditions which are identical
to those offered by the TP Offeror to Techno Expres pursuant to the TP Offer or
to those made pursuant to the TE Offer, as the case may be, and it shall be a
condition precedent of the right of Techno Expres to sell any Offered Shares
that the TP Offeror or Third Party, as the case may be, purchase all the Shares
held by an Investor exercising the right granted in this subsection 0. If an
Investor wishes to exercise the right granted in this subsection 0, then it
shall do so by giving written notice thereof to Techno Expres at any time prior
to the end of the expiration of the last offer period of Techno Expres to sell
Offered Shares to the Investors. For greater certainty, the provisions of this
subsection 0 shall only apply if all of the Offered Shares are not purchased by
one or more of the Investors under subsection 0 and are sold to the TP Offeror
or the Third Party, as the case may be, by Techno Expres.
7.6 Offers irrevocable. All Offers and TP Offers are irrevocable for the
period of time during which they are open for acceptance.
7.7 Meaning of "Shares". For the purposes of this Section 0, when reference is
made to the Shares held by either Investor, the term "Shares" shall be deemed
to include any Common Shares as would be issuable to such Investor upon the
conversion into Common Shares of (i) all Preferred Shares held by such Investor
and (ii) all Preferred Shares issuable to such Investor upon the full exercise
of (a) all of such Investor's exchange rights under the Stock Exchange
Agreement and (b) all of such Investor's put rights under the Put Right
Agreement.
SECTION 8 - NOTICES
8.1 Notices. All notices, requests, demands and other communications
hereunder shall be given in writing and shall be given by telecopier, or
delivered by hand, to the other party at the following addresses:
- 19 -
if to Techno Expres:TECHNO EXPRES S.A.
c/o Touchtunes Digital Jukebox Inc.
0 Xxxxxxxx Xxxxx
Xxxxx 000
Xxx'x Xxxxxx, Xxxxxx
X0X 0X0
Attention: The President
Telecopier: (000) 000-0000
if to Sofinov: SOFINOV SOCIETE FINANCIERE D'INNOVATION INC.
0000 XxXxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: The President
Telecopier: (000) 000-0000
if to Innovatech: SOCIETE INNOVATECH DU GRAND MONTREAL
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
if to the
Corporation: TECHNICAL MAINTENANCE CORPORATION
0000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx
00000, X.X.X.
Attention: The President
Telecopier: (000) 000-0000
with a copy in
all cases to: XXXX & XXXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, XX
00000, X.X.X.
Attention: Xxxxx Xxxx
Telecopier: (000) 000-0000
- 20 -
with a copy in
all cases to: XXXXXXXX XXXXXXXXXX
0000 Xxxx-Xxxxxxxx Blvd. West
Suite 1400
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxxxxx
Telecopier: (000) 000-0000
with a copy
in all cases to: GUY & XXXXXXX
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
or at such other address as the parties may have previously indicated to the
other parties in writing in conformity with the foregoing. Any such notice,
request, demand or other communication shall be deemed to have been received on
the date of delivery if delivered by hand, or the next Business Day immediately
following the date of transmission if sent by telecopier. The original copy of
any notice sent by telecopier shall be forwarded to the other party by
registered mail, receipt return requested.
SECTION 9 - ARBITRATION
9.1 Arbitration. All disputes or controversies between the parties in
respect of the validity, interpretation or performance of the provisions of
this Agreement shall be definitively dealt with using the rules of conciliation
and arbitration of the International Chamber of Commerce, by one arbitrator
appointed in accordance with said rules, and to the exclusion of any courts
except for any provisional remedy including injunctive relief and seizure
before judgment which may be obtained from any court or tribunal, the whole in
accordance with said rules in force at the time of execution of this Agreement.
Any arbitration proceeding required pursuant to the terms thereof shall take
place in Montreal, Quebec and shall be conducted in both the English and French
language.
SECTION 10 - MISCELLANEOUS PROVISIONS
10.1 Press release. Any press release or any public announcement,
statement or publicity with respect to the transaction contemplated in this
Agreement shall be made only with the prior consent of the Shareholders unless
such release, announcement, statement or publicity is required by law, in which
case the Shareholder required to make such release, announcement, statement or
publicity shall use its best efforts to obtain the approval of the other
Shareholders to the form, nature and extent of such disclosure, which approval
shall not be unreasonably withheld.
10.2 Further documents. Each party upon the request of the others, shall
do, execute, acknowledge and deliver or cause to be done, executed,
- 21 -
acknowledged or delivered all such further acts, deeds, documents, assignments,
transfers, conveyances, powers of attorney and assurances as may be reasonably
necessary or desirable to effect complete consummation of the transactions
contemplated by this Agreement.
10.3 Successors and assigns. This Agreement and the provisions hereof
shall enure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns.
10.4 Transfer contrary to this Agreement. Any purported transfer of
Shares contrary to the terms of this Agreement shall be null and void and have
no legal effect.
10.5 Time of the essence. Time shall be of the essence in this Agreement.
10.6 Counterpart. No Person shall become a holder of any Shares without
first having executed a counterpart of this Agreement in accordance with
Schedule "0" annexed hereto. Each such counterpart so executed shall be deemed
to be an original and such counterparts together shall constitute one and the
same instrument.
10.7 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matters herein contained
and supersedes and replaces any negotiations, discussions or agreements
previously held or entered into by them with respect to the subject matters
herein contained, including without limitation, the shareholders agreement
dated March 21, 1997 among the parties hereto. The parties hereby renounce to
and waive the benefits of all prior negotiations and discussions concerning the
subject matter hereof which are not embodied herein.
10.8 Originals. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same document.
10.9 Termination of Agreement. This Agreement shall remain in effect
until terminated by any party hereto by written notice upon the occurrence of
any of the following eventualities:
10.9.1 the bankruptcy or dissolution (whether voluntary or involuntary) of
the Corporation;
10.9.2 all issued and outstanding Shares are held by one Person only; or
10.9.3 by written agreement of all of the Shareholders.
10.10 Language. The parties hereto state their express wish that this
Agreement as well as all documentation contemplated hereby or pertaining hereto
or to be executed in connection herewith be also drawn up in English; les
parties expriment leur xxxxx explicite a l'effet que cette convention de meme
que tous documents envisages par les presentes ou y ayant trait ou qui seront
signes relativement aux presentes soient aussi rediges en anglais.
- 22 -
IN WITNESS WHEREOF, the parties have signed at the place and on the
date first hereinabove mentioned.
TECHNO EXPRES S.A.
Per: /s/Xxxx Xxxxxxxxxxx
----------------------
Xxxx Xxxxxxxxxxx
SOFINOV SOCIETE FINANCIERE D'INNOVATION INC.
Per: /s/Xxxxxx Xxxxxxx
----------------------
Xxxxxx Xxxxxxx
Per: /s/Xxxxx Xxxxxx
----------------------
Xxxxx Xxxxxx
SOCIETE INNOVATECH DU GRAND MONTREAL
Per: /s/Xxxxxx Xxxxxxx
----------------------
Xxxxxx Xxxxxxx
TECHNICAL MAINTENANCE CORPORATION
Per: /s/Xxxx Xxxxxxxxxxx
----------------------
Xxxx Xxxxxxxxxxx
- 23 -
INTERVENTION
EACH OF THE UNDERSIGNED INTERVENES TO THESE PRESENTS, hereby declares
having taken cognizance of all of the provisions contained in this Agreement,
with which he declares himself to be entirely satisfied and familiar, and
hereby agrees to be bound by the provisions of subsection 6.4 of this Agreement
which are applicable to him.
Montreal, this 11th day of February, 1998
/s/Xxxx Xxxxxxxxxxx
------------------------
XXXX XXXXXXXXXXX
/s/Xxx Xxxxxx
------------------------
XXX XXXXXX
- 24 -
Amended and Restated Shareholders Agreement
Technical Maintenance Corporation
SCHEDULE "0"
THIS INSTRUMENT forms part of the Shareholders Agreement (the "Agreement")
made as of February 11, 1998 by and among Techno Expres S.A., Touchtunes Juke
Box Inc., Sofinov Societe Financiere D'Innovation Inc., Societe Innovatech du
Grand Montreal and Technical Maintenance Corporation, into which intervened
each of Xxxx Xxxxxxxxxxx and Xxx Xxxxxx which Agreement permits execution by
counterpart. The undersigned hereby acknowledges having received a copy of the
said Agreement (which is annexed hereto as Schedule "1") and, having read the
said Agreement in its entirety, hereby agrees that the terms and conditions of
the said Agreement shall be binding upon the undersigned (including, without
limitation, the obligations of confidentiality) as if the undersigned had been
an original party to the Agreement as a Shareholder (as such terms are defined
in the Agreement) and such terms and conditions shall enure to the benefit of
and be binding upon the undersigned, its successors and assigns.
IN WITNESS WHEREOF the undersigned has executed this instrument this ___
day of _______, ________ [year]
[Shareholder]
per:
-----------------------
