BOARD REPRESENTATION AGREEMENT
Exhibit 99.3
Entered into on the 16th day of April, 2009.
BETWEEN:
|
XXXXXX HEALTH INC., having a place of business in the City of Montreal, Province of Quebec (hereinafter called “Xxxxxx”) | |
AND:
|
VICTORIA SQUARE VENTURES INC., having a place of business in the City of Montreal, Province of Quebec (hereinafter called “VSVI”) |
WHEREAS VSVI has agreed to subscribe for senior convertible senior notes of Xxxxxx (the “Notes”);
and
WHEREAS in connection with such subscription of the Notes, Xxxxxx and VSVI wish to formalize their
understanding with respect to the right of VSVI to nominate two (2) representatives to the Board of
Directors of Xxxxxx;
NOW THEREFORE, THIS AGREEMENT WITNESSES THAT in consideration of the premises and the mutual
covenants and conditions contained herein, the parties hereto agree as follows:
| 1. | Right to Appoint Directors. During the Term (as defined below), VSVI shall have the right, but not the obligation, to appoint two (2) persons for election as directors of Xxxxxx (each a “VSVI Nominee” and collectively, the “VSVI Nominees”). In this regard, VSVI shall each year, not more than forty-five (45) days after the end of Xxxxxx’ fiscal year, give written notice to the corporate secretary of Xxxxxx as to the names of the VSVI Nominees to be proposed for election at the next meeting of shareholders of Xxxxxx at which directors are to be elected (the “Notice”). In the event that VSVI fails to provide the Notice in the manner set out above, the two persons named by VSVI in the previous Notice or pursuant to section 2 of this Agreement, as the case may be, shall be deemed to be the VSVI Nominees. VSVI shall provide Xxxxxx with any additional information with respect to the VSVI Nominees that Xxxxxx may reasonably request, including information that may be required for a management information circular of Xxxxxx or corporate or regulatory filings by Xxxxxx. VSVI may give written notice to the corporate secretary of Xxxxxx, not more than forty-five (45) days after the end of Xxxxxx’ fiscal year, that it does not wish to designate one or both of the VSVI Nominees, in which circumstance Xxxxxx will not be required to propose one or both of the VSVI Nominees, as the case may be, for election at the next meeting of shareholders of Xxxxxx at which directors are to be elected. Any such decision by VSVI to not designate one or both of the VSVI Nominees shall not negate any other provision of this Agreement and shall not be construed or interpreted as a waiver by VSVI of its right to designate VSVI Nominees under this Agreement in respect of future fiscal years. |
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| 2. | Initial VSVI Nominees. The parties agree that the initial VSVI Nominees are Xxxxxx Xxxxxxxxxx and Xxxxxxx Xxxxxx. | |
| 3. | Obligations of Xxxxxx. Xxxxxx shall take all commercially reasonable steps, execute all such documents and do all such acts and things necessary to have the VSVI Nominees serve as members of the Board of Directors of Xxxxxx, provided such persons are eligible to serve on the Board of Directors of Xxxxxx. Without limiting the generality of the foregoing, Xxxxxx shall: (i) cause the VSVI Nominees to be included in the management slate of nominees for election to the Board of Directors of Xxxxxx at every meeting of shareholders of Xxxxxx called for that purpose; and (ii) support the VSVI Nominees for election at every meeting of shareholders of Xxxxxx called for that purpose. | |
| 4. | Replacement Nominees. If a VSVI Nominee shall cease to be a director of Xxxxxx for any reason between meetings of the shareholders of Xxxxxx, VSVI shall have the right, but not the obligation, to cause Xxxxxx to fill the vacancy created on the Board of Directors as a result thereof and to cause such VSVI Nominee to be replaced by another nominee to be designated by VSVI, provided such person is eligible to serve on the Board of Directors of Xxxxxx (the “Replacement Nominee”), such Replacement Nominee to hold office until the next meeting of the shareholders of Xxxxxx at which directors of Xxxxxx are elected. If VSVI chooses to exercise the foregoing right, it shall give written notice to the corporate secretary of Xxxxxx as to the name of the Replacement Nominee not more than thirty (30) days after the date on which the VSVI Nominee ceases to be a director of Xxxxxx. VSVI shall provide Xxxxxx with any additional information with respect to the Replacement Nominee that Xxxxxx may reasonably request, including information that may be required for corporate or regulatory filings by Xxxxxx. In the event that VSVI fails to provide a notice in the manner set out above, it shall be deemed to have waived its right to designate a Replacement Nominee in respect of such VSVI Nominee pursuant to this section 4. The failure by VSVI to designate a Replacement Nominee pursuant to this section 4 shall not negate any other provision of this Agreement and shall not be construed or interpreted as a waiver by VSVI of any of its other rights under this Agreement. | |
| 5. | Term of Agreement. This Agreement shall remain in full force and effect for so long as the Notes are outstanding and thereafter for as long as VSVI directly or indirectly holds in the aggregate at least 7.5% of the outstanding common shares of Xxxxxx or directly or indirectly holds other securities of Xxxxxx that are exchangeable, exercisable or convertible for common shares of Xxxxxx, which if exercised would result in VSVI directly or indirectly holding in the aggregate at least 7.5% of the outstanding common shares of Xxxxxx (the “Term”). | |
| 6. | Old Agreement. This agreement replaces and supersedes the board representative agreement between VSVI, Xxxxxx and 1324286 Alberta Ltd dated December 18, 2008 (the “Old Agreement”). VSVI agrees to execute such documents as Xxxxxx may reasonably request to give effect to the provisions of this Section 6. |
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| 7. | Size of Board. Xxxxxx shall take all commercially reasonable steps, execute all such documents and do all such acts and things necessary to have the shareholders of Xxxxxx reduce the size of the Board of Directors of Xxxxxx as and from the next annual general meeting of the shareholders of Xxxxxx (which is scheduled to occur on June 4, 2009) from twelve (12) to eight (8), it being understood that Xxxxxx cannot cause the shareholders to approve such reduction. Thereafter and during the remainder of the Term, Xxxxxx shall take all commercially reasonable steps, execute all such documents and do all such acts and things as are necessary to oppose any measure, act or initiative which if successful would result in any change to the size of the Board of Directors of Xxxxxx from eight (8). | |
| 8. | Disclosure. In the event that Xxxxxx is required to publicly disclose the existence of this Agreement or the contents thereof, whether by way of press release, management information circular or otherwise, Xxxxxx shall so advise VSVI in writing. VSVI shall have the right, acting reasonably, to approve in advance any such public disclosure by Xxxxxx. | |
| 9. | Further Acts. Each of the parties hereto shall from time to time and at all times hereafter do such further acts and execute and deliver all such further deeds and documents as shall be reasonably required in order to give effect to this Agreement. | |
| 10. | Governing Law. This Agreement shall be construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein, and each party accepts the jurisdiction of the courts of the Province of Quebec. | |
| 11. | Signature of Agreement. This Agreement may be executed in counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. This Agreement may be executed by telecopier and any such signature shall be valid and binding. | |
| 12. | Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes all prior agreements and understandings between the parties with respect to the subject matter hereof, whether verbal or written. | |
| 13. | Assignment. No party to this Agreement may assign its interest in or under this Agreement without the prior written consent of the other party, with the exception that VSVI may assign this Agreement to an affiliate within the meaning of the Canada Business Corporations Act. |
(signature page follows)
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year first
above written.
| XXXXXX HEALTH INC. | ||||||||||
| Per: | (signed) Xxxxxxx Xxxxxxxxx | |||||||||
| Name: | Xxxxxxx Xxxxxxxxx | |||||||||
| Title: | Vice-President Finance and | |||||||||
| Chief Financial Officer | ||||||||||
| Per: | (signed) Xxxxx Xxxxxxx | |||||||||
| Name: | Xxxxx Xxxxxxx | |||||||||
| Title: | Vice-President, General Counsel and | |||||||||
| Corporate Secretary | ||||||||||
| VICTORIA SQUARE VENTURES INC. | ||||||||||
| Per: | (signed) Xxxxx Xxxxx | |||||||||
| Name: | Xxxxx Xxxxx | |||||||||
| Title: | President and Chief Executive | |||||||||
| Officer | ||||||||||
| Per: | (signed) Xxxxxxxx Xxxxx | |||||||||
| Name: | Xxxxxxxx Xxxxx | |||||||||
| Title: | Vice-President | |||||||||
INTERVENTION
The undersigned hereby intervenes in and to this Agreement and acknowledges and agrees to be bound
by the provisions of Section 6 of this Agreement as relates to the undersigned.
1324286 ALBERTA LTD.
Per: |
(signed) Xxxxxx Xxxxxx | |||
| Title: Director |
