EXHIBIT 2.4
SUPPORT AGREEMENT
THIS made effective June 11, 2001.
AMONG:
ASPI EUROPE, INC., a Delaware corporation
("Pubco")
AND:
ASPI ALBERTA HOLDINGS INC., an Alberta corporation
(the "Aquiror")
AND:
GROWTHEXPERTS GROUP INC., an Alberta corporation
(the "Target")
WHEREAS:
A. Pursuant to the Amalgamation and Re-organization Agreement (the "Amalgamation
Agreement") dated June __, 2001, the Acquiror and the Target are to amalgamate
(the "Amalgamation") to form GrowthExperts Group Inc. ("Amalco");
B. Under the terms of the Amalgamation Agreement the shareholders of the Target
are to receive non-voting exchangeable shares (the "Exchangeable Shares") of
Amalco exchangeable into common stock of Pubco (the "Pubco Common Stock"); and
C. The parties wish to provide for and establish a procedure whereby Pubco will
take certain actions and make certain payments and deliveries necessary to
ensure that Amalco will be able to satisfy the obligations of Amalco to all
persons who become holders of the Exchangeable Shares pursuant to the special
rights and restrictions thereof (the "Exchangeable Share Provisions") with
respect to the payment and satisfaction of dividends, liquidation amounts,
retraction prices, and redemption prices.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual
covenants and agreements contained in this Agreement and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereby agree as follows:
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Headings and Division
The headings in this Agreement and the division of this agreement into
Articles and Sections are for convenience of reference only and will not affect
the interpretation of this Agreement.
1.2 Governing Law
This Agreement will in all respects be governed exclusively by and
construed in accordance with the laws of British Columbia and the laws of Canada
applicable in the Province of British Columbia and will be treated in all
respects as a British Columbia contract.
1.3 Currency
Unless otherwise indicated, all dollar amounts referred to in this
Agreement are in United States funds.
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.
1.5 Severability
If any provision of this Agreement is invalid or unenforceable, such
provision will be severed and the remainder of this Agreement will be unaffected
thereby but will continue to be valid and enforceable to the fullest extent
permitted by law.
1.6 Recitals
The recitals form part of this Agreement.
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1.7 Defined Terms
Each term denoted herein by initial capital letters and not otherwise
defined herein shall have the meaning ascribed thereto in the rights,
privileges, restrictions and conditions (collectively, the "Exchangeable Share
Provisions") attaching to the Exchangeable Shares attached as Appendix 1 hereto,
unless the context requires otherwise.
ARTICLE 2
COVENANTS OF PUBCO AND AMALCO
2.1 Covenants of Pubco Regarding the Exchangeable Shares
So long as any of the Exchangeable Shares are outstanding, Pubco will:
(a) not declare or pay any dividend on the Pubco Common Stock unless
Amalco will have on the date of such payment 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 Amalco does
simultaneously pay an equivalent dividend on the Exchangeable Shares,
in each case in accordance with the Exchangeable Share Provisions;
(b) advise Amalco sufficiently in advance of the declaration by Pubco of
any dividend on the Pubco Common Stock and take all such other actions
as are necessary, in cooperation with Amalco, 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 the Pubco Common Stock and that such dividend will correspond to
any requirement of the principal stock exchange in which the
Exchangeable Shares are listed, if any;
(c) ensure that the record date for any dividend declared on the Pubco
Common Stock is not less than 10 business days after the declaration
date for such dividend;
(d) take all such actions and do all such things as are necessary or
desirable to enable and permit Amalco, in accordance with applicable
law, to pay and otherwise perform its obligations in respect of each
issued and outstanding Exchangeable Share upon the liquidation,
dissolution or winding-up of Amalco, including without limitation all
such actions and all such things as are necessary or desirable to
enable and permit Amalco to cause to be delivered shares of the Pubco
Common Stock to the holders of the Exchangeable Shares in accordance
with 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 Amalco, in accordance with applicable
law, to pay and otherwise perform its obligations to deliver shares of
the Pubco Common Stock to the holders of the Exchangeable Shares, upon
the retraction or redemption of the Exchangeable Shares in accordance
with the Exchangeable Share Provisions, as the case may be;
(f) not exercise its vote as a direct or indirect shareholder to initiate
the voluntary liquidation, dissolution or winding-up of Amalco nor
take any action that, or omit to take any action the omission of which
(i) is designed to result in the liquidation, dissolution or
winding-up of Amalco or (ii) would result in a meeting or vote of the
shareholder of Amalco to consider any matter on which the holders of
Exchangeable Shares would be entitled to vote as shareholders of
Amalco, other than a meeting as described in clause (d) of the
definition of "Automatic Redemption Date" In the Exchangeable Share
Provisions; and
(g) use its best efforts to take all such actions and do all such things
as are necessary to ensure that there is no meeting or vote of the
shareholders of Amalco to consider any matter on which the holders of
Exchangeable Shares would be entitled to vote as shareholders of
Amalco, other than a meeting as described in clause (d) of the
definition of "Automatic Redemption Date" in the Exchangeable Share
Provisions.
2.2 Reservation of Shares of the Pubco Common Stock
Pubco 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 the Pubco Common Stock (or other shares or
securities into which the Pubco Common Stock may be reclassified or changed as
contemplated by Section 2.6):
(a) as is equal to the sum of:
(i) the number of the Exchangeable Shares issued and outstanding from
time to time; and
(ii) the number of the Exchangeable Shares issuable upon the exercise
of all rights to acquire the Exchangeable Shares outstanding, if
any, from time to time; and
(b) as are now and may hereafter be required to enable and permit Amalco
to meet its obligations under the Voting and Exchange Agreement, its
obligations hereunder, and under the Exchangeable Share Provisions.
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2.3 Notification of Certain Events
In order to assist Pubco to comply with its obligations hereunder,
Amalco covenants and agrees to give Pubco notice of each of the following events
at the time set forth below:
(a) in the event of any determination by the board of directors of Amalco
to institute voluntary liquidation, dissolution or winding-up
proceedings with respect to Amalco or to effect any other distribution
of the assets of Amalco among its shareholders for the purpose of
winding-up its affairs, at least 60 days prior to the proposed
effective date of such liquidation, dissolution, winding-up or other
distribution;
(b) immediately, upon the earlier of:
(i) receipt by Amalco of notice of; or
(ii) Amalco 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 Amalco or
to effect any other distribution of the assets of Amalco among
its shareholders for the purpose of winding-up its affairs;
(c) immediately, upon receipt by Amalco of a Retraction Request;
(d) as soon as practicable upon the issuance by Amalco of any the
Exchangeable Shares or rights to acquire the Exchangeable Shares
(other than the issuance of Exchangeable Shares and rights to acquire
Exchangeable Shares in exchange for outstanding Target shares pursuant
to the Amalgamation);
(e) immediately, in the event of any determination by the Board of
Directors of Amalco to take any action which would require a vote of
the holders of Exchangeable Shares for approval; and
(f) at least 45 days prior to any Automatic Redemption Date determined by
the Board of Directors of Amalco in accordance with clause (b) of the
definition of Automatic Redemption Date.
2.4 Delivery of Shares of the Pubco Common Stock
In furtherance of its obligations hereunder, upon notice of any event
which requires Amalco to deliver shares of the Pubco Common Stock to any holder
of the Exchangeable Shares, Pubco shall and covenants and agrees to forthwith
issue and deliver the requisite shares of the Pubco Common Stock to or to the
order of the former holder of the
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surrendered the Exchangeable Shares, as Amalco shall direct. All such shares of
the Pubco Common Stock 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.
2.5 Equivalence
So long as any Exchangeable Shares not owned by Pubco are outstanding:
(a) Pubco will not without the prior approval of Amalco and Exchangeable
Shareholder Approval:
(i) subdivide, divide or change then outstanding shares of the Pubco
Common Stock into a greater number of shares of the Pubco Common
Stock; or
(ii) reduce, combine or consolidate or change then outstanding shares
of the Pubco Common Stock into a lesser number of shares of the
Pubco Common Stock; or
(iii)reclassify or otherwise change the shares of the Pubco Common
Stock or effect an amalgamation, merger, reorganization or other
transaction affecting the shares of the Pubco Common Stock,
unless:
(iv) Amalco is permitted under applicable law to simultaneously make
the same or an equivalent change to, or in the rights of holders
of, the Exchangeable Shares, and the same or an equivalent change
is made to, or in the rights of the holders of, the Exchangeable
Shares; and
(b) Pubco will ensure that the record date for any event referred to in
Subsection 2.5(a) above, or (if no record date is applicable for such
event) the effective date for any such event, is not less than 10
Business Days after the date on which such event is declared or
announced by Pubco (with simultaneous notice thereof to be given by
Pubco to Amalco).
2.6 Tender Offers, etc.
In the event that a tender offer, share exchange offer, issuer bid,
take-over bid or similar transaction with respect to the Pubco Common Stock (an
"Offer") is proposed by Pubco or is proposed to Pubco or its shareholders and is
recommended by the board of directors of
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Pubco, or is otherwise effected or to be effected with the consent or approval
of the board of directors of Pubco, Pubco shall take all such reasonable actions
and do all such things as are reasonably necessary or desirable to enable and
permit holders of the Exchangeable Shares to participate in such Offer to the
same extent and on an equivalent basis as the holders of shares of the Pubco
Common Stock, without discrimination, including, without limiting the generality
of the foregoing, Pubco will use its good faith efforts expeditiously to (and
shall, in the case of a transaction proposed by Pubco or where Pubco is a
participant in the negotiation thereof) ensure that holders of the Exchangeable
Shares may participate in all such Offers without being required to retract the
Exchangeable Shares as against Amalco (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 the rights of Amalco to redeem or Pubco
to acquire Exchangeable Shares, as applicable, in the event of a Pubco Control
Transaction.]
2.7 Ownership of Outstanding Shares
Without the prior approval of Amalco and the approval of the holders
of 66.67% of the Exchangeable Shares, Pubco covenants and agrees in favour of
Amalco that, as long as any outstanding the Exchangeable Shares are owned by any
person or entity other than Pubco or any of its subsidiaries, Pubco will be and
remain the direct or indirect beneficial owner of all the issued and outstanding
voting shares in the capital of Amalco, unless not being and remaining so will
not, in the reasonable opinion of Pubco, adversely affect the rights of any
holder of the Exchangeable Shares, and Pubco has provided to each holder of
Exchangeable Shares not less than 20 days notice of Pubco's intention to no
longer have or maintain such ownership and control.
2.8 Pubco Not to Vote the Exchangeable Shares
Pubco covenants and agrees that it will appoint and cause to be
appointed proxyholders with respect to all the Exchangeable Shares held by Pubco
and its subsidiaries for the sole purpose of attending each meeting of holders
of the Exchangeable Shares in order to be counted as part of the quorum for each
such meeting. Pubco 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 the Exchangeable Shares from time to time pursuant to
the Exchangeable Share Provisions or pursuant to the provisions of any corporate
statute by which Amalco may be governed with respect to any the Exchangeable
Shares held by it or by its subsidiaries in respect of any matter considered at
any meeting of holders of the Exchangeable Shares.
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ARTICLE 3
GENERAL
3.1 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 the Exchangeable Shares (or securities or rights convertible into or
exchangeable for or carrying rights to acquire the Exchangeable Shares) are held
by any party other than Pubco and any of its subsidiaries.
3.2 Changes in Capital of Pubco and Amalco
Notwithstanding the provisions of Section 3.3, at all times after the
occurrence of any event effected pursuant to Section 2.5 or 2.6, as a result of
which either the Pubco 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 the Pubco 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.
3.3 Amendments, Modifications, etc.
This Agreement may not be amended or modified except by an agreement
in writing executed by Amalco or its successor and Pubco and approved by 66.67%
of the votes cast at a meeting of the holders of the Exchangeable Shares.
3.4 Ministerial Amendment
Notwithstanding the provisions of Section 3.3, Pubco and Amalco may in
writing, at any time and from time to time, without approval of 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;
(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
Amalco or its successor and Pubco, it may be expedient to make,
provided that each such board of directors shall be of
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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
Amalco or its successor and Pubco, 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 Amalco or its successor and Pubco shall
be of the opinion that such changes or corrections will not be
prejudicial to the interests of the holders of the Exchangeable
Shares.
3.5 Meeting to Consider Amendments
Amalco, at the request of Pubco, 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 Amalco, the Exchangeable Share Provisions and all applicable laws.
3.6 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 Pubco and Amalco.
3.7 Notices
All payments and communications which may be or are required to be
given by any party to any other party will be in writing and (a) delivered
personally, (b) sent by prepaid courier service or (c) sent by prepaid
telecopier or other similar means of electronic communication to the parties at
their respective addresses set forth on page one. Any such notice so given will
be deemed conclusively to have been given and received when so personally
delivered or sent by telecopier or other electronic communication or on the
second Business Day following the sending thereof by prepaid courier. Either
party may from time to time change its address for delivery of notices by notice
to the other parties in accordance with this Section.
3.8 Enurement
This Agreement will enure to the benefit of and be binding upon the
arties hereto and their respective successors and permitted assigns. Without
limiting the generality of the foregoing, the rights and entitlements of Amalco
hereunder shall enure to the benefit of Amalco on closing of the Amalgamation
Agreement.
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3.9 Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to take
effect as of the date first above written.
ASPI EUROPE, INC.
Per: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Authorized Signatory
ASPI ALBERTA HOLDINGS INC.
Per: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Authorized Signatory
GROWTHEXPERTS GROUP INC.
Per: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Authorized Signatory
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