AMENDING AGREEMENT TO VOTING TRUST AGREEMENT OF JUNE 4, 1998
This Agreement dated as of November 10, 1998 is made by and among
International Capital Partners, Inc. ("ICP"), the parties who have executed and
who are identified in Exhibit A hereto (collectively, together with ICP, the
"Shareholders") and Officeland Inc., an Ontario corporation with its principal
place of business in Toronto, Ontario (the "Company").
ICP, the Company, certain investors and Bassini, Playfair + Associates
LLC ("BP") were parties to a Voting Trust Agreement made as of the 4th day of
June, 1998 (the "VTA"), which was entered into pursuant to the terms of the
Initial Purchase Agreement (as hereinafter defined). Pursuant to the Initial
Purchase Amending Agreement (as hereinafter defined), BP ceased to be a party
to the VTA.
ICP, the Company and certain of the Shareholders are parties to the
Restructured Purchase Agreement (as hereinafter defined) and wish to enter into
this agreement (the "VTA Amending Agreement") to affirm that the terms of the
VTA, as amended by this VTA Amending Agreement, are binding on all of the
parties hereto.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this VTA Amending Agreement, and intending to be legally bound by
the terms and conditions herein, the parties hereby agree as follows:
1. Definitions
1.1 VTA Definitions All capitalized terms used in this VTA Amending
Agreement shall, unless expressly otherwise defined in this VTA Amending
Agreement, have the same meanings as given to them, respectively, in the VTA.
In some instances, definitions of certain terms, which have been defined in the
VTA, are repeated in this VTA Amending Agreement for ease of reference.
1.2 Additional Definitions In this VTA Amending Agreement, the
following terms shall have the following meanings, respectively:
(a) "Bassini Group" means, collectively, BP and all of the
persons named as "Purchasers" in Exhibit A to the Initial
Purchase Agreement, other than Ardara Investment Inc.;
(b) "Initial Purchase Agreement" and "Initial Purchase Amending
Agreement" have the respective meanings ascribed to them in
the Restructured Purchase Agreement;
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(c) "Loan Amending Agreements" means, collectively, the loan
amending agreements dated the date hereof made between each
of the Founders and the Company, amending the terms of the
Loan Agreements ; and
(d) "Restructured Purchase Agreement" means that certain Senior
Subordinated Unsecured Convertible Notes Purchase Agreement
among the Company, ICP and certain investors entered into on
November 10, 1998.
2. Adoption and Deeming Provisions
2.1 Adoption The parties hereto adopt and affirm as their agreement,
as if they had all been original signatories thereto, all of the provisions of
the VTA, subject to the qualifications and amendments set out in this VTA
Amending Agreement.
2.2 Deeming Provisions
(a) Bassini References Any references in the VTA to BP,
any one or more of the Bassini Group, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ are deemed deleted
therefrom;
(b) Voting Power The reference in Recital A to the VTA
to "46%"shall be deemed to refer to 37.5%;
(c) Restructured Purchase Agreement Any reference in the
VTA to the "Purchase Agreement" is deemed to refer
to the Restructured Purchase Agreement;
(d) Pre-emptive Rights The provisions of section 6 of
the VTA are deemed amended in the same manner,
mutatis mutandis, as provided in section 6.3 of the
Initial Purchase Amending Agreement, with the intent
that the Offer (as defined in section 6.1 of the
VTA) shall be made to the Representative on behalf
of the ICP Group (as defined in subsection 6.3(a) of
the Initial Purchase Amending Agreement);
(e) Restriction on Transfer by Founders. The reference,
in section 7 of the VTA, to "the loan documents (the
"Loan Documents") entered into on the date hereof "
shall be deemed to refer to the loan documents (the
"Loan Documents") entered into on June 4, 1998, as
amended by the Loan Amending Agreements;
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(f) Transferees, Successors and Assigns. The reference,
in section 9 of the VTA, to the terms of "a Voting
Trust Agreement dated June 4, 1998" shall be deemed
to refer to the VTA, as amended by this VTA Amending
Agreement.
3. Board of Directors
3.1 Board of Directors The provisions of section 1.1 of the VTA are
hereby deleted and the following substituted therefor:
Each of the Shareholders agrees that, from and after the date
hereof, such Shareholder will vote (or cause to be voted) all
of the Shares owned or held of record or beneficially by such
Shareholder from time to time so as to effect the following:
(a) The election of a Board of Directors of seven
members consisting of the following:
(i) four directors as designated by ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇ (the
"Founders"), three of whom shall each be an
officer and full-time employee of the
Company (a "Management Director") and one
of whom shall not be a Management Director
and shall not be related to any one of the
Founders (the "Unrelated Director"), such
Management Directors initially to be the
Founders and such Unrelated Director to
initially be ▇▇ ▇▇▇▇▇;
(ii) two directors as designated by ICP, such
directors to initially be ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇; and
(iii) one director, as mutually designated by the
Founders and ICP, such mutual designate to
initially be ▇▇▇▇▇ ▇. ▇▇▇.
One of such directors shall be the Chairman of the
Board of Directors, as mutually designated by the
Founders and the ICP Group, such mutual designate
initially to be ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇;
(b) The constitution of an Acquisition Committee of five
members, to be composed of two representatives of
each of the Founders and the ICP Group, who shall
initially be Messrs. ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇ ▇▇▇▇▇
representing the Founders, Messrs ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇ representing the ICP Group and
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who shall participate as a
non-voting member. The mandate of the Acquisition
Committee will be the evaluation and recommendation
to the Board of Directors of potential acquisition
or joint venture candidates. To recommend approval
of any acquisition or joint venture to the Board of
Directors, a majority of the members of the
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Acquisition Committee must recommend such approval
and, in the event of a deadlock, the matter shall be
referred to the Board of Directors for a decision.
In this regard, the parties confirm that the
Acquisition Committee has recommended and approved
the terms for acquisition of each of Telecom
Corporation of Chicago and Eastern Equipment
Brokers, Inc., as more particularly set out in the
New Disclosure Schedule attached as Exhibit J to the
Restructured Purchase Agreement; and
(c) The constitution of a Compensation Committee of
three members, to be composed of one representative
of the ICP Group and two representatives who are not
Management Directors.
4. Miscellaneous
4.1 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions of this VTA Amending Agreement shall bind and enure to
the benefit of the respective successors, assigns, heirs, executors, and
administrators of the parties hereto.
4.2 No Conditions to Effectiveness; Entire Agreement. There are no
conditions to the effectiveness of this VTA Amending Agreement. The VTA, as
amended by this VTA Amending Agreement, together with the instruments and other
documents contemplated to be executed and delivered in connection herewith,
contains the entire agreement and understanding of the parties hereto, and
supersedes any prior agreements or understandings between or among them, with
respect to the subject matter hereof.
4.3 Amendments and Waivers. Except as otherwise expressly set forth in
this VTA Amending Agreement, any term of this VTA Amending Agreement may be
amended and the observance of any term of this VTA Amending Agreement may be
waived (either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the party against whom such
amendment or waiver is to be enforced. No waivers of or exceptions to any term,
condition or provision of this VTA Amending Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further continuing waiver
of any such term, condition or provision.
4.4 Counterparts. This VTA Amending Agreement may be executed in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.5 Governing Law. This VTA Amending Agreement shall be governed by
and interpreted and construed in accordance with the laws of the Province of
Ontario.
4.6 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and
agreements, attend such meetings and pass
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such resolutions and exercise such votes and influence and do and perform or
cause to be done and performed such further and other acts and things as may be
reasonably necessary or desirable from time to time to better evidence and
reflect the transactions described herein and contemplated hereby, and to carry
into effect the intents and purposes of this VTA Amending Agreement.
4.7 Exhibits The following exhibits are attached to and form a
substantive part of this Agreement
Exhibit A - Shareholders
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this VTA Amending Agreement as an instrument as of the date first above
written.
Officeland Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: President
International Capital Partners, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Chairman
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EXHIBIT A
Shareholders
Name of Shareholders Signature of Shareholders
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Ardara Investment Inc. by: ▇▇▇▇▇ Ltd.
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by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇
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ICP, LLC. /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇
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▇▇▇ ▇▇▇ /s/ ▇▇▇ ▇▇▇
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▇▇▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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