EXHIBIT 2.3
SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the day of
1995.
B E T W E E N:
ORBITAL SCIENCES CORPORATION,
a corporation existing under
the laws of the State of
Delaware,
(hereinafter referred to as "Orbital"),
- and -
MACDONALD DETTWILER HOLDINGS INC.
(formerly known as 3173623 Canada Inc.),
a corporation existing under
the laws of Canada.
(hereinafter referred to as "Corporation").
WHEREAS pursuant to a combination agreement dated as of
August 31, 1995 (the "Combination Agreement") by and between
Orbital, the Corporation and MacDonald, Dettwiler and Associates
Ltd. ("MDA") the parties agreed that on the Effective Date (as
defined in the Combination Agreement), Orbital and the
Corporation would execute and deliver a Support Agreement
containing the terms and conditions set forth in Exhibit 2.3 to
the Combination Agreement together with such other terms and
conditions as may be agreed to by the parties to the Combination
Agreement acting reasonably;
AND WHEREAS pursuant to an arrangement (the
"Arrangement") effected by articles of arrangement filed pursuant
to the Canada Business Corporations Act on #, 1995, each issued
and outstanding common share of MDA (an "MDA Common Share") was
exchanged directly or indirectly with the Corporation for 0.#
issued and outstanding Exchangeable Shares of the Corporation
(the "Exchangeable Shares");
AND WHEREAS the aforesaid articles of arrangement set
forth the rights, privileges, restrictions and conditions
(collectively the "Exchangeable Share Provisions") attaching to
the Exchangeable Shares;
AND WHEREAS the parties hereto desire to make
appropriate provision and to establish a procedure whereby
Orbital 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
shares of Orbital 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 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. Each term denoted herein by initial
capital letters and not otherwise defined herein shall have the
meaning ascribed 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 ORBITAL AND THE Corporation
2.1 Covenants of Orbital Regarding Exchangeable Shares. So
long as any Exchangeable Shares are outstanding, Orbital will:
(a) not declare or pay any dividend on
Orbital Common Shares unless (i) the Corporation
shall have sufficient assets, funds and other
property (including, where applicable, Orbital
Common Shares or other securities of Orbital)
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 in accordance with the
Exchangeable Share Provisions and (ii) the
Corporation shall simultaneously declare or pay,
as the case may be, an equivalent dividend on the
Exchangeable Shares in accordance with the
Exchangeable Share Provisions;
(b) cause the Corporation to declare
simultaneously with the declaration of any
dividend on Orbital Common Shares an equivalent
dividend on the Exchangeable Shares and, when such
dividend is paid on Orbital 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;
(c) advise the Corporation sufficiently in
advance of the declaration by Orbital of any
dividend on Orbital Common Shares and take all
such other actions as are necessary, in
cooperation with the Corporation, to ensure that
the declaration date, record date and payment date
for any dividend on the Exchangeable Shares shall
be the same as the record date, declaration date
and payment date for the corresponding dividend on
Orbital Common Shares and such dates in respect of
dividends on the Exchangeable Shares shall be in
accordance with any requirement of the
Exchangeable Share Provisions and the stock
exchange on which the Exchangeable Shares are
listed;
(d) ensure that the record date for any
dividend declared on Orbital Common Shares,
Orbital Common Share Reorganization, Rights
Offering, Special Distribution or Capital
Reorganization is not less than 10 Business Days
after the declaration date for such dividend,
Orbital Common Share Reorganization, Rights
Offering, Special Distribution or Capital
Reorganization;
(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 Liquidation Amount in respect of each issued
and outstanding Exchangeable Share upon the
liquidation, dissolution or winding-up of the
Corporation, 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 shares of Orbital Common
Shares to the holders of Exchangeable Shares in
satisfaction of the Liquidation Amount for each
such Exchangeable Share, in accordance with the
provisions of Article 4 of the Exchangeable Share
Provisions;
(f) 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 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 shares of Orbital Common Shares to the
holders of Exchangeable Shares, upon the
retraction or redemption of the Exchangeable
Shares in accordance with the provisions of
Article 5 or Article 6 of the Exchangeable Share
Provisions, as the case may be;
(g) not exercise its vote as a shareholder
of the Corporation to initiate, consent to or
approve the 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; and
(h) not exercise its vote as a shareholder
of the Corporation to authorize the continuance or
other transfer of the corporate existence of the
Corporation to any jurisdiction outside Canada.
2.2 Segregation of Funds. Orbital will cause the
Corporation 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 Corporation 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 will cause the Corporation to 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, in each case in accordance with the Exchangeable
Share Provisions.
2.3 Reservation of Orbital Common Shares. Orbital hereby
represents and warrants that it has irrevocably reserved for
issuance out of its authorized and unissued capital stock such
number of Orbital Common Shares as is equal to the number of
Exchangeable Shares outstanding immediately following the
Effective Date and covenants that at all times in the future
while any Exchangeable Shares are outstanding it will keep
available, free from pre-emptive and other rights, out of its
authorized and unissued capital stock such number of Orbital
Common Shares (or other shares or securities into which Orbital
Common Shares may be reclassified or changed) as is necessary to
enable Orbital and the Corporation to perform their respective
obligations pursuant to this agreement, the Exchangeable Share
Provisions and the Voting and Exchange Trust Agreement.
2.4 Notification of Certain Events. In order to assist
Orbital to comply with its obligations hereunder, the Corporation
will give, or cause the Transfer Agent to give, Orbital 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 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 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 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;
(c) immediately, upon receipt by the
Transfer Agent of a Retraction Request; and
(d) as soon as practicable upon the issuance
by the Corporation of any Exchangeable Shares or
rights to acquire Exchangeable Shares.
2.5 Delivery of Orbital Common Shares. In furtherance of
its obligations under subsections 2.1(e) and (f) hereof, upon
notice of any event that requires the Corporation to cause to be
delivered Orbital Common Shares to any holder of Exchangeable
Shares, Orbital shall forthwith issue and deliver the requisite
Orbital Common Shares to or to the order of the former holder of
the surrendered Exchangeable Shares, as the Corporation shall
direct. All such Orbital Common Shares shall be duly issued as
fully paid and non-assessable and shall be free and clear of any
Liens. In consideration of the issuance of each such Orbital
Common Share by Orbital, the Corporation shall issue to Orbital,
or as Orbital shall direct, such number of common shares of the
Corporation as is equal to the fair value of such Orbital Common
Shares.
2.6 Qualification of Orbital Common Shares. Unless the
staff of the United States Securities and Exchange Commission
(the "SEC") has confirmed the availability of an exemption from
registration under the United States Securities Act of 1933, as
amended (the "Securities Act") as to the issuance of the Orbital
Common Shares in exchange for the Exchangeable Shares pursuant to
the Plan of Arrangement, the Exchangeable Share Provisions or the
Voting and Exchange Trust Agreement, in response to the No Action
Request (as defined in the Combination Agreement) or Orbital has
received an opinion of counsel reasonably satisfactory to the
Corporation to such effect, then Orbital shall cause such
issuance to be registered under the Securities Act, and shall
file a registration statement covering such issuance with the SEC
and use all commercially reasonable efforts to cause such
registration statement to become effective as soon as practicable
and remain effective throughout the period during which the
Exchangeable Shares may be exchanged in accordance with the Plan
of Arrangement, the Exchangeable Share Provisions or the Voting
and Exchange Trust Agreement. Orbital agrees to file any such
required registration statement as soon as reasonably
practicable. Orbital shall use all reasonable efforts to obtain
all orders required from the applicable Canadian securities
authorities to permit the issuance of the Orbital Common Shares
upon any such exchange of the Exchangeable Shares without
registration or qualification with or approval of or the filing
of any document including any prospectus or similar document or
the taking of any proceeding with or the obtaining of any order,
ruling or consent from any governmental or regulatory authority
under any Canadian federal or provincial law or regulation or
pursuant to the rules and regulations of any regulatory authority
or the fulfillment of any other legal requirement before such
Orbital Common Shares may be issued and delivered by the
Corporation or Orbital to the holder thereof or in order that
such Orbital Common Shares may be freely traded thereafter (other
than any restrictions on transfer by reason of a holder being a
"control person" of the Corporation or Orbital for purposes of
Canadian federal or provincial securities law or an "affiliate"
for purposes of United States Federal or state securities law).
2.7 Tender Offers, etc. In the event that a tender offer,
share exchange offer, issuer bid, take-over bid or similar
transaction with respect to Orbital Common Shares (an "Offer") is
proposed by Orbital or is proposed to Orbital or its stockholders
and is recommended by the Board of Directors of Orbital, or is
otherwise effected or to be effected with the consent or approval
of the Board of Directors of Orbital, Orbital will use all
commercially 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
economically equivalent basis as the holders of Orbital Common
Shares, without discrimination. Without limiting the generality
of the foregoing, Orbital will use all commercially 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
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).
2.8 Ownership of Outstanding Shares. Orbital covenants and
agrees in favour of the Corporation that, as long as any
outstanding Exchangeable Shares are owned by any person or entity
other than Orbital or any of its Affiliates, Orbital will be and
remain the direct or indirect beneficial owner of all issued and
outstanding shares in the capital of the Corporation (other than
Exchangeable Shares and the Class B Preferred Shares of the
Corporation issued to Canadian Imperial Bank of Commerce pursuant
to the Arrangement) and all outstanding securities of the
Corporation carrying or otherwise entitled to voting rights in
any circumstances (other than Exchangeable Shares and the Class B
Preferred Shares of the Corporation issued to Canadian Imperial
Bank of Commerce pursuant to the Arrangement), unless Orbital
shall have obtained the prior approval of the Corporation and the
holders of the Exchangeable Shares given in accordance with
section 8.2 of the Exchangeable Share Provisions.
2.9 Orbital Not To Vote Exchangeable Shares. Orbital
covenants and agrees that it will appoint and cause to be
appointed proxyholders with respect to all Exchangeable Shares
held by Orbital and its Affiliates 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.
Orbital further covenants and agrees that it will not, and will
cause its Affiliates not to, exercise any voting rights that 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 with respect to any Exchangeable
Shares held by it or by its Affiliates in respect of any matter
considered at any meeting of holders of Exchangeable Shares,
including without limitation any approval to be given by holders
of Exchangeable Shares pursuant to section 8.2 of the
Exchangeable Share Provision.
2.10 Due Performance. On and after the Effective Date,
Orbital shall duly and timely perform all of its obligations
provided for in the Plan of Arrangement, including any
obligations that may arise upon the exercise of Orbital's rights
under the Exchangeable Share Provisions.
2.11 Economic Equivalence. Orbital hereby acknowledges that
it will be bound by any determination of economic equivalence
made by the Board of Directors pursuant to section 5.6 of the
Plan of Arrangement or section 9.1 of the Exchangeable Share
Provisions, where applicable.
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 there are no
Exchangeable Shares (or securities or rights convertible into or
exchangeable for or carrying rights to acquire Exchangeable
Shares) held by any party other than Orbital and its Affiliates.
3.2 Changes in Capital of Orbital and the Corporation.
Notwithstanding the provisions of section 3.4 hereof, at all
times after the occurrence of any event effected pursuant to
section 2.7 hereof as a result of which either Orbital 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
Orbital 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.
3.3 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.
3.4 Amendments, Modifications, etc. This agreement may
not be amended or modified except by an agreement in writing
executed by the Corporation and Orbital and approved by the
holders of the Exchangeable Shares in accordance with section
10.2 of the Exchangeable Share Provisions.
3.5 Ministerial Amendments. Notwithstanding the provisions
of section 3.4, the parties to this agreement may without the
approval of the holders of the Exchangeable Shares, at any time
and from time to time, amend or modify this agreement in writing
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 the Corporation and Orbital,
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 the Corporation
and Orbital, are required for the purpose of
curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or
mistake or manifest error herein, provided that
the boards of directors of each of the Corporation
and Orbital shall be of the opinion that such
changes or corrections will not be prejudicial to
the interests of the holders of the Exchangeable
Shares.
3.6 Meeting to Consider Amendments. The Corporation, at
the request of Orbital, 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
pursuant to section 3.4 hereof. Any such meeting or meetings
shall be called and held in accordance with the by-laws of the
Corporation and the Exchangeable Share Provisions.
3.7 Waivers Only in Writing. No 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.
3.8 Inurement. This agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
3.9 Orbital Successors. Orbital shall not enter into any
transaction (whether by way of reconstruction, reorganization,
consolidation, merger, transfer, sale, lease or otherwise)
whereby all or substantially all 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, unless:
(a) such other person or continuing
corporation is a corporation (the "Orbital
Successor") incorporated under the laws of any
state of the United States or the laws of Canada
or any province thereof; and
(b) the Orbital 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 to
be bound by the provisions hereof as if it were an
original party hereto and to observe and perform
all of the covenants and obligations of Orbital
pursuant to this agreement, in form satisfactory
to the Corporation, acting reasonably.
Nothing herein shall be construed as preventing the amalgamation
or merger of any wholly-owned subsidiary of Orbital with or into
Orbital.
3.10 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 Orbital at:
Orbital Sciences Corporation
21700 Atlantic Boulevard
Dulles, VA 20166
Attention: General Counsel
Telecopy: (703) 406-5572
(b) if to the Corporation at:
MacDonald Dettwiler Holdings Inc.
13800 Commerce Parkway
Richmond, British Columbia
V6V 2J3
Attention: #
Telecopy: (604) #
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.
3.11 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.
3.12 Jurisdiction. This agreement shall be construed and
enforced in accordance with the laws of the Province of British
Columbia and the laws of Canada applicable therein.
3.13 Attornment. Orbital agrees that any action or
proceeding arising out of or relating to this agreement may be
instituted in the courts of British Columbia, 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 the said courts in any such action or proceeding,
agrees to be bound by any judgment of the said 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 as Orbital's
attorney for service of process.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be duly executed as of the date first above written.
ORBITAL SCIENCES CORPORATION
by ___________________________
___________________________
MACDONALD DETTWILER HOLDINGS
INC.
by ___________________________
___________________________