Exhibit 2
Execution Copy
SHAREHOLDER AGREEMENT, dated as of May 18, 2001 (the "Agreement"),
between America Online, Inc., a Delaware corporation ("Parent"), IAN
Acquisition ULC, a Nova Scotia unlimited liability company and an indirect
wholly owned subsidiary of Parent ("Acquiror"), and Aliant, Inc. (the
"Shareholder"), a shareholder of InfoInterActive Inc., a corporation
incorporated under the Business Corporations Act (Alberta) (the "Company").
WHEREAS, Parent, Acquiror and the Company are, concurrently with the
execution and delivery of this Agreement, entering into an Acquisition
Agreement, dated as of the date hereof (the "Acquisition Agreement"; terms
used without definition herein having the meanings assigned to them in the
Acquisition Agreement), pursuant to which Acquiror agrees, among other things,
to acquire all of the common shares of the Company ("Common Shares") pursuant
to an arrangement (the "Arrangement") under the Business Corporations Act
(Alberta);
WHEREAS, as of the date hereof, Shareholder beneficially owns the
number of Common Shares and options, convertible securities and warrants to
acquire Common Shares or other voting securities of the Company ("Exercisable
Securities") set forth opposite the Shareholder's name on the signature pages
hereto (such Common Shares and Exercisable Securities, the Shareholder's
"Existing Securities" and together with any Common Shares or other voting
securities of the Company, the beneficial ownership of which is acquired after
the date hereof, whether upon the exercise of options, conversion of
convertible securities, exercise of warrants or otherwise or any other
Exercisable Securities, collectively referred to herein as the "Securities");
and
WHEREAS, as a condition to their willingness to enter into the
Acquisition Agreement, Parent and Acquiror have required that the Shareholder
agree, and the Shareholder has agreed, among other things, to vote in favor of
the Arrangement and grant Parent an option to purchase all of the Securities
owned by the Shareholder, on the terms and conditions provided for herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Agreement to Vote; Proxy; Agreement to Tender.
SECTION 1.01. Voting. Subject to the provisions of Article II, the
Shareholder hereby agrees that, during the time this Agreement is in effect
and for so long as the Consideration (as defined in the Acquisition Agreement)
is equal to or greater than US$1.42 per Common Share (the "Minimum Amount"),
at any meeting of the shareholders of the Company, however called and at any
adjournment thereof, or pursuant to any action by written consent, the
Shareholder shall appear at such meeting or otherwise cause its Securities to
be counted as present thereat for purposes of establishing a quorum and (a)
vote (or cause to be voted) all of its Securities in favor of the approval,
adoption, consent and ratification of the Arrangement, the Acquisition
Agreement, the Plan of Arrangement thereunder, the terms thereof and all the
other
transactions contemplated thereby (including but not limited to the
Tender Offer (as defined below)) (collectively, the "Transactions"); (b) vote
(or cause to be voted) all of its Securities against any action or agreement
that would delay, impede, interfere with or discourage the consummation of the
Transactions or would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Acquisition Agreement or of the Shareholder under this Agreement; and (c) vote
(or cause to be voted) all of its Securities against any of the following
(other than the Acquisition Agreement, including as it may have been, or may
have been proposed by Parent or Acquiror to be, amended) or the other
Transactions: (i) any extraordinary corporate transaction or agreement
therefor, including without limitation any amalgamation, plan of arrangement,
merger, consolidation, recapitalization, reorganization, takeover bid, share
exchange, liquidation, dissolution, business combination or similar
transaction involving the Company or its Subsidiaries (including a Competing
Proposal), (ii) a Transfer (as defined below) of a material amount of assets
of the Company or its Subsidiaries, (iii) any change in the majority of the
Board of Directors of the Company, (iv) any change in the present
capitalization of the Company, (v) any amendment of the Company's Articles of
Incorporation or By-laws, or (vi) any other material change in the Company's
corporate structure or business or change in any manner of the voting rights
of the Common Stock (any matter under clauses (a), (b) or (c), a "Subject
Proposal"). For purposes of this Agreement, a "Transfer" means, collectively,
any sale, transfer, pledge, encumbrance, assignment or other disposition of,
or execution of any contract, option or other arrangement or understanding
with respect to the sale, transfer, pledge, encumbrance, assignment or other
disposition (including but not limited to by way of amalgamation, plan of
arrangement, takeover bid, merger, consolidation, recapitalization or any
other similar transaction). The Shareholder shall not enter into any agreement
or understanding with any person prior to the termination of this Agreement to
vote in any manner inconsistent herewith.
SECTION 1.02. Proxy. (a) During the time this Agreement is in
effect, Shareholder hereby irrevocably grants to, and appoints, and agrees
from time to time to grant to, and appoint, Parent and Acquiror, or any of
them, and any individual designated in writing by any of them, and each of
them individually, as the Shareholder's proxy, agent and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
Shareholder, to vote (or cause to be voted) its Securities, or grant a consent
or approval in respect of its Securities, in each case, with respect to any
Subject Proposal, in a manner consistent with Section 1.01 above.
(b) The Shareholder understands and acknowledges that Parent and
Acquiror are entering into the Acquisition Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder hereby
affirms that the proxy set forth in this Section 1.02 is given in connection
with the execution of this Agreement, and that such proxy is given to secure
the performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby ratifies and confirms all that such proxy may lawfully do
or cause to be done by virtue hereof. Shareholder will take such further
action or execute such other instruments as may be necessary to effectuate the
intent of this proxy and hereby revokes any proxy previously granted by it
with respect to its Securities that would be inconsistent with the proxy
granted pursuant to Section 1.02(a). Shareholder shall not hereafter, unless
and until this Agreement terminates pursuant to Section 5.01 hereof, purport
to vote (or execute a consent with respect to) its Securities with respect to
any Subject Proposal (other than through this irrevocable proxy) or
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grant any other proxy or power of attorney with respect to any of its
Securities to vote with respect to any Subject Proposal, deposit any of its
Securities into a voting trust or enter into any agreement (other than this
Agreement), arrangement or understanding with any person, directly or
indirectly, to vote with respect to any such Subject Proposal, grant any proxy
or give instructions with respect to the voting of such Securities with
respect to any Subject Proposal.
SECTION 1.03. Tender. Upon the election of Parent to make a cash
tender offer for any Securities of the Company for at least the Minimum Amount
pursuant to Section 2.3 of the Acquisition Agreement (the "Tender Offer"), the
Shareholder hereby agrees to validly tender (or cause the record owners to
validly tender) to Parent or any Subsidiary of Parent making the Tender Offer,
pursuant to and in accordance with the terms of the Tender Offer, as soon as
practicable after commencement of the Tender Offer, but in no event later than
five Business Days following the commencement of the Tender Offer, all of such
Securities by physical delivery of the certificates therefor (or by book entry
or appropriate instructions to brokers or custodians thereof, as the case may
be) and to not withdraw such Securities, except following termination of the
Tender Offer without the purchase by Parent or any of its Subsidiaries of
Securities thereunder. The Shareholder hereby acknowledges and agrees that
Parent's (or any of its Subsidiary's) obligation to accept for payment and pay
for such Securities shall be subject to the terms and conditions of the Tender
Offer. The Shareholder hereby permits Parent and Acquiror to publish and
disclose in the documents required to be prepared, filed or delivered by
applicable law in the Tender Offer and, if approval of the Company's
shareholders is required under applicable law, the proxy statement and in any
other public statement, its identity and ownership of Securities and the
nature of its commitments, arrangements and understandings under this
Agreement.
ARTICLE II
Option To Purchase Securities; Assignment of Profit.
SECTION 2.01. Grant of Option. Without limiting any other rights
or remedies of Parent, the Shareholder hereby grants to Parent an irrevocable,
unconditional option to purchase all but not less than all of its Securities,
on the terms and subject to the conditions set forth herein (the "Option").
SECTION 2.02. Exercise of Option. (a) The Option may be exercised
by Parent at any time, or from time to time, commencing upon the Exercise Date
and prior to the Expiration Date.
As used herein, the term "Exercise Date" means the first to occur of
(i) any event or condition as a result of which Parent would be entitled to
terminate the Acquisition Agreement pursuant to Section 8.1(d) (provided that
with respect to Section 8.1(d), at the time of such termination, a Competing
Proposal has been publicly announced or is generally known by the Company's
shareholders), Section 8.1(e), or Section 8.1(f) or otherwise to receive the
Termination Fee pursuant to Section 8.3(b) of the Acquisition Agreement (in
each case, whether or not the Acquisition Agreement is terminated) or (ii) any
material breach by the Shareholder of any provision of this Agreement.
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As used herein, the term "Expiration Date" means the first to occur
of (i) the Effective Time, (ii) receipt by the Shareholder of written notice
of termination of this Agreement by Parent, or (iii) September 30, 2001.
(b) In the event Parent wishes to exercise the Option, Parent shall
send a written notice to the Shareholder of its intention to so exercise the
Option (a "Notice"), specifying the place, time and date of the closing (the
"Option Closing") of such purchase (such date on which the Option Closing
occurs, the "Option Closing Date"), which date shall not be less than two
Business Days nor more than ten Business Days from the date on which a Notice
is delivered; provided, that the Option Closing shall be held only if (i) such
purchase would not otherwise violate or cause the violation of, any applicable
law or regulations (including, without limitation, the U.S. Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), the
Competition Act (Canada), as amended (the "Competition Act"), or the
applicable rules or regulations of the stock exchanges on which the Common
Shares are traded and (ii) no statute, rule, regulation, decree, order or
injunction shall have been promulgated, enacted, entered into, or enforced by
any Governmental Authority which prohibits delivery of the Securities
(provided, however, that the parties hereto shall use their respective
reasonable best efforts to have any such order, decree or injunction vacated
or reversed); in the event the Option Closing is delayed pursuant to clause
(i) or (ii) above, the Option Closing Date shall be within five Business Days
following the cessation of such restriction, violation, potential violation,
order, decree or injunction, as the case may be; provided, further, that,
notwithstanding any prior Notice, Parent prior to the Option Closing shall be
entitled to rescind any Notice and shall not be obligated to purchase any
Securities in connection with such exercise upon written notice to such effect
to the Shareholder.
(c) At any Option Closing, the Shareholder shall deliver to Parent
all of its Securities to be purchased by delivery of certificates or other
instruments evidencing such Securities, properly endorsed by the Shareholder
and accompanied by such share powers and other documents as may be necessary
to transfer record ownership of such Securities into Parent's name on the
share transfer books of the Company, together with evidence of payment of all
applicable transfer and documentary stamp taxes and other fees.
SECTION 2.03. Payments.
(a) The purchase and sale of any Common Shares pursuant to Section
2.02 of this Agreement shall be at a purchase price per Common Share (the
"Common Share Exercise Price") equal to the greater of the Consideration or
the Minimum Amount. The purchase and sale of any Exercisable Securities having
an exercise price below the Common Share Exercise Price pursuant to Section
2.02 of this Agreement shall be at a purchase price per Common Share for which
such Exercisable Security is exercisable or convertible equal to the excess of
the Common Share Exercise Price over the exercise or conversion price per such
Common Share (the "Exercisable Security Exercise Price" and, together with the
Common Share Exercise Price, the "Exercise Price"). Any Exercisable Securities
with an exercise price above the Common Share Exercise Price shall be
transferred to Parent upon any exercise of the Option for no additional
consideration. At any Option Closing, Parent shall pay to the Shareholder by
wire transfer of immediately available funds to an account specified by the
Shareholder an amount equal to the Common Share Exercise Price multiplied by
the number of Common Shares
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purchased pursuant to this Article II plus the Exercisable Security Exercise
Price multiplied by the number of Common Shares for which the Exercisable
Securities being purchased pursuant to this Article II are exercisable or
convertible.
(b) In the event of a stock dividend or distribution, or any change
in the Common Shares by reason of any stock dividend, split-up,
reclassification, recapitalization, combination or the exchange of shares, the
term "Securities", whenever used in this Agreement, shall be deemed to refer
to and include the Securities as well as all such stock dividends and
distributions and any shares into which or for which any or all of the
Securities may be changed or exchanged. In such event, the amount to be paid
per Security by Parent pursuant to this Section 2.03 shall be proportionately
adjusted.
ARTICLE III
Representation And Warranties.
SECTION 3.01. Representation and Warranties of Parent. Parent
hereby represents and warrants to the Shareholder that Parent has the
corporate power and authority to enter into this Agreement and perform all of
its obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by Parent and constitutes a valid and binding agreement
of Parent, enforceable against Parent in accordance with its terms.
SECTION 3.02. Representations and Warranties of the Shareholder.
The Shareholder hereby represents and warrants to Parent and Acquiror as
follows:
(a) Ownership of Securities and Options. The Shareholder (or
accounts or trusts controlled or beneficially owned by the Shareholder) is the
record and beneficial owner of the Existing Securities set forth opposite its
name on the signature pages hereto. To the Shareholder's knowledge, the
Existing Securities are, and the Common Shares upon issuance or receipt will
be, validly issued, fully paid and nonassessable. On the date hereof, the
Existing Securities constitute all of the Securities owned of record or
beneficially by the Shareholder. The Shareholder has, with respect to the
Existing Securities, or will have, with respect to any other Securities, sole
voting power, sole power of disposition and sole power to agree to all of the
matters set forth in this Agreement with respect to all of the Securities,
with no restrictions, subject to applicable securities laws, on the
Shareholder's voting power or rights of disposition pertaining thereto, except
as disclosed in Schedule 3.02. On the date hereof, the Shareholder has, and at
all times during the term hereof and on the date of any Option Closing
hereunder, the Shareholder will have with respect to Securities to be sold on
such date, good, valid and marketable title to the Securities, free and clear
of all claims, liens, encumbrances, security interests and charges of any
nature whatsoever (other than the encumbrance created by this Agreement and as
disclosed in Schedule 3.02), and shall not be subject to any preemptive right
of any shareholder of the Company. As of the date hereof, the sale of the
Securities to Parent hereunder will transfer to Parent good, valid and
marketable title to the Securities, free and clear of all claims, liens,
encumbrances, security interests, rights of first refusal and charges of any
nature whatsoever, except as disclosed in Schedule 3.02.
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(b) Power; Binding Agreement. The Shareholder has the legal
capacity, power and authority to enter into and perform all of its obligations
under this Agreement, including, without limitation, power and authority to
sell, assign, transfer and deliver the Securities to Parent pursuant to the
terms and conditions of this Agreement, except as disclosed on Schedule 3.02.
The execution, delivery and performance of this Agreement by the Shareholder
have been duly and validly authorized and no other actions or proceedings on
the part of the Shareholder are necessary to authorize this Agreement or to
consummate the transactions contemplated herein, except as disclosed in
Schedule 3.02. The execution, delivery and performance of this Agreement by
the Shareholder will not violate any other agreement to which the Shareholder
is a party including, without limitation, any voting agreement, shareholders
agreement or voting trust. This Agreement has been duly and validly executed
and delivered by the Shareholder and constitutes a valid and binding agreement
of the Shareholder, enforceable against the Shareholder in accordance with its
terms.
(c) No Conflicts. Except for (i) filings under the Competition Act
and the HSR Act, if applicable and (ii) compliance with the applicable
requirements of the Legislation, (A) no filing with, and no permit,
authorization, consent or approval of, any Governmental Authority is necessary
for the execution of this Agreement by the Shareholder and the consummation by
the Shareholder of the transactions contemplated hereby and (B) neither the
execution and delivery of this Agreement by the Shareholder nor the
consummation by the Shareholder of the transactions contemplated hereby nor
compliance by the Shareholder with any of the provisions hereof shall (1)
conflict with or result in any breach of any provision of the certificate of
incorporation, by-laws, trust or charitable instruments (or similar
documents), if any, if the Shareholder is not an individual, (2) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, agreement or other instrument or obligation to which the Shareholder
is a party or by which the Shareholder or any of its properties or assets may
be bound or (3) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Shareholder or any of its properties or assets.
(d) No Claims. The Shareholder in its capacity as a shareholder,
director, officer or employee of the Company or in any other capacity, has no
knowledge of any Claims (as defined hereinafter) that he, she or it may have
against the Released Parties (as defined hereinafter).
(e) No Group. The Shareholder is acting individually and not as part
of a "group" as defined in the U.S. Securities Exchange Act of 1934, as
amended.
ARTICLE IV
Certain Covenants of the Shareholder
SECTION 4.01. Certain Covenants of the Shareholder. The
Shareholder hereby covenants and agrees as follows:
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(a) No Solicitation. The Shareholder shall not, and shall not
authorize or permit any shareholder, director, officer, employee, Affiliate,
representative or agent of the Shareholder to, directly or indirectly, (i)
solicit, facilitate, initiate, entertain, encourage or take any action to
facilitate, initiate, entertain or encourage any inquiries or communications
or the making of any proposal or offer that constitutes or may constitute a
Competing Proposal or a sale of any of the Securities or (ii) participate or
engage in any discussions or negotiations with, or provide any information to
or take any other action with the intent to facilitate the efforts of, any
person concerning any possible Competing Proposal or a sale of any of the
Securities or any inquiry or communication which might reasonably be expected
to result in a Competing Proposal or a sale of any of the Securities. If the
Shareholder or any representative or agent of the Shareholder receives an
inquiry or proposal with respect to any Competing Proposal or any sale of
Securities, then the Shareholder shall promptly inform Parent of the terms and
conditions, if any, of such inquiry or proposal and the identity of the person
making it. The Shareholder shall, and shall cause its representatives or
agents to, immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing. Notwithstanding the foregoing, nothing
herein shall in any way restrict or limit the Shareholder from taking any
action in his capacity as a director or officer of the Company to fulfill his
duties and fiduciary obligations as a director or officer of the Company in a
manner consistent with the terms of the Acquisition Agreement.
(b) Restriction on Transfer, Proxies and Non-Interference. The
Shareholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (i) Transfer any of the Securities or any interest
therein, (ii) grant any proxies with respect to any Securities or deposit any
Securities into a voting trust or enter into a voting agreement with respect
to any Securities, or (iii) take any action that would make any representation
or warranty of the Shareholder contained herein untrue or incorrect or have
the effect of preventing or disabling the Shareholder from performing its
obligations under this Agreement. Any action described in the foregoing
clauses (i) through (iii) in violation of this Agreement shall be void ab
initio.
(c) Legending of Certificates; Nominees Securities. If requested by
Parent, the Shareholder agrees to submit to the Company contemporaneously with
or as promptly as practicable following such request all certificates
representing the Securities so that the Company may note thereon a legend, in
form and substance reasonably satisfactory to Parent, referring to the proxy
and other rights granted to Parent by this Agreement. If any of the Securities
beneficially owned by the Shareholder are held of record by a brokerage firm
in "street name" or in the name of any other nominee (a "Nominee", and, as to
such Securities, "Nominee Securities"), the Shareholder shall within five days
of such request execute and deliver to Parent a limited power of attorney, in
form and substance reasonably satisfactory to Parent, enabling Parent to
require the Nominee to (i) grant to Parent an irrevocable proxy to the same
effect as Section 1.02 hereof with respect to the Nominee Securities held by
such Nominee, and (ii) submit to the Company the certificates representing
such Nominee Securities for notation of the above-referenced legend thereon,
and (iii) tender such Nominee Securities in the Tender Offer pursuant to
Section 1.03 hereof.
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(d) Additional Securities. The Shareholder hereby agrees, while this
Agreement is in effect, to promptly notify Parent of the number of any new
Securities acquired by the Shareholder, if any, after the date hereof.
(e) Cooperation. The Shareholder will not take any action, which
could reasonably (i) result in any restriction on or delay in the consummation
of the transactions contemplated by the Acquisition Agreement (including but
not limited to the Arrangement or any other Transaction), the Related
Agreements or this Agreement or (ii) render any of such transactions
undesirable or impractical for Parent.
(f) Dissenter's Rights. The Shareholder agrees that it will not
exercise any right to dissent or any similar rights of appraisal, which it may
have under any applicable Law with respect to any transaction contemplated by
the Acquisition Agreement or any Related Agreement.
SECTION 4.02. Release. Effective as of the Effective Time and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Shareholder on its behalf and on behalf of its (i) heirs,
executors, administrators, agents, successors and assigns or (ii)
predecessors, Subsidiaries, Affiliates and other related entities, as well as
any current or former benefit plan administrators and trustees, officers,
directors, shareholders or members (whether their ownership interests are held
directly or indirectly), partners, agents, attorneys, employees, successors
and assigns (the "Releasor Persons"), as applicable, hereby releases, waives
and discharges Parent, Acquiror and the Company, and their respective
Affiliates, officers, directors, shareholders, agents, successors and assigns
(collectively, the "Released Parties"), from any and all actions, causes of
action, suits, debts, dues, sums of money, accounts, bonds, bills, covenants,
contracts, controversies, agreements, promises, variances, trespasses,
damages, judgments, executions, claims and demands whatsoever, known or
unknown, in law or equity (each, a "Claim" and, collectively, the "Claims"),
arising from the Releasor's relationship with the Company prior to and
including the date of the consummation of the Arrangement or the Tender Offer,
as the case may be, or the Releasor's status as a shareholder, director or
officer of the Company prior to and including the date of the consummation of
the Arrangement or the Tender Offer, as the case may be, except for any Claim
(i) for Parent's breach of this Agreement, (ii) for compensation owed to an
employee or director in the ordinary course under existing employment
agreements, or (iii) professional fees owed to advisors, lawyers and other
professionals in the ordinary course under existing arrangements with them.
SECTION 4.03. Stop Transfer Order. In furtherance of this
Agreement, the Shareholder hereby authorizes and directs the Company's counsel
to notify the Company's transfer agent that there is a stop transfer order
with respect to all of the Existing Securities (and that this Agreement places
limits on the voting and transfer of such Securities).
SECTION 4.04. Public Announcements. The Shareholder shall consult
with Parent before issuing, and shall first provide Parent the reasonable
opportunity to review and comment upon, any press release or other public
statements with respect to the existence or terms of this Agreement, the
Acquisition, the Arrangement and the other Transactions, and shall not issue
any such press release or make any such public statement without the prior
written consent
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of Parent, except to the extent necessary in response to a judicial or similar
investigative inquiry (including a discovery request in a lawsuit), in which
case the Shareholder shall make such disclosure pursuant thereto only after
first providing reasonable notice to Parent and affording Parent the
opportunity to seek to limit, prevent or protect such disclosure.
SECTION 4.05. Reasonable Best Efforts; Further Assurances. (a) The
Shareholder shall use its reasonable best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Arrangement and the other Transactions.
(b) The Shareholder shall, from time to time, execute and deliver,
or cause to be executed and delivered, such additional or further consents,
documents and other instruments and shall take all such further actions as
Parent or Acquiror may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement, the Acquisition
Agreement and the other Related Agreements.
(c) If any consent, approval or other action is required in
accordance with the Indenture in order to consummate any of the transactions
contemplated by this Agreement, the Shareholder shall use its reasonable best
efforts to obtain such consent or approval or take such action as required by
the Indenture.
SECTION 4.06. Cooperation as to Regulatory Matters. If so
requested by Parent, promptly after the date hereof, the Shareholder will use
its reasonable best efforts to, and cause the Company (if required) to, make
all filings, which are required under the Competition Act, the HSR Act, the
Legislation or other applicable Laws, and to seek all regulatory approvals
required in connection with the Transactions. The Shareholder shall furnish
all such necessary information and reasonable assistance as may be requested
in connection with the preparation of filings and submissions to any
Governmental Authority, including, without limitation, filings under the
provisions of the Competition Act, the HSR Act, the Legislation or other
applicable Laws. The Shareholder shall supply, and use its reasonable best
efforts to cause the Company to supply, to Parent copies of all
correspondence, filings or communications (or memoranda setting forth the
substance thereof) with Governmental Authorities with respect to this
Agreement and the transactions contemplated hereby.
ARTICLE V
Miscellaneous
SECTION 5.01. Termination; Survival of Representations and
Warranties. This Agreement shall terminate on the Expiration Date, and upon
such termination, this Agreement shall terminate and be of no further force
and effect; provided that if the Option has been exercised prior to the
Expiration Date, Articles II, III, IV and V shall remain in effect until the
Option Closing is completed. The respective representations and warranties of
the Shareholder and Parent contained in Article III or in any certificates or
other documents delivered at or prior to any Option Closing shall not be
deemed waived or otherwise affected by any investigation made by the other
party hereto, and shall survive the termination of this
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Agreement for one year. The provisions of Section 4.02 shall terminate upon
the termination of the Acquisition Agreement pursuant to the terms thereof but
shall not terminate on or after the Effective Time of the Arrangement. The
provisions of Articles IV (other than the provisions of Section 4.02) and
Article V shall survive the termination of this Agreement indefinitely in
accordance with their terms. Prior to the Expiration Date, if the Acquisition
Agreement has not terminated in accordance with its terms and if requested by
Parent, the Shareholder agrees to negotiate in good faith with Parent and
Acquiror to an extension of the Expiration Date.
SECTION 5.02. Amendments. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties.
SECTION 5.03. Notices. All notices or other communications which
are required or permitted hereunder shall be in writing and sufficient if
delivered personally or sent by nationally recognized overnight courier or by
registered or certified mail, postage prepaid, return receipt requested, or by
electronic mail, with a copy thereof to be delivered or sent as provided above
or by facsimile or telecopier, as follows:
if to Parent or Acquiror, to
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Senior Vice President for Business Affairs
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esq.
if to the Shareholder:
Aliant, Inc.
0000 Xxxxxxxxxx Xxxxxx
P.O. Box 000
Xxxxxxx Xxxxxxx XXX
Xxxxxxx, Xxxx Xxxxxx X0X 0X0
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxx
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All such
notices or communications shall be
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deemed to be received (i) in the case of personal delivery, nationally
recognized overnight courier or registered or certified mail, on the date of
such delivery and (ii) in the case of facsimile or telecopier or electronic
mail, upon confirmed receipt.
SECTION 5.04. Descriptive Headings; Interpretation. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. The terms
"hereof," "herein," "hereby," and derivative or similar words refer to this
entire Agreement. Unless the context otherwise requires words of any gender
include each other gender, and words using the singular or plural number also
include the plural or singular number, respectively. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation". All references to
currency herein are to United States dollars unless otherwise specified.
SECTION 5.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
SECTION 5.06. Entire Agreement. This Agreement (including any
exhibits and schedules hereto) and other documents and instruments delivered
in connection herewith constitute the entire agreement and supersede all prior
agreements and undertakings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof and thereof.
SECTION 5.07. Assignment. This Agreement may not and shall not be
assigned by operation of Law or otherwise, except that Parent and Acquiror may
assign all or any of their rights hereunder to any Affiliate, provided that no
such assignment shall relieve the assigning party of its obligations
hereunder. Any assignment in violation of this Agreement shall be void.
SECTION 5.08. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 5.09. Failure or Indulgence Not Waiver; Remedies
Cumulative. No failure or delay on the part of any party hereto in the
exercise of any right hereunder will impair such right or be construed to be a
waiver of, or acquiescence in, any breach of any representation, warranty or
agreement herein, nor will any single or partial exercise of any such right
preclude other or further exercise thereof or of any other right. All rights
and remedies existing under this Agreement are cumulative to, and not
exclusive to, and not exclusive of, any rights or remedies otherwise
available.
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SECTION 5.10. Governing Law; Enforcement. This Agreement and the
rights and duties of the parties hereunder shall be governed by, and construed
in accordance with, the Law of the State of New York. The parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement in any
Federal court sitting in the Southern District of New York, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto, (a) consents to submit itself to the
exclusive personal jurisdiction of any Federal court sitting in the Southern
District of New York in the event any dispute arises out of this Agreement or
any transaction contemplated hereby, (b) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court, (c) agrees that it will not bring any action relating to
this Agreement or any transaction contemplated hereby in any court other than
any Federal court sitting in the Southern District of New York and (d) waives
any right to trial by jury with respect to any action related to or arising
out of this Agreement or any transaction contemplated hereby.
SECTION 5.11. No Third-Party Beneficiaries. Nothing in this
Agreement, express or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 5.12. Counterparts. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Acquiror and the Shareholder have caused
this Agreement to be duly executed as of the day and year first above written.
AMERICA ONLINE, INC.
By: /s/ Xxxxx Xxxxxxxx
_______________________________________
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
IAN ACQUISITION ULC
By: /s/ Xxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxx X. Xxxxxxx
Title: President
Existing Securities
ALIANT, INC.
1,091,667 Common Shares
By: /s/ X.X. Xxxx
-------------
Name: X.X. Xxxx
Title: Executive Vice-President
SCHEDULE 3.2
The Securities of the Shareholder are subject to a floating charge in favor of
Montreal Trust Company of Canada, as Trustee, under the Trust Indenture and
Mortgage, dated as of January 1, 1926, as amended (the "Indenture"), between
Maritime Telegraph and Telephone Company, Limited, and the Eastern Trust
Company of 1926, as amended. The Indenture provides, however, that the
floating charge created thereunder in no way hinders or prevents the
Shareholder from disposing of or dealing with the Securities in the ordinary
course of business and for the purpose of carrying on the same.
