SUPPORT AGREEMENT
Exhibit
10.12
THIS
SUPPORT AGREEMENT
is
entered into as of June 30, 2005, between AdValiant USA, Inc., a corporation
existing under the laws of the State of Delaware (“AdValiant USA”), AdValiant
Inc., a corporation incorporated under the laws of Ontario (the “Corporation”)
and Dialog Group, Inc., a corporation incorporated under the laws of the State
of Delaware (“DGI”).
WHEREAS,
pursuant to a merger agreement dated as of June 30, 2005, (such agreement as
it
may be amended or restated is hereinafter referred to as the “Merger Agreement”)
by and between, DGI, AdValiant USA, AdValiant Acquisition Corp., Empire Media,
Inc., Xxxxxxx Xxxx, Xxxxx Xxxxxx and the Corporation, the parties agreed that
on
the closing of the transaction contemplated under the Merger Agreement,
AdValiant USA, the Corporation and DGI would execute and deliver a Support
Agreement containing the terms and conditions set forth in an Exhibit to the
Merger Agreement together with such other terms and conditions as may be agreed
to by the parties to the Merger Agreement acting reasonably.
AND
WHEREAS,
pursuant to a reorganization of the capital of the Corporation (the
“Reorganization”) contemplated in the Merger Agreement, the Corporation and
Shareholders agreed that all of the outstanding Common Shares of the Corporation
were reclassified as exchangeable shares (the “Exchangeable Shares”) having the
rights, privileges, restrictions and conditions (collectively, the “Exchangeable
Share Provisions”) and the Corporation would issue a specified number of
Exchangeable Shares to each Shareholder.
AND
WHEREAS,
pursuant to the Merger Agreement, AdValiant USA and AdValiant Acquisition Corp.,
a wholly-owned subsidiary of DGI, shall merge (the “Merger”) and, upon the
merger, outstanding shares of common stock of AdValiant USA will be cancelled
and holders of Exchangeable Shares will be entitled to a specified number of
shares of common stock of DGI.
WHEREAS
all
references to “ParentCo” in this Agreement shall mean AdValiant USA if the
reference is made to any action to be taken by or in respect of ParentCo prior
to the effective time of the Merger and shall mean DGI on and after the
effective time of the Merger if the reference is made to any action to be taken
by or in respect of ParentCo;
AND
WHEREAS,
the
parties hereto desire to make appropriate provision and to establish a procedure
whereby AdValiant USA and, following the Merger, DGI will take certain actions
and make certain payments and deliveries necessary to ensure that the
Corporation will be able to make certain payments and to deliver or cause to
be
delivered ParentCo Common Shares in satisfaction of the obligations of the
Corporation 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.
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
1
DEFINITIONS
AND INTERPRETATION
1.1 Defined
Terms.
Except
as expressed in the following sentence, 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
requires otherwise.
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.
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
2
COVENANTS
OF PARENTCO AND THE CORPORATION
2.1 Covenants
of ParentCo Regarding Exchangeable Shares.
So long
as any Exchangeable Shares are outstanding, AdValiant USA (prior to the
effective time of the Merger) and DGI (on and after the effective time of the
Merger) will:
(a) |
not
declare or pay any dividend on ParentCo Common Shares unless (A)
the
Corporation 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 (B) subsection 2.1(b) shall be complied with
in
connection with such dividend;
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(b) |
cause
the Corporation to declare simultaneously with the declaration of
any
dividend on ParentCo Common Shares an equivalent dividend on the
Exchangeable Shares and, when such dividend is paid on ParentCo Common
Shares, cause the Corporation to pay simultaneously therewith such
equivalent dividend on the Exchangeable Shares, in each case in accordance
with the Exchangeable Share
Provisions;
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(c) |
advise
the Corporation sufficiently in advance of the declaration by ParentCo
of
any dividend on ParentCo Common Shares and take all such other actions
as
are necessary, in cooperation with the Corporation, 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 ParentCo Common Shares;
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(d) |
take
all such actions and do all such things as are necessary or desirable
to
enable and permit the Corporation, in accordance with applicable
law, to
pay and otherwise perform its obligations with respect to the satisfaction
of the Exchangeable Share Consideration representing the Liquidation
Amount in respect of each issued and outstanding Exchangeable
Share upon the liquidation, dissolution or winding-up of the Corporation
or
any other distribution of the assets of the Corporation for the purpose
of
winding up its affairs, including without limitation all such actions
and
all such things as are necessary or desirable to enable and permit
the
Corporation to cause to be delivered ParentCo Common
Shares to the holders of Exchangeable Shares in accordance with the
provisions
of
Article 5 of the Exchangeable Share
Provisions;
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(e) |
take
all such actions and do all such things as are necessary or desirable
to
enable and permit the Corporation, in accordance with applicable
law, to
pay and otherwise perform its obligations with respect to the satisfaction
of the Exchangeable Share Consideration representing the Retraction
Price
and the Redemption Price, including without limitation all such actions
and all such things as are necessary or desirable to enable and permit
the
Corporation to cause to be delivered ParentCo Common Shares to the
holders
of Exchangeable Shares, upon the retraction or redemption of the
Exchangeable Shares in accordance with the provisions of Article
6 or
Article 7 of the Exchangeable Share Provisions, as the case may be;
and
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(f) |
not
exercise its vote, or cause any of its subsidiaries to exercise their
votes, as a shareholder of the Corporation to initiate the amalgamation
or
voluntary liquidation, dissolution or winding-up of the Corporation
nor
take any action or omit to take any action that is designed to result
in
the liquidation, dissolution or winding-up of the
Corporation.
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2.2 Reservation
of ParentCo Common Shares.
(a) |
DGI
hereby represents, warrants and covenants that is has irrevocably
reserved
for issuance, or will hold in treasury for issuance, and at all times
on
and after the effective time of the Merger it will keep available,
free
from pre-emptive and other rights, out of its authorized and unissued
capital shares, such number of DGI Common Shares (or other shares
or
securities into or shares held in treasury, which DGI Common Shares
may be
reclassified or changed as contemplated by section 2.5 hereof) (a)
as is
equal to the number of Exchangeable Shares issued and outstanding
from
time to time, and (b) as are now and may hereafter be required to
enable
and permit the Corporation to meet its obligations hereunder, under
the
Voting and Exchange Trust Agreement and under the Exchangeable Share
Provisions.
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2.3 Notification
of Certain Events.
In order
to assist ParentCo to comply with its obligations hereunder, the Corporation
will give notice of each of the following events at the times set forth below
to
AdValiant USA if such notice is given prior to the effective time of the Merger
and to DGI if such notice is given on or after the effective time of the
Merger:
(a) |
in
the event of any determination by the Board of Directors of the
Corporation in accordance with the Articles of the Corporation to
institute voluntary liquidation, dissolution or winding-up proceedings
with respect to the Corporation or to effect any other
distribution of the assets of the Corporation among its shareholders
for
the purpose
of
winding-up its affairs, at least 30 days prior to the proposed effective
date of such liquidation, dissolution, winding-up or other
distribution;
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(b) |
immediately,
upon the earlier of (i) receipt by the Corporation of notice of,
and (ii)
the Corporation 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 Corporation or to effect
any
other distribution of the assets of the Corporation among its shareholders
for the purpose of winding-up its
affairs;
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(c) |
immediately,
upon receipt by the Corporation of a Retraction Request (as defined
in the
Exchangeable Share Provisions);
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(d) |
at
least 30 days prior to any accelerated Automatic Redemption Date
determined by the Board of Directors of the Corporation in accordance
with
the Exchangeable Share Provisions;
and
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(e) |
as
soon as practicable upon the issuance by the Corporation of any
Exchangeable Shares.
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2.4 Delivery
of ParentCo Common Shares.
In
furtherance of its obligations hereunder, upon notice of any event which
requires the Corporation to cause to be delivered ParentCo Common Shares to
any
holder of Exchangeable Shares, ParentCo shall forthwith issue and deliver the
requisite ParentCo Common Shares to or to the order of the former holder of
the
surrendered Exchangeable Shares as the Corporation shall direct. All such
ParentCo Common Shares shall be duly issued as fully paid and non-assessable
and
shall be free and clear of any lien, claim, encumbrance, security interest
or
adverse claim or interest created by or through ParentCo.
2.5 Equivalence.
ParentCo
hereby covenants and agrees to cause the Corporation to effect the necessary
amendments to the Articles of the Corporation to ensure that the Exchangeable
Shares are adjusted to fully reflect the effect of any stock split, reverse
split, stock dividend (including any dividend or distribution of securities
convertible into ParentCo Common Shares), reorganization, recapitalization
or
other like change with respect to, or amalgamation, merger or other similar
transaction affecting ParentCo Common Stock occurring after the Effective
Date.
2.6 Tenders
Offers, Etc.
In the
event that a tender offer, share exchange offer, issuer bid, take-over bid
or
similar transaction with respect to ParentCo Common Shares (an “Offer”) is
proposed
by ParentCo or is proposed to ParentCo or its shareholders and is recommended
by
the
Board of
Directors of ParentCo, or is otherwise effected or to be effected with the
consent or approval of the Board of Directors of ParentCo, ParentCo shall,
in
good faith, 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 ParentCo Common Shares, without discrimination, including, without
limiting the generality
of the foregoing, ParentCo will use its reasonable best efforts expeditiously
to
(and shall, in
the case
of a transaction proposed by ParentCo or where ParentCo is a participant in
the
negotiation thereof) ensure that holders of Exchangeable Shares may participate
in all such Offers
without being required
to
retract Exchangeable Shares as against the Corporation (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).
2.7 Ownership
of Outstanding Shares.
Without
the prior approval of the Corporation and the prior approval of the holders
of
the Exchangeable Shares given in accordance with Article 9 of the Exchangeable
Share Provisions, ParentCo covenants and agrees in favour of the Corporation
that, following the effective time of the Merger and as long as any outstanding
Exchangeable Shares are owned by any person or entity other than ParentCo or
any
of its Subsidiaries, ParentCo will be and remain the direct or indirect
beneficial owner of securities of the Corporation carrying or entitled to not
less than 51% of the voting rights for the election of directors, in each case
other than the Exchangeable Shares. Notwithstanding the foregoing sentence,
ParentCo shall not be in violation of this section
2.7 if any person or group of persons acquires ParentCo Common Shares pursuant
to any
merger
of ParentCo in which ParentCo was not the surviving corporation.
2.8 ParentCo
Not to Vote Exchangeable Shares.
ParentCo
covenants and agrees that it will appoint and cause to be appointed proxy
holders with respect to all Exchangeable Shares held by ParentCo 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. ParentCo 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 Act 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.
2.9 Due
Performance.
On and
after the Effective Date, ParentCo shall duly and timely perform all of its
obligations under the Merger Agreement and related agreements in respect of
the
Reorganization, including any obligations that may arise upon the exercise
of
ParentCo's rights under the Exchangeable Share Provisions.
ARTICLE
3
RIGHTS
OF PARENTCO AND PARENTCO SUB TO ACQUIRE EXCHANGEABLE
SHARES
3.1 Liquidation
Call Right.
(a) |
ParentCo
or, at ParentCo’s option, ParentCo Sub shall have the overriding right
(the “Liquidation Call Right”), in the event of and notwithstanding the
proposed liquidation, dissolution or winding-up of the Corporation
as referred to in Article 5 of the Exchangeable Share Provisions,
to
purchase
from all, but not less than all, of the holders of Exchangeable Shares
on
the Liquidation Date all but not less than all of the Exchangeable
Shares
held by each such holder on payment by whichever of ParentCo and
ParentCo
Sub is exercising such right (the “LCR Exercising Party”) to each holder
of the Exchangeable Share Price applicable on the last Business Day
prior
to the Liquidation Date (the “Liquidation Call Purchase Price”), which as
provided in this section 3.1, shall be fully paid and satisfied by
the
delivery by, or on behalf of, the LCR Exercising Party of the Exchangeable
Share Consideration representing the Liquidation Call Purchase Price.
In
the event of the exercise of the Liquidation Call Right, it is intended
that each holder shall be obligated to sell all the Exchangeable
Shares held by the holder to the LCR Exercising Party on the Liquidation
Date on payment
by
the LCR Exercising Party to the holder of the Exchange Share Consideration
representing the Liquidation Call Purchase Price for each such share,
as
provided in section 5.4 of the Exchangeable Share Provisions. The
Corporation agrees, for the benefit of the LCR Exercising Party,
to
enforce against the holders of Exchangeable Shares the provisions
of
section 5.4 of the Exchangeable Share Provisions to such effect.
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(b) |
To
exercise the Liquidation Call Right, an LCR Exercising Party must
notify
the Corporation of its intention to exercise such right at least
60 days
before the Liquidation Date in the case of a voluntary liquidation,
dissolution or winding-up of the Corporation and at least five Business
Days before the Liquidation Date in the case of an involuntary
liquidation, dissolution or winding-up of the Corporation. The Corporation
will notify the holders of Exchangeable Shares as to whether or not
ParentCo or ParentCo Sub has exercised the Liquidation Call Right
forthwith after the expiry of the latest date on which the same may
be
exercised by ParentCo or ParentCo Sub. If an LCR Exercising Party
exercises the Liquidation Call Right, on the Liquidation Date, the
LCR
Exercising Party will purchase all of the Exchangeable Shares then
outstanding for the Exchangeable Share Consideration representing
the
total Liquidation Call Purchase
Price.
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(c) |
For
the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Liquidation Call Right, the LCR Exercising Party
shall
deposit with the Corporation, on or before the Liquidation Date,
the
Exchangeable Share Consideration for all of the Exchangeable Shares.
Provided that such Exchangeable Share Consideration has been so deposited
with the Corporation, on and after the Liquidation Date the right
of each
holder of Exchangeable Shares will be limited to receiving such holder's
proportionate share of such Exchangeable Share Consideration representing
the total Liquidation Call Purchase Price payable by the LCR Exercising
Party without interest upon presentation and surrender by the holder
of
certificates representing the Exchangeable Shares held by such holder
and
the holder shall on and after the Liquidation Date be considered
and
deemed for all purposes to be the holder of the ParentCo Common Share
delivered to it. Upon surrender to the Corporation of a certificate
or
certificates representing the Exchangeable Shares, together with
such
other documents and instruments as may be required to effect a transfer
of
Exchangeable Shares under the Act and the by-laws of the Corporation
and
such additional documents and instruments as the Corporation may
reasonably require, the holder of such surrendered certificate or
certificates shall be entitled to receive in exchange therefor, and
the
Corporation on behalf of ParentCo shall deliver to such holder, the
Exchangeable Share Consideration to which the holder is entitled.
If
ParentCo and ParentCo Sub do not exercise the Liquidation Call Right
in
the manner described above, on the Liquidation Date the holders of
the
Exchangeable Shares will be entitled to receive in exchange therefor
the
Exchangeable Share Consideration representing the Liquidation Amount
otherwise payable by the Corporation in connection with the liquidation,
dissolution or winding-up of the Corporation pursuant to Article
5 of the
Exchangeable Share Provisions. Notwithstanding the foregoing, until
such
Exchangeable Share Consideration is delivered to the holder, the
holder
shall be deemed to still be a holder of Exchangeable Shares for purposes
of all voting rights in ParentCo with respect thereto under the Voting
and
Exchange Trust Agreement.
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3.2 Redemption
Call Right.
(a) |
ParentCo
or, at ParentCo’s option, ParentCo Sub shall have the overriding right (
the “Redemption Call Right”), notwithstanding the proposed redemption of
the Exchangeable Shares by the Corporation pursuant to Article
7 of the Exchangeable Share Provisions, to purchase from all, but
not less
than all,
of
the holders of Exchangeable Shares on the Automatic Redemption Date
all
but not less than all of the Exchangeable Shares held by each such
holder,
other than any Subsidiary of ParentCo, on payment by whichever of
ParentCo
and ParentCo Sub exercises such right (the “RCR Exercising Party”) to the
holder of the Exchangeable Share Price applicable on the last Business
Day
prior to the Automatic Redemption Date (the “Redemption Call Purchase
Price”), which as provided in this section 3.2, shall be fully paid and
satisfied by the delivery by or on behalf of the RCR Exercising Party
of
the Exchangeable Share Consideration representing the Redemption
Call
Purchase Price. In the event of the exercise of the Redemption Call
Right
by the RCR Exercising Party, it is intended that each holder shall
be
obligated to sell all the Exchangeable Shares held by the holder
to the
RCR Exercising Party on the Automatic Redemption Date on payment
or on
behalf of the ParentCo to the holder of the Exchangeable Share
Consideration representing the Redemption Call Purchase Price for
each
such share as provided in section 7.4 of the Exchangeable Share
provisions. The Corporation agrees, for the benefit of the RCR Exercising
Party, to enforce against the holders of Exchangeable Shares the
provisions of section 7.4 of the Exchangeable Share Provisions to
such
effect.
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(b) |
To
exercise the Redemption Call Right, an RCR Exercising Party must
notify
the Corporation of its intention to exercise such right at least
60 days
before the Automatic Redemption Date. The Corporation will notify
the
holders of the Exchangeable Shares as to whether or not the Redemption
Call Right has been exercised forthwith after the expiry of the latest
date on which the same may be exercised. If an RCR Exercising Party
exercises its Redemption Call Right, on the Automatic Redemption
Date, the
RCR Exercising Party will purchase all of the Exchangeable Shares
then
outstanding for the Exchangeable Share Consideration representing
the
total Redemption Call Purchase
Price.
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(c) |
For
the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Redemption Call Right, the RCR Exercising Party shall
deposit with the Corporation, on or before the Automatic Redemption
Date,
the Exchangeable Share Consideration for all the then outstanding
Exchangeable Shares representing the total Redemption Call Purchase
Price.
Provided that such Exchangeable Share Consideration has been so deposited
with the Corporation, on and after the Automatic Redemption Date,
the
rights of each holder of Exchangeable Shares will be limited to receiving
such holder’s proportionate share of the Exchangeable Share Consideration
representing the total Redemption Call Purchase Price payable by
the RCR
Exercising Party upon presentation and surrender by the holder of
certificates representing the Exchangeable Shares held by such holder
and
the holder shall on and after the Automatic Redemption Date be considered
and deemed for all purposes to be the holder of the Exchangeable
Share
Consideration delivered by such holder. Upon surrender to the Corporation
of a certificate or certificates representing Exchangeable Shares,
together with such other documents and instruments as may be required
to
effect a transfer of Exchangeable Shares under the Act and the by-laws
of
the Corporation and such additional documents and instruments as
the
Corporation may reasonably require, the holder of such surrendered
certificate or certificates shall be entitled to receive in exchange
therefor, and the Corporation shall deliver to such holder, the
Exchangeable Share Consideration to which the holder is entitled.
If
ParentCo or ParentCo Sub do not exercise the Redemption Call Right
in the
manner described above, on the Automatic Redemption Date, the holders
of
the Exchangeable Shares will be entitled to receive in exchange therefor
the Exchangeable Share Consideration representing the Redemption
Price
otherwise payable by the Corporation in connection with the redemption
of
the Exchangeable Shares pursuant to Article 7 of the Exchangeable
Share
Provisions. Notwithstanding the foregoing, until such Exchangeable
Share
Consideration is delivered to the holder, the holder shall be deemed
to
still be a holder of Exchangeable Shares for purposes of all voting
rights
with respect thereto under the Voting and Exchange Trust
Agreement.
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ARTICLE
4
GENERAL
4.1 Term.
This
agreement shall come into force and be effective as of the date hereof and
shall
terminate and be of no further force and effect at such time as no 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 ParentCo
and any of its Subsidiaries.
4.2 Changes
in Capital of ParentCo and the Corporation.
Notwithstanding the provisions of section 4.4 hereof, at all times after the
occurrence of any event effected pursuant to Section 2.5 or 2.6 hereof, as
a
result of which either ParentCo 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 ParentCo 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
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 or modified except by an agreement in writing
executed by the Corporation and ParentCo and approved by the holders of the
Exchangeable Shares in accordance with Article 9 of the Exchangeable Share
Provisions.
4.5 Ministerial
Amendments.
Notwithstanding the provisions of Section 4.4 hereof, 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 either or both parties for the protection of
the
holders of the Exchangeable Shares;
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(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 the Corporation and ParentCo, 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
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(c) |
making
such changes or corrections which, on the advice of counsel to the
Corporation and ParentCo, 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 the Corporation and ParentCo shall be of the
opinion
that such changes or corrections will not be prejudicial to the interests
of the holders of the Exchangeable
Shares.
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4.6 Meeting
to Consider Amendments.
The
Corporation, at the request of ParentCo, 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. Any such
meeting or meetings shall be called and held in accordance with the by-laws
of
the Corporation, 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 both of the parties hereto.
4.8 Enurement.
This
agreement shall be binding upon and enure 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 Notices
to Parties.
All
notices and other communications between the parties 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 either such
party as shall be specified in like notice):
(a) |
if
to ParentCo in connection with the period prior to the effective
time of
the Merger to:
|
AdValiant
USA, Inc.
000
Xxxx Xxxxxx Xxxxx
Xxxxx
0000
Xxx
Xxxx, XX 00000
|
|
Attn:
|
Xxxxx
Xxxxxx
|
Fax:
|
(000)
000-0000
|
Tel:
|
(000)
000-0000
|
(b) |
if
to ParentCo in connection with the period on or after the effective
time
of the Merger to:
|
Dialog
Group, Inc.
Twelfth
Floor
000
Xxxx Xxxxxx Xxxxx
Xxx
Xxxx, XX 00000
|
|
Attn:
|
Xxxxx
XxXxxxxxxxx
|
Fax:
|
000-000-0000
|
Tel:
|
000-000-0000
|
(c) |
if
to the Corporation to:
|
AdValiant
Inc.
0
Xx. Xxxxx Xxxxxx Xxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx X0X 0X0
|
|
Attn:
|
Xxxxx
Xxxxxx
|
Fax:
|
(000)
000-0000
|
Tel:
|
000-000-0000
|
Any
notice or other communication given personally shall be deemed to have been
given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and received on the date of confirmed receipt thereof,
unless such day is not a Business Day, in which case it shall be deemed to
have
been given and received upon the immediately following Business
Day.
4.10 Counterparts.
This
agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which taken together shall constitute one and the same
instrument.
4.11 Jurisdiction.
This
agreement shall be construed and enforced in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein.
4.12 Attornment.
ParentCo agrees that any action or proceeding arising out of or relating to
this
agreement maybe 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 Corporation at its registered
office in the Province of Ontario as ParentCo's attorney for service of
process.
IN
WITNESS WHEREOF, AdValiant USA, DGI and the Corporation have caused this
agreement to be signed by their respective officers thereunder duly authorized,
all as of the date first written above.
ADVALIANT
INC.
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx, President
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ADVALIANT
USA, INC.
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Border, President
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||
DIALOG
GROUP, INC.
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By:
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/s/
Xxxxx XxXxxxxxxxx
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Xxxxx
XxXxxxxxxxx, President
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