EXHIBIT 99.4
AMENDMENT AGREEMENT
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MEMORANDUM OF AGREEMENT made on the 31st day of March, 1999,
BY AND BETWEEN: The persons listed in Exhibit "A" hereto, each of whom
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herein represented by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, its, his or her
lawful mandatary, duly authorized for all of the
purposes hereof, other than ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ who is
also herein acting on his own behalf (each, a
"Vendor");
AND: IT Holdings Canada, Inc., a corporation incorporated
under the Laws of the Province of New Brunswick, with
its registered office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, herein acting and
represented by ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant-
Secretary (the "Purchaser");
AND INTERVENED TO BY: The IT Group, Inc., a corporation incorporated under
the Laws of the State of Delaware, herein acting and
represented by ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Corporate
Counsel and Assistant-Secretary ("ITX");
AND: Roche Ltee, Groupe Conseil, a corporation governed by
the Canada Business Corporations Act, with its head
office at ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, herein acting and
represented by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, President ("Roche");
WHEREAS the Vendors and the Purchaser executed a Share Purchase Agreement dated
February 5, 1999, to which intervened ITX, pursuant to which the Purchaser
agreed to purchase and the Vendors agreed to sell all of the issued and
outstanding shares in the share capital of Roche and various related matters
(the "Share Purchase Agreement");
WHEREAS the Parties intend to proceed to Closing on March 31, 1999;
WHEREAS, in variation of the Share Purchase Agreement, the Initial Payment will
be made by way of a promissory note and part only of the Capital Contributions
will be paid in cash on the Closing Date, with an extension of the date on which
the Purchaser will complete such Capital Contributions;
AND WHEREAS the Parties desire to amend the Share Purchase Agreement in
consequence of these variations.
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NOW, THEREFORE, THIS AGREEMENT WITNESSETH THAT, in consideration of the mutual
covenants herein contained, it is agreed by and between the Parties as follows:
1. Defined Terms. Capitalized terms used herein, not otherwise defined herein,
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shall have the meanings ascribed thereto in the Share Purchase Agreement.
2. Initial Payment. Notwithstanding the definition of "Initial Payment" in
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Section 1.1.26 of the Share Purchase Agreement, the Initial Payment shall be
made as at 10:00 a.m. on the Closing date and shall be an amount of two million
three hundred thirty-seven thousand seven hundred and thirty-eight dollars
(Cdn$2,337,738). In addition, notwithstanding Section 2.2 of the Share Purchase
Agreement, the Initial Payment shall be made and fully satisfied by the
Purchaser by delivery to the Vendors of a promissory note of the Purchaser,
guaranteed by ITX, in the full amount of the Initial Payment plus interest
thereon from the date hereof at the annual rate equal to the prime rate of
interest charged by the Bank of Montreal as amended from time to time, plus one
percent (1%), payable within three (3) business days (in the State of
Pennsylvania) after the closing by ITX of its offering of US$200 million Senior
Subordinated Notes due 2009 but, in any case, no later than April 16, 1999 (the
"Funding Date").
3. Capital Contributions. Notwithstanding Section 2.3 of the Share Purchase
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Agreement, the Purchaser shall satisfy the Capital Contributions by subscribing
for, as at 10:30 a.m. on the Closing Date, twelve million nine hundred forty-
eight thousand seven hundred and eighteen (12,948,718) Common Shares of New
Roche at a subscription price of One dollar (Cdn$1.00) per share for an
aggregate subscription price of twelve million nine hundred forty-eight thousand
seven hundred and eighteen dollars (Cdn$12,948,718), of which:
(a) an amount of three million two hundred seventy-four thousand three hundred
and forty- eight dollars (Cdn$3,274,348) will be paid on the Closing Date
by bank draft, certified cheque or wire transfer, which amount is hereby
directed by New Roche to be paid to ▇▇▇▇▇▇ ▇▇▇▇▇ in trust for the purposes
of payment in cash of promissory notes given as consideration for the
repurchase for cancellation of various classes of shares of the Corporation
and New Roche as set forth in steps 3, 4, 12 ,17 and 19 of the Memorandum
of Le Groupe ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ attached as Schedule 1.1.46 to the Share
Purchase Agreement, as consideration for the issuance of three million two
hundred seventy-four thousand three hundred and fourty-eight (3,274,348)
Common Shares on the Closing Date; and
(b) an amount of nine million six hundred seventy-four thousand three hundred
seventy dollars (Cdn$9,674,370) will be paid on the Funding Date as
consideration for the issuance on the Funding Date of nine million six
hundred seventy-four thousand three hundred and seventy (9,674,370) Common
Shares. In addition to such subscription price, the Purchaser will pay New
Roche on the Funding Date an amount equivalent to interest thereon from the
date hereof at the annual rate equal to the prime rate of interest charged
by the Bank of Montreal as amended from time to time, plus one percent
(1%).
4. Guarantee. As guarantee for certain obligations of Roche:
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(a) ITX shall grant on the Closing Date a guarantee in favour of London
Guarantee Insurance Company in the amount of three million five hundred
forty thousand eight hundred and seventy-three dollars (Cdn$3,540,873) plus
interest thereon from the
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date hereof at the annual rate of interest equal to the prime rate of the
Bank of Montreal from time to time, plus one percent (1%), as guarantee for
Roche's obligation to reimburse London Guarantee Insurance Company of
amounts paid on behalf of Roche to settle litigation instituted by
▇▇▇▇▇▇▇▇▇▇▇ in connection with the Pembroke Project;
(b) ITX shall grant on the Closing Date a guarantee in favour of Axa Boreal
Insurance Inc. in the amount of four million forty-six thousand seven
hundred and thirteen dollars (Cdn$4,046,713) plus interest thereon from the
date hereof at the annual rate of interest equal to the prime rate of the
Bank of Montreal from time to time, plus one percent (1%), as guarantee for
Roche's obligation to reimburse Axa Boreal Insurance Inc. of amounts paid
on behalf of Roche to settle litigation instituted by ▇▇▇▇▇▇▇▇▇▇▇ in
connection with the Pembroke Project; and
(c) the Purchaser shall issue, and ITX shall guarantee, on the Closing Date a
promissory note payable to ▇▇▇▇▇▇ ▇▇▇▇▇ in trust in the amount of nine
million six hundred seventy-four thousand three hundred and seventy dollars
(Cdn$9,674,370) plus interest thereon from the date heereof at the annual
rate of interest equal to the prime rate of the Bank of Montreal from time
to time, plus one percent (1%), as guarantee for payment of the capital
contributions as set forth in section 3 b), being:
(i) Roche's obligation to reimburse London Guarantee Insurance Company and
Axa Boreal Insurance Inc. of amounts paid on behalf of Roche to settle
litigation instituted by ▇▇▇▇▇▇▇▇▇▇▇ in connection with the Pembroke
Project; and
(ii) the repayment of all promissory notes given as consideration of
repurchases of shares of the Corporation and New Roche as set forth in
steps 3, 4, 12, 17 and 19 of the memorandum of Le Groupe ▇▇▇▇▇▇▇▇
▇▇▇▇▇ attached as Schedule 1.1.46 to the Share Purchase Agreement, to
the extent not paid on the Closing Date pursuant to section 3(a).
For greater certainty, the Common Shares of New Roche referred to in section
3(b) shall only be issued as, and to the extent, the payments referred to in
section 5 are paid.
5. Direction of Payment. By its intervention hereto, Roche hereby irrevocably
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directs the Purchaser to satisfy the Capital Contributions referred to in
section 3(b) as follows:
(a) the Purchaser shall pay on the Funding Date to London Guarantee Insurance
Company the amount of three million five hundred forty thousand eight
hundred and seventy-three dollars (Cdn$3,540,873) plus interest thereon
from the date hereof at the annual rate of interest equal to the prime rate
of the Bank of Montreal from time to time, plus one percent (1%), such
payment to be in satisfaction of Roche's obligation to reimburse London
Guarantee Insurance Company of amounts paid on behalf of Roche to settle
litigation instituted by ▇▇▇▇▇▇▇▇▇▇▇ in connection with the Pembroke
Project;
(b) the Purchaser pay on the Funding Date to Axa Boreal Insurance Inc. the
amount of four million forty-six thousand seven hundred and thirteen
dollars (Cdn$4,046,713) plus interest thereon from the date hereof at the
annual rate of interest equal to the prime rate of the Bank of Montreal
from time to time, plus one percent (1%), such
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payment to be in satisfaction of Roche's obligation to reimburse Axa Boreal
Insurance Inc. of amounts paid on behalf of Roche to settle litigation
instituted by ▇▇▇▇▇▇▇▇▇▇▇ in connection with the Pembroke Project; and
(c) the Purchaser shall pay on the Funding Date to ▇▇▇▇▇▇ ▇▇▇▇▇ in trust the
amount of two million eighty-six thousand seven hundred eighty-four dollars
(Cdn$2,086,784) plus interest thereon from the date hereof at the annual
rate of interest equal to the prime rate of the Bank of Montreal from time
to time, plus one percent (1%), such payment to be used to repay all
promissory notes given as consideration on repurchases of shares of the
Corporation and New Roche as set forth in steps 3, 4, 12, 17 and 19 of the
memorandum of Le Groupe ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ attached as Schedule 1.1.46 to the
Share Purchase Agreement, to the extent not paid on the Closing Date
pursuant to section 3(a).
6. Pledge Agreement. As further security for the obligations of Purchaser to
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pay all principal and interest referred to in sections 2 and 5, Purchaser shall
execute a pledge agreement in favour of Vendors pursuant to which Purchaser will
grant a movable hypothec with delivery on the Purchased Shares and the three
million two hundred seventy-four thousand three hundred and forty-eight
(3,274,348) Common Shares issued from treasury of New Roche pursuant to the
Capital Contribution made in section 3(a). Such pledge agreement shall be on
terms and conditions satisfactory to the Parties.
7. Assumed Debt. For greater certainty, in the event any funds paid by
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Purchaser to Roche on Closing are used to pay down Assumed Debt, such payment
shall not be reflected as an increase in net book value of New Roche pursuant to
section 2.4 of the Share Purchase Agreement.
8. Representation on Authorized and Issued Capital. The references in the
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second paragraph of Section 3.1.7 of the Share Purchase Agreement to twelve
million eight hundred twenty-three thousand three hundred and thirty-five
(12,823,335) Common Shares shall be substituted with references to twelve
million nine hundred forty-eight thousand seven hundred and eighteen
(12,948,718) Common Shares.
9. Non-Competition Agreements. Notwithstanding anything contained in the Share
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Purchase Agreement, the Parties acknowledge that the Non-Competition Agreements
were signed by the parties thereto on dates prior to the Closing Date, the whole
in anticipation of the originally proposed Closing Date.
10. Unconditional Obligation. For greater certainty and notwithstanding the
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Share Purchase Agreement, the obligation of the Purchaser to make the payments
as instructed in section 5 hereof on the Funding Date and the obligations of ITX
as guarantor (as per the terms of its intervention to promissory notes issued in
accordance herewith) are unconditional and not be subject to counterclaims, set-
offs and other rights and remedies otherwise available to the Purchaser.
11. Confirmation of Conditions to Closing. Vendors hereby confirm the full and
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complete satisfaction of each of the conditions to Closing for the benefit of
Purchaser stipulated in Section 11.1 of the Share Purchase Agreement. Purchaser
hereby confirms the full and complete satisfaction of each of the conditions to
Closing for the benefit of Vendors set forth in Section 11.2 of the Share
Purchase Agreement.
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12. Intervention by ITX. The intervention of ITX in the Share Purchase
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Agreement shall be deemed to be amended by deleting the last two sentences of
the first paragraph thereof, but only to the extent of the obligations and
covenants referred to in sections 2,3 and 4 hereof.
13. Schedule 1.1.46. Schedule 1.1.46 of the Share Purchase Agreement is amended
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and replaced with Schedule A of this Agreement and any reference to Schedule
1.1.46 in the Share Purchase Agreement or in this Agreement shall be deemed a
reference to the Schedule as amended.
14. Other Amendments. The Share Purchase Agreement shall be deemed to be
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amended to the extent necessary to reflect the revised payments, procedures and
conditions herein.
15. Language of Agreement. The Parties acknowledge that it is their express
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wish that this Agreement and all related documents be prepared in English. Les
parties ont demande que cette convention et tous documents y afferents soient
rediges en langue anglaise.
16. Governing Law. This Agreement shall be governed by and interpreted and
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construed in accordance with the internal Laws presently in force in the
Province of Quebec.
17. Miscellaneous. The Parties hereby confirm that all other interpretive and
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miscellaneous clauses of the Share Purchase Agreement (including Section 14.11
Arbitration) hereby apply to this Agreement, mutatis mutandis.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first
above mentioned.
IT Holdings Canada, Inc. The Persons listed in Exhibit "A" of the Share
Purchase Agreement
Per:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Per:
Assistant-Secretary ------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Their lawful mandatary
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Intervention of
The IT Group, Inc.
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For valuable consideration, the receipt and adequacy of which is hereby
acknowledged, The IT Group, Inc. hereby unconditionally and irrevocably
guarantees to and in favour of Vendors the timely performance and fulfillment by
Purchaser of its obligations and covenants under this Agreement.
The IT Group, Inc. acknowledges that Vendors are relying on this guarantee in
connection with the sale of the Purchased Shares under the Agreement and that
Vendors would not have entered into the Agreement without such guarantee.
DATED this 31st day of March, 1999.
The IT Group, Inc.
Per: --------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Corporate Counsel and
Assistant Secretary
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Intervention of
Roche Ltee, Groupe Conseil
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Roche Ltee, Groupe Conseil hereby intervenes to this Amendment Agreement to
direct, and confirm the direction to, IT Holdings Canada, Inc. to pay the
Capital Contributions referred to in section 3 of this Agreement in the manner
and to the persons indicated in sections 3 (a) and 5 of this Agreement and that,
upon payment of Capital Contributions referred to in section 3 (a) of this
Agreement, Roche will issue to IT Holdings Canada, Inc. the number of Common
Shares indicated therein and, upon the payments referred to in section 3 (b) to
be made as contemplated in section 5 of this Agreement, Roche will issue to IT
Holdings Canada, Inc. the number of Common Shares referred to in section 3 (b)
of this Agreement.
DATED this 31st day of March, 1999.
Roche Ltee, Groupe Conseil
Per: --------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
President
EXHIBIT "A"
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To the Amendment Agreement made on the 31st day of March, 1999, by and between
the Persons listed in Exhibit "A" thereto and IT Holdings Canada, Inc. and
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intervened thereto by The IT Group, Inc. and Roche Ltee, Groupe Conseil.
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Vendors
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▇▇▇▇-▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ St-▇▇▇
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▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Gestion Pilac inc.