Exhibit (b)(5)
CGI GROUP INC.
- AND -
NATIONAL BANK FINANCIAL INC.
- AND -
CREDIT SUISSE FIRST BOSTON CANADA INC.
- AND -
COMPUTERSHARE TRUST COMPANY OF CANADA
SUBSCRIPTION RECEIPT AGREEMENT
PROVIDING FOR THE ISSUE OF
SUBSCRIPTION RECEIPTS
DATED MARCH 19, 2004
TABLE OF CONTENTS
ARTICLE 1 INTERPRETATION..........................................................................................2
1.1 Definitions...........................................................................................2
1.2 Headings..............................................................................................5
1.3 References............................................................................................5
1.4 Certain Rules of Interpretation.......................................................................5
1.5 Day Not a Business Day................................................................................6
1.6 Conflict..............................................................................................6
1.7 Currency..............................................................................................6
1.8 Severability..........................................................................................6
Article 2 THE SUBSCRIPTION RECEIPTS...............................................................................6
2.1 Creation and Issue of Subscription Receipts...........................................................6
2.2 Payment Acknowledgement...............................................................................6
2.3 Register for Subscription Receipts....................................................................7
2.4 Form and Terms of Subscription Receipts...............................................................7
2.5 Subscription Receipt holder not a Shareholder.........................................................8
2.6 Subscription Receipts to Rank Pari Passu..............................................................8
2.7 Signing of Subscription Receipt Certificates..........................................................8
2.8 Certification by the Escrow Agent.....................................................................9
2.9 Issue in Substitution for Subscription Receipt Certificates Lost, etc.................................9
2.10 Exchange of Subscription Receipt Certificates........................................................10
2.11 Charges for Exchange.................................................................................10
2.12 Transfer and Ownership of Subscription Receipts......................................................10
2.13 Legends..............................................................................................11
2.14 Transfers............................................................................................13
2.15 Reliance by the Escrow Agent.........................................................................13
2.16 Application For Additional Listing of Class A Shares.................................................13
Article 3 THE ESCROW AGENT.......................................................................................14
3.1 Appointment of Escrow Agent..........................................................................14
3.2 Termination of Appointment or Resignation............................................................14
3.3 Notice of Change of Escrow Agent.....................................................................15
3.4 Consequences of Change of Escrow Agent...............................................................15
3.5 Remuneration of Escrow Agent.........................................................................15
3.6 Duties of the Escrow Agent...........................................................................16
3.7 Indemnification of and Other Provisions Relating to the Escrow Agent.................................16
3.8 Evidence, Experts and Advisers.......................................................................19
3.9 Actions by Escrow Agent to Protect Interest..........................................................20
3.10 Escrow Agent Not Required to Give Security...........................................................20
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3.11 Administration of Property of Others.................................................................21
Article 4 INVESTMENT OF PROCEEDS AND PAYMENT OF INTEREST.........................................................21
4.1 Escrowed Subscription Funds to be Placed in Escrow...................................................21
4.2 Investment of Escrowed Subscription Funds............................................................21
4.3 Segregation of Escrowed Subscription Funds and Earned Interest.......................................22
4.4 No Liability.........................................................................................22
Article 5 RELEASE OF PROPERTY AND PURCHASE OF SHARES.............................................................22
5.1 Delivery of Escrow Release Notice....................................................................22
5.2 Automatic Exchange Release of Funds..................................................................23
Article 6 TERMINATION............................................................................................24
6.1 Termination if the Escrow Release Condition is Not Satisfied.........................................24
6.2 Termination of this Agreement........................................................................25
Article 7 COVENANTS OF CGI.......................................................................................25
7.1 No Reorganization/Distributions......................................................................25
7.2 General Covenants....................................................................................25
7.3 Securities Law Matters...............................................................................26
Article 8 MEETINGS OF RECEIPTHOLDERS.............................................................................26
8.1 Right to Convene Meeting.............................................................................26
8.2 Notice of Meetings...................................................................................27
8.3 Chair................................................................................................27
8.4 Quorum...............................................................................................27
8.5 Power to Adjourn.....................................................................................27
8.6 Show of Hands........................................................................................28
8.7 Poll.................................................................................................28
8.8 Voting...............................................................................................28
8.9 Regulations..........................................................................................28
8.10 Persons Entitled to Attend Meetings..................................................................29
8.11 Powers Exercisable by Extraordinary Resolution.......................................................29
8.12 Meaning of "Extraordinary Resolution.................................................................30
8.13 Powers Cumulative....................................................................................31
8.14 Minutes..............................................................................................31
8.15 Instruments in Writing...............................................................................31
8.16 Binding Effect of Resolutions........................................................................31
8.17 Evidence of Rights of Receiptholders.................................................................32
8.18 Holdings by CGI Disregarded..........................................................................32
8.19 Suits by Receiptholders..............................................................................32
Article 9 MISCELLANEOUS..........................................................................................33
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9.1 Notices..............................................................................................33
9.2 Notice to Receiptholders.............................................................................35
9.3 Power to Amend.......................................................................................35
9.4 Compliance with Laws and Regulations.................................................................36
9.5 Waiver...............................................................................................36
9.6 Further Assurances...................................................................................36
9.7 Assignment, Successors and Assigns...................................................................36
9.8 Governing Law........................................................................................36
9.9 Counterparts.........................................................................................37
SUBSCRIPTION RECEIPT AGREEMENT
THIS SUBSCRIPTION RECEIPT AGREEMENT made as of the 19th day of March,
2004.
B E T W E E N:
CGI GROUP INC.,
a company incorporated under to the laws of Quebec
(hereinafter referred to as "CGI" or the "COMPANY")
- and -
NATIONAL BANK FINANCIAL INC. AND CREDIT SUISSE FIRST BOSTON CANADA INC.,
the underwriters who are party to the Underwriting Agreement providing
for the issue and sale to investors of the Subscription Receipts
(hereinafter referred to as the "UNDERWRITERS")
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA,
a trust corporation existing under the laws of Canada
(hereinafter referred to as the "ESCROW AGENT")
WHEREAS Subscription Receipts, each representing an agreement to acquire
one Class A Share (as hereinafter defined) per Subscription Receipt for no
additional consideration upon satisfaction of the Escrow Release Condition (as
hereinafter defined) prior to the Termination Time (as hereinafter defined) will
be created and issued pursuant to this Agreement;
AND WHEREAS under an underwriting agreement (the "UNDERWRITING AGREEMENT")
dated March 10, 2004 among CGI and the Underwriters (as hereinafter defined),
the Underwriters have severally (conjointement), and not jointly and severally
(solidairement), agreed to purchase 33,072,500 of the total number of
Subscription Receipts (as hereinafter defined) issuable hereunder;
AND WHEREAS pursuant to a subscription agreement (the "BCE SUBSCRIPTION
AGREEMENT") dated March 15, 2004 between CGI and BCE Inc., or a subsidiary
thereof ("BCE"), BCE has agreed to purchase 8,268,125 of the total number of
Subscription Receipts issuable hereunder;
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AND WHEREAS the Escrow Agent has agreed to act as registrar and transfer
agent of the Subscription Receipts, escrow agent, custodian and nominee in
respect of all monies to be held in escrow pursuant hereto and as agent on
behalf of the holders of the Subscription Receipts and CGI, all on the terms and
conditions set forth herein;
AND WHEREAS the foregoing recitals are by CGI and the Underwriters, as the
context provides, and not by the Escrow Agent, as the context provides;
NOW THEREFORE THIS AGREEMENT WITNESSES that for good and valuable
consideration mutually given and received, the receipt and sufficiency of which
is hereby acknowledged, it is hereby agreed and declared as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement, including in the recitals, unless there is something in
the subject matter or context inconsistent therewith or unless otherwise
expressly provided, the following terms shall have the respective meanings
set out below and grammatical variations of such terms shall have
corresponding meanings:
"1933 ACT" means the United States Securities Act of 1933, as amended;
"ACQUISITION" means the acquisition, on the terms and conditions set forth
in the Merger Agreement, by a subsidiary of the Company of at least the
Minimum Number of AMS Shares;
"AGREEMENT" means this agreement and the Schedules hereto, as the same may
be amended, supplemented or otherwise modified from time to time in
accordance with the provisions hereof;
"ACQUISITION AGREEMENTS" means, collectively, the Merger Agreement and the
DIG Sale Agreement;
"AMS" means American Management Systems, Incorporated;
"AMS SHARES" means shares of common stock of AMS;
"BCE" has the meaning given to that term in the Recitals to this
Agreement;
"BCE SUBSCRIPTION AGREEMENT" has the meaning given to that term in the
Recitals to this Agreement;
"BUSINESS DAY" means a day which is not a Saturday or Sunday or statutory
or civic holiday in the Cities of Montreal, Quebec, Toronto, Ontario, or
New York, New York, or a day when the principal offices of the Escrow
Agent in such cities are not generally open to the public for the
transaction of business;
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"CANADIAN SECURITIES LAWS" means all applicable securities laws in each
Province of Canada in which the Subscription Receipts are being offered
for sale and the respective regulations and rules under such laws together
with applicable published instruments, policy statements of the Canadian
Securities Regulators and the securities regulatory authorities in such
Provinces and includes the rules, by-laws and requirements of the Toronto
Stock Exchange;
"CLASS A SHARES" means the Class A subordinate shares of CGI;
"CLOSING" means the closing of the purchase of Subscription Receipts by
the Underwriters (or by the Purchasers, as such term is defined in the
Underwriting Agreement) and by BCE from CGI;
"CLOSING DATE" means the date hereof;
"DELIVERY DATE" has the meaning given to that term in Subsection 5.2(d)
hereof;
"DEPOSIT ACCOUNT" means an account maintained by the Escrow Agent for the
purpose of depositing the Escrowed Subscription Funds pursuant to this
Agreement;
"DEPOSITORY" means Computershare Trust Company of New York in its capacity
as the depository under the Tender Offer;
"DESIGNATED OFFICE" means the principal office of the Escrow Agent from
time to time in the City of Toronto, Ontario;
"DIG BUSINESS" means AMS's Defence and Intelligence Group business that is
to be sold pursuant to the DIG Sale Agreement;
"DIG SALE AGREEMENT" means the asset purchase agreement by and among CACI
International, Inc., CACI, Inc. - FEDERAL, Dagger Acquisition Corporation,
AMS, the Company and CGI Virginia Corporation dated as of March 10, 2004;
"EARNED INTEREST" means the interest or other income actually earned on
the investment of the Escrowed Subscription Funds from the Closing Date to
the date specified in Section 5.2 or Section 6.1, as applicable;
"EFFECTIVE DATE" means the date on which the Escrow Release Condition is
satisfied;
"EFFECTIVE TIME" means 5:00 p.m. (Montreal Time) on the Effective Date;
"ESCROW AGENT" means Computershare Trust Company of Canada, in its
capacity as the escrow agent, registrar and transfer agent, custodian and
nominee hereunder;
"ESCROW RELEASE CONDITION" means receipt by the Escrow Agent of a
completed Escrow Release Notice executed by the Chief Executive Officer
and Chief Financial Officer of the Company and countersigned on behalf of
the Underwriters;
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"ESCROW RELEASE NOTICE" means the notice in the form attached as SCHEDULE
"A" hereto;
"ESCROWED SUBSCRIPTION FUNDS" means the aggregate gross proceeds from the
sale of Subscription Receipts pursuant to the Underwriting Agreement and
the BCE Subscription Agreement;
"ESCROWED UNDERWRITERS' FEE" means an amount equal to 3.31% of 50% of the
aggregate gross proceeds to the Company of the Subscription Receipts sold
pursuant to the Underwriting Agreement, to be allocated from the Escrowed
Subscription Funds and dealt with in accordance with Section 5.2 or
Section 6.1, as applicable;
"EXCHANGE RIGHT" has the meaning given to that term in Subsection
2.4(a)(i) hereof;
"EXTRAORDINARY RESOLUTION" has the meaning given to that term in Section
8.12 hereof;
"ISSUE PRICE" has the meaning given to that term in Section 2.1 hereof;
"MERGER AGREEMENT" means the Agreement and Plan of Merger between CGI, CGI
Virginia Corporation and AMS dated as of March 10, 2004;
"MINIMUM NUMBER OF AMS SHARES" means that number of AMS Shares required to
be tendered to the Tender Offer to meet the "Minimum Condition" (as
defined in the Merger Agreement as at the date of execution thereof);
"MINIMUM TAKE-UP NOTICE" has the meaning attributed thereto in Section
5.1(a) hereof;
"OFFERING JURISDICTIONS" means the United States and all the Provinces of
Canada;
"RECEIPTHOLDERS" or "HOLDERS OF SUBSCRIPTION RECEIPTS" means the
registered holders of Subscription Receipts;
"REFUND DATE" has the meaning given to that term in Subsection 6.1(a)(ii)
hereof;
"REFUND RIGHT" has the meaning given to that term in Subsection 2.4(a)(ii)
hereof;
"SENIOR OFFICER" means any one of the President and Chief Executive
Officer or an Executive Vice-President of CGI;
"SHARE CERTIFICATE" means a certificate evidencing one or more Class A
Shares, duly signed by CGI and countersigned by CGI's registrar and
transfer agent;
"SUBSCRIPTION RECEIPT CERTIFICATE" means a certificate evidencing
Subscription Receipts substantially in the form attached hereto as
SCHEDULE "B";
"SUBSCRIPTION RECEIPTS" means the Subscription Receipts created and issued
by CGI hereunder, each constituting an agreement whereby the holder
thereof is obligated to acquire and CGI is, among other things, obligated
to issue one Class A Share for no additional consideration at the
Effective Time on the basis provided herein;
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"TENDER OFFER" means CGI's offer made pursuant to and in accordance with
the requirements of the Merger Agreement to acquire all of the issued and
outstanding AMS Shares;
"TERMINATION TIME" means the earlier of (i) 5:00 p.m. (Montreal Time) on
July 1, 2004, and (ii) the time the Merger Agreement terminates;
"UNDERWRITERS" means, collectively, National Bank Financial Inc. and
Credit Suisse First Boston Canada Inc.;
"UNDERWRITING AGREEMENT" has the meaning attributed thereto in the
Recitals to this Agreement;
"UNITED STATES" means the United States of America, its territories and
possessions, any State of the United States and the District of Columbia;
and
"U.S. SUBSCRIPTION AGREEMENTS" means subscription agreements between CGI
and initial purchasers of Subscription Receipts in the United States.
1.2 HEADINGS
The headings, the table of contents and the division of this Agreement
into Articles and Sections and Subsections are for convenience of
reference only and shall not affect the interpretation of this Agreement.
1.3 REFERENCES
Unless otherwise specified in this Agreement:
(a) references to Articles, Sections, Subsections and Schedules are to
Articles, Sections, Subsections and Schedules in this Agreement; and
(b) "hereto", "herein", "hereby", "hereunder", "hereof" and similar
expressions, without reference to a particular provision, refer to
this Agreement.
1.4 CERTAIN RULES OF INTERPRETATION
Unless otherwise specified in this Agreement:
(a) the singular includes the plural and vice versa;
(b) references to any gender shall include references to all genders;
and
(c) "person" includes any individual, company, corporation, firm,
partnership, trust, trustee, government, governmental body, agency,
instrumentality, unincorporated body of persons or association.
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1.5 DAY NOT A BUSINESS DAY
In the event that any day on or before which any action is required to be
taken hereunder is not a Business Day, then such action shall be required
to be taken at or before the requisite time on the next succeeding day
that is a Business Day.
1.6 CONFLICT
In the event of a conflict or inconsistency between a provision in the
body of this Agreement and any one or more of or any part of the Schedules
that form a part hereof, the provision in the body of this Agreement shall
prevail to the extent of the inconsistency.
1.7 CURRENCY
All dollars amounts expressed in this Agreement and in the Schedules
hereto, are in lawful money of Canada and all payments required to be made
hereunder and thereunder shall be made in Canadian dollars.
1.8 SEVERABILITY
Each of the provisions in this Agreement is distinct and severable and a
declaration of invalidity or unenforceability of any such provision or
part thereof by a court of competent jurisdiction shall not affect the
validity or enforceability of any of the other provisions hereof.
ARTICLE 2
THE SUBSCRIPTION RECEIPTS
2.1 CREATION AND ISSUE OF SUBSCRIPTION RECEIPTS
A maximum of 41,340,625 Subscription Receipts are hereby created and
authorized for issuance by CGI at a price of $8.00 (the "ISSUE PRICE") per
Subscription Receipt.
2.2 PAYMENT ACKNOWLEDGEMENT
(a) The Escrow Agent hereby acknowledges receipt by wire transfer from
the Underwriters of the aggregate amount of $264,580,000 and
confirms that such funds have been deposited in a segregated account
in the name of the Escrow Agent designated as the "CGI Group Inc. --
Sub. Receipts" or as otherwise directed by CGI and the Underwriters
and will be used, invested and segregated in accordance with Article
4 hereof.
(b) The Escrow Agent hereby acknowledges receipt by wire transfer from
BCE in the aggregate amount of $66,145,000 and confirms that such
funds have been deposited in the segregated account referred to in
Subsection 2.2(a) and will be used, invested and segregated in
accordance with Article 4 hereof, as agent for the Receiptholders
and CGI.
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(c) CGI hereby:
(i) acknowledges that the amounts received by the Escrow Agent
pursuant to Subsection 2.2(a) in accordance with CGI's
direction to the Underwriters, represents payment in full by
the Underwriters of the subscription price for 33,072,500
Subscription Receipts;
(ii) acknowledges that the amounts received by the Escrow Agent
pursuant to Subsection 2.2(b) in accordance with CGI's
direction to BCE represents payment in full by BCE of the
subscription price for 8,268,125 Subscription Receipts;
(iii) irrevocably directs the Escrow Agent to retain the amounts
referred to in Subsections 2.2(a) and (b) in accordance with
the terms of this Agreement pending payment of such amounts in
accordance with the terms of this Agreement; and
(iv) irrevocably directs the Escrow Agent, immediately following
the execution and delivery of this Agreement, to certify and
deliver to BCE the Subscription Receipt Certificate referred
to in Subsection 2.4(b) to be delivered to BCE and to the
Underwriters the Subscription Receipt Certificates referred to
in Subsection 2.4(b) and Subsection 2.4(c) to be delivered to
the Underwriters in accordance with the written direction of
the Underwriters pursuant to Section 9 of the Underwriting
Agreement.
(d) The Underwriters acknowledge receipt of the Subscription Receipt
Certificates representing 33,072,500 Subscription Receipts
registered as directed by the Underwriters pursuant to Section 9 of
the Underwriting Agreement.
2.3 REGISTER FOR SUBSCRIPTION RECEIPTS
CGI hereby appoints the Escrow Agent as registrar and transfer agent of
the Subscription Receipts, and CGI shall cause to be kept by the Escrow
Agent at the Designated Office, a securities register in which shall be
entered the names and addresses of holders of Subscription Receipts and
the other particulars, prescribed by law, of the Subscription Receipts
held by them. CGI shall also cause to be kept by the Escrow Agent at the
Designated Office the register of transfers, and may also cause to be kept
by the Escrow Agent, branch registers of transfers in which shall be
recorded the particulars of the transfers of Subscription Receipts,
registered in that branch register of transfers.
2.4 FORM AND TERMS OF SUBSCRIPTION RECEIPTS
(a) Each Subscription Receipt constitutes an agreement between CGI and
the holder thereof pursuant to which:
(i) the provisions of Article 5 hereof shall apply if the Escrow
Release Condition is satisfied prior to the Termination Time
(the rights of the
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holders of Subscription Receipts under Article 5 hereof being,
collectively, the "EXCHANGE RIGHT");
(ii) the provisions of Article 6 hereof shall apply if the Escrow
Release Condition is not satisfied prior to the Termination
Time (the rights of the holders of Subscription Receipts under
Article 6 hereof being, collectively, the "REFUND RIGHT").
(b) Upon receipt by the Escrow Agent of the Escrowed Subscription Funds,
the Subscription Receipts shall be issued and the beneficial right,
title and interest in and to, and ownership of, each Subscription
Receipt will be represented by a Subscription Receipt Certificate
issued to and registered as directed by the Underwriters pursuant to
the Underwriting Agreement and to BCE pursuant to Sections 2.8, 2.13
and 2.14, as applicable.
(c) Subscription Receipts sold within the United States shall be
represented by one or more Subscription Receipt Certificates issued
and registered in accordance with the provisions of Sections 2.8,
2.13 and 2.14 hereof.
(d) All Subscription Receipt Certificates (including replacements issued
in accordance with this Agreement) shall be substantially in the
form of SCHEDULE "B" hereto and shall bear such distinguishing
letters and numbers as CGI and the Escrow Agent may prescribe.
(e) No fractional Subscription Receipt shall be issued.
2.5 SUBSCRIPTION RECEIPT HOLDER NOT A SHAREHOLDER
A holder of a Subscription Receipt is not, by reason thereof, a
shareholder of CGI and will have no beneficial ownership of Class A Shares
prior to the Effective Time. Holders of Subscription Receipts are entitled
only to exercise the rights and fulfil the obligations expressly provided
for in this Agreement.
2.6 SUBSCRIPTION RECEIPTS TO RANK PARI PASSU
All Subscription Receipts shall rank pari passu, whatever may be the
actual date of issue of the Subscription Receipts.
2.7 SIGNING OF SUBSCRIPTION RECEIPT CERTIFICATES
The Subscription Receipt Certificates shall be signed by a director or
Senior Officer of CGI. The signature of such director or Senior Officer
may be mechanically reproduced in facsimile and such facsimile signature
shall be binding upon CGI as if the certificate had been manually signed
by such director or Senior Officer.
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2.8 CERTIFICATION BY THE ESCROW AGENT
No Subscription Receipt Certificate shall be issued or, if issued, shall
be valid for any purpose or entitle the holder to the benefit hereof until
it has been certified by manual signature by or on behalf of the Escrow
Agent, and such certification by the Escrow Agent upon any Subscription
Receipt Certificate shall be conclusive evidence as against CGI that the
Subscription Receipt Certificate so certified has been duly issued
hereunder and that the holder is entitled to the benefits hereof.
The certification of the Escrow Agent on any Subscription Receipt
Certificate issued hereunder shall not be construed as a representation or
warranty by the Escrow Agent as to the validity of this Agreement or the
Subscription Receipt Certificate (except the due certification thereof)
and the Escrow Agent shall in no respect be liable or answerable for the
use made of any Subscription Receipt Certificate or any of them or of the
consideration therefor except as otherwise specified herein.
2.9 ISSUE IN SUBSTITUTION FOR SUBSCRIPTION RECEIPT CERTIFICATES LOST, ETC.
(a) If any Subscription Receipt Certificate is mutilated, lost,
destroyed or stolen, CGI, subject to applicable law, shall issue and
thereupon the Escrow Agent shall certify and deliver, a new
Subscription Receipt Certificate of like tenor as the one mutilated,
lost, destroyed or stolen in exchange for and in place of and upon
cancellation of such mutilated Subscription Receipt Certificate, or
in lieu of and in substitution for such lost, destroyed or stolen
Subscription Receipt Certificate, and the substituted Subscription
Receipt Certificate shall be in a form approved by the Escrow Agent
and shall be entitled to the benefits hereof and shall rank equally
in accordance with its terms with all other Subscription Receipt
Certificates issued or to be issued hereunder. When a new
Subscription Receipt Certificate has been issued in substitution for
a Subscription Receipt Certificate which has been mutilated, lost,
stolen or destroyed, only one of such certificates shall be counted
for the purpose of determining the number of Subscription Receipts
outstanding.
(b) The applicant for the issue of a new Subscription Receipt
Certificate pursuant to this Section 2.9 shall bear the cost of the
issue thereof and in case of loss, destruction or theft shall, as a
condition precedent to the issue thereof, furnish to CGI and to the
Escrow Agent such evidence of ownership and of the loss, destruction
or theft of the Subscription Receipt Certificate so lost, destroyed
or stolen as shall be satisfactory to CGI and to the Escrow Agent in
their sole discretion, acting reasonably, and such applicant may
also be required to furnish an indemnity or security in amount and
form satisfactory to CGI and the Escrow Agent in their discretion
and shall pay the reasonable charges of CGI and the Escrow Agent in
connection therewith.
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2.10 EXCHANGE OF SUBSCRIPTION RECEIPT CERTIFICATES
(a) Subscription Receipt Certificates representing Subscription Receipts
may, upon compliance with the reasonable requirements of the Escrow
Agent, be exchanged for another Subscription Receipt Certificate or
Subscription Receipt Certificates entitling the holder to the same
number of Subscription Receipts in the aggregate as represented by
the Subscription Receipt Certificates so exchanged.
(b) Subscription Receipt Certificates may be surrendered for exchange
only at the Designated Office of the Escrow Agent or at any other
place that is designated by CGI with the approval of the Escrow
Agent.
2.11 CHARGES FOR EXCHANGE
Except as otherwise herein provided, the Escrow Agent may charge to the
holder requesting an exchange a reasonable sum for each new Subscription
Receipt Certificate issued in exchange for Subscription Receipt
Certificate(s). Payment of such charges and reimbursement of the Escrow
Agent or CGI for any and all stamp taxes or governmental or other charges
required to be paid shall be made by such holder as a condition precedent
to such exchange.
2.12 TRANSFER AND OWNERSHIP OF SUBSCRIPTION RECEIPTS
(a) The Subscription Receipts may only be transferred on the register
kept at the Designated Office of the Escrow Agent by the holder or
his legal representatives or his attorney duly appointed by an
instrument in writing. Upon surrender for registration of transfer
of Subscription Receipts at the Designated Office of the Escrow
Agent, CGI shall issue and thereupon the Escrow Agent shall certify
and deliver a new Subscription Receipt Certificate of like tenor in
the name of the designated transferee. If less than all the
Subscription Receipts evidenced by the Subscription Receipt
Certificate(s) so surrendered are transferred, the transferor shall
be entitled to receive, in the same manner, a new Subscription
Receipt Certificate registered in his name evidencing the
Subscription Receipts not transferred. However, notwithstanding the
foregoing, registered title to Subscription Receipts shall only be
transferred upon:
(i) payment to the Escrow Agent of a reasonable sum for each new
Subscription Receipt Certificate issued upon such transfer,
and reimbursement of the Escrow Agent or CGI for any and all
stamp taxes or governmental or other charges required to be
paid in respect of such transfer;
(ii) with respect to transfers of securities that contain the
legend in Section 2.13(a), the receipt of the declaration or
opinion of counsel, as the case may be, as required by Section
2.13(a) hereof;
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(iii) execution by the Receiptholder of the transfer form attached
to the Subscription Receipt Certificate and surrender of the
Subscription Receipt Certificate; and
(iv) such reasonable requirements as the Escrow Agent may
prescribe, and all such transfers shall be duly noted in such
register by the Escrow Agent;
(b) CGI and the Escrow Agent will deem and treat the registered owner of
any Subscription Receipt as the beneficial owner thereof for all
purposes and neither CGI nor the Escrow Agent shall be affected by
any notice to the contrary.
(c) The transfer register in respect of Subscription Receipts shall be
closed at the earlier to occur of the Effective Time and the
Termination Time (subject to settlement).
(d) Subject to the provisions of this Agreement and applicable law, a
holder of a Subscription Receipt shall be entitled to the rights and
privileges attaching to the Subscription Receipts. Either the
delivery of Class A Shares by the Escrow Agent in satisfaction of
the rights in Article 5 or the return of the Escrowed Subscription
Funds together with Earned Interest, if any (less any applicable
withholding taxes) to but excluding the Refund Date as soon as
practicable, all in accordance with the terms and conditions herein,
shall discharge all responsibilities of CGI and the Escrow Agent
with respect to such Subscription Receipts and neither CGI nor the
Escrow Agent shall be bound to inquire into the title of a holder of
a Subscription Receipt who surrenders a Subscription Receipt
Certificate.
(e) If less than all Subscription Receipts evidenced by the Subscription
Receipt Certificate(s) so surrendered are transferred, the
transferor shall be entitled to receive, in the same manner, a new
Subscription Receipt Certificate registered in its name evidencing
the Subscription Receipts not transferred.
(f) Without limitation, signatures must be guaranteed by an authorized
officer of a Canadian chartered bank (Schedule I) or of a major
Canadian trust company or by a medallion signature guarantee from a
member of a recognized Medallion Signature Guarantee Program.
(g) The Escrow Agent shall have no duty to determine compliance of the
transferor or transferee of Subscription Receipts with applicable
securities laws.
2.13 LEGENDS
(A) LEGEND PURSUANT TO UNITED STATES SECURITIES LAWS
The Escrow Agent acknowledges that the Subscription Receipts and Class A
Shares issuable in exchange therefor have not been registered under the
1933 Act. Each Subscription Receipt originally issued in the United States
and all certificates representing Class A Shares issued upon the exercise
of such Subscription Receipt in accordance with Article 5 hereof (and each
Subscription Receipt Certificate or Share Certificate issued in exchange
therefor or in
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substitution or transfer thereof) shall be overprinted with the following
legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE
BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S.
SECURITIES ACT OR (C) WITHIN THE UNITED STATES IN ACCORDANCE WITH THE
EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT, PROVIDED BY
RULE 144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE
SECURITIES LAWS IN THE JURISDICTION IN WHICH SUCH SECURITIES ARE OFFERED,
SOLD OR OTHERWISE TRANSFERRED. DELIVERY OF THIS CERTIFICATE MAY NOT
CONSTITUTE GOOD DELIVERY IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES
IN CANADA. PROVIDED THAT THE COMPANY IS A "FOREIGN ISSUER" WITHIN THE
MEANING OF REGULATION S AT THE TIME OF SALE, A NEW CERTIFICATE BEARING NO
LEGEND MAY BE OBTAINED FROM COMPUTERSHARE TRUST COMPANY OF CANADA UPON
DELIVERY OF THIS CERTIFICATE AND A DULY EXECUTED DECLARATION, IN A FORM
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH SALE IS BEING MADE IN
ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT.";
provided, that if Subscription Receipts or Class A Shares, as the case may
be, are being sold outside the United States in accordance with Rule 904
of Regulation S under the 1933 Act, and provided that the Company is a
"foreign issuer" within the meaning of Regulation S at the time of sale,
any such legend may be removed by providing a declaration to the
Computershare Trust Company of Canada, as registrar and transfer agent, to
the effect set forth on Schedule "D" hereto (or as CGI may prescribe from
time to time); and provided, further, that, if any such Subscription
Receipts or Class A Shares, as the case may be, are being sold within the
United States in accordance with the exemption from registration under the
1933 Act provided by Rule 144 thereunder, if available, and in compliance
with any applicable securities laws in the jurisdiction in which such
securities are offered, sold or transferred, the legend may be removed by
delivery to Computershare Trust Company of Canada and to the Company of an
opinion of counsel, of recognized standing reasonably satisfactory to the
Company, that such legend is no longer required under applicable
requirements of the 1933 Act or state securities laws.
(B) LEGEND AS PER CANADIAN SECURITIES LAWS
The Escrow Agent acknowledges that the Subscription Receipts and Class A
Shares issuable in exchange therefor have not been qualified for sale by
prospectus under Canadian Securities Laws. Each Subscription Receipt
originally issued to a
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Receiptholder, and all certificates representing Class A Shares issued
upon the exercise of such Subscription Receipt in accordance with Article
5 hereof (and each Subscription Receipt Certificate or Share Certificate
issued in exchange therefor or in substitution or transfer thereof) shall
be overprinted with the following legend:
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE
SECURITIES SHALL NOT TRADE THE SECURITIES BEFORE JULY 20, 2004."
2.14 TRANSFERS
(a) If a Subscription Receipt Certificate tendered for transfer bears
the legend set forth in Section 2.13 hereof, the transfer
restrictions set forth in such legend shall be complied with.
(b) The Subscription Receipts may only be transferred in accordance with
applicable laws and, upon compliance with the conditions herein, by
the Receiptholder or its legal representative or its attorney duly
appointed by an instrument in writing, in form and execution
satisfactory to the Escrow Agent, upon compliance with such
reasonable requirements as the Escrow Agent may prescribe, which may
include, without limitation, the provision of a legal opinion to CGI
and the Escrow Agent to the effect that the securities laws of the
applicable jurisdiction(s) have been complied with in relation to
the transfer of the Subscription Receipts.
2.15 RELIANCE BY THE ESCROW AGENT
The Escrow Agent shall have no obligation to ensure or verify compliance
with any applicable laws or regulatory requirements on the issue, exercise
or transfer of any Subscription Receipts (or the Exchange Right comprising
part thereof) or any Class A Shares issuable upon the exchange thereof
provided such issue, exchange or transfer, as the case may be, is effected
in accordance with the terms of this Agreement. The Escrow Agent shall be
entitled to process all proffered transfers and exercises of Subscription
Receipts on the presumption that such transfers or exercises are
permissible pursuant to all applicable laws and regulatory requirements.
The Escrow Agent may assume for the purposes of this Agreement that any
address on the register of the Receiptholders is the holder's actual
address and is also determinative as to residency and that the address of
any transferee to whom any Subscription Receipts or Class A Shares are to
be registered, as shown on the transfer document, is the transferee's
residency. The Escrow Agent shall have no obligation to ensure that
legends appearing on the Subscription Receipt Certificates or Class A
Shares comply with regulatory requirements or securities laws of any
applicable jurisdiction.
2.16 APPLICATION FOR ADDITIONAL LISTING OF CLASS A SHARES
The Subscription Receipts will not be listed on any stock exchange or
quoted on any quotation system. CGI confirms that application has been
made for the Class A Shares issuable on exchange of Subscription Receipts
to be listed and posted for trading on the Toronto Stock Exchange and New
York Stock Exchange and that approval for listing,
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subject to the usual requirements, of such stock exchanges has been
obtained. CGI shall use all reasonable efforts to satisfy all of the
requirements in connection with such approvals as may be required for
securing such additional listings.
ARTICLE 3
THE ESCROW AGENT
3.1 APPOINTMENT OF ESCROW AGENT
CGI and the Underwriters hereby appoint Computershare Trust Company of
Canada as the Escrow Agent and Computershare Trust Company of Canada
hereby accepts such appointment.
3.2 TERMINATION OF APPOINTMENT OR RESIGNATION
(a) The Escrow Agent may resign and be discharged from all further
duties and liabilities hereunder, subject to this Section 3.2, by
providing CGI with not less than 10 Business Days notice in writing
or such shorter notice as CGI may accept as sufficient. The holders
of Subscription Receipts by Extraordinary Resolution shall have the
power at any time to remove the existing Escrow Agent and to appoint
a new escrow agent. In the event of the Escrow Agent resigning or
being removed as aforesaid or being dissolved, becoming bankrupt,
going into liquidation or otherwise becoming incapable of acting
hereunder, the Underwriters, with CGI's consent, not to be
unreasonably withheld, shall forthwith appoint a successor escrow
agent; failing such an appointment, the retiring Escrow Agent (at
the expense of CGI) may apply to a Judge of the Quebec Superior
Court, on such notice as such Judge may direct, for the appointment
of a successor escrow agent and shall pay into such Court all funds
and/or other property that it has held until that time in escrow
pursuant to the terms of this Agreement. Any new escrow agent so
appointed by the Underwriters, with the consent of CGI, or by the
Court shall be subject to removal as aforesaid by the holders of
Subscription Receipts. Any new escrow agent appointed under any
provision of this Section 3.2 shall be a corporation authorized to
carry on the business of a trust company in the province of Quebec
and, if required by applicable legislation for any other provinces,
in such other provinces. At the request of CGI or of the successor
escrow agent, the retiring Escrow Agent, upon payment of the
amounts, if any, due to it pursuant to Section 3.5, shall duly
assign, transfer and deliver to the successor escrow agent all
property and money held and all records kept by the retiring Escrow
Agent hereunder or in connection herewith.
(b) On any new appointment, the successor escrow agent shall be vested
with the same powers, rights, duties and responsibilities as if it
had been originally named herein as Escrow Agent without any further
assurance, conveyance, act or deed, but there shall be immediately
executed, at the expense of CGI, a written agreement executed by the
successor escrow agent in which the successor escrow
-15-
agent shall undertake and agree in favour of the other parties to
this Agreement to perform the respective obligations of the Escrow
Agent hereunder.
(c) Any corporation into or with which the Escrow Agent may be merged or
consolidated or amalgamated, or any corporation resulting therefrom
to which the Escrow Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Escrow Agent shall
be the successor to the Escrow Agent hereunder without any further
act on its part or any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor escrow
agent under Subsection 3.2(a).
(d) Any Subscription Receipt Certificates certified but not delivered by
a predecessor escrow agent may be delivered by the successor escrow
agent in the name of the predecessor escrow agent.
3.3 NOTICE OF CHANGE OF ESCROW AGENT
Notice of any change of the Escrow Agent shall be given by the successor
escrow agent to the Receiptholders and to the Underwriters at CGI's
expense forthwith after the appointment of the successor escrow agent
hereunder in accordance with Article 9.
3.4 CONSEQUENCES OF CHANGE OF ESCROW AGENT
If the appointment of the Escrow Agent hereunder is terminated for
whatever reason, the Escrow Agent shall, on the date on which such
termination takes effect, and following payment of all outstanding fees
and expenses, deliver to the successor escrow agent the register of
holders of Subscription Receipts and all other books and records
maintained by it pursuant to this Agreement, together with all other
property held by it hereunder. As from the time of delivery of the
register of holders of Subscription Receipts and other items referred to
above, the successor escrow agent shall be substituted for its
predecessors for all purposes hereof. Any expense payable as a result of
the termination of such appointment shall be paid by CGI.
3.5 REMUNERATION OF ESCROW AGENT
CGI covenants that it will pay to the Escrow Agent such remuneration for
its services hereunder as is agreed to between CGI and the Escrow Agent
and will pay or reimburse the Escrow Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Escrow Agent in the administration or execution of the duties hereby
created (including the reasonable compensation and the disbursements of
its counsel and all other advisers and assistants not regularly in its
employ reasonably acceptable to CGI) until all the duties of the Escrow
Agent under this Agreement shall be finally and fully performed, except
any such expense, disbursement or advance that may arise from its
negligence, bad faith or wilful misconduct. Any amount due under this
provision and unpaid 30 days after receipt by CGI of a written request for
such payment shall bear interest from the expiration of such thirty 30 day
period at a rate per annum equal to the then current rate generally
charged by the Escrow Agent to like customers from time to time, payable
on demand. After default, all amounts so payable and the
-16-
interest thereon shall be payable out of any funds coming into the
possession of the Escrow Agent or its successors in priority to any other
payment that it may be obligated to make hereunder.
3.6 DUTIES OF THE ESCROW AGENT
(a) The Escrow Agent shall act as the agent, custodian and nominee of
and for the benefit of CGI, the Underwriters and the holders of the
Subscription Receipts with respect to all monies held by the Escrow
Agent pursuant hereto, as their interests may appear from time to
time, shall maintain a register of the holders from time to time of
the Subscription Receipts and shall act as agent with respect to the
Subscription Receipts for the benefit of Receiptholders.
(b) In the exercise of its rights and duties hereunder, the Escrow Agent
shall exercise that degree of care, diligence and skill that a
reasonably prudent escrow agent would exercise in comparable
circumstances. No provision of this Agreement will be construed to
relieve the Escrow Agent from liability for its own negligent
action, its own negligent failure to act, or its own wilful
misconduct or bad faith. The Escrow Agent hereby accepts and agrees
to perform them on the terms and conditions set forth herein and
represents and warrants that it is duly authorized and qualified to
carry on the business of a trust company in all Provinces of Canada.
(c) The Escrow Agent shall retain the right not to act and shall not be
liable for refusing to act if, due to a lack of information or for
any other reason whatsoever, the Escrow Agent, in its sole judgment,
determines that such act might cause it to be in non-compliance with
any applicable anti-money laundering or anti-terrorist legislation,
regulation or guideline. Further, should the Escrow Agent, in its
sole judgment, determine at any time that its acting under this
Agreement has resulted in its being in non-compliance with any
applicable anti-money laundering or anti-terrorist legislation,
regulation or guideline, then it shall have the right to resign on
10 Business Days written notice to the other parties to this
Agreement, provided (i) that the Escrow Agent's written notice shall
describe the circumstances of such non-compliance; and (ii) that if
such circumstances are rectified to the Escrow Agent's satisfaction
within such 10 Business Days period, then such resignation shall not
be effective.
3.7 INDEMNIFICATION OF AND OTHER PROVISIONS RELATING TO THE ESCROW AGENT
(a) The Escrow Agent, its officers, directors and employees will at all
times be indemnified and saved harmless by CGI from and against all
claims, demands, losses, actions, causes of action, costs, charges,
expenses, damages and liabilities whatsoever arising in connection
with this Agreement including, without limitation, those arising out
of or related to actions taken or omitted to be taken by the Escrow
Agent contemplated hereby, legal fees and disbursements on a
solicitor and client basis and costs and expenses incurred in
connection with the enforcement of this indemnity, which they may
suffer or incur, whether at law or
-17-
in equity, in any way caused by or arising, directly or indirectly,
in respect of any act, deed, matter or thing whatsoever made, done,
acquiesced in or omitted in or about or in relation to the execution
of its duties as Escrow Agent and including any deed, matter or
thing in relation to the registration, perfection, release or
discharge of security. None of the provisions contained in this
Agreement shall require the Escrow Agent to expend or to risk its
own funds or otherwise to incur financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers unless indemnified as aforesaid. The foregoing
provisions of this Section do not apply to the extent that in any
circumstances there has been a failure by the Escrow Agent or its
employees to act honestly and in good faith or where the Escrow
Agent has acted negligently or in bad faith or with wilful
misconduct. This indemnity shall be absolute and unconditional,
regardless of the correctness of any representations of any third
parties and regardless of any liability of third parties to the
indemnified parties hereunder and shall accrue and become
enforceable without prior demand or any other precedent action or
proceeding and will survive the termination or discharge of this
Agreement and the resignation or removal of the Escrow Agent.
(b) The Escrow Agent shall not be liable for any error in judgment or
for any act done or step taken or omitted by it in good faith or for
any mistake, in fact or law, or for anything which it may do or
refrain from doing in connection herewith except arising out of its
own negligence, bad faith or wilful misconduct.
(c) The Escrow Agent shall have the right to consult with and obtain
advice from legal counsel appointed by it, who may but need not be
legal counsel for CGI, in the event of any question as to any of the
provisions hereof or its duties hereunder and it shall incur no
liability and it shall be fully protected in acting honestly and in
good faith in accordance with any opinion or instruction of such
counsel. The reasonable cost of such services shall be added to and
be a part of the fees paid to the Escrow Agent by CGI pursuant to
Section 3.5.
(d) The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, statutory
declaration or other paper or document furnished to it, not only as
to its due execution and the validity and the effectiveness of its
provisions but also as to the truth and acceptability of any
information therein contained which it in good faith believes to be
genuine and what it purports to be.
(e) In the event that any of the funds provided to the Escrow Agent
hereunder are received by it in the form of an uncertified cheque or
cheques, the Escrow Agent shall be entitled to delay the time for
release of such part of the funds so provided to it, as otherwise
required hereunder, until such uncertified cheque or cheques have
cleared the financial institution upon which the same is or are
drawn.
(f) The forwarding of a cheque or the sending of funds by wire transfer
by the Escrow Agent will satisfy and discharge the liability for any
amounts due to the extent of the sum or sums represented thereby
(plus the amount of any tax
-18-
deducted or withheld as required by law) unless such cheque is not
honoured on presentation; provided that in the event of the
non-receipt of such cheque by the payee, or the loss or destruction
thereof, the Escrow Agent, upon being furnished with reasonable
evidence of such non-receipt, loss or destruction and indemnity
reasonably satisfactory to it, will issue to such payee a
replacement cheque for the amount of such cheque.
(g) The Escrow Agent shall have the right not to act and shall not be
held liable for refusing to act unless it has received clear and
reasonable documentation which complies with the terms of this
Agreement. Such documentation must not require the exercise of any
discretion or independent judgment by the Escrow Agent.
(h) In the event of any dispute or disagreement arising regarding the
terms of this Agreement, the Escrow Agent shall be entitled at its
option to refuse to comply with any or all demands whatsoever until
the dispute or disagreement is settled either by agreement of the
parties hereto or by the Quebec Superior Court.
(i) The Escrow Agent shall disburse monies according to the provisions
of this Agreement and all applicable legislation only to the extent
that it is in possession of such monies.
(j) The duties and obligations of the Escrow Agent shall be determined
solely by the provisions hereof and, accordingly, the Escrow Agent
shall not be responsible except for the performance of such duties
and obligations as it has undertaken herein.
(k) In addition to the reports, certificates, opinions and other
evidence required by this Agreement, CGI shall provide to the Escrow
Agent such additional evidence of compliance with any provision
hereof, and in such form, as may be prescribed by applicable
legislation or as the Escrow Agent may reasonably require by written
notice to CGI.
(l) The Escrow Agent shall not be liable for or by reason of any
statements or recitals in this Agreement or in the Subscription
Receipt Certificates (except the countersignature by the Escrow
Agent of Subscription Receipt Certificates) or be required to verify
any such statements or recitals, but all such statements or recitals
are and shall be deemed to be made by CGI.
(m) Nothing contained herein shall impose any obligation on the Escrow
Agent to tend to or require evidence of the registration or filing
(or renewal thereof) of this Agreement or any instrument ancillary
or supplemental hereto.
(n) The Escrow Agent shall not be bound to give notice to any person or
persons of the execution hereof.
(o) The Escrow Agent shall not incur any liability or responsibility
whatever or be in any way responsible for the consequence of any
breach by CGI of any of its
-19-
covenants herein contained or of any acts of any directors,
officers, employees or agents of CGI.
(p) The Escrow Agent shall not be accountable with respect to the
validity or value (or the kind or amount) of any Class A Shares, or
any other securities or property which may at any time be issued or
transferred, as applicable, and delivered upon the exercise of the
Exchange Right.
(q) The Escrow Agent shall not be responsible for any failure of CGI to
make any payment or to issue, transfer or deliver the Class A Shares
upon the exercise of the Exchange Right or the exercise of the
Refund Right.
(r) The Escrow Agent shall incur no liability whatsoever with respect to
the delivery or non-delivery of any certificate whether delivery by
hand, mail or any other means.
(s) The Escrow Agent shall be entitled to rely absolutely on the Escrow
Release Notice and shall be entitled to release the Escrowed
Subscription Funds upon the receipt of the Escrow Release Notice as
provided for in this Agreement.
(t) The Escrow Agent shall be under no obligation to prosecute or defend
any action or suit in respect of its agency relationship under this
Agreement, but will do so at the request of the Company provided
that the Company furnishes indemnity satisfactory to the Escrow
Agent against any liability, cost or expense which might be
incurred.
(u) The Escrow Agent shall not be liable to the Company for any error in
judgment or for any act done or step taken or omitted by it in good
faith or for any mistake, of fact or law, or for anything which it
may do or refrain from doing in connection herewith, such as relying
upon or deferring to the instructions or decisions of the Company,
its legal counsel, or the chairman of a meeting of Receiptholders
with respect to such meetings, except in connection with any
liability arising out of its bad faith, wilful misconduct or
negligence.
(v) Notwithstanding the foregoing, the Escrow Agent shall not be liable
for special, indirect, incidental or consequential loss or damage of
any kind whatsoever, even if the Escrow Agent has been advised of
such loss or damage, except to the extent that the Escrow Agent has
acted in bad faith or engaged in wilful misconduct or negligence.
3.8 EVIDENCE, EXPERTS AND ADVISERS
(a) In addition to the reports, certificates, opinions and other
evidence required by this Agreement, the Company shall furnish to
the Escrow Agent such additional evidence of compliance with any
provision hereof, and in such form, as the Escrow Agent may
reasonably require by written notice to the Company.
- 20 -
(b) In the exercise of its rights and duties hereunder, the Escrow Agent
may, if it is acting in good faith, rely as to the truth of the
statements and the accuracy of the opinions expressed in statutory
declarations, opinions, reports, written requests, consents or
orders of the Company, certificates of the Company or other evidence
furnished to the Escrow Agent pursuant to any provision hereof or
pursuant to a request of the Escrow Agent.
(c) Whenever it is provided in this Agreement that the Company shall
deposit with the Escrow Agent resolutions, certificates, reports,
opinions, requests, orders or other documents, it is intended that
the truth and accuracy on the effective date thereof and the facts
and opinions stated in all such documents so deposited shall, in
each and every case, be conditions precedent to the right of the
Company to have the Escrow Agent take the action to be based
thereon.
(d) Proof of the execution of an instrument in writing, including a
Receiptholders' Request (as defined in Section 8.17), by any
Receiptholder may be made by the certificate of a notary public, or
other officer with similar powers, that the person signing such
instrument acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution by it to be genuine and to
have been signed, sent or presented by or on behalf of the proper
party or parties.
(e) The Escrow Agent may employ or retain such counsel, accountants,
appraisers or other experts or advisers as it may reasonably require
for the purpose of discharging its duties hereunder and may pay
reasonable remuneration for all services so performed by any of
them, without taxation of costs of any counsel, all at the expense
of the Company except for matters referred to internal departments
of the Escrow Agent and shall not be responsible for any misconduct
or negligence on the part of any such experts or advisers who have
been appointed with due care by the Escrow Agent.
(f) The Escrow Agent may act and rely and shall be protected in acting
or relying in good faith on the opinion or advice of or information
obtained from counsel, or any accountant, appraiser, engineer or
other expert or adviser, whether retained or employed by the Company
or by the Escrow Agent with respect to any matter arising in
relation to the Agreement.
3.9 ACTIONS BY ESCROW AGENT TO PROTECT INTEREST
The Escrow Agent shall have power to institute and to maintain such
actions and proceedings as it may consider necessary or expedient to
preserve, protect or enforce its interests and the interests of the
Receiptholders.
3.10 ESCROW AGENT NOT REQUIRED TO GIVE SECURITY
The Escrow Agent shall not be required to give any bond or security in
respect of the execution of this Agreement or otherwise in respect of the
premises.
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3.11 ADMINISTRATION OF PROPERTY OF OTHERS
The parties agree that the Escrow Agent is not an administrator of
property of others (within the meaning of the Civil Code of Quebec)
hereunder and that the provisions contained in the Civil Code of Quebec
regarding the administration of the property of others shall not apply to
this Agreement.
ARTICLE 4
INVESTMENT OF PROCEEDS AND PAYMENT OF INTEREST
4.1 ESCROWED SUBSCRIPTION FUNDS TO BE PLACED IN ESCROW
At the Closing, the Escrowed Subscription Funds shall be delivered to the
Escrow Agent by wire transfer to be held and invested as provided herein.
If the Escrow Release Condition is satisfied prior to the Termination
Time, the Escrowed Subscription Funds, together with Earned Interest
(other than Earned Interest on the Escrowed Underwriters' Fee to be paid
to the Underwriters pursuant to Section 8 of the Underwriting Agreement),
will be released to CGI in accordance with Article 5. If the Escrow
Release Condition is not satisfied prior to the Termination Time, each
holder of Subscription Receipts shall be entitled to receive from the
Escrowed Subscription Funds the Issue Price per Subscription Receipt held
plus their pro rata entitlement to Earned Interest (less any applicable
withholding taxes) in accordance with Article 6. Earned Interest shall be
for the account of the person entitled to receipt of the same as
determined in Article 5 or Article 6, as the case may be, and such person
shall be responsible for the tax thereon. CGI represents to the Escrow
Agent that any account to be opened by the Escrow Agent in connection with
this Agreement, is not intended to be used by or on behalf of any person
other than the parties hereto and the Receiptholders.
4.2 INVESTMENT OF ESCROWED SUBSCRIPTION FUNDS
Pending disbursement of the Escrowed Subscription Funds, the Escrow Agent
shall hold, invest and reinvest such funds on behalf of the Receiptholders
or CGI in short-term interest bearing or discount debt obligations issued
or guaranteed by the Government of Canada or a province, or a Canadian
chartered bank (which may include an affiliate or related party of the
Escrow Agent), provided that such obligation is rated at least R1 (middle)
by DBRS Inc. or an equivalent rating service, as directed in writing by
CGI. Such direction to the Escrow Agent shall be provided by CGI no later
than 9:00 a.m. (Montreal Time) on the day on which the investment is to be
made. Any direction received by the Escrow Agent after 9:00 a.m. or on a
day which is not a Business Day, shall be deemed to have been given prior
to 9:00 a.m. on the next Business Day. If at any time the Escrowed
Subscription Funds include cash that is not invested and CGI has not
provided directions to the Escrow Agent to invest such cash, the Escrow
Agent shall deposit all such uninvested cash in an account, a term deposit
or guaranteed investment certificates of a Canadian chartered bank, having
either no fixed term or no irrevocable term and which pays interest on the
daily balance. For greater certainty, every security in which the Escrowed
Funds are invested shall be a "qualified investment" for registered
- 22 -
retirement savings plans and other deferred plans for the purposes of the
Income Tax Act (Canada).
4.3 SEGREGATION OF ESCROWED SUBSCRIPTION FUNDS AND EARNED INTEREST
The Escrowed Subscription Funds received by the Escrow Agent and any
securities or other instruments received by the Escrow Agent upon the
investment or reinvestment of such Escrowed Subscription Funds, together
with all Earned Interest, shall be received as agent for, and shall be
segregated and kept apart by the Escrow Agent as agent for, the
Receiptholders pursuant to Article 6 or CGI pursuant to Article 5.
4.4 NO LIABILITY
The Escrow Agent shall have no liability with respect to any loss in value
of investments as permitted to be made hereunder. In making any payment,
the Escrow Agent shall not be liable for any loss sustained from early
termination of an investment if such early termination is required to
enable the Escrow Agent to make a payment.
ARTICLE 5
RELEASE OF PROPERTY AND PURCHASE OF SHARES
5.1 DELIVERY OF ESCROW RELEASE NOTICE
If prior to the Termination Time:
(a) prior to the expiry of the Tender Offer, there has been validly
deposited under the Tender Offer and not withdrawn at least the
Minimum Number of AMS Shares, and CGI has issued to the Depository
an irrevocable direction to take up and accept for payment all such
deposited AMS Shares (the "MINIMUM TAKE-UP NOTICE");
(b) the Merger Agreement is in full force and effect and unamended since
the date of execution thereof save for amendments:
(i) which do not have the effect of increasing the net value of
the consideration to be paid under the Acquisition by CGI or
any of its subsidiaries by more than 5% pursuant to the Merger
Agreement; or
(ii) which do not have the effect of reducing the value of the
consideration to be paid for the DIG Business by more than 5%
or do not affect the time of closing of the sale of the DIG
Business pursuant to the DIG Sale Agreement;
or amendments which have the effect set out in (i) or (ii)
above but which have received the prior written approval of
the Underwriters;
(c) neither CGI nor CGI Virginia Corporation has waived a condition of
closing under the Merger Agreement pertaining to the absence of a
Material Adverse
- 23 -
Effect (as defined in the Merger Agreement as at the date of
execution thereof) without the prior written consent of the
Underwriters; and
(d) AMS and CACI International, Inc. have irrevocably agreed and are
unconditionally obligated to complete the sale of the DIG Business
pursuant to the DIG Sale Agreement at or prior to the delivery of
the Minimum Take-up Notice to the Depository;
and if CGI delivers to the Underwriters the Escrow Release Notice executed
by the Chief Executive Officer and the Chief Financial Officer of the
Company together with a copy of the Minimum Take-up Notice, then the
Underwriters shall forthwith acknowledge satisfaction of the Escrow
Release Condition by countersigning the Escrow Release Notice, whereupon
CGI shall (A) deliver such Escrow Release Notice together with the copy of
the Minimum Take-Up Notice and a direction in the form attached hereto as
Schedule "C" to the Escrow Agent and (B) forthwith disclose by press
release the expected Effective Time in respect of the exchange of Class A
Shares for Subscription Receipts and the date and time on which the
Subscription Receipt transfer register will close.
5.2 AUTOMATIC EXCHANGE RELEASE OF FUNDS
(a) If the Escrow Release Condition is satisfied prior to the
Termination Time, each Receiptholder at the Effective Time, as such
holder appears in the register of the Escrow Agent, will become the
holder of Class A Shares on the basis of one Class A Share for each
Subscription Receipt held without the payment of any consideration
or the undertaking of any further action (including the surrender of
any Subscription Receipt Certificates) by such Receiptholder. Each
Subscription Receipt Certificate shall thereafter represent an
entitlement to receive a certificate or certificates evidencing the
Class A Shares issuable in respect of the Subscription Receipts
formerly represented by each such Subscription Receipt Certificate
held.
(b) Conditional on the satisfaction of the Escrow Release Condition, CGI
covenants in favour of the Escrow Agent, the Underwriters and the
holders of the Subscription Receipts to pay all taxes exigible with
respect to Earned Interest paid to CGI.
(c) Upon receipt of a facsimile copy of the Escrow Release Notice
executed in the manner provided therein, the Escrow Agent shall
forthwith on the date that it receives the Escrow Release Notice,
release the Escrowed Subscription Funds together with the Earned
Interest, by wire transfer to the accounts and in the amounts
indicated in the Escrow Release Notice. The Escrow Release Notice
shall specify all amounts to be released and the payees. Any Escrow
Release Notice delivered shall be received by the Escrow Agent no
later than 10:00 a.m. (Montreal Time) on the day on which the
Escrowed Subscription Funds are to be released. Any such Escrow
Release Notice received by the Escrow Agent after 10:00 a.m.
(Montreal Time) or received on a non Business Day shall be deemed
- 24 -
to have been given prior to 10:00 a.m. on the next Business Day. For
greater certainty, nothing under this Agreement derogates from the
Underwriters' rights under Section 8 of the Underwriting Agreement
with respect to the payment of underwriting fees.
(d) Subject to Subsections 5.2(a) and 5.2(b), certificates representing
the Class A Shares issued under Subsection 5.2(a) shall be issued by
the Escrow Agent commencing the second Business Day after the
Effective Date (the "DELIVERY DATE").
(e) Effective after the issuance of Class A Shares by CGI at the
Effective Time as contemplated in Subsection 5.2(a), and after the
Escrow Agent acting on CGI's behalf has mailed or delivered the
certificate or certificates representing such Class A Shares, the
Exchange Right shall have been satisfied in full and the
Subscription Receipts relating thereto shall be void and of no value
or effect.
(f) For the purposes of this Agreement, all references to "satisfaction
of the Escrow Release Condition", the "Escrow Release Condition
being satisfied", or like phrases means both (i) receipt by the
Escrow Agent of the Escrow Release Notice in the form and in the
manner prescribed by Section 5.1 and SCHEDULE "A" hereto; and (ii)
the take-up by CGI in accordance with applicable United States
securities laws of at least the Minimum Number of AMS Shares
pursuant to the terms of the Tender Offer.
ARTICLE 6
TERMINATION
6.1 TERMINATION IF THE ESCROW RELEASE CONDITION IS NOT SATISFIED
(a) If the Escrow Release Condition is not satisfied on or before the
Termination Time, notwithstanding any other provision hereof:
(i) CGI shall forthwith notify the Escrow Agent and the
Underwriters thereof and shall issue a press release
disclosing such fact and the expected date on which the Escrow
Agent will commence returning to the Receiptholders the
Escrowed Subscription Funds and Earned Interest (less any
applicable withholding taxes);
(ii) the subscription evidenced by each Subscription Receipt shall
be automatically terminated and cancelled at the Termination
Time and each holder of Subscription Receipts shall be
entitled after the Termination Time, but shall receive no
earlier than the second Business Day following the Termination
Time (the "REFUND DATE"), a cheque or wire transfer in the
aggregate amount of (i) the Issue Price per Subscription
Receipt held at the Termination Time plus (ii) the holder's
pro rata entitlement to Earned Interest less any applicable
withholding taxes. The amount paid to each holder under (i)
and (ii) shall be satisfied by the Escrowed Funds;
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(iii) the obligation to make the payment in Subsection 6.1(a)(ii)
shall be satisfied by mailing payment by cheque payable to the
holder of the Subscription Receipts at its registered address
or, in the case of BCE, by wire transfer in accordance with
written instructions from each such holder; and
(iv) the agreements constituted by the Subscription Receipts and
the rights and obligations of CGI and of the holders of the
Subscription Receipts in respect thereof shall, effective at
the close of business on the Refund Date, terminate and be
cancelled and be of no further force or effect.
(b) The performance by the Escrow Agent of its obligations under this
Section 6.1 shall satisfy all of its obligations hereunder.
6.2 TERMINATION OF THIS AGREEMENT
Immediately following the completion of all of the actions required under
this Agreement, this Agreement shall terminate.
ARTICLE 7
COVENANTS OF CGI
7.1 NO REORGANIZATION/DISTRIBUTIONS
CGI hereby covenants with the Escrow Agent and the Underwriters that from
the Closing Date to the earlier of the Effective Time and the Termination
Time, it shall not do any of the following, unless, in the case of any
such action described below, an appropriate adjustment is made to the
number of Class A Shares issuable on exchange of the Subscription
Receipts, which action is taken with prior written consent of the
Underwriters: (i) subdivide the outstanding Class A Shares into a greater
number of shares; (ii) reduce, combine or consolidate the outstanding
Class A Shares into a smaller number of shares; (iii) declare or pay, or
fix a record date to declare or pay, any dividend or distribution in cash
or in-kind to any or all holders of issued and outstanding Class A Shares;
or (iv) reclassify the Class A Shares or undertake a reorganization of the
Company or a consolidation, amalgamation, arrangement or merger of CGI
with any other person or other entity, or a sale or conveyance of the
property and assets of CGI as an entity or substantially as the entirety
to any other person or entity or a liquidation, dissolution or winding-up
of CGI.
7.2 GENERAL COVENANTS
(a) CGI covenants with the Escrow Agent, the Underwriters and the
Subscription Receipt holders that so long as any Subscription
Receipts remain outstanding:
(i) it will use its best efforts to maintain its corporate
existence;
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(ii) it will make all requisite filings under Canadian Securities
Laws including those necessary to remain a reporting issuer
not in default in each of the Provinces of Canada;
(iii) it will announce by press release the expected Effective Time
or the Termination Time, as the case may be in accordance with
Section 5.1 or Subsection 6.1(a)(i), as the case may be;
(iv) ensure that the Class A Shares issued on exchange for
Subscription Receipts will be, when issued, duly authorized,
fully paid (assuming release of the Escrowed Subscription
Funds to CGI pursuant to the terms hereof) and non-assessable;
(v) generally, it will perform and carry out all of the acts or
things to be done by it as provided in this Agreement; and
(vi) prior to the earlier of the Effective Date or the Termination
Date, it will not sell the properties or assets of CGI as, or
substantially as, an entirety, to any other entity.
7.3 SECURITIES LAW MATTERS
CGI shall file all documents, notices and certificates and take such steps
and do such things as may be necessary under Canadian Securities Laws to
permit the issuance of Subscription Receipts pursuant to private placement
exemptions and Class A Shares issuable on exchange of Subscription
Receipts, such that any such issuance will be exempt from prospectus
requirements under Canadian Securities Laws.
ARTICLE 8
MEETINGS OF RECEIPTHOLDERS
8.1 RIGHT TO CONVENE MEETING
The Escrow Agent or CGI may at any time and from time to time, and the
Escrow Agent shall, on receipt of a written request of CGI or a written
request signed by the holders of not less than 25% of the Subscription
Receipts then outstanding and upon being indemnified, to the Escrow
Agent's reasonable satisfaction by CGI or by the Receiptholders signing
such request, against the costs which may be incurred in connection with
the calling and holding of such meeting, convene a meeting of the
Receiptholders. In the event the Escrow Agent fails within 30 days after
receipt of any such request and such indemnity to give notice convening a
meeting, CGI or such Receiptholders, as the case may be, may convene such
meeting. Every such meeting shall be held in the City of Montreal, Quebec,
or at such other place as may be approved or determined by the Escrow
Agent.
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8.2 NOTICE OF MEETINGS
At least 15 days notice of any meeting shall be given to the
Receiptholders in the manner provided in Section 9.2 and a copy of such
notice shall be sent by post to the Escrow Agent, unless the meeting has
been called by it. Such notice shall state the time when and the place
where the meeting is to be held and shall state briefly the general nature
of the business to be transacted thereat and it shall not be necessary for
any such notice to set out the terms of any resolution to be proposed or
any of the provisions of this Article. The accidental omission to give
notice of a meeting to any holder of Subscription Receipts shall not
invalidate any resolution passed at any such meeting. A holder may waive
notice of a meeting either before or after the meeting.
8.3 CHAIR
Some person, who need not be a Receiptholder, nominated in writing by the
Escrow Agent shall be chair of the meeting and if no person is so
nominated, or if the person so nominated is not present within 15 minutes
from the time fixed for the holding of the meeting, the Receiptholders
present in person or by proxy shall choose some person present to be
chair.
8.4 QUORUM
Subject to the provisions of Section 8.12, at any meeting of the
Receiptholders a quorum shall consist of Receiptholders present in person
or by proxy and representing at least 25% of the outstanding Subscription
Receipts. If a quorum of the Receiptholders is not present within 30
minutes from the time fixed for holding any meeting, the meeting, if
summoned by the Receiptholders or pursuant to a request of the
Receiptholders, shall be dissolved; but in any other case the meeting
shall be adjourned to the same day in the next week (unless such day is
not a Business Day in which case it shall be adjourned to the next
following Business Day thereafter) at the same time and place and no
notice shall be required to be given in respect of such adjourned meeting.
At the adjourned meeting, the Receiptholders present in person or by proxy
shall form a quorum and may transact the business for which the meeting
was originally convened notwithstanding that they may not represent 25% of
the outstanding Subscription Receipts. Any business may be brought before
or dealt with at an adjourned meeting which might have been brought before
or dealt with at the original meeting in accordance with the notice
calling the same. No business shall be transacted at any meeting unless
the required quorum be present at the commencement of business.
8.5 POWER TO ADJOURN
The chair of any meeting at which a quorum of the Receiptholders is
present may, with the consent of the holders of a majority of the
Subscription Receipts represented thereat, adjourn any such meeting and no
notice of such adjournment need be given except such notice, if any, as
the meeting may prescribe.
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8.6 SHOW OF HANDS
Every question submitted to a meeting shall, subject to Section 8.7, be
decided in the first place by a majority of the votes given on a show of
hands. At any such meeting, unless a poll is duly demanded as herein
provided, a declaration by the chair that a resolution has been carried or
carried unanimously or by a particular majority or lost or not carried by
a particular majority shall be conclusive evidence of the fact. The chair
of any meeting shall be entitled, both on a show of hands and on a poll,
to vote in respect of the Subscription Receipts, if any, held by him or
her.
8.7 POLL
On every Extraordinary Resolution, and on any other question submitted to
a meeting, when demanded by the chair or by one or more Receiptholders or
proxies for Receiptholders, a poll shall be taken in such manner and
either at once or after an adjournment as the chair shall direct.
Questions other than Extraordinary Resolutions shall, if a poll be taken,
be decided by the votes of the holders of a majority of the Subscription
Receipts represented at the meeting and voted on the poll.
8.8 VOTING
On a show of hands every person who is present and entitled to vote,
whether as a Receiptholder or as proxy for one or more Receiptholders or
both, shall have one vote. On a poll each Receiptholder present in person
or represented by a proxy duly appointed by an instrument in writing shall
be entitled to one vote in respect of each Subscription Receipt of which
he or she shall then be the holder. A proxy need not be a Receiptholder.
In the case of joint holders of a Subscription Receipt, any one of them
present in person or by proxy at the meeting may vote in the absence of
the other or others but in case more than one of them be present in person
or by proxy, they shall vote together in respect of the Subscription
Receipts of which they are joint holders.
8.9 REGULATIONS
The Escrow Agent, or CGI with the approval of the Escrow Agent, may from
time to time make and from time to time vary or revoke such regulations as
it shall from time to time think fit providing for and governing:
(a) the setting of the record date for a meeting of holders of
Subscription Receipts for the purpose of determining Receiptholders
entitled to receive notice of and vote at such meeting;
(b) the form of the instrument appointing a proxy, which shall be in
writing, and the manner in which the same shall be executed and the
production of the authority of any person signing on behalf of a
Receiptholder;
(c) the deposit of instruments appointing proxies at such place as the
Escrow Agent, CGI or the Receiptholder convening the meeting, as the
case may be, may, in the
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notice convening the meeting, direct and the time, if any, before
the holding of the meeting or any adjournment thereof by which the
same must be deposited;
(d) the deposit of instruments appointing proxies at some approved place
or places other than the place at which the meeting is to be held
and enabling particulars of such instruments appointing proxies to
be mailed, faxed, emailed or otherwise sent electronically before
the meeting to CGI or to the Escrow Agent at the place where the
same is to be held and for the voting of proxies so deposited as
though the instruments themselves were produced at the meeting; and
(e) generally for the calling of meetings of Receiptholders and the
conduct of business thereat.
Any regulations so made shall be binding and effective and the votes given
in accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only persons who shall be recognized at any
meeting as the holders of any Subscription Receipts, or as entitled to
vote or be present at the meeting in respect thereof shall be
Receiptholders and persons whom Receiptholders have by instrument in
writing duly appointed as their proxies.
8.10 PERSONS ENTITLED TO ATTEND MEETINGS
CGI, the Escrow Agent and the Underwriters, by their respective officers,
directors and representatives, and the legal advisers of CGI, the Escrow
Agent, the Underwriters or any Receiptholder may attend any meeting of the
Receiptholders, but shall have no vote as such.
8.11 POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION
In addition to the powers conferred upon them by any other provisions of
this Agreement or by law, a meeting of the Receiptholders shall have the
following powers exercisable from time to time by Extraordinary
Resolution, subject to the approval of the Toronto Stock Exchange, where
applicable:
(a) to agree to any modification, abrogation, alteration, compromise or
arrangement of the rights of Receiptholders or the Escrow Agent in
its capacity as escrow agent hereunder or on behalf of the
Receiptholders against CGI whether such rights arise under this
Agreement or the Subscription Receipt Certificate or otherwise;
(b) to amend, alter or repeal any Extraordinary Resolution previously
passed or sanctioned by the Receiptholders;
(c) to direct or to authorize the Escrow Agent to enforce any of the
covenants on the part of CGI contained in this Agreement or the
Subscription Receipt Certificates or to enforce any of the rights of
the Receiptholders in any manner specified in such Extraordinary
Resolution or to refrain from enforcing any such covenant or right;
- 30 -
(d) to waive, and to direct the Escrow Agent to waive, any default on
the part of CGI in complying with any provisions of this Agreement
or the Subscription Receipt Certificates either unconditionally or
upon any conditions specified in such Extraordinary Resolution;
(e) to restrain any Receiptholder from taking or instituting any suit,
action or proceeding against CGI for the enforcement of any of the
covenants on the part of CGI in this Agreement or the Subscription
Receipt Certificates or to enforce any of the rights of the
Receiptholders;
(f) to direct any Receiptholder who, as such, has brought any suit,
action or proceeding to stay or to discontinue or otherwise to deal
with the same upon payment of the costs, charges and expenses
reasonably and properly incurred by such Receiptholder in connection
therewith;
(g) to assent to any change in or omission from the provisions contained
in the Subscription Receipt Certificates and this Agreement or any
ancillary or supplemental instrument which may be agreed to by CGI,
and to authorize the Escrow Agent to concur in and execute any
ancillary or supplemental agreement embodying the change or
omission;
(h) with the consent of CGI (such consent not to be unreasonably
withheld), to remove the Escrow Agent or its successor in office and
to appoint a new escrow agent to take the place of the Escrow Agent
so removed;
(i) to assent to any compromise or arrangement with any creditor or
creditors or any class or classes of creditors, whether secured or
otherwise and with holders of any shares or other securities of CGI.
8.12 MEANING OF "EXTRAORDINARY RESOLUTION
(a) The expression "EXTRAORDINARY RESOLUTION" when used in this
Agreement means, subject as hereinafter in this Article provided, a
resolution proposed to be passed as an Extraordinary Resolution at a
meeting of Receiptholders (including an adjourned meeting) duly
convened for the purpose and held in accordance with the provisions
of this Article at which the holders of not less than 25% of the
Subscription Receipts then outstanding are present in person or by
proxy and passed by the favourable votes of the holders of not less
than 66 2/3% of the Subscription Receipts represented at the meeting
and voted on a poll upon such resolution.
(b) If, at any such meeting, the holders of not less than 25% of the
Subscription Receipts outstanding are not present in person or by
proxy within 30 minutes after the time appointed for the meeting,
then the meeting, if convened by or on the requisition of
Receiptholders, shall be dissolved; but in any other case it shall
stand adjourned to such date, being not less than 14 nor more than
60 days later, and to such place and time as may be appointed by the
chairman. Not less than 10 days notice shall be given of the time
and place of such adjourned meeting in
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the manner provided in Section 9.2. Such notice shall state that at
the adjourned meeting the Receiptholders present in person or by
proxy shall form a quorum. At the adjourned meeting the
Receiptholders present in person or by proxy shall form a quorum and
may transact the business for which the meeting was originally
convened and a resolution proposed at such adjourned meeting and
passed by the requisite vote as provided in subsection (a) of this
Section shall be an Extraordinary Resolution within the meaning of
this Agreement, notwithstanding that the holders of not less than
25% of the Subscription Receipts then outstanding are not present in
person or by proxy at such adjourned meeting.
(c) Votes on an Extraordinary Resolution shall always be given on a poll
and no demand for a poll on an Extraordinary Resolution shall be
necessary.
8.13 POWERS CUMULATIVE
It is hereby declared and agreed that any one or more of the powers in
this Agreement stated to be exercisable by the Receiptholders by
Extraordinary Resolution or otherwise may be exercised from time to time
and the exercise of any one or more of such powers from time to time shall
not be deemed to exhaust the rights of the Receiptholders to exercise the
same or any other such power or powers thereafter from time to time.
8.14 MINUTES
Minutes of all resolutions and proceedings at every meeting as aforesaid
shall be made and duly entered in books to be from time to time provided
for that purpose by the Escrow Agent at the expense of CGI, and any such
minutes as aforesaid, if signed by the chairman of the meeting at which
such resolutions were passed or proceedings had, or by the chairman of the
next succeeding meeting of the Receiptholders, shall be prima facie
evidence of the matters therein stated and, until the contrary is proved,
every such meeting, in respect of the proceedings of which minutes shall
have been made, shall be deemed to have been duly held and convened, and
all resolutions passed thereat or proceedings taken thereat to have been
duly passed and taken.
8.15 INSTRUMENTS IN WRITING
All actions which may be taken and all powers that may be exercised by the
Receiptholders at a meeting held as hereinbefore in this Article provided
may also be taken and exercised by the holders of 66 2/3% of the
outstanding Subscription Receipts, by an instrument in writing signed in
one or more counterparts and the expression "Extraordinary Resolution"
when used in this Agreement shall include an instrument so signed.
8.16 BINDING EFFECT OF RESOLUTIONS
Every resolution and every Extraordinary Resolution passed in accordance
with the provisions of this Article at a meeting of Receiptholders shall
be binding upon all the Receiptholders, whether present at or absent from
such meeting, and every instrument in writing signed by Receiptholders in
accordance with Section 8.15 shall be binding upon
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all the Receiptholders, whether signatories thereto or not, and each and
every Receiptholder and the Escrow Agent (subject to the provisions for
its indemnity herein contained) shall be bound to give effect accordingly
to every such resolution, Extraordinary Resolution and instrument in
writing.
8.17 EVIDENCE OF RIGHTS OF RECEIPTHOLDERS
Any request, direction, notice, consent or other instrument which this
Agreement may require or permit to be signed or executed by the
Receiptholders, including an instrument, signed in one or more
counterparts by Receiptholders holding, in aggregate, not less than 25% of
all Subscription Receipts outstanding (a "RECEIPTHOLDERS' REQUEST"), may
be in any number of concurrent instruments of similar tenor and may be
signed or executed by such Receiptholders in person or by attorney duly
appointed in writing. Proof of the execution of any such request or other
instrument or of a writing appointing any such attorney or (subject to the
provisions of this Article with regard to voting at meetings of
Receiptholders) of the holding by any person of Subscription Receipts
shall be sufficient for any purpose of this Agreement if made in the
following manner, namely, the fact and date of execution by any person of
such request or other instrument or writing may be proved by the
certificate of any notary public, or other officer authorized to take
acknowledgements of deeds to be recorded at the place where such
certificate is made, that the person signing such request or other
instrument in writing acknowledged to him the execution thereof, or by an
affidavit of a witness of such execution or in any other manner which the
Escrow Agent may consider adequate.
The Escrow Agent may, nevertheless, in its discretion, require further
proof in cases where it deems further proof desirable or may accept such
other proof as it shall consider proper.
8.18 HOLDINGS BY CGI DISREGARDED
In determining whether Receiptholders holding the required number of
Subscription Receipts are present at a meeting of Receiptholders for the
purpose of determining a quorum or have concurred in any consent, waiver,
extraordinary resolution, Receiptholders' Request or other action under
this Agreement, Subscription Receipts owned legally or beneficially by CGI
shall be disregarded.
8.19 SUITS BY RECEIPTHOLDERS
All or any rights conferred upon any Receiptholder by any term of this
Agreement may be enforced by the Receiptholder by appropriate proceedings
but without prejudice to the right which is hereby conferred upon the
Escrow Agent to proceed in its own name to enforce each and all provisions
contained herein for the benefit of the Receiptholder.
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ARTICLE 9
MISCELLANEOUS
9.1 NOTICES
Any notice or other communication to be given by any of CGI, the Escrow
Agent or the Underwriters to any of the others shall be in writing and
signed by an authorized signatory of the party giving the notice. Any such
notice shall be addressed to the relevant party at its address as given
below or at such other address as may be notified from time to time in
accordance with this Section 9.1 and delivered or sent by facsimile to
such party. The addresses for notice or other communication to the parties
shall be:
CGI GROUP INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Chairman and Chief Executive Officer
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
With a copy addressed and sent to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇, rue Peel
Montreal (Quebec) Canada
H3B 4S8
Attention: Me ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No.: ▇▇▇.▇▇▇.▇▇▇▇
if to the Underwriters:
NATIONAL BANK FINANCIAL INC.
National Bank Financial Inc.
The Exchange Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, P.O. Box 21
Toronto, Ontario
M5X 1J9
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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and:
CREDIT SUISSE FIRST BOSTON CANADA INC.
3935 - ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
With a copy addressed and sent to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
Royal Trust Tower, TD Centre
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
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if to the Escrow Agent:
COMPUTERSHARE TRUST COMPANY OF CANADA
Corporate Trust Department
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: General Manager, Corporate Trust
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Any such notice shall be deemed to have been received at the time of
delivery, or time of sending if by facsimile, provided that any delivery
made or facsimile sent on other than a Business Day, or after 5:00 p.m.
(Montreal Time) on a Business Day, shall be deemed to have been received
at 9:00 a.m. (Montreal Time) on the next following Business Day. Any
facsimile shall be followed by a delivery of the same document by hand,
courier or by mail, provided that notice shall be deemed to have been
validly sent by facsimile notwithstanding any inadvertent failure to
deliver the same document by hand, courier or mail.
9.2 NOTICE TO RECEIPTHOLDERS
(a) Any notice to the Receiptholders under the provisions of this
Agreement shall be valid and effective if sent by letter or circular
through the ordinary post addressed to such holders at their post
office addresses appearing on the register hereinbefore mentioned
and shall be deemed to have been effectively given on the date of
delivery or, if mailed, five Business Days following actual posting
of the notice.
(b) If, by reason of a strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any notice to be given to
the Receiptholders hereunder could reasonably be considered unlikely
to reach its destination, such notice shall be valid and effective
only if it is delivered personally to such Receiptholders or if
delivered to the address for such Receiptholders contained in the
register of Subscription Receipts maintained by the Escrow Agent.
(c) Whenever payments are to be made or documents are to be sent to or
to the account of any holder of Subscription Receipts by the Escrow
Agent, then if such payment is made or such document is sent by
mail, such payment or document shall be so sent at the risk of the
recipient.
9.3 POWER TO AMEND
All and any provisions of this Agreement and the Subscription Receipts
may, from time to time, be amended by agreement between the Escrow Agent,
the Underwriters and CGI
- 36 -
in any respect that they deem necessary or desirable, without the need for
any additional consent by or on behalf of the holders of Subscription
Receipts for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provisions contained herein or in any
manner that the Escrow Agent, the Underwriters and CGI may deem necessary
or expedient and that does not in the opinion of the Escrow Agent
prejudice the holders of Subscription Receipts as a group. If this
Agreement is so amended, references herein to this Agreement shall, unless
the context otherwise requires, be construed, as from the date from which
such amendment is expressed to be made, as references to this Agreement as
so amended.
9.4 COMPLIANCE WITH LAWS AND REGULATIONS
In performing their respective obligations under this Agreement, CGI, the
Underwriters and the Escrow Agent shall comply with all applicable laws
and regulations binding on them respectively.
9.5 WAIVER
Each of the parties hereto shall have the right to waive any of its rights
under this Agreement in whole or in part, in its absolute discretion, and
any such right once waived may thereafter, subject to the terms of the
waiver, be reasserted by such party at any time and enforced pursuant to
the terms of this Agreement.
9.6 FURTHER ASSURANCES
The parties hereto agree that at any time and from time to time, upon the
written request of and at the expense of CGI, they and each of them will
promptly execute and deliver all further instruments and documents, and
take all further action, that may reasonably be necessary or desirable, or
that any party may reasonably request in order to give effect to the
purpose and intention of this Agreement.
9.7 ASSIGNMENT, SUCCESSORS AND ASSIGNS
None of the parties hereto may assign its rights under this Agreement,
except as provided in Article 3 in the case of the Escrow Agent, without
the prior written consent of the parties hereto other than such proposed
assignor. Subject thereto, this Agreement shall enure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns.
9.8 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Quebec and the federal laws of Canada applicable
therein. Each of the parties irrevocably attorns to the exclusive
jurisdiction of the courts of the Province of Quebec with respect to all
matters arising out of this Agreement and the transactions contemplated
herein.
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9.9 COUNTERPARTS
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original, and such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the
date first mentioned above.
CGI GROUP INC.
By:_________________________________________
NATIONAL BANK FINANCIAL INC.
By:_________________________________________
CREDIT SUISSE FIRST BOSTON CANADA INC.
By:_________________________________________
COMPUTERSHARE TRUST COMPANY OF CANADA
By:_________________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Corporate Trust Officer
By:__________________________________________
▇▇▇▇ ▇▇ ▇▇▇▇, Manager, Corporate Trust
SCHEDULE "A"
TO THE
SUBSCRIPTION RECEIPT AGREEMENT
ESCROW RELEASE NOTICE
To: COMPUTERSHARE TRUST COMPANY OF CANADA
NATIONAL BANK FINANCIAL, INC.
CREDIT SUISSE FIRST BOSTON CANADA INC.
Re: Subscription Receipt Agreement (the "AGREEMENT") dated March 19, 2004
between CGI Group Inc. (the "COMPANY"), National Bank Financial Inc.
and Credit Suisse First Boston Canada Inc. (such two being the
"UNDERWRITERS") and Computershare Trust Company of Canada (the "ESCROW
AGENT")
The Company, by its Chief Executive Officer and Chief Financial
Officer, on behalf of the Company and without personal liability,
hereby certifies that prior to the Termination Time:
(a) prior to the expiry of the Tender Offer, there has been
validly deposited under the Tender Offer and not withdrawn at
least the Minimum Number of AMS Shares, and CGI has issued to
the Depository the Minimum Take-up Notice;
(b) the Merger Agreement is in full force and effect and unamended
since the date of execution thereof save for amendments:
(i) which do not have the effect of increasing the net
value of the consideration to be paid under the
Acquisition by CGI or any of its subsidiaries by more
than 5% pursuant to the Merger Agreement; or
(ii) which do not have the effect of reducing the value of
the consideration to be paid for the DIG Business by
more than 5% or do not affect the time of closing of
the sale of the DIG Business pursuant to the DIG Sale
Agreement;
or amendments which have the effect set out in (i) or (ii)
above but which have received the prior written approval of
the Underwriters;
(c) neither CGI nor CGI Virginia Corporation has waived a
condition of closing under the Acquisition pertaining to the
absence of a Material Adverse Effect (as defined in the Merger
Agreement as at the date of execution thereof) without the
prior written consent of the Underwriters; and
(d) AMS and CACI International, Inc. have irrevocably agreed and
are unconditionally obligated to complete the sale of the DIG
Business pursuant to the DIG Sale Agreement at or prior to the
delivery of the Minimum Take-up Notice to the Depository.
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Enclosed herewith is a copy of the Minimum Take-up Notice addressed to
Computershare Trust Company of New York in its capacity as the
Depository under the Tender Offer.
The Company and the Underwriters irrevocably instruct the Escrow Agent,
forthwith upon receipt of this notice by facsimile, to deliver the
Escrowed Subscription Funds and Earned Interest in the following
amounts to the following wire transfer accounts:
as to $[-], to: CGI Group Inc.
- CGI Account Info
as to $[-], to: National Bank Financial Inc.
- National Bank Financial Inc. Account
Information
as to $[-], to: Credit Suisse First Boston Canada Inc.
- National Bank Financial Inc. Account
Information
All capitalized terms undefined herein have the meanings given to them
in the Agreement.
DATED this___________________day of -, 2004.
CGI GROUP INC.
By: ______________________________________
▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
By: ______________________________________
▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer
- 3 -
The above confirmation and release and payment instructions are affirmed by the
undersigned:
NATIONAL BANK FINANCIAL INC. CREDIT SUISSE FIRST BOSTON
CANADA INC.
By:__________________________________ By:__________________________
Name: Name:
Title: Title:
SCHEDULE "B"
TO THE
SUBSCRIPTION RECEIPT AGREEMENT
CGI GROUP INC.
FORM OF
SUBSCRIPTION RECEIPT
CERTIFICATE
CUSIP NO. ▇▇▇▇▇▇▇▇▇
THIS IS TO CERTIFY THAT ______________________________ is the registered holder
of_____________ Subscription Receipts issued by CGI Group Inc. ("CGI"). The
Subscription Receipts are issued pursuant to, and are subject to the provisions
of, a Subscription Receipt Agreement (the "SUBSCRIPTION RECEIPT AGREEMENT")
dated March 19, 2004, between CGI, National Bank Financial Inc. and Credit
Suisse First Boston Canada Inc. (such two being the "UNDERWRITERS") and
Computershare Trust Company of Canada (the "ESCROW AGENT"). Capitalized terms
used and not defined herein have the respective meanings ascribed thereto in the
Subscription Receipt Agreement.
This certificate evidences the agreements constituted by the Subscription
Receipts between the holders thereof and CGI by which CGI is obligated to issue,
and the holders are obligated to acquire, at the Effective Time, one Class A
Share in the capital of CGI for each Subscription Receipt for no additional
consideration on the basis provided in the Subscription Receipt Agreement.
The holder of the Subscription Receipts represented hereby should refer to the
Subscription Receipt Agreement for a description of the terms and conditions
upon which the Subscription Receipts are issued and are to be held. CGI will
furnish to the holder of this Certificate, upon request, a copy of the
Subscription Receipt Agreement.
Compliance with the securities laws of any jurisdiction is the responsibility of
the holder of the Subscription Receipts or its transferee.
The holding of this Certificate shall not constitute the holder hereof a holder
of Class A Shares or entitle such holder to any right or interest in respect
thereof except as expressly provided herein and in the Subscription Receipt
Agreement.
This Certificate shall not be valid for any purpose whatever unless and until it
has been countersigned by the Escrow Agent for the time being under the
Subscription Receipt Agreement.
After the completion of the agreements constituted by the Subscription Receipts,
this Certificate and all rights thereunder and hereunder shall be void and of no
effect or value.
Time is of the essence hereof.
- 2 -
IN WITNESS WHEREOF this certificate has been executed on behalf of CGI Group
Inc. as of the _________ day of ___________ , 2004.
Countersigned by: CGI GROUP INC.
By:____________________________
Certification:
COMPUTERSHARE TRUST COMPANY OF CANADA
By:___________________________________
Name:_________________________________
Title:__________________________________
Dated:__________________, 2004
- 3 -
(REVERSE)
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------
(Name and address of transferee)
---------------------------------------------------
Subscription Receipts registered in the name of the
undersigned on the books of CGI named on the face of this certificate and
represented hereby, and irrevocably constitutes and appoints
the attorney of the undersigned to transfer
the said securities on the register of transfers and books of CGI with full
power of substitution hereunder.
DATED:
-------------------------------- ------------------------------
(Signature of Witness) (Signature of Securityholder)
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the certificate, in every particular,
without alteration or enlargement, or any change whatever, and
must be signature guaranteed by a Schedule I Chartered Bank, a
major Canadian trust company or a member of a recognized Medallion
Guarantee Program.
Signature Guaranteed By:
SCHEDULE "C"
FORM OF DIRECTION
TO: COMPUTERSHARE TRUST COMPANY OF CANADA (THE "ESCROW AGENT"), AS
REGISTRAR AND TRANSFER AGENT FOR THE CLASS A SHARES OF CGI GROUP INC.
("CGI")
This Irrevocable Direction is provided pursuant to a Subscription Receipt
Agreement (the "SUBSCRIPTION RECEIPT Agreement") dated March 19, 2004, between
CGI, National Bank Financial Inc. and Credit Suisse First Boston Canada Inc.
(such two being the "UNDERWRITERS") and Computershare Trust Company of Canada
(the "ESCROW AGENT"). Capitalized terms used and not defined herein have the
respective meanings ascribed thereto in the Subscription Receipt Agreement.
The Escrow Agent is hereby irrevocably directed and authorized to issue and
deliver on behalf of CGI certificates representing 41,340,625 Class A Shares to
the persons to whom such Class A Shares are to be issued pursuant to the
Exchange Right following the satisfaction of the Escrow Release Condition (which
occurred on -, 2004), all as provided in Section 5.2 of the Subscription
Receipt Agreement. We hereby confirm that the issue of these Class A Shares has
been duly authorized by all necessary corporate action and that such Class A
Shares are to be issued as fully paid and non-assessable shares.
DATED the __________ day of __________________________, 2004.
CGI GROUP INC.
By: _______________________
- 2 -
SCHEDULE "D"
FORM OF DECLARATION FOR REMOVAL OF LEGEND
TO: COMPUTERSHARE TRUST COMPANY OF CANADA, AS REGISTRAR AND TRANSFER AGENT
FOR SUBSCRIPTION RECEIPTS AND CLASS A SHARES
AND TO: CGI GROUP INC.
The undersigned (a) acknowledges that the sale of the securities of CGI Group
Inc.(the "COMPANY") to which this declaration relates is being made in reliance
on Rule 904 of Regulation S under the United States Securities Act of 1933, as
amended (the "U.S. SECURITIES ACT") and (b) certifies that (1) the undersigned
is not an affiliate of the Company as that term is defined in the U.S.
Securities Act, (2) the offer of such securities was not made to a person in the
United States and either (A) at the time the buy order was originated, the buyer
was outside the United States, or the seller and any person acting on its behalf
reasonably believed that the buyer was outside the United States, or (B) the
transaction was executed in, on or through the facilities of The Toronto Stock
Exchange or any other designated offshore securities market as defined in
Regulation S under the U.S. Securities Act and neither the seller nor any person
acting on its behalf knows that the transaction has been prearranged with a
buyer in the United States, (3) neither the seller nor any affiliate of the
seller nor any person acting on any of their behalf has engaged or will engage
in any directed selling efforts in the United States in connection with the
offer and sale of such securities, (4) the sale is bona fide and not for the
purpose of "washing off' the resale restrictions imposed because the securities
are "restricted securities" (as such term is defined in Rule 144(a)(3) under the
U.S. Securities Act), (5) the seller does not intend to replace the securities
sold in reliance on Rule 904 of the U.S. Securities Act with fungible
unrestricted securities and (6) the contemplated sale is not a transaction, or
part of a series of transactions which, although in technical compliance with
Regulation S, is part of a plan or scheme to evade the registration provisions
of the U.S. Securities Act. Terms used herein have the meanings given to them by
Regulation S.
(Date) (Name of Seller)
By:
---------------
Name:
Title: