EXECUTION COPY
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT is entered into as of March 2, 1999, by and
among by and among PRI Automation, Inc., a corporation existing under laws of
the Commonwealth of Massachusetts ("Parent"), 1325949 Ontario Inc., a
corporation existing under the laws of Ontario and a wholly owned subsidiary of
Parent ("Subco"), and Promis Systems Corporation Ltd., a corporation existing
under the laws of Canada (the "Company").
WHEREAS, pursuant to a Combination Agreement dated November 24, 1998
(the "Combination Agreement"), by and among the Company, Parent and Subco, the
parties agreed that on the Effective Date (as defined in the Combination
Agreement), Parent, Subco, and the Company would execute and deliver a Support
Agreement substantially in the form of this Agreement;
WHEREAS, pursuant to an arrangement (the "Arrangement") effected by the
Articles of Arrangement dated March 2, 1999 (the "Articles of Arrangement")
filed pursuant to the Canada Business Corporations Act (the "CBCA"), each issued
and outstanding common share (a "Common Share") of the Company (other than those
Common Shares held by dissenters exercising their dissenters' rights in
accordance with Section 190 of the CBCA and Section 3.1 of the plan of
arrangement (the "Plan of Arrangement" contained in the Articles of
Arrangement) was exchanged for a maximum of 1,390,010 issued and outstanding
Exchangeable Shares of the Company, subject to reduction in respect of
fractional interests (the "Exchangeable Shares"), and thereafter, the Company's
sole issued and outstanding Class X Preferred Share was exchanged by Subco for
one issued and outstanding Common Share;
WHEREAS, the above-mentioned Articles of Arrangement sets forth the
rights, privileges, restrictions and conditions attaching to the Exchangeable
Shares (collectively, the "Exchangeable Share Provisions");
WHEREAS, the parties hereto desire to make appropriate provision and to
establish a procedure whereby Parent and Subco will take certain actions and
make certain payments and deliveries necessary to ensure that the Company will
be able to make certain payments and to deliver or cause to be delivered shares
of common stock of Parent, par value US$.01 per share ("Parent Common Stock") in
satisfaction of the obligations of the Company under the Exchangeable Share
Provisions with respect to the payment and satisfaction of dividends,
Liquidation Amounts, Retraction Prices and Redemption Prices, all in accordance
with the Exchangeable Share Provisions;
WHEREAS, the parties hereto desire to make appropriate provision and to
establish a procedure whereby Parent will take certain actions and make certain
payments and deliveries necessary to ensure that Subco will be able to deliver
or cause to be delivered shares of Parent Common Stock in satisfaction of the
obligations of Subco under the Voting and Exchange Trust Agreement and the
Exchangeable Share Provisions with respect to the payment and satisfaction of
the Liquidation Call Purchase Price (as defined in the Articles of Arrangement)
and the Redemption Call Purchase Price (as defined in the Articles of
Arrangement) or with respect to satisfaction of the
Exchange Put Right, the Exchange Right (as defined in the Voting and Exchange
Trust Agreement) and the Automatic Exchange Rights (as defined herein);
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 agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS. Each term denoted herein by initial capital letters and
not otherwise defined herein shall have the meaning attributed thereto in the
Exchangeable Share Provisions, unless the context otherwise requires.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this
Agreement into Articles, Sections and paragraphs 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",
Ahereof A, "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, ETC. Words importing the singular number only shall
include the plural and vice versa. Words importing the use of any 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.
ARTICLE II
COVENANTS OF PARENT, SUBCO AND THE COMPANY
2.1 COVENANTS OF PARENT AND SUBCO REGARDING EXCHANGEABLE SHARES. So long as
any Exchangeable Shares are outstanding:
(a) Parent will not declare or pay any dividend on Parent Common Stock
unless (i) the Company will have sufficient assets, funds and other property
available to enable the due declaration and the due and punctual payment in
accordance with applicable law of an equivalent dividend on the Exchangeable
Shares and (ii) subsection 2.1(b) shall be complied with in connection with such
dividend;
(b) Parent and Subco will cause the Company to declare simultaneously
with the declaration of any dividend on Parent Common Stock an equivalent
dividend on the Exchangeable Shares and, when such dividend is paid on Parent
Common Stock, cause the Company to pay
2
simultaneously therewith such equivalent dividend on the Exchangeable Shares, in
each case in accordance with the Exchangeable Share Provisions; (1)
(c) Parent will advise Subco and the Company sufficiently in advance
of the declaration by Parent of any dividend on Parent Common Stock and take all
such other actions as are necessary, in cooperation with Subco and the Company,
to ensure that the respective declaration date, record date and payment date for
a dividend on the Exchangeable Shares shall be the same as the record date,
declaration date and payment date for the corresponding dividend on Parent
Common Stock and that such dividend on the Exchangeable Shares will correspond
with any requirement of the principal stock exchange on which the Exchangeable
Shares are listed;
(d) Parent will ensure that the record date for any dividend declared
on Parent Common Stock is not less than ten Business Days after the declaration
date for such dividend;
(e) Parent and Subco will take all such actions and do all such things
as are reasonably necessary or desirable to enable and permit the 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 upon the liquidation, dissolution or winding-up of the Company, the
delivery of a Retraction Request by a holder of Exchangeable Shares or a
redemption of Exchangeable Shares by the Company, as the case may be, including,
without limitation, all such actions and all such things as are reasonably
necessary or desirable to enable and permit the Company to cause to be delivered
Parent Common Stock to the holders of Exchangeable Shares in accordance with the
provisions of Article 5, 6 or 7, as the case may be, of the Exchangeable Share
Provisions; and
(f) Parent will take all such actions and do all such things as are
reasonably necessary or desirable to enable and permit Subco, in accordance with
applicable law, to perform its obligations arising upon (i) the exercise by
Subco of the Liquidation Call Right, the Retraction Call Right or the Redemption
Call Right or (ii) the exercise by a holder of Exchangeable Shares of such
holder's Exchange Put Right or Exchange Right or (iii) the automatic exchange of
a holder's Exchangeable Shares in accordance with the rights set forth in
Section 5.13 of the Voting and Exchange Trust Agreement (the "Automatic Exchange
Rights"), including, without limitation, all such actions and all such things
as are reasonably necessary or desirable to enable and permit Subco to cause
Parent Common Stock to be delivered to the holders of Exchangeable Shares in
accordance with the Exchangeable Share Provisions and the Voting and Exchange
Trust Agreement.
2.2 SEGREGATION OF FUNDS. Parent and Subco will cause the Company to
deposit a sufficient amount of funds in a separate account and segregate a
sufficient amount of such assets and other property as is necessary to enable
the Company to pay or otherwise satisfy the applicable dividends, Liquidation
Amount, Retraction Price or Redemption Price, in each case for the benefit of
holders from time to time of the Exchangeable Shares, and the Company will use
such funds, assets and other property so segregated exclusively for the payment
of dividends and the payment or other satisfaction of the Liquidation Amount,
the Retraction Price or the Redemption Price, as applicable, net of any
corresponding withholding tax obligations and for the remittance of such
withholding tax obligations.
3
2.3 RESERVATION OF SHARES OF PARENT COMMON STOCK. Parent hereby
represents, warrants and covenants that it has irrevocably reserved for issuance
and will at all times keep available, free from preemptive and other rights, out
of its authorized and unissued capital stock such number of shares of Parent
Common Stock (or other shares or securities into which Parent Common Stock may
be reclassified or changed as contemplated by section 2.7 hereof) (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 hereunder, 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 Stock, to enable and
permit Subco to meet its respective obligations or exercise its rights
hereunder, under the Voting and Exchange Trust Agreement and the Exchangeable
Share Provisions and to enable and permit the Company to meet its respective
obligations or exercise its rights hereunder and under the Exchangeable Share
Provisions.
2.4 NOTIFICATION OF CERTAIN EVENTS. In order to (a) assist Parent to
comply with its obligations hereunder and under the Voting and Exchange Trust
Agreement, (b) assist Subco to comply with its obligations hereunder, under the
Voting and Exchange Trust Agreement and under the Exchangeable Share Provisions
and (c) permit Subco to exercise its rights under the Exchangeable Share
Provisions, the Company will give or cause the Transfer Agent to give Subco and
Parent notice of each of the following events at the time set forth below:
(i) immediately, in the event of any determination by the
Board of Directors of the Company to take any action which would require a vote
of the holders of Exchangeable Shares for approval;
(ii) immediately, upon the earlier of (A) receipt by the
Company of notice of, and (B) the 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 the Company or to
effect any other distribution of the assets of the Company among its
shareholders for the purpose of winding-up its affairs;
(iii) immediately, upon receipt by the Company of a Retraction
Request;
(iv) at least 130 days prior to any Automatic Redemption Date
determined by the Board of Directors of the Company in accordance with clause
(b) of the definition of Automatic Redemption Date in the Exchangeable Share
Provisions; and
(v) as soon as practicable upon the issuance by the 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 outstanding Common Shares pursuant to the Arrangement).
4
2.5 DELIVERY OF SHARES OF PARENT COMMON STOCK. In furtherance of its
obligations hereunder, upon notice from the Company or Subco of any event which
requires the Company or Subco to cause to be delivered shares of Parent Common
Stock to any holder of Exchangeable Shares, Parent shall forthwith issue and
deliver or cause to be delivered to the Company or Subco the requisite shares of
Parent Common Stock to be received by, and issued to the order of, the former
holder of the surrendered Exchangeable Shares, as the Company or Subco shall
direct. All such shares of Parent Common Stock shall be duly issued as fully
paid and non-assessable. In consideration of the issuance and delivery of each
such share of Parent Common Stock, the Company or Subco, as the case may be,
shall issue to Parent, or as Parent shall direct, shares or other securities
having equivalent value.
2.60 QUALIFICATION OF SHARES OF PARENT COMMON STOCK. If any shares of
Parent Common Stock (or other shares or securities into which Parent Common
Stock 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, 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 law or regulation or
pursuant to the rules and regulations of any regulatory authority, or the
fulfillment of any other legal requirement (collectively, the "Applicable Laws")
before such shares (or such other shares or securities) may be issued by Parent
and delivered by Parent at the direction of Subco or the 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
contractual restrictions or any restrictions on transfer by reason of a holder
being a "control person" of Parent for purposes of Canadian federal or
provincial securities law or an "affiliate" of Parent or the Company for
purposes of United States federal or state securities law), Parent will in good
faith expeditiously take all such actions and do all such things as are
necessary to cause such shares of Parent Common Stock (or such other shares or
securities) to be and remain duly registered, qualified or approved. Parent will
in good faith take all actions and do all things as are reasonably necessary or
desirable under Applicable Laws as they exist on the date hereof to cause the
shares of Parent Common Stock (and such other shares or securities) to be issued
and delivered hereunder to be freely tradeable thereafter (other than
contractual restrictions or any restrictions on transfer by reason of a holder
being a "control person" of Parent for the purposes of Canadian federal and
provincial securities law or an "affiliate" of Parent or the Company for
purposes of United States federal or state securities law). Parent will in good
faith expeditiously take all such actions and do all such things as are
reasonably necessary to cause all shares of Parent Common Stock (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
shares of Parent Common Stock (or such other shares or securities) are listed,
quoted or posted for trading at such time.
2.7 ECONOMIC EQUIVALENCE.
(a) Parent will not, without the prior approval of the Company and
the prior approval of the holders of the Exchangeable Shares given in accordance
with Article 10 of the Exchangeable Share Provisions:
5
(i) issue or distribute shares of Parent Common Stock (or
securities exchangeable for or convertible into or carrying rights to
acquire shares of Parent Common Stock) to the holders of all or
substantially all of the then outstanding shares of Parent Common
Stock by way of stock dividend or other distribution; or
(ii) issue or distribute rights, options or warrants to the
holders of all or substantially all of the then outstanding shares of
Parent Common Stock entitling them to subscribe for or to purchase
shares of Parent Common Stock (or securities exchangeable for or
convertible into or carrying rights to acquire shares of Parent Common
Stock); or
(iii) issue or distribute to the holders of all or
substantially all of the then outstanding shares of Parent Common
Stock (A) shares or securities of Parent of any class other than
Parent Common Stock (other than shares convertible into or
exchangeable for or carrying rights to acquire shares of Parent Common
Stock), (B) rights, options or warrants other than those referred to
in subsection 2.7(a)(ii) above, (C) evidences of indebtedness of
Parent or (D) assets of Parent;
unless one or both of the Company and Parent is permitted under applicable law
to issue and distribute the economic equivalent on a per share basis of such
rights, options, warrants, securities, shares, evidences of indebtedness or
assets to holders of the Exchangeable Shares and the economic equivalent on per
share basis of the items referred to in subsections 2.7(a)(i), (ii) and (iii)
above, as applicable, is simultaneously issued or distributed to the holders of
the Exchangeable Shares.
(b) Parent will not, without the prior approval of the
Company and the prior approval of the holders of the Exchangeable Shares given
in accordance with Article 10 of the Exchangeable Share Provisions:
(i) subdivide, redivide or change the then
outstanding shares of Parent Common Stock into a greater number of
shares of Parent Common Stock; or
(ii) reduce, combine or consolidate or change the
then outstanding shares of Parent Common Stock into a lesser number of
shares of Parent Common Stock, or
(iii) reclassify or otherwise change the shares of
Parent Common Stock or effect an amalgamation, merger, reorganization
or other transaction affecting the shares of Parent Common Stock;
unless the Company is permitted under applicable law to make the same or an
economically equivalent change to, or in the rights of holders of, the
Exchangeable Shares and the same or an economically equivalent change is
simultaneously made to, or in the rights of, the holders of the Exchangeable
Shares.
(c) Parent will ensure that the record date for any event
referred to in subsection 2.7 (a) or 2.7 (b) above, or (if no record date is
applicable for such event) the effective date for any
6
such event, is not less than 20 Business Days after the date on which such event
is declared or announced by Parent (with simultaneous notice thereof to be given
by Parent to Subco and the Company). (1)
(d) Subco and the Company agree that, to the extent required, upon
due notice from Parent, Subco and the Company will use their 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
the 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 Stock and Exchangeable Shares as provided for
in this Section 2.7.
(e) The Board of Directors of the 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 2.7(b) above 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 the Company to be relevant, be considered by the Board of
Directors of the Company:
(i) in the case of any stock dividend or other
distribution payable in Parent Common Stock, the number of such
shares issued in proportion to the number of shares of Parent Common
Stock previously outstanding;
(ii) in the case of the issuance or distribution of any
rights, options or warrants to subscribe for or purchase Parent Common
Stock (or securities exchangeable for or convertible into or carrying
rights to acquire Parent Common Stock), 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 of the Company
in the manner contemplated below) of a share of Parent Common Stock;
(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 Stock, any
rights, options or warrants other than those referred to in subsection
2.7 (e)(ii) above, 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 the Company in the manner
contemplated below) of such property to be issued or distributed with
respect to each outstanding share of Parent Common Stock and the
current market value (as determined by the Board of Directors of the
Company in the manner contemplated below) of a share of Parent Common
Stock;
(iv) in the case of any subdivision, redivision or change
of the then outstanding shares of Parent Common Stock into a greater
number of shares of Parent Common Stock or the reduction, combination,
consolidation or change of the then outstanding shares of Parent
Common Stock into a lesser number of shares of Parent Common Stock or
any amalgamation, merger, reorganization or other transaction
affecting
7
Parent Common Stock, the effect thereof upon the then outstanding
shares of Parent Common Stock; and
(v) in all such cases, the general taxation consequences
of the relevant event to holders of Exchangeable Shares to the extent
that such consequences may differ from the taxation consequences to
holders of Parent Common Stock 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 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 daily trading 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 of the Company 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
of the Company, in good faith and in its sole discretion, and provided further
that any such determination by the Board of Directors of the Company shall be
conclusive and binding on Parent.
2.8 TENDER OFFERS, ETC. In the event that a tender offer,
share exchange offer, issuer bid, take-over bid or similar transaction with
respect to Parent Common Stock (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 the Company or purchased by Subco 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 to participate in such Offer to
the same extent and on an equivalent basis as the holders of shares of Parent
Common Stock, without discrimination. Without limiting the generality of the
foregoing, Parent will use its reasonable efforts expeditiously and in good
faith to ensure that holders of Exchangeable Shares may participate in all such
Offers without being required to retract Exchangeable Shares as against the
Company (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 or limit the rights of the Company to redeem or Subco to purchase
pursuant to the Redemption Call Right, Exchangeable Shares, as applicable, in
the event of an Offer or an Automatic Redemption Date.
2.9 OWNERSHIP OF OUTSTANDING SHARES OF SUBCO AND THE COMPANY. Without
the prior approval of the Company and the prior approval of the holders of the
Exchangeable Shares given in accordance with Article 10 of the Exchangeable
Share Provisions, Parent covenants and agrees in favor of the Company that, as
long as any outstanding Exchangeable Shares are owned by any person or entity
other than Parent or any of its Subsidiaries, Parent will be and remain the
direct or indirect beneficial owner of all issued and outstanding voting shares
in the capital of Subco and the
8
Company. Notwithstanding the foregoing, nothing contained herein shall affect or
limit the rights of the Company to redeem or Subco to purchase pursuant to the
Redemption Call Right, Exchangeable Shares, as applicable, in the event of an
Automatic Redemption Date.
2.10 PARENT AND SUBSIDIARIES NOT TO VOTE EXCHANGEABLE SHARES. Parent
covenants and agrees that it will appoint and cause to be appointed proxy
holders with respect to all Exchangeable Shares held by Parent and its
Subsidiaries 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 Subsidiaries not to, exercise any voting rights which may be exercisable by
holders of Exchangeable Shares from time to time pursuant to the Exchangeable
Share Provisions or pursuant to the provisions of the CBCA (or any successor or
other corporate statute by which the Company may in the future be governed) with
respect to any Exchangeable Shares held by it or by its Subsidiaries in respect
of any matter considered at any meeting of holders of Exchangeable Shares.
2.11 STOCK EXCHANGE LISTING. Parent covenants and agrees in favor of
the Company that, as long as any outstanding Exchangeable Shares are owned by
any person or entity other than Parent or any of its Subsidiaries, Parent will
use its reasonable efforts to maintain a listing for such Exchangeable Shares on
a Canadian stock exchange which is listed in section 3200 of the Regulations
made under the Income Tax Act (Canada).
2.12 RULE L0B-18 PURCHASES. Nothing contained in this Agreement,
including without limitation the obligations of Parent contained in Section 2.8
hereof, shall limit the ability of Parent or any Subsidiary to make a "Rule
▇▇▇-▇▇ ▇▇▇▇▇▇▇▇" of Parent Common Stock pursuant to Rule l0b-18 of the U.S.
Securities Exchange Act of 1934, as amended, or any successor provisions
thereof.
ARTICLE III
PARENT SUCCESSORS
3.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC. Parent shall
not enter into 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 would
become the property of any other Person or, in the case of a merger, of the
continuing corporation resulting therefrom, but may do so if:
(a) such other Person or continuing corporation (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 and 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
9
(b) such transaction be upon such terms as substantially
preserve and do not impair in any material respect any of the rights, duties,
powers and authorities of the other parties hereunder.
3.2 VESTING OF POWERS IN PARENT SUCCESSOR. Whenever the conditions of
Section 3.1 hereof have been duly observed and performed, the parties, if
required by Section 3.1 hereof, shall execute and deliver the supplemental
agreement hereto 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 subsidiary of Parent
with or into Parent or the winding-up, liquidation or dissolution of any
wholly-owned subsidiary of Parent provided that all of the assets of such
subsidiary are transferred to Parent or another wholly-owned subsidiary of
Parent, and any such transactions are expressly permitted by this Article 3.
ARTICLE IV
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 party other than Parent and any of its Subsidiaries.
4.2 CHANGES IN CAPITAL OF PARENT AND THE COMPANY. Notwithstanding the
provisions of Section 4.4 hereof, at all times after the occurrence of any event
effected pursuant to Section 2.7 or 2.8 hereof, as a result of which either
Parent Common Stock 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 Stock 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 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, ETC. This Agreement may not be amended,
modified or waived except by an agreement in writing executed by the Company,
Subco and Parent and approved by the holders of the Exchangeable Shares in
accordance with Article 10 of the Exchangeable Share Provisions.
10
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:
(a) adding to the covenants of any or all parties provided that the
board of directors of each of Parent, Subco and the Company 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 opinion of the board of directors of each of Parent,
Subco and the Company, it may be expedient to make, provided that each such
board of directors shall be of the opinion that such amendments or modifications
will not be prejudicial to the interests of the holders of the Exchangeable
Shares; or
(c) making such changes or corrections which, on the advice of
counsel to Parent, Subco and the Company, 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 Parent, Subco and the Company shall be of the good faith opinion that
such changes or corrections will not be prejudicial to the interests of the
holders of the Exchangeable Shares.
4.6 MEETING TO CONSIDER AMENDMENTS. The 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 of such shareholders pursuant to Section 4.4 hereof. Any such
meeting or meetings shall be called and held in accordance with the by-laws of
the Company, the Exchangeable Share Provisions and all applicable laws.
4.7 AMENDMENTS ONLY IN WRITING. No amendment to 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.
4.8 INUREMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and the holders, from time to time, of
Exchangeable Shares and each of their respective heirs, successors and assigns.
4.9 NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed given to a party if delivered by hand, sent by
facsimile transmission with confirmation of transmission, sent via a reputable
overnight delivery service with confirmation of receipt requested, or mailed by
registered or certified mail (postage prepaid and return receipt requested) to
the party at the following address and facsimile number (or at such other
address or facsimile number for the party as the party shall specify by like
notice), and shall be deemed given on the date on which delivered by hand or
otherwise on the date of confirmation of receipt or transmission:
11
TO PARENT OR SUBCO:
PRI Automation, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
FACSIMILE NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPIES TO:
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
FACSIMILE NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇
AND
Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Box 25, Commerce Court West
Toronto, Ontario ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
FACSIMILE NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇
TO THE COMPANY:
Promis Systems Corporation Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Chief Executive Officer
FACSIMILE NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
Scotia Plaza, Suite 2100
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
FACSIMILE NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇
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.
12
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. Parent 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 such courts in
any such action or proceeding, agrees to be bound by any judgment of such courts
and not to seek, and hereby waives, any review of the merits of any such
judgment by the courts of any other jurisdiction and hereby appoints the Company
at its registered office in the Province of Ontario as attorney for service of
process.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, the parties have caused this Support Agreement to
be signed by their respective officers thereunder duly authorized, all as of the
date first written above.
PRI AUTOMATION, INC.
By: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
1325949 ONTARIO INC.
By: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
PROMIS SYSTEMS CORPORATION LTD.
By: /S/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
14