Exhibit 99.2
EXCHANGEABLE SHARE SUPPORT AGREEMENT
This AGREEMENT is made the _________ day of __________________________,
2000
BETWEEN:
INFOSPACE, INC., a corporation incorporated under the laws of
Delaware
("InfoSpace")
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▇▇▇▇▇▇▇▇▇.▇▇▇ NOVA SCOTIA COMPANY, an unlimited liability company
existing under the laws of the Province of Nova Scotia
("InfoSpace Nova Scotia")
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LOCUS HOLDINGS INC., a corporation incorporated under the laws of
Canada
("Locus Holdings")
MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated
under the laws of Canada,
(the "Trustee")
Background:
1. Pursuant to a Share Exchange Agreement dated as of the 3/rd/ day of
November, 2000 (the "Share Exchange Agreement"), entered into between
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InfoSpace, InfoSpace Nova Scotia, Locus Holdings and Locus Dialogue Inc.
("Locus") and the shareholders of Locus (collectively the "Parties"), the
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Parties have agreed to the acquisition of control of Locus by InfoSpace.
2. Pursuant to the Share Exchange Agreement, shareholders of Locus will have
the option of exchanging their common shares and/or preferred shares, as
the case may be, in the capital of Locus ("Locus Common Shares"), for
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common shares in the capital of InfoSpace ("InfoSpace Common Shares") or
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Locus
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Exchangeable Shares in the capital of Locus Holdings (the "Locus
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Exchangeable Shares") in accordance with the appropriate exchange ratio in
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the Share Exchange Agreement.
3. In accordance with the Share Exchange Agreement, InfoSpace, InfoSpace Nova
Scotia and Locus Holdings are hereby entering into this support agreement
with a trustee appointed by the holders of such Locus Exchangeable Shares.
4. The Trustee has been appointed and his duties and powers and ancillary
matters have been set out in a Voting and Exchange Trust Agreement dated
the date hereof.
5. Any statements of fact contained in this Agreement are made by Infospace,
InfoSpace Nova Scotia and Locus Holdings and not by the Trustee.
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this agreement and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto
covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms
Each term denoted herein by initial capital letters and not otherwise
defined herein shall have the meaning ascribed thereto in the rights,
privileges, restrictions and conditions (collectively, the "Share Provisions")
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attaching to the Locus Exchangeable Shares, a copy of which is attached hereto
as Schedule A. "Locus Voting Share" means the one share of special voting
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stock, class B to be issued by InfoSpace and deposited with the Trustee pursuant
to the Voting and Exchange Trust Agreement.
1.2 Interpretation Not Affected by Headings
The division of this agreement into Articles, sections and other portions
and the insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this agreement. Unless
otherwise indicated, all references to an "Article" or "section" followed by a
number and/or a letter refer to the specified Article or section of this
agreement. The terms "this agreement", "hereof", "herein" and "hereunder" and
similar expressions refer to this agreement and not to any particular Article,
section or other portion hereof and include any agreement or instrument
supplementary or ancillary hereto.
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1.3 Number, Gender
Words in the singular number only shall include the plural and vice versa.
Words in one gender shall include all genders.
1.4 Date for any Action
If any date on which any action is required to be taken under this
agreement is not a Business Day, such action shall be required to be taken on
the next succeeding Business Day.
1.5 Trustee
The Trustee shall have the rights, powers and duties set out in, and shall
receive the benefit of the protections of Articles 7, 8, 9 and 10 of the Voting
and Exchange Trust Agreement and shall be compensated and replaced as provided
for therein.
ARTICLE 2
COVENANTS OF INFOSPACE AND LOCUS HOLDINGS
2.1 Covenants Regarding Locus Exchangeable Shares
So long as any Locus Exchangeable Shares not owned by InfoSpace or its
Affiliates are outstanding, InfoSpace shall:
(a) not declare or pay any dividend on the InfoSpace Common Shares unless
(i) Locus Holdings shall simultaneously declare or pay, as the case
may be, an equivalent dividend (as provided for in the Share
Provisions) on the Locus Exchangeable Shares and (ii) Locus Holdings
shall have sufficient money or other assets or authorized but unissued
securities available to enable the due declaration and the due and
punctual payment, in accordance with applicable law, of any such
dividend on the Locus Exchangeable Shares;
(b) advise Locus Holdings sufficiently in advance of the declaration by
InfoSpace of any dividend on InfoSpace Common Shares and take all such
other actions as are reasonably necessary, in cooperation with Locus
Holdings, to ensure that the respective declaration date, record date
and payment date for a dividend on the Locus Exchangeable Shares shall
be the same as the declaration date, record date and payment date for
the corresponding dividend on the InfoSpace Common Shares;
(c) ensure that the record date for any dividend declared on InfoSpace
Common Shares is not less than 10 Business Days after the declaration
date of such dividend;
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(d) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit Locus Holdings, in
accordance with applicable law, to pay and otherwise perform its
obligations with respect to the satisfaction of the Liquidation
Amount, the Retraction Price or the Redemption Price in respect of
each issued and outstanding Locus Exchangeable Share upon the
liquidation, dissolution or winding-up of Locus Holdings, the delivery
of a Retraction Request by a holder of Locus Exchangeable Shares or a
redemption of Locus Exchangeable Shares by Locus Holdings, as the case
may be, including without limitation all such actions and all such
things as are necessary or desirable to enable and permit Locus
Holdings to cause to be delivered InfoSpace Common Shares to the
holders of Locus Exchangeable Shares in accordance with the provisions
of Section 5, 6 or 7, as the case may be, of the Share Provisions;
(e) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit InfoSpace Nova Scotia, in
accordance with applicable law, to perform its obligations arising
upon the exercise by it of the Liquidation Call Right, the Retraction
Call Right or the Redemption Call Right including without limitation
all such actions and all such things as are necessary or desirable to
enable and permit InfoSpace Nova Scotia to cause to be delivered
InfoSpace Common Shares to the holders of Locus Exchangeable Shares in
accordance with the provisions of Section 8, as the case may be, of
the Share Provisions; and
(f) not exercise its vote as a direct or indirect shareholder to initiate
the voluntary liquidation, dissolution or winding-up of Locus Holdings
nor take any action or omit to take any action that is designed to
result in the liquidation, dissolution or winding-up of Locus
Holdings.
2.2 Segregation of Funds
InfoSpace will cause Locus Holdings to deposit a sufficient amount of funds
in a separate account of Locus Holdings and segregate a sufficient amount of
such other assets and property as is necessary to enable Locus Holdings to pay
dividends when due and to pay or otherwise satisfy its respective obligations
under Section 5, 6 or 7 of the Share Provisions, as applicable and Locus
Holdings will use such funds or other assets exclusively to pay such dividends
or satisfy its obligations under Sections 5, 6 or 7 of the Share Provisions.
2.3 Reservation of InfoSpace Common Shares
InfoSpace hereby represents, warrants and covenants in favour of InfoSpace
Nova Scotia, Locus Holdings and the Trustee that InfoSpace has reserved for
issuance and will, at all times while any Locus Exchangeable Shares (other than
Locus Exchangeable Shares held by InfoSpace or its affiliates) are outstanding,
keep
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available, free from pre-emptive and other rights, out of its authorized and
unissued capital stock such number of InfoSpace Common Shares (or other shares
or securities into which InfoSpace Common Shares may be reclassified or changed
as contemplated by section 2.7 hereof) (a) as is equal to the sum of (i) the
number of Locus Exchangeable Shares issued and outstanding from time to time and
(ii) the number of Locus Exchangeable Shares issuable upon the exercise of all
rights to acquire Locus Exchangeable Shares outstanding from time to time and
(b) as are now and may hereafter be required to enable and permit InfoSpace to
meet its obligations under the Voting and Exchange Trust Agreement and under any
other security or commitment pursuant to which InfoSpace may now or hereafter be
required to issue InfoSpace Common Shares, to enable and permit InfoSpace Nova
Scotia and Locus Holdings to meet its respective obligations hereunder and under
the Share Provisions.
2.4 Notification of Certain Events
In order to assist InfoSpace and to permit InfoSpace Nova Scotia to
exercise the Liquidation Call Right, Retraction Call Right and Redemption Call
Right, Locus Holdings will notify InfoSpace, InfoSpace Nova Scotia and the
Trustee of each of the following events at the time set forth below:
(a) in the event of any determination by the Board of Directors to
institute voluntary liquidation, dissolution or winding-up proceedings
with respect to Locus Holdings or to effect any other distribution of
the assets of Locus Holdings among its shareholders for the purpose of
winding up its affairs, at least 60 days prior to the proposed
effective date of such liquidation, dissolution, winding-up or other
distribution;
(b) promptly, upon the earlier of receipt by Locus Holdings of notice of
and Locus Holdings otherwise becoming aware of any threatened or
instituted claim, suit, petition or other proceedings with respect to
the involuntary liquidation, dissolution or winding-up of Locus
Holdings or to effect any other distribution of the assets of Locus
Holdings among its shareholders for the purpose of winding up its
affairs;
(c) immediately, upon receipt by Locus Holdings of a Retraction Request;
(d) on the same date on which notice of redemption is given to holders of
Locus Exchangeable Shares, upon the determination of a Redemption Date
in accordance with the Share Provisions; and
(e) as soon as practicable upon the issuance by Locus Holdings of any
Locus Exchangeable Shares or rights to acquire Locus Exchangeable
Shares.
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2.5 Delivery of Common Shares to Locus Holdings and InfoSpace Nova Scotia
Upon notice from Locus Holdings or InfoSpace Nova Scotia of any event that
requires Locus Holdings or InfoSpace Nova Scotia to cause to be delivered
InfoSpace Common Shares to any holder of Locus Exchangeable Shares, InfoSpace
shall forthwith issue and deliver or cause to be delivered to Locus Holdings or
InfoSpace Nova Scotia the requisite number of InfoSpace Common Shares to be
received by, and issued to or to the order of, the former holder of the
surrendered Locus Exchangeable Shares, as Locus Holdings or InfoSpace Nova
Scotia shall direct. All such InfoSpace Common Shares shall be duly authorized
and validly issued as fully paid and non-assessable and shall be free and clear
of any lien, claim or encumbrance. In consideration of the issuance and delivery
of each such InfoSpace Common Share, Locus Holdings or InfoSpace Nova Scotia, as
the case may be, shall issue to InfoSpace, or as InfoSpace shall direct, common
shares of Locus Holdings or InfoSpace Nova Scotia having equivalent value.
2.6 Qualification of InfoSpace Common Shares
If any InfoSpace Common Shares (or other shares or securities into which
InfoSpace Common Shares may be reclassified or changed as contemplated by
section 2.7 hereof) to be issued and delivered hereunder require registration or
qualification with or approval of or the filing of any document, including any
prospectus or similar document or the taking of any proceeding with or the
obtaining of any order, ruling or consent from any governmental or regulatory
authority under any Canadian or United States federal, provincial or state
securities or other law or regulation or pursuant to the rules and regulations
of any securities or other regulatory authority or the fulfillment of any other
United States or Canadian legal requirement before such shares (or such other
shares or securities) may be issued by InfoSpace and delivered by InfoSpace at
the direction of Locus Holdings or InfoSpace Nova Scotia, if applicable, to the
holder of surrendered Locus Exchangeable Shares or in order that such shares (or
such other shares or securities) may be freely traded thereafter in Canada and
the United States (other than any restrictions of general application on
transfer by reason of a holder being a "control person" for purposes of Canadian
provincial securities law or an "affiliate" of InfoSpace for purposes of United
States federal or state securities law), InfoSpace will in good faith
expeditiously take all such actions and do all such things as are necessary or
desirable to cause such InfoSpace Common Shares (or such other shares or
securities) to be and remain duly registered, qualified or approved under United
States and/or Canadian law, as the case may be. InfoSpace will in good faith
expeditiously take all such actions and do all such things as are reasonably
necessary or desirable to cause all InfoSpace Common Shares (or such other
shares or securities) to be delivered hereunder to be listed, quoted or posted
for trading on all stock exchanges and quotation systems on which outstanding
InfoSpace Common Shares (or such other shares or securities) have been listed by
InfoSpace and remain listed and are quoted or posted for trading at such time.
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2.7 Economic Equivalence
(a) InfoSpace will not without prior approval of Locus Holdings and the
prior approval of the holders of the Locus Exchangeable Shares given
in accordance with section 11 of the Share Provisions:
(i) issue or distribute InfoSpace Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire InfoSpace Common Shares) to the holders of all or
substantially all of the then outstanding InfoSpace Common
Shares by way of stock dividend or other distribution, other
than an issue of InfoSpace Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire InfoSpace Common Shares) to holders of InfoSpace Common
Shares who exercise an option to receive dividends in InfoSpace
Common Shares (or securities exchangeable for or convertible
into or carrying rights to acquire InfoSpace Common Shares) in
lieu of receiving cash dividends; or
(ii) issue or distribute rights, options or warrants to the holders
of all or substantially all of the then outstanding InfoSpace
Common Shares entitling them to subscribe for or to purchase
InfoSpace Common Shares (or securities exchangeable for or
convertible into or carrying rights to acquire InfoSpace Common
Shares); or
(iii) issue or distribute to the holders of all or substantially all
of the then outstanding InfoSpace Common Shares (A) shares or
securities of InfoSpace of any class other than InfoSpace
Common Shares (other than shares convertible into or
exchangeable for or carrying rights to acquire InfoSpace Common
Shares), (B) rights, options or warrants other than those
referred to in section 2.7(a)(ii) above, (C) evidences of
indebtedness of InfoSpace or (D) assets of InfoSpace,
unless the economic equivalent on a per share basis of such rights,
options, securities, shares, evidences of indebtedness or other assets
is issued or distributed simultaneously to holders of the Locus
Exchangeable Shares; provided that, for greater certainty, the above
restrictions shall not apply to any securities issued or distributed
by InfoSpace in order to give effect to and to consummate the
transactions contemplated by, and in accordance with, the Share
Exchange Agreement.
(b) InfoSpace will not without the prior approval of Locus Holdings and
the prior approval of the holders of the Locus Exchangeable Shares
given in accordance with section 11 of the Share Provisions:
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(i) subdivide, redivide or change the then outstanding InfoSpace
Common Shares into a greater number of InfoSpace Common Shares;
or
(ii) reduce, combine, consolidate or change the then outstanding
InfoSpace Common Shares into a lesser number of InfoSpace
Common Shares; or
(iii) reclassify or otherwise change InfoSpace Common Shares or
effect an amalgamation, merger, reorganization or other
transaction affecting InfoSpace Common Shares,
unless the same or an economically equivalent change shall
simultaneously be made to, or in the rights of the holders of, the
Locus Exchangeable Shares.
(c) InfoSpace will ensure that the record date for any event referred to
in section 2.7 (a) or 2.7 (b) above, or (if no record date is
applicable for such event) the effective date for any such event, is
not less than ten Business Days after the date on which such event is
declared or announced by InfoSpace (with contemporaneous notification
thereof by InfoSpace to Locus Holdings).
(d) The Board of Directors shall determine, in good faith and in its sole
discretion acting reasonably, economic equivalence for the purposes of
any event referred to in section 2.7(a) or 2.7(b) above and each such
determination shall be conclusive and binding on InfoSpace. In making
each such determination, the following factors shall, without
excluding other factors determined by the Board of Directors to be
relevant, be considered by the Board of Directors:
(i) in the case of any stock dividend or other distribution payable
in InfoSpace Common Shares, the number of such shares issued in
proportion to the number of InfoSpace Common Shares previously
outstanding;
(ii) in the case of the issuance or distribution of any rights,
options or warrants to subscribe for or purchase InfoSpace
Common Shares (or securities exchangeable for or convertible
into or carrying rights to acquire InfoSpace Common Shares),
the relationship between the exercise price of each such right,
option or warrant and the current market value (as determined
by the Board of Directors in the manner above contemplated) of
an InfoSpace Common Share;
(iii) in the case of the issuance or distribution of any other form
of property (including without limitation any shares or
securities
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of InfoSpace of any class other than InfoSpace Common Shares,
any rights, options or warrants other than those referred to in
section 2.7(d)(ii) above, any evidences of indebtedness of
InfoSpace or any assets of InfoSpace), the relationship between
the fair market value (as determined by the Board of Directors
in the manner above contemplated) of such property to be issued
or distributed with respect to each outstanding InfoSpace
Common Share and the current market value (as determined by the
Board of Directors in the manner above contemplated) of an
InfoSpace Common Share;
(iv) in the case of any subdivision, redivision or change of the
then outstanding InfoSpace Common Shares into a greater number
of InfoSpace Common Shares or the reduction, combination,
consolidation or change of the then outstanding InfoSpace
Common Shares into a lesser number of InfoSpace Common Shares
or any amalgamation, merger, reorganization or other
transaction affecting InfoSpace Common Shares, the effect
thereof upon the then outstanding InfoSpace Common Shares; and
(v) in all such cases, the general taxation consequences of the
relevant event to holders of Locus Exchangeable Shares to the
extent that such consequences may differ from the taxation
consequences to holders of InfoSpace Common Shares as a result
of differences between taxation laws of Canada and the United
States (except for any differing consequences arising as a
result of differing marginal taxation rates and without regard
to the individual circumstances of holders of Locus
Exchangeable Shares).
For purposes of the foregoing determinations, the current market value
of any security listed and traded or quoted on a securities exchange
shall be the weighted average of the closing bid and ask prices of
such security during a period of not less than 20 consecutive trading
days ending not more than three trading days before the date of
determination on the principal securities exchange on which such
securities are listed and traded or quoted; provided, however, that if
in the opinion of the Board of Directors the public distribution or
trading activity of such securities during such period does not create
a market which reflects the fair market value of such securities, then
the current market value thereof shall be determined by the Board of
Directors, in good faith, based upon the advice of such qualified
independent financial advisors as the Board of Directors may deem
appropriate, and in its sole discretion, and provided further that any
such determination by the Board of Directors shall be conclusive and
binding on InfoSpace.
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(e) Locus Holdings agrees that, to the extent required, upon due notice
from InfoSpace, Locus Holdings will use its best efforts to take or
cause to be taken such steps as may be necessary for the purposes of
ensuring that appropriate dividends are paid or other distributions
are made by Locus Holdings, or subdivisions, redivisions or changes
are made to the Locus Exchangeable Shares, in order to implement the
required economic equivalent with respect to the InfoSpace Common
Shares and Locus Exchangeable Shares as provided for in this section
2.7.
2.8 Tender Offers
In the event that a tender offer, share exchange offer, issuer bid, take-
over bid or similar transaction with respect to InfoSpace Common Shares (an
"Offer") is proposed by InfoSpace or is proposed to InfoSpace or its
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shareholders and is recommended by the Board of Directors of InfoSpace, or is
otherwise effected or to be effected with the consent or approval of the Board
of Directors of InfoSpace, and the Locus Exchangeable Shares are not redeemed by
Locus Holdings or purchased by InfoSpace Nova Scotia as contemplated by and in
compliance with the Share Provisions, InfoSpace will use its reasonable efforts
expeditiously and in good faith to take all such actions and do all such things
as are necessary or desirable to enable and permit holders of Locus Exchangeable
Shares to participate in such Offer to the same extent and on an economically
equivalent basis as the holders of InfoSpace Common Shares, without
discrimination. Without limiting the generality of the foregoing, InfoSpace will
use its reasonable efforts expeditiously and in good faith (and shall, in the
case of a transaction by InfoSpace or where InfoSpace is a participant in the
negotiation thereof) to ensure that holders of Locus Exchangeable Shares may
participate in all such Offers without being required to retract Locus
Exchangeable Shares as against Locus Holdings (or, if so required, to ensure
that any such retraction, shall be effective only upon, and shall be conditional
upon, the closing of the Offer and only to the extent necessary to tender or
deposit to the Offer). Nothing herein shall affect the rights of Locus Holdings
under the Share Provisions to redeem (or InfoSpace Nova Scotia to purchase
pursuant to the Redemption Right) Locus Exchangeable Shares, as applicable, in
the event of an InfoSpace Control Transaction.
2.9 Ownership of Outstanding Shares
Without the prior approval of Locus Holdings and the prior approval of the
holders of the Locus Exchangeable Shares given in accordance with section 11 of
the Share Provisions, InfoSpace covenants and agrees in favour of Locus Holdings
and the Trustee on behalf of holders of Locus Exchangeable Shares that, as long
as any outstanding Locus Exchangeable Shares are owned by any person or entity
other than InfoSpace or any of its Affiliates, InfoSpace will be and remain the
direct or indirect beneficial owner of all issued and outstanding voting shares
in the capital of Locus Holdings and InfoSpace Nova Scotia.
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2.10 InfoSpace and Affiliates Not to Vote Locus Exchangeable Shares
InfoSpace covenants and agrees that it will appoint and cause to be
appointed proxyholders with respect to all Locus Exchangeable Shares held by it
and its Affiliates for the sole purpose of attending each meeting of holders of
Locus Exchangeable Shares in order to be counted as part of the quorum for each
such meeting. InfoSpace further covenants and agrees that it will not, and will
cause its Affiliates not to, exercise any voting rights which may be exercisable
by holders of Locus Exchangeable Shares from time to time pursuant to the Share
Provisions or pursuant to the provisions of the Canada Business Corporations Act
(or any successor or other corporate statute by which Locus Holdings may in the
future be governed) with respect to any Locus Exchangeable Shares held by it or
by its Affiliates in respect of any matter considered at any meeting of holders
of Locus Exchangeable Shares.
2.11 Rule 10b-18 Purchases
For certainty, nothing contained in this Agreement, including without
limitation the obligations of InfoSpace contained in section 2.8 hereof, shall
limit the ability of InfoSpace or Locus Holdings to make a "Rule 10b-18
Purchase" of InfoSpace Common Shares pursuant to Rule 10b-18 of the U.S.
Securities Exchange Act of 1934, as amended, or any successor provisions
thereof.
2.12 Locus Voting Shares
During the term of this Agreement, InfoSpace will not issue any additional
Locus Voting Shares and will not amend, alter, change or repeal the terms of the
Locus Voting Shares without the prior approval of the holders of Locus
Exchangeable Shares in accordance with section 11 of the Share Provisions.
2.13 Annual Compliance Certificate
The Trustee shall deliver to InfoSpace annually on the anniversary date of
this agreement, and at any other reasonable time if the Trustee so requires, and
InfoSpace shall execute and deliver to the Trustee within 60 days of receipt, a
certificate stating that InfoSpace has complied with all the covenants,
conditions and requirements contained in this agreement or, if InfoSpace has not
complied with all such covenants, conditions or requirements, giving particulars
as to each non-compliance and the action, if any, InfoSpace proposes to take
with respect thereto.
ARTICLE 3
INFOSPACE SUCCESSORS
3.1 Certain Requirements in Respect of Combination, etc.
InfoSpace shall not consummate any transaction (whether by way of
reconstruction, reorganization, consolidation, merger, transfer, sale, lease or
otherwise) whereby all or substantially all of its undertaking, property and
assets
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would become the property of any other person or, in the case of a merger, of
the continuing corporation resulting therefrom unless, but may do so if:
(a) such other person or continuing corporation (the "InfoSpace
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Successor") by operation of law, becomes, without more, bound by the
terms and provisions of this Agreement or, if not so bound, executes,
prior to or contemporaneously with the consummation of such
transaction, an agreement supplemental hereto and such other
instruments (if any) as are reasonably necessary or advisable to
evidence the assumption by the InfoSpace Successor of liability for
all moneys payable and property deliverable hereunder and the covenant
of such InfoSpace Successor to pay and deliver or cause to be
delivered the same and its agreement to observe and perform all the
covenants and obligations of InfoSpace under this Agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material respect
any of the rights, duties, powers and authorities of the other parties
hereunder.
3.2 Vesting of Powers in Successor
Whenever the conditions of section 3.1 have been duly observed and
performed, the parties, if required by section 3.1, shall execute and deliver a
supplemental agreement hereto and thereupon InfoSpace Successor shall possess
and from time to time may exercise each and every right and power of InfoSpace
under this Agreement in the name of InfoSpace or otherwise and any act or
proceeding by any provision of this Agreement required to be done or performed
by the Board of Directors of InfoSpace or any officers of InfoSpace may be done
and performed with like force and effect by the directors or officers of such
InfoSpace Successor.
3.3 Wholly-Owned Subsidiaries
Nothing herein shall be construed as preventing the amalgamation or merger
of any wholly-owned direct or indirect subsidiary of InfoSpace, except for Locus
Holdings, with or into InfoSpace or the winding-up, liquidation or dissolution
of any wholly-owned subsidiary of InfoSpace, except for Locus Holdings, provided
that all of the assets of such subsidiary are transferred to InfoSpace or
another wholly-owned direct or indirect subsidiary of InfoSpace and any such
transactions are expressly permitted by this Article 3.
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ARTICLE 4
GENERAL
4.1 Term
This Agreement shall come into force and be effective as of the date hereof
and shall terminate and be of no further force and effect at such time as no
Locus Exchangeable Shares (or securities or rights convertible into or
exchangeable for or carrying rights to acquire Locus Exchangeable Shares) are
held by any person or entity other than InfoSpace and any of its Affiliates.
4.2 Changes in Capital of InfoSpace and Locus Holdings
At all times after the occurrence of any event contemplated pursuant to
sections 2.7 and 2.8 hereof or otherwise, as a result of which either InfoSpace
Common Shares or the Locus Exchangeable Shares or both are in any way changed,
this agreement shall forthwith be amended and modified as necessary in order
that it shall apply with full force and effect, with the appropriate changes, to
all new securities into which InfoSpace Common Shares or the Locus Exchangeable
Shares or both are so changed and the parties hereto shall execute and deliver
an agreement in writing giving effect to and evidencing such necessary
amendments and modifications.
4.3 Severability
If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder of this
Agreement shall not in any way be affected or impaired thereby and this
Agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
4.4 Amendments, Modifications
This Agreement may not be amended or modified except by an agreement in
writing executed by Locus Holdings, InfoSpace Nova Scotia, the Trustee and
InfoSpace.
4.5 Assignment by Trustee
Notwithstanding Section 4.4, the parties acknowledge and agree, and any
beneficiaries hereunder are hereby deemed to have acknowledged and agreed that:
(a) effective June 30, 2000, Computer Investor Services Inc.
("Computershare"), purchased the Corporate Trust business of the
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Trustee; and
(b) the Trustee may, without the consent of any other party, assign all
its rights and duties under this Agreement, and under any ancillary
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agreements executed in connection herewith, to such federal trust
company as may result from Computershare being continued as a trust
company pursuant to the terms of the Trust and Loan Companies Act
(Canada). Notice of any such assignment shall be given by the Trustee
or its successor to each of the parties hereto, provided that, such
assignment shall be effective whether or not such notice is given and
without the approval of the parties hereto.
4.6 Ministerial Amendments
Notwithstanding the provisions of section 4.4, the parties to this
Agreement may in writing at any time and from time to time, without the approval
of the Trustee or the holders of the Locus Exchangeable Shares, provided that
notice is given to the Trustee following any amendment or modification, amend or
modify this Agreement for the purposes of:
(a) adding to the covenants of Locus Holdings, InfoSpace Nova Scotia or
InfoSpace provided that the Board of Directors of each of Locus
Holdings, InfoSpace Nova Scotia and InfoSpace shall be of the good
faith opinion that such additions will not be prejudicial to the
rights or interests of the holders of the Locus Exchangeable Shares,
or the Trustee;
(b) making such amendments or modifications not inconsistent with this
Agreement as may be necessary or desirable with respect to matters or
questions which, in the good faith opinion of the Board of Directors
of each of Locus Holdings, InfoSpace Nova Scotia and InfoSpace, it may
be expedient to make, provided that each such Board of Directors shall
be of the good faith opinion that such amendments or modifications
will not be prejudicial to the rights or interests of the holders of
the Locus Exchangeable Shares, or the Trustee; or
(c) making such changes or corrections which, on the advice of counsel to
Locus Holdings, InfoSpace Nova Scotia and InfoSpace, are required for
the purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or manifest
error, provided that the Boards of Directors of each of Locus
Holdings, InfoSpace Nova Scotia and InfoSpace shall be of the good
faith opinion that such changes or corrections will not be prejudicial
to the rights or interests of the holders of the Locus Exchangeable
Shares, or the Trustee.
4.7 Meeting to Consider Amendments
Locus Holdings, at the request of InfoSpace, shall call a meeting or
meetings of the holders of the Locus Exchangeable Shares for the purpose of
considering any proposed amendment or modification requiring approval pursuant
to section 4.4
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hereof. Any such meeting or meetings shall be called and held in accordance with
the bylaws of Locus Holdings, the Share Provisions and all applicable laws.
4.8 Enurement
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and assigns.
4.9 Notices to Parties
All notices and other communications between the parties to this Agreement
shall be in writing and shall be deemed to have been given if delivered
personally or by confirmed telecopy to the parties at the following addresses
(or at such other address for any such party as shall be specified in like
notice):
(a) if to InfoSpace, Locus Holdings or InfoSpace Nova Scotia:
InfoSpace, Inc.
601 ▇▇▇/▇▇/ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
And a copy to:
Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Bank Tower
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: C. ▇▇▇ ▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Trustee:
Montreal Trust Company of Canada
Corporate Trust Services
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice or other communication given personally shall be deemed to have
been given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and received on the date of confirmed receipt thereof
unless such day is not a Business Day in which case it shall be deemed to have
been given and received upon the immediately following Business Day.
4.10 Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the
same instrument.
4.11 Jurisdiction
This Agreement shall be construed and enforced in accordance with the laws
of the Province of Ontario and the laws of Canada applicable therein.
4.12 Attornment
Each of InfoSpace, InfoSpace Nova Scotia, Locus Holdings and the Trustee
agrees that any action or proceeding arising out of or relating to this
Agreement may be instituted in the courts of Ontario, waives any objection which
it may have now or
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hereafter to the venue of any such action or proceeding, irrevocably submits to
the jurisdiction of the said courts in any such action or proceeding, agrees to
be bound by any judgment of the said courts and not to seek, and hereby waives,
any review of the merits of any such judgment by the courts of any other
jurisdiction. InfoSpace and InfoSpace Nova Scotia hereby appoint Locus Holdings
at its registered office in the Province of Ontario as attorney for service of
process.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
INFOSPACE, INC.
By:____________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇.▇▇▇ NOVA SCOTIA COMPANY
By:____________________________
Name:
Title:
LOCUS HOLDINGS INC.
By:____________________________
Name:
Title:
MONTREAL TRUST COMPANY OF CANADA
By:____________________________
Name:
Title:
By:____________________________
Name:
Title: