Exhibit 10.1.4
AMENDING AGREEMENT
THIS AMENDING AGREEMENT is made as of the 29th day of May 2003,
BETWEEN:
CUSTOM DIRECT INCOME FUND, a trust formed under the
laws of the Province of Ontario,
(the "Fund"),
- and -
CUSTOM DIRECT CANADA INC., a corporation existing
under the laws of the Province of Ontario,
("Custom Direct Canada"),
- and -
CUSTOM DIRECT USA INC., a corporation existing under
the laws of the State of Delaware,
("Custom Direct USA"),
- and -
CUSTOM DIRECT ULC, an unlimited liability
corporation existing under the laws of the Province
of Nova Scotia,
("Custom Direct ULC"),
- and -
CUSTOM DIRECT, INC., a corporation existing under
the laws of the State of Delaware,
("Custom Direct"),
- and -
MDC CORPORATION INC., a corporation existing under
the laws of the Province of Ontario,
("MDC"),
- and -
XXXXXX-XXXXXX CANADA INC., a corporation existing
under the laws of the Province of Ontario,
("Xxxxxx-Xxxxxx").
RECITALS:
A. The parties entered into an agreement dated as of May 15, 2003 as (the
"Acquisition Agreement").
B. The parties to the Acquisition Agreement wish to amend the terms of the
Acquisition Agreement.
NOW THEREFORE in consideration of the mutual covenants and agreements
contained in this Agreement and other good and valuable consideration (the
receipt and sufficiency of which is hereby acknowledged), the parties to this
Agreement agree as follows:
ARTICLE 1.
INTERPRETATION
1.1. One Agreement
This Amending Agreement and the Acquisition Agreement shall be read,
interpreted, construed and have effect as, and shall constitute, one agreement
with the same effect as if the amendments made by this amending agreement had
been contained in the Acquisition Agreement.
1.2. Defined Terms
In this Amending Agreement, unless something in the subject matter or
context is inconsistent therewith, (a) terms defined in the description of the
parties or in the recitals of this Amending Agreement have the respective
meanings given to them therein, and (b) all other capitalized terms have the
respective meanings given to them in the Acquisition Agreement.
1.3. Headings
The headings of the Articles and Sections of this Amending Agreement
are inserted for convenience of reference only and shall not affect the
construction or interpretation of this Amending Agreement.
1.4. References
All references in this Amending Agreement to Articles and Sections,
unless otherwise specified, are to Articles and Sections of the Acquisition
Agreement.
ARTICLE 2.
AMENDMENTS
2.1. Section 7.4.1 is amended to read as follows
MDC and Xxxxxx-Xxxxxx shall receive an aggregate amount equal to
$83,573,459.00 (the "MDC Merger Consideration") from Custom Direct for
the 11 Custom Direct Common Shares held by MDC and Xxxxxx-Xxxxxx
immediately prior to the Effective Time (being all of the outstanding
Custom Direct Common Shares at such time) payable by delivery of (a)
7.665523117 fully paid and non-assessable Custom Direct Class B Common
Shares to MDC, (b) 0.851724791 fully paid and non-assessable Custom
Direct Class B Common Shares to Xxxxxx-Xxxxxx, (c) 3.513104894 fully
paid and non-assessable Custom Direct Series B Preferred Shares to
MDC, (d) 0.39034499 fully paid and non-assessable Custom Direct Series
B Preferred Shares to Xxxxxx-Xxxxxx, (e) a certified cheque or bank
draft in the amount of $40,782,515.42 payable to or to the order of
MDC, or as may be otherwise directed by MDC,(f) a certified cheque or
bank draft in the amount of $4,531,390.60 payable to or to the order
of Xxxxxx-Xxxxxx, or as may be otherwise directed by Xxxxxx-Xxxxxx and
(g) a non-cash payment of $4,500,000 to be applied to the intercompany
debt owed by MDC and Xxxxxx-Xxxxxx to Custom Direct.
ARTICLE 3.
GENERAL
3.1. Confirmation
As amended hereby, the Acquisition Agreement is reaffirmed, approved
and confirmed in every aspect, and shall remain in full force and effect.
3.2. Waiver, Amendment
Except as expressly provided in this Amending Agreement, no amendment
or waiver of this Amending Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any provision of this
Amending Agreement shall constitute a waiver of any other provision nor shall
any waiver of any provision of this Amending Agreement constitute a continuing
waiver unless otherwise expressly provided.
3.3. Governing Law
This Amending Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
3.4. Time of Essence
Time is of the essence of this Amending Agreement.
3.5. Further Assurances
Each of the parties hereto shall promptly do, make, execute or
deliver, or cause to be done, made, executed or delivered, all such further
acts, documents and things as the other party hereto may reasonably require
from time to time for the purpose of giving effect to this Amending Agreement
and shall use reasonable efforts and take all such steps as may be reasonably
within its power to implement to their full extent the provisions of this
Agreement.
3.6. Counterparts
This Amending Agreement may be signed in counterparts and each of such
counterparts shall constitute an original document and such counterparts, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Amending
Agreement and agree to be bound by the amendments to the Acquisition Agreement
as contained herein.
CUSTOM DIRECT INCOME FUND, by its
attorney, Custom Direct Canada Inc.
By: ______________________________
Name:
Title:
CUSTOM DIRECT CANADA INC.
By: ______________________________
Name:
Title:
CUSTOM DIRECT USA INC.
By: ______________________________
Name:
Title:
CUSTOM DIRECT, INC.
By: ______________________________
Name:
Title:
CUSTOM DIRECT ULC
By: ______________________________
Name:
Title:
MDC CORPORATION INC.
By: ______________________________
Name:
Title:
XXXXXX-XXXXXX CANADA INC.
By: ______________________________
Name:
Title:
