1
EXHIBIT 4.10
UNANIMOUS SHAREHOLDERS AGREEMENT
MEMORANDUM OF AN AGREEMENT made as of the 20th day of March, 1998
BETWEEN:
STRIKER INDUSTRIES, INC. a corporation existing under
and by virtue of the laws of the State of Delaware
(hereinafter referred to as "SII")
- and -
STRIKER HOLDINGS (CANADA) INC., a corporation
incorporated pursuant to the laws of Ontario
(hereinafter referred to as "Holdings")
- and -
FIRST ONTARIO LABOUR SPONSORED INVESTMENT FUND LTD.,
a corporation incorporated pursuant to the laws of
Ontario
(hereinafter referred to as "First Ontario")
- and -
STRIKER PAPER CANADA, INC., a corporation
incorporated pursuant to the laws of Ontario
(hereinafter referred to as the "Corporation").
CONTEXT OF THIS AGREEMENT
A. SII owns all of the issued and outstanding shares of the capital of
Holdings.
B. The authorized capital of the Corporation consists of an unlimited
number of common shares of which 15,027,649 are issued and outstanding and held
as follows:
BENEFICIAL NUMBER COMMON SHARES PERCENTAGE FULLY DILUTED
SHAREHOLDER
---------------- ------------------------ ----------------------------
Holdings 11,270,737 75%
First Ontario 3,756,912 25%
2
-2-
B. SII, Holdings and First Ontario have entered into this Agreement as
being in their respective best interests in governing their respective
investments in the Corporation and the Corporation enters into this Agreement to
acknowledge certain of its provisions which are binding upon or affect the
Corporation.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
the mutual covenants and agreements herein contained and for other good and
valuable consideration, the receipt and adequacy of which are acknowledged, the
parties hereto agree as follows:
PART 1.0 - INTERPRETATION
1.1 DEFINITIONS. For the purposes of this Agreement and where the context
does not otherwise require, terms shall have the meanings assigned thereto in
Schedule A annexed hereto.
1.2 SECTIONS AND HEADINGS. The division of this Agreement into parts and
sections and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation of this Agreement. The terms
"this Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular part, section or other portion hereof and
include any agreement or instrument supplemental or ancillary hereto. Unless
something in the subject matter or context is inconsistent therewith, references
herein to parts and sections are to parts and sections of this Agreement.
1.3 NUMBER & GENDER. Words importing the singular number only shall include
the plural and vice versa and words importing gender shall include the
masculine, feminine and neuter genders.
1.4 ACCOUNTING PRINCIPLES. References in this Agreement to GAAP shall be to
the GAAP from time to time established by the Canadian Institute of Chartered
Accountants, or any successor institute, applicable as at the date on which such
calculation is made or required to be made, provided that if GAAP shall change
subsequent to the date hereof, all calculations herein contemplated shall be
based upon GAAP in effect on the date hereof.
1.5 ENTIRE AGREEMENT. This Agreement and the attached schedules constitute
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes any prior understandings, negotiations and
agreements between the parties hereto with respect thereto. There are no
representations, warranties, terms, conditions, undertakings or collateral
agreements, express, implied or statutory, between the parties other than as
expressly set forth in this Agreement.
1.6 APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of Ontario and the laws of Canada applicable therein.
Each party hereby irrevocably attorns to the jurisdiction of the courts of the
Province of Ontario.
1.7 AMENDMENTS AND WAIVERS. No amendment to this Agreement shall be valid
and binding unless set forth in writing and duly executed by all of the parties
hereto. No waiver of any breach of any provision of this Agreement shall be
effective or binding unless made in writing and signed by the party purporting
to give the same and, unless otherwise provided in the written waiver, shall be
limited to the specific breach waived.
3
-3-
1.8 SEVERABILITY. If any provision of this Agreement is determined to be
invalid or unenforceable in whole or in part, such invalidity or
unenforceability shall attach only to such provision or part thereof and the
remaining part of such provision and all other provisions hereof shall continue
in full force and effect.
1.9 TIME. Time shall be of the essence in this Agreement.
1.10 CURRENCY. Unless otherwise specified, all references herein to currency
shall be references to currency of Canada.
1.11 UNANIMOUS SHAREHOLDER AGREEMENT. This Agreement shall be construed as a
unanimous shareholder agreement within the meaning of the Act. The rights,
powers and duties of the directors and all other individuals who become
directors of the Corporations to manage or supervise the management of the
business and affairs of the Corporation are restricted to the extent herein
provided and the Shareholders agree to assume all such rights, powers and duties
of the directors and of all other persons who become directors of the
Corporation.
PART 2.0 - COVENANTS, REPRESENTATIONS AND WARRANTIES
2.1 GENERAL. Each Shareholder hereby represents and warrants to each other
Shareholder and to the Corporation that such Shareholder:
(a) is neither a party to nor bound by any agreement regarding the
ownership of its Shares, other than this Agreement and, in the
case of Holdings, the Pledge Agreement;
(b) is not a party to, bound by or subject to any indenture,
mortgage, lease, agreement, instrument, charter or bylaw
provision, statute, regulation, order, judgement, decree or
law which would be violated, contravened or breached by, or
under which any default would occur as a result of the
execution and delivery of such Shareholder of this Agreement
or the performance by such Shareholder of any of the terms
hereof; and
(c) owns its Shares beneficially and as of record with good and
marketable title thereto free and clear of all legal rights
and encumbrances, other than rights arising under this
Agreement and, in the case of Holdings, the Pledge Agreement.
2.2 THE CORPORATION. The Corporation hereby represents and warrants to
First Ontario that, as of the date of this Agreement:
(a) the Corporation is a taxable Canadian corporation within the
meaning of the Income Tax Act (Canada);
(b) the Corporation carries on no business other than the
Business;
(c) not less than 90% of the fair market value of the property of
the Corporation is attributable to property used by the
Corporation in the Business;
(d) the Corporation and all corporations related to it have fewer
than 501 employees and the ordinary place of employment for
50% or more of its full time employees is located in the
Province of Ontario and the wages and salaries payable to the
employees whose ordinary place of employment is located in the
Province of Ontario constitutes 50% or more of the total
payroll expense of the Corporation;
4
-4-
(e) the carrying value of the assets of the Corporation and all
corporations related to it (determined in accordance with
GAAP) does not exceed $50,000,000; and
(f) there are no outstanding options or agreements by the
Corporation to issue securities in the capital of the
Corporation and no understandings capable of becoming such
agreements.
PART 3.0 - TERM
3.1 TERM. This Agreement shall come into force and effect as of the date
set out above and shall continue in force until the earlier of:
(a) the date on which only one or no Shareholder holds Shares in
the Corporation as the result of transfers of Shares permitted
pursuant to the provisions of this Agreement;
(b) the date on which the Corporation is wound up or dissolved in
accordance with the applicable provisions of the Act through a
process permitted pursuant to the provisions of this
Agreement; and
(c) the date on which all the shareholders mutually agree to
terminate this Agreement.
PART 4.0 - MANAGEMENT
4.1 NUMBER AND NOMINATION OF DIRECTORS. The Board shall consist of not more
than five (5) directors as follows:
(a) Not more than two directors shall be members of the management
of the Corporation or SII (the "Management Directors");
(b) One of the directors shall be a individual nominated by First
Ontario acting arm's length in relationship to First Ontario
(the "First Ontario Independent Director");
(c) One of the directors shall be an individual nominated by First
Ontario, which individual need not be acting at arm's length
in relationship to First Ontario (the "First Ontario
Nominee"); and
(d) The remaining director shall be an independent director and
acting at arm's length in relationship to First Ontario, the
Corporation and SII and satisfactory to both First Ontario and
SII (the "Independent Director").
The parties shall employ their best efforts to ensure that the Board is
constituted as provided in this section 4.1 within 90 days following the
delivery of this Agreement.
4.2 QUORUM.
(a) Subject to the provisions of subsection (b) hereof, the quorum
for any meeting of the Board shall be a majority of the
directors provided that such quorum shall include the First
5
-5-
Ontario Nominee (if they shall have been appointed) and at
least one of the Management Directors.
(b) If any properly called meeting of the Board shall fail to be
properly constituted for the conduct of business as a result
of the failure to satisfy the quorum requirement, then the
meeting shall be adjourned to a day which shall be not less
than two Business Days following the originally scheduled
meeting on notice to all the directors (the "Adjourned
Meeting"). The quorum for such Adjourned Meeting shall be a
majority of the directors.
4.3 CHANGING THE BOARD ON MAJOR DEFAULT. If a Major Default (as defined in
Part 12.0) shall occur, then First Ontario may require that the Board be reduced
to one (1) director and that all of the Directors, excluding one of the First
Ontario Nominees, shall resign. The Shareholders shall exercise their rights as
shareholders of the Corporation to cause the reduction in the Board contemplated
herein.
If the Major Default which gave rise to the reduction in the size of the Board
is remedied or waived by the party entitled to the performance of the matter in
default, then, after the elapse of a period of twelve (12) months following such
remedy or waiver, the size of the Board shall revert to five (5), including the
First Ontario Nominees, and the provisions of section 4.1 shall apply.
In the event of a Major Default, First Ontario will also have the option of
terminating and/or replacing any officer or employee of the Corporation.
4.4 PARTICIPATING OBSERVER STATUS. In addition to, or in substitution for,
the First Ontario Nominee, First Ontario shall be entitled to appoint and
individual to act as an observer at all board meetings ("First Ontario
Observer"). The First Ontario Observer shall be entitled to:
(a) attend all board meetings (formal and informal);
(b) attend and participate in all discussions of the business of
the Board;
(c) receive notice of all meetings, copies of all agenda, reports
and other materials distributed to the directors in advance of
meetings contemporaneously with the delivery of such material
to the directors;
(d) cause matters be placed upon the agenda of Board meetings for
discussion and a determination by the directors.
4.5 REIMBURSEMENT AND D&O INSURANCE. The Corporation shall:
(a) reimburse the First Ontario Nominee and any First Ontario
Observer who attend and participate in meetings on behalf of
First Ontario as contemplated by section 4.4 for all
reasonable out-of-pocket costs and expenses associated with
such participation as First Ontario Nominee or observer, as
the case may be;
(b) remunerate the First Ontario Independent Director and the
Independent Director for their participation as directors of
the Corporation at a rate of not less than $500 per meeting
attended and $5,000 per year as an annual director's fee; and
(c) provide and maintain in good standing a policy of directors
and officers insurance for all of the Corporation's directors
and senior officers in form and substance satisfactory to
First Ontario, acting reasonably.
6
-6-
4.6 BOARD MEETINGS. The Board shall meet on a monthly basis until such time
as the Corporation's Thorold plant facility is operating at a production
capacity of greater than 2,040 tons of dry felt per month produced and sold
("Benchmark Capacity") for at least 3 consecutive months, thereafter the Board
shall meet at least on a quarterly basis. In the event that the capacity of the
Corporation falls below the Benchmark Capacity for a period of 3 consecutive
months, then the Board shall again meet on a monthly basis until the Benchmark
Capacity is maintained for a period of 3 consecutive months. The determination
of whether the Benchmark Capacity has been reached shall be made by First
Ontario or its representative, in either case acting reasonably. Meetings of the
Board may take place by telephone to the extent and under the conditions
permitted by the Act.
4.7 REPORTING OBLIGATIONS.
(a) The Corporation shall deliver to First Ontario Management
Ltd., or such other party as First Ontario may otherwise from
time to time direct:
(i) within 90 days of the Fiscal Year end of the
Corporation, one copy of its annual financial
statements which shall be prepared on a consolidated
basis by the auditor of the Corporation, including
the balance sheet and statements of income, retained
earnings and changes in financial position, together
with a detailed unqualified report of the auditors of
the Corporation and all supporting notes and
schedules (the "Annual Financials");
(ii) within 90 days of the Fiscal Year end of the
Corporation, a certificate signed by the President or
Chief Financial Officer of the Corporation to the
effect that the Annual Financials present fairly the
financial position of the Corporation at the date
thereof and have been prepared in accordance with
GAAP;
(iii) within 30 days prior to the end of each Fiscal Year
an annual business plan and forecast for the next two
Fiscal Years consisting of:
A. monthly detailed pro forma balance sheets,
income statements and statements of changes
in financial position for the Corporation
(all prepared in accordance with GAAP)
together with such explanations, notes and
supporting information which are required to
explain and supplement the information so
provided and key assumptions (particularly
relating to revenues, gross margins, costs
and working capital);
B. a written bullet point commentary by the
President or the Chief Financial Officer of
the Corporation describing any changes in
any Fiscal Year's budget compared to the
most recent previously submitted plan and
forecast for such Fiscal Years;
C. a capital expenditure plan indicating the
nature and amount of capital expenditures
proposed to be incurred in such Fiscal
Years; and
D. a sales forecast by month for the following
Fiscal Year setting out anticipated revenue
and by customer with prior year comparatives
and a brief note explaining each line of the
said forecast; and
7
-7-
(b) within 20 days after the end of each month a monthly financial
report consisting of:
A. monthly and year-to-date financial
statements on a consolidated basis in a form
consistent with the business plan and as
normally prepared by management for its own
use (the "Monthly Financials") which shall
contain a comparison of budget to the actual
results of both the current and prior year,
a calculation of all the financial covenants
provided for in section 7.2 of the
Subordinated Loan Agreement, and a
calculation as at the end of each month of
the number of days of receivables, days of
inventory on an aggregate basis and days of
payables reflected in each monthly
statement;
B. a report of aged accounts receivable by
customer;
C. for each of the first 6 months following
Closing, a report on accounts payable to
monitor performance under the payout
agreements in Schedule P to the Subordinated
Loan Agreement;
D. a written bullet point commentary signed by
the President or the Chief Financial Officer
of the Corporation on the material variances
in actual results to date from budgeted
results anticipated and on the outlook for
the Business of the Corporation for the
balance of the Fiscal Year in comparison to
the budget for that Fiscal Year;
E. a certificate signed by the either the
President or the Chief Financial Officer of
the Corporation stating that:
(1) the amounts of vacation pay, wages,
source deductions and taxes required
to be remitted by the Corporation
and those said amounts not yet due
have been or will be so remitted in
a timely fashion and are in good
standing since the date of the last
such certificate;
(2) the property and Business operations
and activities of the Corporation
are to the best knowledge of such
officers in compliance in all
material respects with all
Environmental Laws and Environmental
Orders or describing in reasonable
detail any such non-compliance; and
(3) that the Corporation is not in
breach of any of the covenants or
representations and warranties
contained herein, or if such is not
the case, providing detailed
particulars of all such breaches,
together in either case with
reasonably detailed evidence of
compliance with all financial
covenants contained herein;
F. for each of the first 5 Fiscal Quarters (or
such longer period as First Ontario
Management Ltd. may request), a summary of
payments made to each creditor of its
Business referred to in clause 7.1(f)C of
the Subordinated Loan Agreement in the month
then ended;
8
-8-
(i) coincident with their delivery to the applicable
Secured Lenders, a copy of all reports and notices
given or delivered to either of the Secured Lenders
to the extent that they are not duplicative of the
information provided for in the section 7.1(e) of the
Subordinated Loan Agreement;
(ii) within 10 days of the respective filing with the
appropriate governmental authority, the most current
10Q and 10K securities filings relating to SII
together with any attachments thereto; and
(iii) upon each request, such further information
concerning the financial position and Business
operations as First Ontario may from time to time
request.
All forecasts and projections contemplated in the financial
reports and summaries described above shall be prepared by
management of the Corporation based on the best available
information and shall be applied on the basis of an analysis
which shall be consistently applied.
4.8 SII MONTHLY REPORTING. If the working capital of SII is less than
[insert figure] at any time during a given month, the Corporation shall cause
SII to provide within 20 days after the end of the particular month a monthly
financial report consisting of:
A. monthly and year-to-date financial
statements on a consolidated basis in the
form normally prepared by management for its
own use (the "Monthly Financials") which
shall contain a comparison of budget to the
actual results of both the current and prior
year;
B. a report of aged accounts receivable by
customer;
C. for each of the first 12 months following
Closing, a report on accounts payable to
monitor performance under the payout
agreements in Schedule P to the Subordinated
Loan Agreement;
D. a written bullet point commentary signed by
the President or the Chief Financial Officer
of the Corporation on the material variances
in actual results to date from budgeted
results anticipated and on the outlook for
the business of SII for the balance of the
Fiscal Year in comparison to the budget for
that Fiscal Year; and
E. for each of the first 5 Fiscal Quarters (or
such longer period as First Ontario
Management Ltd. may request), a report
providing a summary of compliance or
non-compliance by SII with all agreements
with creditors of SII which have agreed to
defer or postpone their right to receive
payments.
4.9 ANNUAL BUSINESS PLAN REQUIRING APPROVAL OF FIRST ONTARIO. The annual
business plan to be delivered to First Ontario Management Ltd. within 30 days
prior to the end of each Fiscal year pursuant to the Subordinated Loan Agreement
shall be subject to the written approval of First Ontario.
4.10 MAINTAIN BOOKS & RECORDS. The Corporation shall maintain accurate and
complete books and records of all transactions, receipts, expenses, assets and
liabilities of the Corporation in accordance with GAAP, consistently applied.
9
-9-
4.11 ACCESS RIGHTS - GENERAL. First Ontario, or its financial advisors,
Xxxxxxx Capital Management Inc. (or such other financial advisor as First
Ontario may subsequently appoint), or their legal counsel, Gowling, Strathy &
Xxxxxxxxx (or such other legal counsel as First Ontario may subsequently
appoint), or any other First Ontario's authorized agents which work exclusively
for First Ontario (which, without limiting the generality of the foregoing,
includes all of First Ontario's employees) shall have the right, exercisable as
frequently as First Ontario determines to be appropriate (acting reasonably),
during normal business hours (or at such other times as First Ontario may
request, acting reasonably), to inspect and audit the properties and facilities
of the Corporation and to inspect, audit and make extracts and photocopies from
the Corporation's records, files and books of account. Upon one and a half hour
prior notice by telephone or facsimile transmission, all other First Ontario
agents shall have the right, exercisable as frequently as First Ontario
determines to be appropriate (acting reasonably), during normal business hours
(or at such other times as First Ontario may request, acting reasonably), to
inspect and audit the properties and facilities of the Corporation and to
inspect, audit and make extracts and photocopies from the Corporation's records,
files and books of account.
4.12 ACCESS RIGHTS - CONFIRMATION OF EBITDA. Without limiting the generality
of the foregoing section 4.11, for the purposes of determination of EBITDA in
connection with the exercise of the put or call rights provided in this
Agreement, First Ontario may, at its option and at the expense of the
Corporation, employ an independent accounting firm for the purposes of
confirming the results of the Corporation's reported EBITDA.
4.13 APPOINTMENT OF A MONITOR. If there shall be a Major Default, First
Ontario may require that the Corporation retain Xxxxxxx Capital Management Inc.
or such other party as First Ontario may direct as a monitor to provide on-going
reports to First Ontario on the financial condition and prospects of the
Corporation. The reasonable expenses of such monitor, which shall not exceed
$12,000 per month plus goods and services tax, shall be paid by the Corporation.
4.14 MATTERS REQUIRING APPROVAL OF FIRST ONTARIO. In addition to any other
approval required by law or pursuant to the Articles or by-laws of the
Corporation, none of the following shall be effected without the prior written
consent of First Ontario;
(a) any change to the arrangements (including inter-corporate
charges and management fees) relating to the provision of
management services or senior executive employees to the
Corporation (including without limitation salary, bonuses,
benefits, incentive payments and director's fees);
(b) the making of any contract between the Corporation and any
Person not dealing at Arm's Length with the Corporation or the
making of any payment or the provision of any guarantee,
indemnification or other form of financial assistance to any
Person not dealing at Arm's Length with the Corporation;
(c) the setting aside of funds for payment, declaration or payment
of any dividends or like distributions;
(d) any material change to the nature or scope of the Business;
(e) any response to offers to finance, proposal relating to an
IPO, takeover bid or offer to acquire the Business or Shares
of the Corporation;
(f) any change to the fiscal year end of the Corporation;
10
-10-
(g) any change in the auditors of the Corporation;
(h) the making of any capital expenditures in excess of those
contemplated in the Cash Flow Plan;
(i) the incorporation of any subsidiary, or the acquisition,
either directly or indirectly, of all or substantially all of
the assets or capital stock of any Person;
(j) the redemption of any Shares, the repayment of any loans owed
by the Corporation to any Related Parties or the payment of
any bonus payments, commissions, or special fees or payments
to any of the officers or directors of the Corporation or to
Persons not dealing at Arm's Length with the Corporation,
except as contemplated by employment agreements and consulting
contracts with the Corporation which are disclosed to First
Ontario;
(k) the issuance of any shares in the capital of the Corporation
or any securities, rights, warrants or options convertible
into or exchangeable for, or carrying the right to subscribe
for, shares in the capital of the Corporation;
(l) the conversion, reclassification, subdivision, consolidation,
exchange, redesignation or any other change to any of the
shares in the capital of the Corporation;
(m) the merger, amalgamation, continuance, reorganization or
consolidation of the Corporation or the approval of any plan
of arrangement, whether statutory or otherwise;
(n) the taking or instituting of proceedings for the winding-up,
re-organization or dissolution of the Corporation;
(o) the filing of any proposal under the Bankruptcy and Insolvency
Act or the Corporate Creditors Arrangements Act;
(p) the sale, lease, exchange or other disposition of all or
substantially all of the assets of the Corporation or any
sale, lease, exchange, or other disposition of any such assets
out of the ordinary course of business;
(q) the engagement of any financial consultant by the Corporation
other than Xxxxxxx Capital Management Inc.; or
(r) the enactment, revocation or amendment of the Articles or
by-laws of the Corporation.
4.15 POLICY RE: NEPOTISM. The Corporation shall not, without the consent of
all Shareholders, employ any individual, directly or indirectly, who is related
to any of the Shareholders either by marriage, birth or adoption.
4.16 INTER-COMPANY ACCOUNTS. All inter-corporate receivables owed by SII
and/or Holdings to the Corporation or by the Corporation to SII and/or Holdings
as the case may be shall be paid within 35 days of their invoice date. All such
inter-corporate receivables shall be disclosed by the Corporation to First
Ontario in the monthly reports provided pursuant to this Part 4.0.
11
-11-
4.17 SII MANAGEMENT FEES Except as provided in this section 4.17, monthly
management fees payable by the Corporation to SII ("SII Management Fees") shall
not exceed $20,000 ($US) per month. If Xxxxx Xxxxxxx stays in Thorold and
manages the Thorold facility on the basis of two weeks per month during the
first six months following the date hereof and the Corporation is therefore not
required to hire a plant manager for such period of time, then the SII
Management Fees shall be increased by an amount which is equivalent to half the
salary of a plant manager as allocated in the Cash Flow Plan (as defined in the
Subordinated Loan Agreement). Entitlement to and payment of the SII Management
Fees are subject to the following conditions:
(a) prior to the payment of any SII Management Fees, the
Corporation's Working Capital (as defined in section 4.18
hereof) at the end of the preceding month must exceed
US$130,000;
(b) in addition to the foregoing section 4.17(a), for any time
prior to March 1, 1999:
(i) SII Management Fees shall not be paid unless and
until monthly EBITDA exceeds US$105,000;
(ii) the percentage of SII Management Fees payable will be
determined pro-rata, on the basis of a monthly EBITDA
range of US$105,000 to US$160,000. For example (and
assuming that all other conditions precedent to the
receipt of SII Management Fees have been met):
A. where monthly EBITDA equals or exceeds
US$160,000, SII will be entitled to 100% of
the SII Management Fee for the corresponding
month; and
B. where monthly EBITDA equals or exceeds
US$132,500 SII will be entitled to 50% of
the SII Management Fee for the corresponding
month;
(iii) subject to 4.17 (d), any portion of SII Management
Fees in respect of the period prior to March 1, 1999
and which are not paid during that period shall
accrue and be paid to SII only when and if the
following conditions are met:
A. the Corporation's Working Capital (as
defined in section 4.18 hereof) at the end
of the preceding month exceeds US$130,000;
and
B. the monthly EBITDA exceeds US$105,000;
(c) for any period on or after March 1, 1999, and after payment of
the Subordinated Loan, SII Management Fees may exceed
US$20,000 provided that i) the other conditions precedent set
out in this section are met and ii) the Corporation has a cash
balance of $1,000,000 in a designated and restricted account,
which balance may only be used to pay the Put Price to First
Ontario; and
(d) SII Management Fees shall not be paid or payable, and shall
not accrue, with respect to any month in which First Ontario
fails to receive any payment which is due from the
Corporation, including interest or principal ("Default
Month"). For greater certainty, the right to receive any SII
Management Fees which would otherwise be paid or payable with
respect to a Default Month is waived by SII.
12
-12-
4.18 WORKING CAPITAL. For the purposes of this Part 4.0, "Working Capital"
means the sum of cash, accounts receivable and inventory, less accounts payable,
accrued liabilities and short term bank debt.
4.19 SII BOARD OF DIRECTORS. SII shall pay the First Ontario SII Director
and any First Ontario SII Observer who attend and participate in meetings of the
board of directors of SII on behalf of First Ontario for all reasonable
out-of-pocket costs and expenses associated with such participation as First
Ontario Nominee or observer, as the case may be.
PART 5.0 - SHARE TRANSFERS AND PLEDGES RESTRICTED
5.1 GENERAL PROHIBITION. Except as otherwise permitted by this Agreement or
the Pledge Agreement, no Shareholder shall sell, transfer, assign, pledge,
charge, mortgage or in any other way dispose of or encumber its Shares or its
rights under this Agreement without first complying with all of the provisions
of this Agreement unless, prior to the disposition or encumbrance of its Shares,
all of the Shareholders have consented in writing to such disposition or
encumbrance.
PART 6.0 - PRE-EMPTIVE RIGHTS ON ISSUES FROM TREASURY
6.1 NOTICE OF PROPOSED ISSUE FROM TREASURY. No additional Shares may be
issued from treasury without the consent of First Ontario. If any additional
Shares are to be issued from treasury, the Corporation shall first offer such
Shares (the "Offered Shares") to the Shareholders by a written invitation to
subscribe for the Offered Shares (the "Invitation") setting out reasonable
details of the Corporation's intention to issue additional Shares and the number
and class thereof to be so issued.
6.2 PRE-EMPTIVE RIGHT TO PURCHASE TREASURY STOCK. Each of the Shareholders
shall have the right to purchase its Proportionate Share of the Offered Shares
(rounded to the nearest whole number). The purchase price payable by a
Shareholder pursuant to this section shall be a price at least as favourable as
the price at which the offered shares are offered to any other parties. The
Shareholders shall have 30 Business Days from their receipt of the Invitation in
which to take up and pay for all or any part of the number of the Offered Shares
that they are entitled to purchase.
6.3 SALE OF THE REMAINING SHARES. In the event that any of the Offered
Shares have not been taken up and paid for by the Shareholders within the time
limit stipulated in section 6.2 (the "Residual Shares") then the Residual Shares
may be issued to such Persons acting at Arm's Length with the Corporation and
its Shareholders as the directors in their discretion determine, provided that
such Persons execute and deliver a Confirmation and Acknowledgement and provided
that any such issue of the Residual Shares must be completed within 60 Business
Days of the Invitation given with respect to the Offered Shares.
PART 7.0 - SALE OF SHARES SUBJECT TO
RIGHT OF FIRST REFUSAL AND TAG ALONG RIGHTS
7.1 DEFINED TERMS USED IN THIS PART. For the purposes of this Part 7.0, the
following terms shall have the following meanings respectively:
(a) "OVER-SUBSCRIBING PURCHASER" means a Purchasing Shareholder
which has offered to purchase more than its Pro Rata
Entitlement in its Purchase Notice (as defined in section 7.5
hereof);
13
-13-
(b) "PURCHASING SHAREHOLDER" means a Remaining Shareholder (as
defined in section 7.2 hereof) which has delivered a Purchase
Notice;
(c) "PRO RATA ENTITLEMENT" means, with respect to each particular
Purchasing Shareholder, a number of Shares equal to the
product obtained by multiplying the number of Offered Shares
(as defined in section 7.2 hereof) by a fraction, the
numerator of which is the number of Shares held by the
particular Purchasing Shareholder and the denominator of which
is the total number of Shares held by all the Purchasing
Shareholders; and
(d) "UNDER-SUBSCRIBING PURCHASER" means a Purchasing Shareholder
which has offered to purchase less than its Pro Rata
Entitlement in its Purchase Notice.
7.2 SALE SUBJECT TO FIRST RIGHT OF REFUSAL AND TAG ALONG. If any
Shareholder (the "Selling Shareholder") receives a bona fide written offer (the
"Offer") from any Person (the "Third Party Purchaser") to purchase all or any
part of the Shares owned by the Selling Shareholder (the "Offered Shares") which
Offer is conditionally accepted by the Selling Shareholder, the Selling
Shareholder shall forthwith give notice of the Offer (the "Sale Notice") to the
Corporation and to the other Shareholder(s) (the "Remaining Shareholders").
7.3 CONTENTS OF THE NOTICE. The Sale Notice shall set out:
(a) reasonable evidence that the Selling Shareholder has accepted
the Offer subject only to compliance with the provisions of
this Agreement;
(b) the date of closing for the proposed transaction (the
"Transaction Closing Date");
(c) the number of Offered Shares to be sold; and
(d) the terms upon which and the price at which (the "Purchase
Price"), the Offered Shares will be sold pursuant to the
Offer.
7.4 RIGHT TO PURCHASE OFFERED SHARES. Upon the Sale Notice being given,
each of the Remaining Shareholders shall have the right to:
(a) subject to the provisions of sections 7.6 and 7.7 hereof,
purchase all or any part of the Offered Shares for the
Purchase Price, by delivering a Purchase Notice as more
particularly set out in section 7.5 hereof; or
(b) require the Selling Shareholder to purchase the Shares held by
such Remaining Shareholder by delivering a Tag Along Notice as
defined and more particularly set out in section 7.8 hereof.
For greater certainty, where there is more than one Remaining Shareholder, a
Remaining Shareholder may deliver both a Tag Along Notice and a Purchase Notice,
with the effect that, subject to section 7.10 hereof, such a Remaining
Shareholder shall preserve its right to sell under a Tag Along Notice in the
event that the transaction contemplated by the Purchase Notices is not completed
for any reason.
7.5 PURCHASE NOTICE. A Remaining Shareholder may, not later than 25
Business Days after receipt of the Sale Notice, deliver to the Selling
Shareholder a notice in writing (the "Purchase Notice") to purchase a specified
number of the Offered Shares for the Purchase Price on the later of the
Transaction
14
-14-
Closing Date or the first Business Day which is 40 Business Days following
delivery of the Sale Notice to the Remaining Shareholder(s).
7.6 RESOLUTION TO OVER-SUBSCRIPTION. Where more than one Purchasing
Shareholder delivers a Purchase Notice, each such Purchasing Shareholder shall
be entitled to purchase such number of the Offered Shares specified in its
Purchase Notice, unless the aggregate number of Shares to be purchased by all
Purchasing Shareholders as specified in all such Purchase Notices exceeds the
number of the Offered Shares and in that event:
(a) each Under-Subscribing Purchaser shall be entitled to purchase
such number of the Offered Shares specified in its Purchase
Notice; and
(b) each particular Over-Subscribing Purchaser shall be entitled
to purchase that number of Offered Shares equal to the product
obtained by multiplying the difference obtained by subtracting
the number of Shares allocated pursuant to subsection 7.6(a)
above from the total number of Offered Shares by a fraction,
the numerator of which is the number of Shares held by the
particular Over-Subscribing Purchaser and the denominator of
which is the number of Shares held by all the Over-Subscribing
Purchasers.
7.7 PURCHASE NOTICES NOT VALID UNLESS FULLY SUBSCRIBED. The Purchase
Notices shall be void and without effect, unless the aggregate number of Shares
to be purchased pursuant to the Purchase Notices delivered is equal to or
exceeds the number of Offered Shares.
7.8 TAG ALONG NOTICE. A Remaining Shareholder may, not later than 30
Business Days after receipt of the Sale Notice, deliver to the Selling
Shareholder a notice in writing (the "Tag Along Notice") to the Selling
Shareholder requiring the Selling Shareholder to purchase that number of Shares
held by the particular Remaining Shareholder equal to the product obtained by
multiplying the number of Shares held by that particular Remaining Shareholder
by a fraction, the numerator of which is the number of Offered Shares and the
denominator of which is the number of Shares held by the Selling Shareholder for
a purchase price per Share equal to:
(a) in the case of a Remaining Shareholder which is not First
Ontario, the purchase price per Share provided for in the
Offer; and
(b) in the case of a Remaining Shareholder which is First Ontario,
the greater of:
(i) the Sale Value; and
(ii) the purchase price per Share provided for in the
Offer,
on the later of the Transaction Closing Date or the first Business Day which is
45 Business Days following delivery of the Sale Notice to the Remaining
Shareholder(s).
7.9 TAG ALONG EFFECTIVE ONLY IF FIRST RIGHT OF REFUSAL NOT EXERCISED. The
transaction of purchase and sale contemplated by the Tag Along Notice shall be
completed only if the Purchasing Shareholders have not purchased all of the
Offered Shares pursuant to the Purchase Notices.
7.10 DEFAULTING OFFEREE MAY NOT TAG ALONG. A Purchasing Shareholder which
fails to complete the purchase of Offered Shares pursuant to that Purchasing
Shareholder's Purchase Notice shall not have the right to participate in the
sale of its Shares pursuant to a Tag Along Notice.
15
-15-
7.11 CONDITION PRECEDENT TO SALE BY SELLING SHAREHOLDER. If the Selling
Shareholder shall fail to complete the purchase of the Shares of a Remaining
Shareholder as contemplated by a Tag Along Notice, none of the Offered Shares
shall be transferred to the Third Party Purchaser pursuant to the Offer.
7.12 OBLIGATION RELEASED IF THIRD PARTY DEFAULTS. The obligation of the
Selling Shareholder to purchase and the Remaining Shareholder to sell pursuant
to either a Purchase Notice or a Tag Along Notice shall be released and of no
further effect if the Third Party Purchaser shall neglect or fail to complete
the purchase from the Selling Shareholder contemplated by the Offer.
7.13 WHAT SHARES CAN BE SOLD TO THE THIRD PARTY PURCHASER. Provided that the
Selling Shareholder has complied with the provisions of this Part 7.0 and has
purchased all Shares tendered to the Selling Shareholder pursuant to all Tag
Along Notices, the Selling Shareholder may sell the Offered Shares to the Third
Party Purchaser on the later of:
(a) the date fixed in section 7.8 hereof for the completion of the
Tag Along Notice transaction, or
(b) the Transaction Closing Date,
for a price equal to the Purchase Price and on other terms no more favourable to
the Third Party Purchaser than those set forth in the Notice, provided that the
Third Party Purchaser shall execute and deliver a Confirmation and
Acknowledgment prior to the completion of such transaction.
7.14 EFFECT OF CONFIRMATION & ACKNOWLEDGMENT. Any Person executing a
Confirmation & Acknowledgment shall be deemed to be an original party to this
Agreement and shall be bound by its terms and shall have the benefit of its
provisions.
PART 8.0 - DRAG ALONG OBLIGATIONS
8.1 TAKEOVER BID RECEIVED. If the Corporation or any of the Shareholders
receives a bona fide written all cash offer from any Person who is at Arm's
Length to purchase all but not less than all of the Shares (a "Takeover Offer"),
the Person in receipt of the Takeover Offer shall forthwith provide written
notice and details of the same to all the other Shareholders. The Shareholders
and/or their respective representatives shall meet to discuss the Takeover Offer
as soon as possible and in any event within 15 Business Days of receiving such
notice.
8.2 NOTICE OF ACCEPTANCE OR REJECTION. Within 25 Business Days after the
discussion of the Takeover Offer contemplated by section 8.1, each Shareholder
shall indicate by notice in writing to the other Shareholders whether such
Shareholder proposes to accept or reject the Takeover Offer.
8.3 MINORITY SELLER SITUATION. If Shareholders who own fifty (50%) percent
or less of the Shares (which Shareholders are collectively referred to as the
"Minority Sellers") wish to accept the Takeover Offer, then the Minority Sellers
shall have the right exercised by notice in writing to the other Shareholder(s)
(the "Demand Notice") to require the other Shareholder(s) to purchase the Shares
of the Minority Sellers on terms and conditions equivalent to those of the
Takeover Offer, provided that notwithstanding any terms in the Takeover Offer to
the contrary, the Transaction Closing Date for the transaction shall be the
earlier of:
(i) the transaction closing date provided for in the
Takeover Offer; and
16
-16-
(ii) 30 days following delivery of the Drag Along Notice.
8.4 MAJORITY SELLER SITUATION. If Shareholders who own more than fifty
(50%) percent of the Shares (which Shareholders are collectively referred to as
the "Majority Sellers") wish to accept the Takeover Offer, then the Majority
Sellers shall have the right exercised by notice in writing to the other
Shareholder(s) (the "Drag Along Notice") to require the other Shareholder(s) to
sell their Shares pursuant to the terms and conditions of the Takeover Offer,
provided that:
(a) First Ontario may require the Corporation to repay the balance
of the Subordinated Loan then outstanding contemporaneously
with the completion of the transaction of purchase and sale;
and
(b) if the purchase price per share payable pursuant to the
Takeover Offer is less than the Sale Value, the Majority
Sellers shall pay to First Ontario on the Transaction Closing
Date of the Takeover Offer an amount for each Share sold by
First Ontario pursuant to the Takeover Offer equal to the
difference between the Sale Value and the amount paid to First
Ontario pursuant to the Takeover Offer.
8.5 SECRETARY'S AUTHORITY. If any Shareholder defaults in that
Shareholder's obligations to transfer Shares as contemplated by this Part 8.0
(which Shareholder is referred to in this Part 8.0 as the "Defaulting
Shareholder"), the Secretary of the Corporation is authorized and directed to
receive the purchase money due to such Defaulting Shareholder and to thereupon
cause the names of purchasers of the Defaulting Shareholder's Shares to be
entered in the registers of the Corporation as the holders of such Shares. The
said purchase money shall be held in trust by the Corporation on behalf of the
Defaulting Shareholder and not commingled with the Corporation's assets, except
that any interest accruing thereon shall be for the account of the Corporation.
The receipt by the Secretary of the Corporation for the purchase money shall be
a good discharge to the purchasers and, after their names have been entered in
the registers of the Corporation in exercise of the aforesaid power, the
validity of the proceedings shall not be subject to question by any person. On
such registration, the Defaulting Shareholder shall cease to have any right to
or in respect of the purchased Shares except the right to receive, without
interest, the purchase price received by the Secretary of the Corporation.
PART 9.0 - ADDITIONAL FINANCING
9.1 The Shareholders shall not be required to provide, directly or
indirectly, any additional financing to the Corporation.
9.2 If First Ontario shall have called the Guarantee and Postponement of
Claim granted by Holdings on March 20, 1998 and the Corporation requires
additional funds to finance its operations, then:
(a) if all Shareholders wish to contribute additional funds, each
Shareholder shall contribute additional funds to the
Corporation, pro rata based on its respective Proportionate
Share, by way of subscription for shares, loan or otherwise
and upon such terms and conditions as shall be agreed upon at
the time of each such contribution; or
(b) if only First Ontario wishes to contribute additional funds,
First Ontario shall contribute additional funds to the
Corporation by way of subscription for shares in exchange for
an additional number of shares of the Corporation to be
determined by a third party valuator.
17
-17-
PART 10.0 - FIRST ONTARIO PUT
10.1 PUT RIGHT. At any time following the occurrence of any of the following
events:
(i) maturity of the Subordinated Loan;
(ii) full repayment of the Subordinated Loan;
(iii) sale of all or substantially all of the assets or
shares of the Corporation;
(iv) sale of or change in control of Holdings;
(v) the death of Xxxxx X. Xxxxxxx;
(vi) if Xxxxx X. Xxxxxxx:
A. sells all or substantially all of his shares
in SII
B. holds less than 10% of the common shares in
the capital of SII (other than as a result
of dilution arising from the issue of new
shares from Treasury); or
C. if he ceases to hold a senior executive
position with SII; or
(vii) a Major Default as defined in section 12.1 of this
Agreement;
(any such event being a "Put Event"), First Ontario shall have the
right upon written notice to the Corporation (the "Put Notice"), to
require the Corporation to purchase all of the Shares held by it (the
"Put Shares").
10.2 PUT PRICE. The purchase price payable per share for the Put Shares (the
"Put Price") shall be the greater of (A) $1.0 million divided by the number of
Put Shares ; and (B) the product of First Ontario's Equity Interest and the
greater of the following amounts:
(i) 3.0 times EBITDA for the 12-month period prior to the
Purchase plus cash, less interest bearing debt and
other financing senior to the common equity;
(ii) 3.0 times the average annual EBITDA for the 2 years
prior to the Purchase plus cash, less interest
bearing debt and other financing senior to the common
equity;
(iii) 0.64 times the average annual revenue for the 12
month period prior to the Purchase plus cash, less
interest bearing debt and other financing senior to
the common equity; and
(iv) the value of the Corporation's shares based on the
price at which the business is sold in an arm's
length transaction,
divided by the number of common shares of the Corporation then
outstanding.
For the purposes of calculating the Put Price, EBITDA and interest bearing debt
will be adjusted (normalized) as follows:
18
-18-
(i) EBITDA will be increased to reflect the amount by
which any SII Management Fees exceed US$20,000 in any
month; and
(ii) Interest bearing debt will be decreased to reflect
the amount by which any SII Management Fees exceed
US$20,000 in any month.
10.3 PAYMENT OF THE PUT PRICE. The transaction contemplated by the Put
Notice and the Put Price shall be paid and satisfied by delivery of a certified
cheque payable to First Ontario within 60 days of the date of the delivery of
the Put Notice (the "Put Closing Date"); provided that if the sole event giving
rise to First Ontario's right to deliver the Put Notice is the death of Xxxxx X.
Xxxxxxx, the Put Closing Date shall be the date which is on or before the 90th
day following delivery of the Put Notice.
10.4 RESCIND PUT NOTICE. If the Put Price, as determined by the auditors of
the Corporation, shall be materially different from the amount reasonably
anticipated by First Ontario in reliance upon unaudited management financial
statements available at the time the Put Notice was delivered, then First
Ontario shall have the right to rescind the Put Notice and shall, in that event,
not be required to complete the transaction therein contemplated.
10.5 EFFECT OF AN IPO. If the Corporation shall offer its Shares through an
IPO at any time prior to the delivery of a Put Notice by First Ontario
(a) First Ontario shall have the right to require all of the
Shares held by it to be qualified in the prospectus as a
secondary offering; and
(b) from and after the IPO, First Ontario shall no longer have the
right to deliver a Put Notice.
PART 11.0 - EQUITY EXCHANGE BY FIRST ONTARIO
11.1 EQUITY EXCHANGE. At any time after the earlier of: (i) the occurrence
of a Major Default; or (ii) March 20, 1999, at its option, First Ontario shall
have the right, upon written notice to the Corporation and SII, (the "Exchange
Notice") to exchange all or any part of its Shares in the Corporation for voting
common shares of SII (the "Exchange Option"). For the purposes of the exercise
of the Exchange Option:
(a) First Ontario's equity in the Corporation will be valued at
the Put Price;
(b) First Ontario will be issued voting common shares in SII the
value of which shall be based on a price per share of 66% of
the average price quoted for SII shares during the twenty (20)
trading days preceding the delivery of the Exchange Notice;
and
(c) First Ontario's equity in SII acquired pursuant to the
Exchange Option shall not exceed 3% of the issued and
outstanding common share ownership of SII.
11.2 SUBORDINATED LOAN CONVERSION PROVISION. Upon the happening of a Major
Default or any other event of default, following which First Ontario makes a
demand pursuant to the SII Guarantee, should SII fail to honour the SII
Guarantee within ten (10) Business Days, First Ontario shall have the right,
upon written notice to the Corporation and SII, (the "Conversion Notice") to
convert all or any part of the principal portion of the Subordinated Loan and
all accrued but unpaid interest into voting common shares of SII (the
"Conversion Option"). For the purposes of the exercise of the Conversion Option,
First Ontario will be issued voting common shares in SII, the value of which
shall be based on a price per share of 66% of the average price quoted for SII
shares during the twenty (20) trading days proceeding the
19
-19-
delivery of the Conversion Notice. First Ontario's equity in SII acquired
pursuant to the Conversion Option shall not exceed 3% of the issued and
outstanding common share ownership of SII.
11.3 EXCHANGE DEFERRAL. Unless there shall have been a Major Default which
has not been remedied, in the event that SII pursues an Equity Offering, First
Ontario will defer any exercise of the Exchange Option or Conversion Option for
a period of twelve (12) months from the closing date of the Equity Offering, or
such other period as the majority of Shareholders approve. SII will use its best
efforts to ensure that any shares which have been, or may be, issued pursuant to
First Ontario's exercise of the Exchange Option and/or Conversion Option (the
"SII Shares") will be qualified pursuant to the prospectus filed in connection
with the Equity Offering, so that the SII Shares can be freely traded. SII
further covenants that it will use its best efforts to sell the SII Shares, if
requested by First Ontario, as part of any such Equity Offering.
PART 12.0 - DEFAULT
12.1 REMEDIES ARISING UPON DEFAULT. If:
(a) the other Shareholder(s) shall default in their obligation to
purchase the Shares of the Minority Sellers as contemplated by
section 8.3;
(b) the Corporation shall fail to honour the Put Notice or default
in its obligation to pay the purchase price for the Put Shares
as contemplated in Part 10.0;
(c) the Corporation shall be in default of its obligation under:
(i) sections 4.11 [permit access],
(ii) 4.12 [permit access],
(iii) 4.13 [access of monitor] or
(iv) 4.14 [corporation actions requiring prior approval by
First Ontario]
and such default remains unremedied, if the default is capable
of remedy, for more than 5 days following First Ontario
providing written notice of default to the Corporation;
(d) SII, Holdings or the Corporation shall be in default of any of
their obligations under this Agreement (other than the
obligations of the Corporation referred to in subsection
12.1(c) hereof) and such default remains unremedied for more
than 45 days following First Ontario providing written notice
of the default to SII, Holdings or the Corporation as the case
may be;
(e) the Corporation shall be in default of the provisions of:
(i) subsection 9.1(p) [Change in Ownership of the
Corporation];
(ii) subsection 9.1(j) [the Corporation becomes
insolvent];
(iii) subsection 9.1(k) [the Corporation makes a Voluntary
Assignment into Bankruptcy, etc.];
20
-20-
(iv) subsection 9.1(l) [the Corporation is the subject to
Involuntary Petition Proceedings which are not
defended or stayed within 30 days]; or
(v) subsection 9.1(m) [a receiver is appointed over the
assets of the Corporation]
of the Subordinated Loan Agreement;
(f) the Corporation shall be in default of any of the provisions
of the Subordinated Loan Agreement (other than those
provisions referred to in subsection 12.1(e) hereof), and such
default remains unremedied for more than 45 days following
First Ontario providing written notice of default to the
Corporation;
(g) at any time, the First Ontario SII Director shall cease to be
a member of the board of directors of SII, other than as a
result of the death, incapacity or resignation of First
Ontario's nominee and the neglect or refusal of First Ontario
to put forward a replacement for election or appointment;
(h) if First Ontario has elected to appoint a First Ontario SII
Observer to the board of directors of SII, if the First
Ontario Observer is not provided with timely notices of
meetings and the materials circulated by SII to its directors
in advance of meetings, the opportunity to attend meetings and
participate at meetings (provided that such observer shall not
have the right to vote at any such meetings;
(i) the occurrence of any of the following events:
(i) a sale or change in control of SII or Holdings;
(ii) SII shall fail to raise any of the additional capital
for SII as contemplated in the Cash Flow Plan, or be
late in raising the said capital by more than 60 days
in any particular case;
(iii) the failure of SII to commence and maintain
operations at its Stephen's facility in Arkansas, on
or before October 1, 1998;
(iv) SII or Holdings becomes bankrupt or voluntarily seeks
relief from creditors under or pursuant to any
bankruptcy, insolvency or reorganization statute or
proceeding; or
(v) a custodian, receiver, receiver-manager or trustee is
appointed for SII or Holdings or for any substantial
portion of the business or assets of SII or Holdings;
(any of the events enumerated in subsections 12.1(a) through (i) inclusive being
a "Major Default"), from and after such Major Default and so long as the same
shall continue, First Ontario, in addition to any other remedies available:
(i) shall thereafter not be bound by the provisions of
section 5.1 hereof; and
(ii) may make such arrangements as it deems necessary to
arrange for new financing for the Corporation.
21
-21-
PART 13.0 - GENERAL TERMS & PROVISIONS
13.1 TERMS OF SALE. Except as otherwise provided in this Agreement, whenever a
transaction of purchase and sale of any of the Shares shall be effected under
the provisions of this Agreement the following shall apply to the transaction of
purchase and sale notwithstanding any other term herein to the contrary:
(a) the vendor of the Shares shall convey the Shares free and
clear of all claims and encumbrances whatsoever;
(b) the transaction of purchase and sale shall be completed as
herein provided or if no specific time for closing is
contemplated, 20 Business Days following the expiry of the
time stipulated herein for the applicable exercise of any
right, option or privilege to purchase Shares unless otherwise
agreed in writing by the parties to the transaction of
purchase and sale;
(c) the purchase price shall be paid by the purchaser to or to the
order of the vendor by certified cheque on the closing date;
(d) upon payment of the monies payable on the closing date, the
vendor shall execute and deliver a transfer of her, his or its
Shares to the purchaser, or as the purchaser may in writing
direct, and upon such payment the purchaser is hereby
irrevocably appointed and constituted attorney for the vendor
with full power and authority to execute and deliver such
transfers and other documents as may be necessary or desirable
to complete such transaction of purchase and sale;
(e) except in the case of a sale made pursuant to the Pledge
Agreement hereof, if at the time of any sale, any vendor shall
be indebted to the Corporation, the purchaser shall have the
right out of the purchase money payable by her, him or it to
pay, satisfy and discharge such indebtedness and by such sum
to reduce the amount payable by him or it to the vendor;
(f) if at the time of such sale, the vendor shall be liable or
responsible for any debts, liabilities or obligations incurred
by or on behalf of the Corporation, as guarantor or otherwise,
the purchaser shall cause any and all such guarantees to be
delivered up and canceled or shall indemnify the vendor
against and save her, him or it harmless from all claims
arising out of such guarantees or other obligations;
(g) at the time of such sale, the vendor shall receive from the
Corporation a release of any and all claims which it may have
against her, him or it as a Shareholder and the vendor shall
deliver to the Corporation a release of any and all claims
(other than claims relating to unpaid shareholder loans) which
she, he or it may have against the Corporation as a
shareholder, save and except any claims arising out of a
portion of the purchase price remaining unpaid;
(h) the vendor shall provide the purchaser with a statutory
declaration as to the vendor's status as a resident of Canada
within the meaning of the Income Tax Act (Canada) or other
evidence of compliance with the withholding obligations of
section 116 of the said Act satisfactory to the purchasing
party (acting reasonably);
22
-22-
(i) except in the case of sales made pursuant to the Pledge
Agreement hereof, all costs and expenses of the Corporation
shall be paid by the Corporation; and
(j) the sale shall be completed in the offices of the solicitor
for the Corporation.
PART 14.0 - ENFORCEMENT OF THE AGREEMENT
14.1 CARRYING OUT THE AGREEMENT. The Shareholders shall at all times carry
out the provisions of this Agreement.
14.2 NOMINEES. The Shareholders shall use their best efforts to cause their
respective director nominees to act and vote as directors of the Corporation in
order that the purpose, intent and provisions of this Agreement shall be carried
out.
14.3 ACKNOWLEDGMENT. The Corporation confirms its knowledge of this
Agreement and will carry out and be bound by the provisions of this Agreement to
the full extent that it has the capacity and power at law to do so.
14.4 ENDORSEMENT ON SHARE CERTIFICATES. Share certificates of the
Corporation shall bear the following language either as an endorsement or on the
face thereof:
"The shares represented by this certificate are subject to all the
terms and conditions of an agreement made as of March 20, 1998, which
restricts transfers of the shares represented by this certificate, a
copy of which is on file at the registered office of the Corporation
and shall be made available on demand to the holder of the shares
represented by this certificate without charge."
PART 15.0 - ARBITRATION
15.1 ARBITRATION. If at any time during the continuance of this Agreement or
after the termination thereof, any dispute, difference or question shall arise
between the parties hereto or their heirs, executors, administrators, successors
or permitted assigns concerning:
(a) the construction, interpretation or effect of this Agreement
or any agreement or covenant entered into pursuant to this
Agreement;
(b) the termination of this Agreement or any agreement or covenant
entered into pursuant to this Agreement; or
(c) the rights or obligations of any of the parties hereto or
their heirs, executors, administrators, successors or
permitted assigns,
then every such dispute, difference or question shall be submitted to and
settled by arbitration.
15.2 INITIATION OF ARBITRATION PROCEEDINGS. If any party wishes to have any
matter arbitrated in accordance with the provisions of this Agreement, it shall
give written notice to the other party specifying particulars of the matters in
dispute.
23
-23-
15.3 SELECTION OF THE ARBITRATOR. The arbitration shall be conducted by a
single arbitrator agreed upon by the parties to the dispute. If, within 5
Business Days after notice of the matter has been given by one party to the
other, the parties cannot agree upon a single arbitrator, then the arbitration
shall be conducted by a single arbitrator appointed by a judge of the Ontario
Court, General Division in accordance with the terms of the Arbitration Act as
amended from time to time.
15.4 ARBITRATION HEARINGS. Meetings and hearings of the arbitration shall
take place in the City of Toronto, Ontario and a party to the arbitration may be
represented at any meetings or hearings by legal counsel.
15.5 THE DECISION. The decision of the arbitrator shall be final and binding
upon the parties and shall not be subject to any appeal or review procedure
provided that the arbitrator has proceeded in accordance with the rules of
natural justice.
15.6 COSTS. The arbitrator may make any order it sees fit as to the costs of
the arbitration and the party to bear such costs.
15.7 ARBITRATION ACT. The rules and procedures of the Arbitration Act, as
amended from time to time, shall apply to any arbitration conducted hereunder,
except to the extent that they are modified by the express provisions of the
rules set out herein.
PART 16.0 - GENERAL
16.1 BENEFIT & BINDING. This Agreement shall enure to the benefit of and be
binding upon the respective heirs, executors, administrators, successors and
permitted assigns of the parties hereto.
16.2 ASSIGNMENT. Holdings may not assign its right or obligations under this
Agreement without the prior written consent of all of the other parties hereto.
16.3 NOTICES. Any demand, notice or other communication (the
"Communication") to be given in connection with this Agreement shall be given in
writing and may be given by personal delivery, by registered mail or by
transmittal by facsimile addressed to the recipient as follows:
To First Ontario: 000 Xxxxxxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxx Xxxxxxx
Facsimile: 000-000-0000
with a copy to: Gowling, Strathy & Xxxxxxxxx
Suite 4900, P.O. Box 000
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: R. Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
24
-24-
To the Corporation: Striker Paper Canada, Inc.
000 Xxxxxx Xxxxxx Xxxxx
X.X. Xxx 00
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Mr. Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
with a copy to: Lang Xxxxxxxx
BCE Place
0000 -000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Mr. Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
To Holdings or SII: c/o Striker Industries, Inc.
Xxx Xxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx
00000
Attention: Mr. Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
with a copy to: Lang Xxxxxxxx
BCE Place
0000 -000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Mr. Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
or such other address or facsimile number as may be designated by notice by any
party to the other. Any Communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof
and, if given by registered mail, on the 5th Business Day following the deposit
thereof in a governmental public post box or governmental post office and, if
given by facsimile, on the day of transmittal thereof. If the party giving any
Communication knows or ought reasonably to know of any difficulties with the
postal system which might affect the delivery of mail, any such Communication
shall not be mailed but shall be given by personal delivery or by facsimile.
16.4 CALCULATION OF TIME. 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 date which is the reference date in calculating such period shall
be excluded. If the last day of such period is not a Business Day, then the time
period in question shall end on the first Business Day immediately following
such non-Business Day.
25
-25-
16.5 FURTHER ASSURANCES. The parties hereto shall from time to time execute
and deliver all such further documents and do all acts and things as the other
parties may reasonably require to effectively carry out or better evidence or
perfect the full intent and meaning of this Agreement.
16.6 CONFLICT WITH ARTICLES OR BY-LAWS. In the event of any inconsistency
between this Agreement and the Articles or by-laws of the Corporation, the
provisions of this Agreement shall prevail and the parties shall forthwith make
all changes to the Articles or the by-laws as are necessary to make them not
inconsistent with the provisions of this Agreement.
16.7 COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original but all of which
shall constitute but one and the same instrument.
IN WITNESS WHEREOF the parties have executed this Agreement.
STRIKER INDUSTRIES, INC.
Per:
------------------------------------
Xxxxxxx Xxxx
STRIKER HOLDINGS (CANADA) INC.
Per:
------------------------------------
Xxxxxxx Xxxx
FIRST ONTARIO LABOUR SPONSORED
INVESTMENT FUND LTD.
Per:
------------------------------------
Xxx Xxxxxxx
STRIKER PAPER CANADA, INC.
Per:
------------------------------------
Xxxxxxx Xxxx
May 18, 1998
26
SCHEDULE A - DEFINITIONS
(a) "ACT" means the Business Corporations Act (Ontario), as
amended from time to time;
(b) "AGREEMENT" means this agreement and all schedules attached
hereto and all amendments made hereto made by written
agreement among the parties to this agreement;
(c) "ARM'S LENGTH" has the meaning attributed to that term in the
Income Tax Act (Canada) as amended from time to time;
(d) "ARTICLES" means the articles of incorporation of the
Corporation dated December 30, 1994 as amended from time to
time;
(e) "BUSINESS" means the business of the Corporation of
manufacturing and selling dry felt products;
(f) "BUSINESS "DAY" means a day on which banks are open for
business in Toronto, Ontario other than a Saturday, Sunday or
such other day as banks in Toronto, Ontario are authorized or
required to be closed for business;
(g) "CASH FLOW PLAN" means that plan provided by the Corporation
to First Ontario, a copy of which is attached hereto as
Schedule N to the Subordinated Loan Agreement;
(h) "CLOSING DATE" means March 20, 1998;
(i) "CONFIRMATION AND ACKNOWLEDGMENT" means a duly executed and
delivered confirmation and acknowledgment in the form of
Schedule "B" attached to this Agreement;
(j) "DIRECTORS", "BOARD OF DIRECTORS" OR "BOARD" means the persons
who are from time to time, duly elected as directors of the
Corporation;
(k) "EBITDA" means, in respect of any particular Fiscal Period,
the aggregate of each of the following for such period:
(i) the Net Income;
(ii) Interest Expenses;
(iii) income tax expenses, including deferred income taxes;
27
-2-
(iv) depreciation and amortization expenses and other
non-cash expenses; and
(v) Lease Payments.
all as determined at the end of the said Fiscal Period by the
auditors of the Corporation in accordance with GAAP.
(l) "ENVIRONMENTAL ACTIVITY" means any past, present or future
activity, event or circumstance in respect of a Contaminant,
including, without limitation, its storage, use, holding,
collection, purchase, accumulation, assessment, generation,
manufacture, construction, processing, treatment,
stabilization, disposition, handling or transportation or its
Release into the natural environment including the movement
through or in the air, soil, subsoil, surface water or ground
water.
(m) "ENVIRONMENTAL LAWS" means any and all federal, provincial,
municipal, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits,
licences, agreements or other governmental restrictions having
the force of law relating to the environment, occupational
health and safety, health protection or any Environmental
Activity
(n) "ENVIRONMENTAL ORDERS" shall include applicable orders,
decisions, or the like rendered by any ministry, department or
administrative or regulatory agency relating to Environmental
Laws;
(o) "FIRST ONTARIO SII DIRECTOR" means an individual nominated by
First Ontario to be appointed or elected to the board of
directors of SII;
(p) "FIRST ONTARIO SII OBSERVER" means, the individual nominated
by First Ontario to act, in substitution for a First Ontario
SII Director, as an observer to the proceedings and meetings
of the board of directors of SII;
(q) "FIRST ONTARIO'S EQUITY INTEREST" means First Ontario's
Proportionate Share;
(r) "EQUITY OFFERING" means a distribution of shares representing
not less than 20% of the equity of SII (calculated on a fully
diluted basis) through a prospectus offering;
(s) "FISCAL PERIOD" means a period comprising four consecutive
Fiscal Quarters.
(t) "FISCAL QUARTER" means any of the fiscal quarters of the
Corporation ending on the last day of March, June, September
and December in each year.
28
-3-
(u) "FISCAL YEAR" of an entity means the 12 month period ending on
the fiscal-year end of that entity and in the case of the
Corporation the 12 month period ending on December 31 of each
year, provided however the Fiscal Year ending December 31,
1998 shall be deemed to include the period from the Closing
Date to and including December 31, 1997;
(v) "GAAP" means generally accepted accounting principles which
are in effect in Canada from time to time applied in a
consistent manner from period to period;
(w) "HOLDINGS BOARD" means the board of directors of Holdings;
(x) "HOLDINGS GUARANTEE" means a certain guarantee from Holdings
to First Ontario, entered into as of March 20, 1998 whereby
Holdings has guaranteed the obligations of the Corporation
under the Subordinated Loan Agreement;
(y) "INTEREST EXPENSES" means, for any particular Fiscal Period,
the amount which would, in accordance with GAAP, be classified
on the income statement of the Corporation for such period as
gross interest expense.
(z) "IPO" means an initial public offering of shares representing
not less than 40% of the participating equity of the
Corporation (calculated on a fully diluted basis) through a
prospectus offering;
(aa) "LEASE PAYMENTS" means, for any particular period, the amount
which would, in accordance with GAAP, be classified on the
income statement of the Corporation for such period as
operating or non-capital lease payment expenses.
(bb) "MAJOR DEFAULT" shall have the meaning ascribed to that term
in section 12.1;
(cc) "NET INCOME" means, for any particular Fiscal Period, the
amount which would be classified on the income statement of
the Corporation for such period as net income in accordance
with GAAP.
(dd) "PERSON" includes an individual, a partnership, a joint
venture, a trust, an unincorporated organization, a company, a
corporation, an association, a government or any department or
agency thereof and any other incorporated or unincorporated
entity;
(ee) "PLEDGE AGREEMENT" means the pledge agreement dated the date
hereof between First Ontario and Holdings;
29
-4-
(ff) "PROPORTIONATE SHARE" means, with respect to any Shareholder,
a fraction, the numerator of which is the total number of
Shares then owned by that particular Shareholder and the
denominator of which is the total number of Shares then owned
by all of the Shareholders;
(gg) "PURCHASE" means, in the applicable context, a purchase of the
Put Shares by the Corporation pursuant to Part 10 or the
exercise of the Equity Exchange Option by First Ontario
pursuant to Part 11;
(hh) "RELATED PARTIES" means Persons who are Affiliates of the
Corporation or Subsidiaries of the Corporation or who are
otherwise related to the Corporation within the meaning of the
Bankruptcy and Insolvency Act (Canada);
(ii) "RELEASE" includes discharge, spray, inject, inoculate,
abandon, deposit, spill, leak, seep, pour, emit, empty, throw,
dump, place, escape, xxxxx, disperse, migrate and exhaust, and
when used as a noun (as applicable) has a similar meaning.
(jj) "SALE" means the transaction of purchase and sale of the
Shares held by First Ontario pursuant to a Tag Along Notice or
a Demand Notice;
(kk) "SALE AGENT" means Xxxxxxx & Company Ltd., or such other
qualified independent investment dealer, investment banker or
business broker selected by First Ontario;
(ll) "SALE VALUE" means the value of the Corporation's common
Shares calculated on a per share basis as the greater of (A)
$1,000,000 divided by the number of the Corporations common
shares owned by First Ontario; and (B) the greater of:
(i) 4.0 times EBITDA for the 12-month period prior to the
Sale plus cash, less interest bearing debt and other
financing senior to the Corporation's common equity;
(ii) 4.0 times the average annual EBITDA for the 2 years
prior to the Sale plus cash, less interest bearing
debt and other financing senior to the Corporation's
common equity; and
(iii) the value of the Corporation's shares based on the
price at which the Business is sold in an Arm's
Length transaction,
divided by the number of common shares of the Corporation then
outstanding;
30
-5-
(mm) "SENIOR LOAN AGREEMENTS" means the following loan agreements
entered into between the Corporation or SII and their secured
lenders (collectively, the "Secured Lenders"):
(i) security agreement between the Corporation and
Laurentian Bank of Canada ("Laurentian") dated as of
July 13, 1995, including forbearance agreement dated
August 11, 1997 among the Corporation, SII,
Laurentian and Ontario Development Corporation, as
amended by a letter dated September 11, 1997, and the
credit agreement dated March 10, 1998 among the
Corporation, SII, Laurentian and Ontario Development
Corporation;
(ii) security agreement dated as of April 25, 1995 between
SII and Finova Capital Corporation and others,
including a forbearance agreement dated as of the
20th day of October, 1997; and
(iii) security agreement to be entered into among the
Corporation, Credit Union Central of Ontario Limited
and So-Use Credit Union Limited pursuant to a term
sheet dated December 23, 1997 among the Corporation,
Credit Union Central of Ontario Limited and So-Use
Credit Union Limited providing for an operating line.
For greater certainty, the term Senior Loan Agreements shall
include any agreements which provide that the senior lender
will forbear from the enforcement of its rights and remedies
under the loan agreement or any agreements which amend,
supplement or modify the loan agreement and/or such
forbearance agreements;
(nn) "SHARES" means all of the issued and outstanding shares of the
capital stock of the Corporation now or hereafter issued and
includes any shares into which such shares may be changed,
reclassified, subdivided, consolidated or converted, any
shares which are received by the Shareholders as a stock
dividend or as a distribution payable in shares of the
Corporation and any shares of the Corporation or any successor
or continuing corporation to the Corporation which may be
received by the Shareholders on a reorganization,
amalgamation, consolidation or merger, statutory or otherwise;
(oo) "SHAREHOLDERS" means, collectively, Holdings and First Ontario
together with such other Persons as may acquire Shares
pursuant to the provisions of this Agreement and become
parties to this Agreement;
31
-6-
(pp) "SUBORDINATED LOAN" means a term loan in the principal amount
of $1,500,000 made by First Ontario to the Corporation
pursuant to the Subordinated Loan Agreement; and
(qq) "SUBORDINATED LOAN AGREEMENT" means a certain loan agreement
of even date made between the Corporation and First Ontario
pursuant to which First Ontario agrees, inter alia, to advance
the Subordinated Loan.
32
SCHEDULE B
CONFIRMATION AND ACKNOWLEDGMENT
The undersigned hereby confirms receipt of a true copy of a certain shareholders
agreement made as of March 20, 1998 entered into among FIRST ONTARIO LABOUR
SPONSORED INVESTMENT FUND LTD., STRIKER PAPER CANADA, INC. and STRIKER
INDUSTRIES, INC., which agreement is referred to herein as the "Shareholders
Agreement".
In consideration of the issue of Shares (as defined in the Shareholders
Agreement) of Striker Paper Canada to the undersigned, the undersigned hereby
agrees to be bound by the terms of the Shareholders Agreement as if the
undersigned had executed the same as an original signatory thereto.
Dated this ____ day of _________, 199_.
------------------------------------
Per:
