EXHIBIT 99.3
EXCHANGEABLE SHARE SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 12th day of March, 2002, between
divine, Inc., a corporation existing under the laws of Delaware (hereinafter
referred to as "PARENT") and Delano Technology Corporation, a corporation
existing under the laws of Ontario (hereinafter referred to as "COMPANY").
RECITALS:
(a) In connection with a combination agreement (the "COMBINATION
AGREEMENT") dated as of March 12, 2002 between Parent and Company, as
further amended, supplemented and/or restated, the common shares of
Company held by certain persons are to be exchanged for exchangeable
shares (the "EXCHANGEABLE SHARES") of Company upon a reorganization of
Company's share capital pursuant to the plan of arrangement
contemplated by the Combination Agreement; and
(b) Pursuant to the Combination Agreement, Parent and Company are required
to execute a support agreement substantially in the form of this
agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the parties 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")
attaching to the Exchangeable Shares as set out in the articles of arrangement
of Company, which Share Provisions shall be as set out in Appendix 1 to the Plan
of Arrangement, unless the context requires otherwise.
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 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.
1.3 NUMBER, GENDER
Words importing the singular number only shall include the plural and VICE
VERSA. Words importing any gender shall include all genders.
- 2 -
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.
ARTICLE 2
COVENANTS OF PARENT AND COMPANY
2.1 COVENANTS REGARDING EXCHANGEABLE SHARES
So long as any Exchangeable Shares not owned by Parent or its Affiliates
are outstanding, Parent will:
(a) not declare or pay any dividend on the Parent Common Shares unless (i)
Company shall simultaneously declare or pay, as the case may be, an
equivalent dividend (as provided for in the Share Provisions) on the
Exchangeable Shares (an "EQUIVALENT DIVIDEND") and (ii) Company 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 Equivalent
Dividend; or, if the dividend is a stock dividend, in lieu of such
dividend Company effects an economically equivalent (as determined in
accordance with section 2.7(d)) subdivision of the outstanding
Exchangeable Shares (an "EQUIVALENT STOCK SUBDIVISION");
(b) advise Company sufficiently in advance of the declaration by Parent of
any dividend on Parent Common Shares and take all such other actions
as are reasonably necessary, in co-operation with Company, to ensure
that the respective declaration date, record date and payment date for
an Equivalent Dividend shall be the same as the declaration date,
record date and payment date for the corresponding dividend on the
Parent Common Shares; or, the record date and the effective date for
the Equivalent Stock Subdivision shall be the same as the record date
and payment date for the corresponding stock dividend on the Parent
Common Shares;
(c) ensure that the record date for any dividend declared on Parent Common
Shares is not less than 10 Business Days after the declaration date of
such dividend;
(d) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit Company, 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 Exchangeable Share (other than Exchangeable Shares owned
by Parent or its Affiliates) upon the liquidation, dissolution or
winding-up of Company, the delivery of a Retraction Request by a
holder of Exchangeable Shares or a redemption of Exchangeable Shares
by Company, as the case may be, including without limitation all such
actions and all such things as are necessary or desirable to enable
and permit Company to cause to be delivered Parent Common Shares to
the holders of Exchangeable Shares in accordance with the provisions
of Article 5, 6 or 7, as the case may be, of the Share Provisions; and
- 3 -
(e) take all such actions and do all such things as are reasonably
necessary or desirable to perform its obligations upon exercise of the
Parent Call Right, the Liquidation Call Right, the Retraction Call
Right and the Redemption Call Right, including without limitation all
such actions and all such things as are necessary or desirable to
deliver or cause to be delivered Parent Common Shares to the holders
of Exchangeable Shares in accordance with the provisions of the
Liquidation Call Right, the Retraction Call Right, the Parent Call
Right or the Redemption Call Right, as the case may be; and
(f) not exercise its vote as a shareholder to initiate the voluntary
liquidation, dissolution or winding up of Company or any other
distribution of assets of Company among its shareholders for the
purpose of winding up its affairs nor take any action or omit to take
any action that is designed to result in the liquidation, dissolution
or winding up of Company or any other distribution of the assets of
Company among its shareholders for the purpose of winding up its
affairs.
2.2 SEGREGATION OF FUNDS
Parent will cause Company to deposit a sufficient amount of funds in a
separate account of Company and segregate a sufficient amount of such other
assets and property as is necessary to enable Company to pay dividends when due
and to pay or otherwise satisfy its respective obligations under Article 5, 6 or
7 of the Share Provisions, as applicable.
2.3 RESERVATION OF PARENT COMMON SHARES
Parent hereby represents, warrants and covenants in favour of Company that
Parent has reserved for issuance and will, at all times while any Exchangeable
Shares (other than Exchangeable Shares held by Parent or its Affiliates) are
outstanding, keep available, free from pre-emptive and other rights, out of its
authorized and unissued capital stock such number of Parent Common Shares (or
other shares or securities into which Parent Common Shares may be reclassified
or changed as contemplated by section 2.7) without duplication: (a) as is equal
to the sum of (i) the number of Exchangeable Shares issued and outstanding from
time to time and (ii) the number of Exchangeable Shares issuable upon the
exercise of all rights to acquire Exchangeable Shares outstanding from time to
time; and (b) as are now and may hereafter be required to enable and permit
Parent to meet its obligations under the Voting and Exchange Trust Agreement and
under any other security or commitment pursuant to which Parent may now or
hereafter be required to issue Parent Common Shares, to meet its obligations
under each of the Liquidation Call Right, the Retraction Call Right, the
Redemption Call Right or the Parent Call Right with respect to the transfer and
delivery of Parent Common Shares and to enable and permit Company to meet its
obligations hereunder and under the Share Provisions.
2.4 NOTIFICATION OF CERTAIN EVENTS
In order to assist Parent to comply with its obligations hereunder Company
will notify Parent of each of the following events at the time set forth below:
(a) in the event of any determination by the Board of Directors of Company
to institute voluntary liquidation, dissolution or winding-up
proceedings with respect
- 4 -
to Company or to effect any other distribution of the assets of
Company 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 Company of notice of and
Company 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 Company or to
effect any other distribution of the assets of Company among its
shareholders for the purpose of winding up its affairs;
(c) immediately, upon receipt by Company of a Retraction Request;
(d) on the same date on which notice of redemption is given to holders of
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 Company of any
Exchangeable Shares or rights to acquire Exchangeable Shares (other
than the issuance of Exchangeable Shares and rights to acquire
Exchangeable Shares in exchange for Common Shares pursuant to the
Arrangement).
2.5 DELIVERY OF PARENT COMMON SHARES TO COMPANY
In furtherance of its obligations under section 2.1(d) and section 2.1(e),
upon notice from Company of any event that requires Company to cause Parent
Common Shares to be delivered to any holder of Exchangeable Shares, Parent shall
forthwith issue and deliver or cause to be delivered to Company (unless Company
already has sufficient Parent Common Shares) the requisite number of Parent
Common Shares to be received by, and issued to or to the order of, the former
holder of the surrendered Exchangeable Shares, as Company may direct. All such
Parent 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.
2.6 QUALIFICATION OF PARENT COMMON SHARES
If any Parent Common Shares (or other shares or securities into which
Parent Common Shares may be reclassified or changed as contemplated by section
2.7) 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
United States or Canadian 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 Parent and delivered by Parent at the direction of
Company, if applicable, to the holder of surrendered Exchangeable Shares or in
order that such shares (or such other shares or securities) may be freely traded
thereafter (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 Parent for purposes of United States federal
or state securities law), Parent will in good faith expeditiously take all such
actions
- 5 -
and do all such things as are reasonably necessary or desirable to cause
such Parent Common Shares (or such other shares or securities) to be and remain
duly registered, qualified or approved under United States or Canadian law, as
the case may be. Parent will in good faith expeditiously take all such actions
and do all such things as are reasonably necessary or desirable to cause all
Parent 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 Parent Common Shares (or such other
shares or securities) have been listed by Parent and remain listed and are
quoted or posted for trading at such time.
2.7 ECONOMIC EQUIVALENCE
So long as any Exchangeable Shares not owned by Parent or its Affiliates
are outstanding:
(a) Parent will not without prior approval of Company and the prior
approval of the holders of the Exchangeable Shares given in accordance
with section 10.2 of the Share Provisions:
(i) issue or distribute Parent Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire Parent Common Shares) to the holders of all or
substantially all of the then outstanding Parent Common Shares
by way of stock dividend or other distribution, other than an
issue of Parent Common Shares (or securities exchangeable for
or convertible into or carrying rights to acquire Parent
Common Shares) to holders of Parent Common Shares (i) who
exercise an option to receive dividends in Parent Common
Shares (or securities exchangeable for or convertible into or
carrying rights to acquire Parent Common Shares) in lieu of
receiving cash dividends, or (ii) pursuant to any dividend
reinvestment plan; or
(ii) issue or distribute rights, options or warrants to the holders
of all or substantially all of the then outstanding Parent
Common Shares entitling them to subscribe for or to purchase
Parent Common Shares (or securities exchangeable for or
convertible into or carrying rights to acquire Parent Common
Shares); or
(iii) issue or distribute to the holders of all or substantially all
of the then outstanding Parent Common Shares (A) shares or
securities of Parent of any class other than Parent Common
Shares (other than shares or securities convertible into or
exchangeable for or carrying rights to acquire Parent Common
Shares), (B) rights, options or warrants other than those
referred to in section 2.7(a)(ii), (C) evidences of
indebtedness of Parent or (D) assets of Parent;
unless in each case the economic equivalent on a per share basis of
such rights, options, warrants, securities, shares, evidences of
indebtedness or other assets is issued or distributed simultaneously
to holders of the Exchangeable Shares; provided that, for greater
certainty, the above restrictions shall not apply to any shares or
securities issued or distributed by Parent in order to give effect to
and to
- 6 -
consummate the transactions contemplated by, and in accordance with,
the Combination Agreement.
(b) Parent will not without the prior approval of Company and the prior
approval of the holders of the Exchangeable Shares given in accordance
with section 10.2 of the Share Provisions:
(i) subdivide, redivide or change the then outstanding Parent
Common Shares into a greater number of Parent Common Shares;
or
(ii) reduce, combine, consolidate or change the then outstanding
Parent Common Shares into a lesser number of Parent Common
Shares; or
(iii) reclassify or otherwise change Parent Common Shares or effect
an amalgamation, merger, reorganization or other transaction
affecting Parent Common Shares;
unless the same or an economically equivalent change shall
simultaneously be made to, or in the rights of the holders of, the
Exchangeable Shares; provided that, for greater certainty, the above
restrictions shall not apply to any shares or other securities issued
or distributed by Parent in order to give effect to and to consummate
the transactions contemplated by, and in accordance with, the
Combination Agreement.
(c) Parent will ensure that the record date for any event referred to in
section 2.7(a) or section 2.7(b), or (if no record date is applicable
for such event) the effective date for any such event, is not less
than five Business Days after the date on which such event is declared
or announced by Parent (with contemporaneous notification thereof by
Parent to Company).
(d) The Board of Directors of Company shall determine, in good faith and
in its sole discretion, economic equivalence for the purposes of any
event referred to in section 2.7(a) or section 2.7(b) and each such
determination shall be conclusive and binding on Parent. In making
each such determination, the following factors shall, without
excluding other factors determined by the Board of Directors of
Company to be relevant, be considered by the Board of Directors of
Company:
(i) in the case of any stock dividend or other distribution
payable in Parent Common Shares, the number of such shares
issued as a result of such dividend or distribution in
proportion to the number of Parent Common Shares previously
outstanding;
(ii) in the case of the issuance or distribution of any rights,
options or warrants to subscribe for or purchase Parent Common
Shares (or securities exchangeable for or convertible into or
carrying rights to acquire Parent Common Shares), the
relationship between the exercise price of each such right,
option or warrant, the number of such rights, options or
warrants, and the Current Market Price of a Parent Common
Share;
- 7 -
(iii) in the case of the issuance or distribution of any other form
of property (including without limitation any shares or
securities of Parent of any class other than Parent Common
Shares, any rights, options or warrants other than those
referred to in section 2.7(d)(ii), any evidences of
indebtedness of Parent or any assets of Parent), the
relationship between the fair market value (as determined by
the Board of Directors of Company in the manner above
contemplated) of such property to be issued or distributed
with respect to each outstanding Parent Common Share and the
Current Market Price of a Parent Common Share;
(iv) in the case of any subdivision, redivision or change of the
then outstanding Parent Common Shares into a greater number of
Parent Common Shares or the reduction, combination,
consolidation or change of the then outstanding Parent Common
Shares into a lesser number of Parent Common Shares or any
amalgamation, merger, reorganization or other transaction
affecting Parent Common Shares, the effect thereof upon the
then outstanding Parent Common Shares; and
(v) in all such cases, the general taxation consequences of the
relevant event to beneficial owners of Exchangeable Shares to
the extent that such consequences may differ from the taxation
consequences to such beneficial owners determined as if they
owned Parent Common Shares at the relevant time as a result of
differing tax treatment under the laws of Canada and the
United States (except for any differing consequences arising
as a result of differing marginal taxation rates or the fact
that the Exchangeable Shares will not be listed on any stock
exchange, and without regard to the individual circumstances
of beneficial owners of Exchangeable Shares).
(e) Company agrees that, to the extent required, upon due notice from
Parent, Company 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
Company, or subdivisions, redivisions or changes are made to the
Exchangeable Shares, in order to implement the required economic
equivalence with respect to the Parent Common Shares and Exchangeable
Shares as provided for in this section 2.7.
2.8 TENDER OFFERS
So long as any Exchangeable Shares not owned by Parent or its Affiliates
are outstanding, in the event that a tender offer, share exchange offer, issuer
bid, take-over bid or similar transaction with respect to Parent Common Shares
(an "OFFER") is proposed by Parent or is proposed to Parent or its shareholders
and is recommended by the Board of Directors of Parent, or is otherwise effected
or to be effected with the consent or approval of the Board of Directors of
Parent, and the Exchangeable Shares are not redeemed by Company or purchased by
Parent pursuant to the Redemption Call Right, Parent 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
Exchangeable Shares (other than Parent and its Affiliates) to participate in
such Offer to the same extent and on an economically equivalent basis as the
- 8 -
holders of Parent Common Shares. Without limiting the generality of the
foregoing, Parent will use its reasonable efforts expeditiously and in good
faith to ensure that a retraction of Exchangeable Shares to so participate may
be effective only upon, and conditional upon, the closing of such Offer and only
to the extent necessary to tender or deposit to the Offer. Nothing herein shall
affect the rights of Company to redeem (or Parent to purchase pursuant to the
Redemption Call Right) Exchangeable Shares, as applicable, in the event of a
Parent Control Transaction.
2.9 OWNERSHIP OF OUTSTANDING SHARES
Parent covenants and agrees in favour of Company that, without the prior
approval of Company and the prior approval of the holders of the Exchangeable
Shares given in accordance with section 10.2 of the Share Provisions, as long as
any outstanding Exchangeable Shares are owned by any Person other than Parent or
any of its Affiliates, Parent will be and remain the direct or indirect
beneficial owner of all issued and outstanding voting shares in the capital of
Company.
2.10 PARENT AND AFFILIATES NOT TO VOTE EXCHANGEABLE SHARES
Parent covenants and agrees that it will appoint and cause to be appointed
proxyholders with respect to all Exchangeable Shares held by it and its
Affiliates for the sole purpose of attending each meeting of holders of
Exchangeable Shares in order to be counted as part of the quorum for each such
meeting. Parent 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 Exchangeable Shares from time to time pursuant to the Share
Provisions or pursuant to the provisions of the OBCA (or any successor or other
corporate statute by which Company may in the future be governed) with respect
to any Exchangeable Shares held by it or by its Affiliates in respect of any
matter considered at any meeting of holders of Exchangeable Shares.
2.11 ORDINARY MARKET PURCHASES
For greater certainty, nothing contained in this agreement, including
without limitation the obligations of Parent contained in section 2.8, shall
limit the ability of Parent (or any of its Affiliates including, without
limitation, Company) to make a "Rule 10b-18 Purchase" of Parent Common Shares in
compliance with Rule 10b-18 of the U.S. SECURITIES AND EXCHANGE ACT OF 1934, as
amended, or any successor provisions thereof, or to make ordinary market or
privately negotiated purchases of Parent Common Shares and otherwise in
accordance with applicable laws and regulatory or stock exchange requirements.
ARTICLE 3
PARENT SUCCESSORS
3.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
As long as any outstanding Exchangeable Shares are owned by any Person
other than Parent or any of its Affiliates, Parent shall not consummate any
transaction (whether by way of reconstruction, reorganization, consolidation,
arrangement, merger, transfer, sale, lease or otherwise) whereby all or
substantially all of its undertaking, property and assets would become
- 9 -
the property of any other Person or, in the case of a merger, of the continuing
corporation or other entity resulting therefrom unless, but may do so if:
(a) such other Person or continuing corporation or, in the event of any
merger, amalgamation or similar transaction pursuant to which holders
of shares in Parent are entitled to receive shares in the capital of
any corporation or other legal entity other than such other Person or
continuing corporation, then such corporation or legal entity (in each
case, the "PARENT 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 or
otherwise agrees to become bound by the terms and provisions of this
agreement, in either case together with such other instruments (if
any) as are reasonably necessary or advisable to evidence the
assumption by the Parent Successor of liability for all moneys payable
and property deliverable hereunder and the covenant of such Parent
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
Parent 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 Company or the
holders of the Exchangeable Shares.
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
the supplemental agreement provided for in section 3.1(a) and thereupon the
Parent Successor shall possess and from time to time may exercise each and every
right and power of Parent under this agreement in the name of Parent 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 Parent or any officers of
Parent may be done and performed with like force and effect by the directors or
officers of such Parent 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 Parent with or into Parent
or the winding-up, liquidation or dissolution of any wholly-owned direct or
indirect subsidiary of Parent (if all of the assets of such subsidiary are
transferred to Parent or another wholly-owned direct or indirect subsidiary of
Parent) or any other distribution of the assets of any wholly-owned direct or
indirect subsidiary of Parent among the shareholders of such subsidiary for the
purpose of winding up its affairs, and any such transactions are expressly
permitted by this Article 3.
- 10 -
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
Exchangeable Shares (or securities or rights convertible into or exchangeable
for or carrying rights to acquire Exchangeable Shares) are held by any Person
other than Parent and any of its Affiliates.
4.2 CHANGES IN CAPITAL OF PARENT AND COMPANY
At all times after the occurrence of any event contemplated pursuant to
section 2.7 and section 2.8 or otherwise, as a result of which either Parent
Common Shares or the 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, MUTATIS MUTANDIS, to all new securities
into which Parent Common Shares or the 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 term or other provision of this agreement is invalid, illegal or
incapable of being enforced by any rule or law, or public policy, all other
conditions and provisions of this agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the fullest extent possible.
4.4 AMENDMENTS, MODIFICATIONS
(a) Subject to sections 4.2, 4.3 and 4.5, this agreement may not be
amended or modified except by an agreement in writing executed by
Company and Parent and approved by the holders of the Exchangeable
Shares in accordance with section 10.2 of the Share Provisions.
(b) No amendment or modification or waiver of any of the provisions of
this agreement otherwise permitted hereunder shall be effective unless
made in writing and signed by all of the parties hereto.
4.5 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 holders of the Exchangeable Shares, amend or modify this agreement for
the purposes of:
- 11 -
(a) adding to the covenants of any or all parties provided that the Board
of Directors of each of Company and Parent shall be of the good faith
opinion that such additions will not be prejudicial to the rights or
interests of the holders of the Exchangeable Shares;
(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 Company and Parent, 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 Exchangeable Shares; or
(c) making such changes or corrections which, on the advice of counsel to
Company and Parent, 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 Company and Parent 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 Exchangeable Shares.
4.6 MEETING TO CONSIDER AMENDMENTS
Company, at the request of Parent, shall call a meeting or meetings of the
holders of the Exchangeable Shares for the purpose of considering any proposed
amendment or modification requiring approval pursuant to section 4.4. Any such
meeting or meetings shall be called and held in accordance with this Agreement,
the bylaws of Company, the Share Provisions and all applicable laws.
4.7 ENUREMENT
This agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and assigns.
4.8 NOTICES TO PARTIES
(a) 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):
To Parent or Company,
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attention: General Counsel
with a copy (which shall not constitute notice) to:
- 12 -
▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇
Attention: D. ▇▇▇▇ ▇▇▇▇▇▇▇▇
-and-
Osler, ▇▇▇▇▇▇ & Harcourt
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-and-
Goodmans LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) 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.
4.9 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.
4.10 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.
4.11 ATTORNMENT
Each of the parties hereto 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 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
- 13 -
such judgment by the courts of any other jurisdiction, and Parent hereby
appoints Company 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.
divine, Inc.
By:
-------------------------------------
Name:
Title:
Delano Technology Corporation
By:
-------------------------------------
Name:
Title: