EXHIBIT 10.3
EXCHANGE AGREEMENT
This Exchange Agreement (this "Agreement"), dated July 20, 2001, is entered into
by and among the individuals set out in Schedule "A" attached hereto (each such
individual or entity is referred to herein as a "Shareholder" and such
individuals or entities are referred to herein collectively as the
"Shareholders"), METASOLV CANADA INC., a corporation existing under the laws of
the Province of Nova Scotia ("MetaSolv AcquisitionCo"), and METASOLV CANADA
HOLDINGS INC., a corporation existing under the laws of the Province of Nova
Scotia ("NewCo") and METASOLV, INC., a Delaware corporation ("MetaSolv");
WHEREAS pursuant to a Share Purchase Agreement (the "SPA") dated as of July
20, 2001, between MetaSolv, MetaSolv AcquisitionCo, NewCo and all of the
shareholders of LAT45 Information Systems Inc. ("LAT45"), NewCo acquired all of
the issued and outstanding shares of LAT45 in exchange for a combination of cash
and exchangeable shares of NewCo (the "Exchangeable Shares");
AND WHEREAS pursuant to the SPA, MetaSolv, MetaSolv AcquisitionCo and NewCo
have agreed to execute an exchange agreement substantially in the form of this
Agreement;
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this Agreement and for other valuable consideration (the receipt and
sufficiency of which are acknowledged), the parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, the following terms shall have the following meanings:
"Affiliate" has the meaning ascribed thereto in the Exchangeable Share
Provisions;
"Automatic Exchange Rights" means the benefit of the obligation of MetaSolv
to effect the automatic exchange of MetaSolv Common Shares for Exchangeable
Shares pursuant to section 2.10;
"Board of Directors" means the Board of Directors of NewCo;
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"Business Day" means any day other than a Saturday, a Sunday or a day when
banks are not open for business in Dallas, Texas and Montreal, Quebec.
"Current Market Price" has the meaning ascribed thereto in the Exchangeable
Share Provisions;
"Exchange Right" has the meaning ascribed thereto in section 2.1;
"Exchangeable Share Provisions" means the rights, privileges, restrictions
and conditions attaching to the Exchangeable Shares;
"Exchangeable Shares" means the non-voting exchangeable shares in the
capital of NewCo as currently constituted;
"Insolvency Event" shall mean:
(a) the insolvency or bankruptcy of NewCo or the making by NewCo of
an assignment for the benefit of creditors or the making by NewCo
of a proposal pursuant to any bankruptcy or debtor relief
legislation for the benefit of its creditors or the filing by
NewCo of a notice of intention to file a proposal or the making
or authorization by NewCo of any bankruptcy proceeding, petition
or application to any tribunal for the appointment of a receiver
or trustee for its or for any substantial part of its property;
(b) the insolvency or bankruptcy of MetaSolv or the making by
MetaSolv of an assignment for the benefit of creditors or the
making by MetaSolv of a proposal pursuant to any bankruptcy or
debtor relief legislation for the benefit of its creditors or the
filing by MetaSolv of a notice of intention to file a proposal or
the making of authorization by MetaSolv of any bankruptcy
proceeding, petition or application to any tribunal for the
appointment of a receiver or trustee for its or for any
substantial part of its property; and
(c) NewCo not being permitted, pursuant to solvency requirements of
applicable law, to redeem any Exchangeable Shares pursuant to the
Exchangeable Share Provisions;
"Liquidation Call Right" has the meaning ascribed thereto in the
Exchangeable Share Provisions;
"Liquidation Event" has the meaning ascribed thereto in section 2.10(a);
"Liquidation Event Effective Date" has the meaning ascribed thereto in
section 2.10(b);
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"Nasdaq" means the Nasdaq National Market;
"person" includes an individual, partnership, corporation, company,
unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative;
"MetaSolv Affiliates" means Affiliates of MetaSolv;
"MetaSolv Common Share" means a share of common stock, par value U.S.
$0.01, in the capital of MetaSolv as currently constituted;
"MetaSolv Successor" has the meaning ascribed thereto in section 4.1(a);
"Redemption Call Right" has the meaning ascribed thereto in the
Exchangeable Share Provisions;
"Retracted Shares" has the meaning ascribed thereto in section 2.6;
"Retraction Call Right" has the meaning ascribed thereto in the
Exchangeable Share Provisions;
"Shareholders" means the persons set out in Schedule "A" attached hereto
who continue to be the registered holders of Exchangeable Shares, as the
case may be; and
"Support Agreement" means that certain exchangeable share support agreement
made as of even date herewith between NewCo, MetaSolv AcquisitionCo and
MetaSolv.
1.2 Interpretation Not Affected by Headings, etc.
The division of this Agreement into Articles, sections and other portions
and the insertion of headings are for convenience of reference only and should
not affect the construction or interpretation of this Agreement. Unless
otherwise indicated, all references to an "Article" or "section" followed by a
number and/or a letter refer to the specified Article or section of this
Agreement. The terms "this Agreement", "hereof", "herein" and "hereunder" and
similar expressions refer to this Agreement and not to any particular Article,
section or other portion hereof and include any agreement or instrument
supplementary or ancillary hereto.
1.3 Number, Gender, etc.
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Words importing the singular number only shall include the plural and vice
versa. Words importing 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
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
2.1 Grant of the Exchange Rights
MetaSolv hereby grants to the Shareholders the right (the "Exchange
Right"), upon the occurrence and during the continuance of an Insolvency Event,
to require MetaSolv to purchase from each or any Shareholder all or any part of
the Exchangeable Shares held by the Shareholder and the Automatic Exchange
Rights, all in accordance with the provisions of this Agreement and the
Exchangeable Share Provisions, as the case may be. MetaSolv hereby acknowledges
receipt from the Shareholders of valuable consideration (and the adequacy
thereof) for the grant of the Exchange Right and the Automatic Exchange Rights
by MetaSolv to the Shareholders. The Exchange Right shall terminate on the fifth
anniversary of the date hereof (or such earlier date as there are no holders of
Exchangeable Shares other than MetaSolv and its Affiliates).
2.2 Legended Share Certificates
NewCo will cause each certificate representing Exchangeable Shares to bear
an appropriate legend notifying the Shareholders of:
(a) their right to exercise the Exchange Right in respect of the
Exchangeable Shares held by a Shareholder;
(b) the Automatic Exchange Rights, if applicable; and
(c) a legend to the effect that:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
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PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS (I) A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO THE SHARES AND THE
TRANSFER SHALL THEN BE IN EFFECT; (II) THE SHARES ARE SOLD OR TRANSFERRED
IN COMPLIANCE WITH REGULATION S ((S)230.901 THROUGH (S)230.905, AND
PRELIMINARY NOTES) UNDER THE SECURITIES ACT, INCLUDING THE REQUIREMENT THAT
THE SHARES NOT BE SOLD OR TRANSFERRED IN THE UNITED STATES OR TO UNITED
STATES PERSONS FOR ONE YEAR FOLLOWING THE INITIAL ISSUANCE OF THE SHARES BY
THE ISSUER; OR (III) THE SHARES ARE TRANSFERRED IN A TRANSACTION WHICH IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH LAWS, PROVIDED THAT, IF
REQUESTED BY THE CORPORATION, AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE CORPORATION IS FURNISHED TO THE CORPORATION THAT SUCH EXEMPTION IS
AVAILABLE. HEDGING TRANSACTIONS WITH REGARD TO THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE
SECURITIES ACT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ENTITLED TO THE TERMS
AND CONDITIONS CONTAINED IN THE EXCHANGE AGREEMENT (THE "EXCHANGE
AGREEMENT") DATED ON OR ABOUT JULY 20, 2001 MADE BETWEEN METASOLV CANADA
HOLDINGS INC., A CORPORATION EXISTING UNDER THE LAWS OF NOVA SCOTIA
("MCH"), METASOLV CANADA INC., A CORPORATION EXISTING UNDER THE LAWS OF
NOVA SCOTIA ("METASOLV CANADA") AND METASOLV, INC., A DELAWARE CORPORATION
("METASOLV") AND THE OTHER SIGNATORIES THERETO INCLUDING, WITHOUT
LIMITATION, THE EXCHANGE RIGHT AND THE AUTOMATIC EXCHANGE RIGHT AS DEFINED
IN THE EXCHANGE AGREEMENT. REFERENCE IS ALSO MADE TO THE TERMS AND
CONDITIONS CONTAINED IN THE SUPPORT AGREEMENT (THE "SUPPORT AGREEMENT")
DATED THE SAME DATE MADE BETWEEN MCH, METASOLV CANADA AND METASOLV; THE
SHARES REPRESENTED HEREBY ARE SUBJECT TO THE DEEMED DELIVERY OF A
RETRACTION REQUEST AS CONTEMPLATED IN THE SHARE PROVISIONS ATTACHED TO
THESE SHARES, AND THE OVERRIDING PROVISIONS RELATING TO THE LIQUIDATION
CALL RIGHT, THE REDEMPTION CALL RIGHT AND THE RETRACTION CALL RIGHT AS
DEFINED THEREIN.
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THESE SECURITIES HAVE BEEN ISSUED IN RELIANCE UPON EXEMPTIONS FROM
APPLICABLE CANADIAN SECURITIES LEGISLATION AND, ACCORDINGLY, SUCH
SECURITIES MAY ONLY BE RESOLD IN COMPLIANCE WITH SUCH LAWS."
2.3 Purchase Price
The purchase price payable by MetaSolv for each Exchangeable Share to be
purchased by MetaSolv under the Exchange Right shall be an amount per share
equal to:
(A) the Current Market Price of a MetaSolv Common Share on the last
Business Day prior to the day of closing of the purchase and sale of
such Exchangeable Share under the Exchange Right, which shall be
satisfied in full by MetaSolv causing to be sent to such holder one
MetaSolv Common Share (subject to adjustment in accordance with
Section 11.1 of the Exchangeable Share Provisions), plus
(B) to the extent not paid by NewCo, an additional amount equivalent to:
(i) the full amount of all declared and unpaid dividends on each such
Exchangeable Share held by such holder on any dividend record
date which occurred prior to the closing of the purchase and sale
plus
(ii) the full amount of all dividends declared on MetaSolv Common
Shares which have not been declared on Exchangeable Shares in
accordance with Section 3.1 of the Exchangeable Share Provisions
(provided that if the date for any such declared and unpaid
dividends occurs on or after the day of closing of such purchase
and sale the purchase price shall not include such additional
amount equivalent to such declared and unpaid dividends).
In connection with each exercise of the Exchange Right, MetaSolv will
provide to the Shareholder whose Exchangeable Shares are being exchanged an
Officer's Certificate setting forth the calculation of the purchase price
for each Exchangeable Share. The purchase price for each such Exchangeable
Share so purchased may be satisfied only by MetaSolv issuing and delivering
or causing to be delivered to the relevant Shareholder, one MetaSolv Common
Share (subject to adjustment in accordance with Section 11.1 of the
Exchangeable Share Provisions) and on the applicable payment date a cheque
for the balance, if any, of the purchase price without interest (but less
any amounts withheld pursuant to section 2.11). Upon payment by MetaSolv
of such purchase price, the relevant Shareholder shall cease to have any
right to be paid any amount in respect to declared and unpaid dividends on
each such Exchangeable Share by MetaSolv.
2.4 Exercise Instructions
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Subject to the terms and conditions herein set forth, a Shareholder shall
be entitled, upon the occurrence and during the continuance of an Insolvency
Event, to exercise the Exchange Right with respect to all or any part of the
Exchangeable Shares registered in the name of such Shareholder on the books of
NewCo. To cause the exercise of the Exchange Right, the Shareholder shall
deliver to MetaSolv, in person or by certified or registered mail, at its head
office in Plano, Texas or at such other places as MetaSolv may from time to time
designate by written notice to the Shareholders, the certificates representing
the Exchangeable Shares which such Shareholder desires MetaSolv to purchase,
duly endorsed in blank for transfer, and accompanied by such other documents and
instruments as MetaSolv may reasonably request or may otherwise be required to
effect a transfer of Exchangeable Shares under the Companies Act (Nova Scotia)
(or such other corporate statute under which NewCo is subject) and the Articles
of Association of NewCo together with:
(a) a duly completed form of notice of exercise of the Exchange Right
contained on the reverse of or attached to the Exchangeable Share
certificates, stating
(i) that the Shareholder thereby exercises the Exchange Right so as
to require MetaSolv to purchase from the Shareholder the number
of Exchangeable Shares specified therein,
(ii) that such Shareholder has good title to and owns all such
Exchangeable Shares to be acquired by MetaSolv free and clear of
all liens, claims and encumbrances,
(iii) the names in which the certificates representing MetaSolv
Common Shares issuable in connection with the exercise of the
Exchange Right are to be issued; and
(iv) the address to which the new certificates or cheques, as the
case may be, should be delivered; and
(b) payment (or evidence satisfactory to NewCo and MetaSolv of payment) of
the taxes (if any) payable as contemplated by section 2.7 or 2.11 of
this Agreement.
If only a part of the Exchangeable Shares represented by any certificate or
certificates delivered to MetaSolv are to be purchased by MetaSolv under the
Exchange Right, a new certificate for the balance of such Exchangeable Shares
shall be issued to the holder at the expense of NewCo.
2.5 Delivery of MetaSolv Common Shares or Cheques; Effect of Exercise
Promptly after receipt of the certificates representing the Exchangeable
Shares which the Shareholder desires MetaSolv to purchase under the Exchange
Right, together with such documents and instruments of transfer and a duly
completed form of notice of exercise of the Exchange Right
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(and payment of taxes, if any, payable as contemplated by section 2.7 or 2.11 or
evidence thereof), duly endorsed for transfer to MetaSolv, MetaSolv shall
promptly thereafter deliver or cause to be delivered to the Shareholder of such
Exchangeable Shares (or to such other persons, if any, properly designated by
such Shareholder) the number of MetaSolv Common Shares issuable in connection
with the exercise of the Exchange Right, and on the applicable payment date
cheques for the balance, if any, of the total purchase price therefor without
interest (but less, each case, any amounts withheld pursuant to section 2.11);
provided, however, that no such delivery shall be made unless and until the
Shareholder requesting the same shall have paid (or provided evidence
satisfactory to NewCo and MetaSolv of the payment of) the taxes (if any) payable
as contemplated by section 2.7 or 2.11 of this Agreement. Immediately upon the
exercise of the Exchange Right as provided in this section 2.5, the closing of
the transaction of purchase and sale contemplated by the Exchange Right shall be
deemed to have occurred and the holder of such Exchangeable Shares shall be
deemed to have transferred to MetaSolv all of such holder's right, title and
interest in and to such Exchangeable Shares and shall cease to be a holder of
such Exchangeable Shares and shall not be entitled to exercise any of the rights
of a holder in respect thereof, other than the right to receive the total
purchase price therefor, unless the requisite number of MetaSolv Common Shares
(together with a cheque for the balance, if any, of the total purchase price
therefor) is not allotted, issued and delivered by MetaSolv to the Shareholder,
within five Business Days of the date of exercise, in which case the rights of
the Shareholder shall remain unaffected until such MetaSolv Common Shares are so
allotted, issued and delivered by MetaSolv and any such cheque is so delivered
and paid. Concurrently with such Shareholder ceasing to be a holder of
Exchangeable Shares, the Shareholder shall be considered and deemed for all
purposes to be the holder of the MetaSolv Common Shares to be delivered to it
pursuant to the Exchange Right.
2.6 Exercise of Exchange Right Subsequent to Retraction
In the event that a Shareholder has exercised its right under Article 6 of
the Exchangeable Share Provisions to require NewCo to redeem any or all of the
Exchangeable Shares held by the Shareholder (the "Retracted Shares") and is
notified by NewCo pursuant to section 6.6 of the Exchangeable Share Provisions
that NewCo will not be permitted as a result of liquidity or solvency
requirements of applicable law to redeem all such Retracted Shares, and provided
that MetaSolv AcquisitionCo shall not have exercised the Retraction Call Right
with respect to the Retracted Shares and that the Shareholder has not revoked
the retraction request delivered by the Shareholder to NewCo pursuant to section
6.1 of the Exchangeable Share Provisions, the retraction request will constitute
the exercise of the Exchange Right with respect to those Retracted Shares that
NewCo is unable to redeem. In any such event, NewCo hereby agrees with the
Shareholder promptly to forward or cause to be forwarded to MetaSolv all
relevant materials delivered by the Shareholder to NewCo (including without
limitation, a copy of the retraction request delivered pursuant to section 6.1
of the Exchangeable Share Provisions) in connection with such proposed
redemption of the Retracted Shares and MetaSolv will thereupon fulfil its
obligations arising as a result of the exercise the Exchange Right with respect
to the Retracted Shares that NewCo is not permitted to redeem and will purchase
such Exchangeable Shares in accordance with the provisions of this Article 2.
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2.7 Stamp or Other Transfer Taxes
Upon any sale of Exchangeable Shares to MetaSolv pursuant to the Exchange
Right or the Automatic Exchange Rights, the share certificate or certificates
representing MetaSolv Common Shares, or the cheque, as the case may be, to be
delivered in connection with the payment of the total purchase price therefor
shall be issued in the name of the Shareholder of the Exchangeable Shares so
sold or in such names as such Shareholder may otherwise direct in writing
without charge to the holder of the Exchangeable Shares so sold; provided,
however, that such Shareholder:
(a) shall pay (and neither MetaSolv nor NewCo shall be required to pay)
any documentary, stamp, transfer or other taxes that may be payable in
respect of any transfer, including those involved in the issuance or
delivery of such shares to a person other than such Shareholder; or
(b) shall have evidenced to the satisfaction of MetaSolv and NewCo that
such taxes, if any, have been paid.
2.8 Notice of Insolvency Event
As soon as practicable following the occurrence of an Insolvency Event or
any event that with the giving of notice or the passage of time or both would be
an Insolvency Event, NewCo and/or MetaSolv, as the case may be, shall give
written notice thereof to the Shareholders, which notice shall contain a brief
statement of the rights of the Shareholders with respect to the Exchange Right
as provided for in this Article 2.
2.9 MetaSolv Common Shares
MetaSolv hereby represents, warrants and covenants that it has irrevocably
reserved for issuance such number of MetaSolv Common Shares as is equal to the
number of Exchangeable Shares outstanding at the date hereof and that it will at
all times keep available free from pre-emptive and other rights, out of its
authorized and unissued capital stock, such number of MetaSolv Common Shares (or
other shares or securities into which MetaSolv Common Shares may be reclassified
or changed) as is necessary to enable MetaSolv and NewCo to perform their
respective obligations pursuant to this Agreement, the Exchangeable Share
Provisions and the Support Agreement. MetaSolv hereby further represents,
warrants and covenants that the MetaSolv Common Shares issuable as described
herein will be duly authorized and validly issued as fully paid and non-
assessable.
2.10 Automatic Exchange on Liquidation of MetaSolv
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(a) MetaSolv will give the Shareholders notice of each of the following
events (each, a "Liquidation Event") at the time set forth below:
(i) in the event of any determination by the board of directors of
MetaSolv to institute voluntary liquidation, dissolution or
winding-up proceedings with respect to MetaSolv or to effect any
other distribution of assets of MetaSolv 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; and
(ii) as soon as practicable following the earlier of receipt by
MetaSolv of notice of, and MetaSolv 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 MetaSolv or to effect any other
distribution of assets of MetaSolv among its shareholders for the
purpose of winding up its affairs, in each case where MetaSolv
has failed to contest in good faith any such proceeding commenced
in respect of MetaSolv within 30 days of becoming aware thereof.
Such notice shall include a brief description of the automatic
exchange of Exchangeable Shares for MetaSolv Common Shares provided
for in section 2.10(b). Notwithstanding anything contained herein,
MetaSolv shall not have any obligation to provide any notice to the
Shareholders of any matter unless it is required to provide similar
notice to its shareholders or provide public disclosure of such matter
pursuant to applicable U.S. securities laws.
(b) In order that the Shareholders will be able to participate on a pro
rata basis with the holders of MetaSolv Common Shares in the
distribution of assets of MetaSolv in connection with a Liquidation
Event, on the fifth Business Day prior to the effective date (the
"Liquidation Event Effective Date") of a Liquidation Event all of the
then outstanding Exchangeable Shares shall be automatically exchanged
for MetaSolv Common Shares. To effect such automatic exchange,
MetaSolv shall purchase, and shall be deemed to have purchased, on the
fifth Business Day prior to the Liquidation Event Effective Date each
Exchangeable Share then outstanding and held by Shareholders, and each
Shareholder shall sell, and shall be deemed to have sold, the
Exchangeable Shares held by it at such time, for a purchase price per
share equal to the aggregate of:
(i) the Current Market Price of a MetaSolv Common Share on the fifth
Business Day prior to the Liquidation Event Effective Date,
which shall be satisfied in full by MetaSolv issuing to the
Shareholder one MetaSolv Common Share
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(subject to adjustment in accordance with Section 11.1 of the
Exchangeable Share Provisions), plus
(ii) to the extent not paid by NewCo, an additional amount equivalent
to the full amount of all declared and unpaid dividends on each
such Exchangeable Share held by such holder on any dividend
record date which occurred prior to the date of the exchange,
plus
(iii) the full amount of all dividends declared on MetaSolv Common
Shares which have not been declared on Exchangeable Shares in
accordance with Section 3.1 of the Exchangeable Share Provisions
(provided that if the date for any such declared and unpaid
dividends occurs on or after the day of closing of such purchase
and sale the purchase price shall not include such additional
amount equivalent to such declared and unpaid dividends).
(c) On the fifth Business Day prior to the Liquidation Event Effective
Date, the closing of the transaction of purchase and sale contemplated
by the automatic exchange of Exchangeable Shares for MetaSolv Common
Shares shall be deemed to have occurred, and each Shareholder shall be
deemed to have transferred to MetaSolv all of such Shareholder's
right, title and interest in and to such Shareholder's Exchangeable
Shares and shall cease to be a holder of such Exchangeable Shares and
MetaSolv shall issue to the Shareholder MetaSolv Common Shares
issuable upon the automatic exchange of Exchangeable Shares for
MetaSolv Common Shares and on the applicable payment date shall
deliver to the Shareholder a cheque for the balance, if any, of the
total purchase price for such Exchangeable Shares without interest but
less any amounts withheld pursuant to section 2.11. Concurrently with
such Shareholder ceasing to be a holder of Exchangeable Shares, the
Shareholder shall be considered and deemed for all purposes to be the
holder of MetaSolv Common Shares issued pursuant to the automatic
exchange of Exchangeable Shares for MetaSolv Common Shares and the
certificates held by the Shareholder previously representing the
Exchangeable Shares exchanged by the Shareholder with MetaSolv
pursuant to such automatic exchange shall thereafter be deemed to
represent MetaSolv Common Shares issued to the Shareholder by MetaSolv
pursuant to such automatic exchange. Upon the request of a Shareholder
and the surrender by the Shareholder of Exchangeable Share
certificates deemed to represent MetaSolv Common Shares, duly endorsed
in blank and accompanied by such instruments of transfer as MetaSolv
may reasonably require, MetaSolv shall deliver or cause to be
delivered to the Shareholder certificates representing MetaSolv Common
Shares of which the Shareholder is the holder.
2.11 Withholding Rights
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MetaSolv, MetaSolv AcquisitionCo and NewCo shall be entitled to deduct and
withhold from any dividends paid on the Exchangeable Shares and any
consideration otherwise payable to any holder of Exchangeable Shares such
amounts as MetaSolv, NewCo and MetaSolv AcquisitionCo determine they are
required to deduct and withhold with respect to the making of such payment under
the United States Internal Revenue Code of 1986, as amended, the Income Tax Act
(Canada) or any provision of state, local, provincial or foreign tax law. To the
extent that amounts are so withheld, such withheld amounts shall be treated for
all purposes hereof as having been paid to the holder of the Exchangeable Shares
in respect of which such deduction and withholding was made, provided that such
withheld amounts are actually remitted to the appropriate taxing authority. To
the extent that the amount so required to be deducted or withheld from any
payment to a holder exceeds the cash portion of the consideration otherwise
payable to the holder, NewCo, MetaSolv AcquisitionCo and MetaSolv are hereby
authorized to sell or otherwise dispose of at fair market value such portion of
such consideration as is necessary to provide sufficient funds to NewCo,
MetaSolv AcquisitionCo and MetaSolv, after payment of any costs or expenses of
such sale, in order to enable them to comply with such deduction or withholding
requirement and NewCo, MetaSolv AcquisitionCo and MetaSolv shall give an
accounting to the holder with respect thereto and any balance of such proceeds
of sale.
ARTICLE 3
CERTAIN RIGHTS OF METASOLV ACQUISITIONCO
TO ACQUIRE EXCHANGEABLE SHARES
3.1 Call Rights
Each of the Shareholders hereby acknowledges and agrees that upon the
occurrence of certain events, MetaSolv AcquisitionCo has the right to purchase
all of the Exchangeable Shares held by such Shareholder pursuant to the
Liquidation Call Right, the Redemption Call Right and the Retraction Call Right,
all as set out in greater detail in the Exchangeable Share Provisions.
ARTICLE 4
METASOLV SUCCESSORS
4.1 Certain Requirements in Respect of Combination, etc.
MetaSolv shall not consummate any transaction (whether by way of
reconstruction, reorganization, consolidation, merger, transfer, sale, lease or
otherwise) whereby all or substantially all of its undertaking, property and
assets would become the property of any other person or, in the
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case of a consolidation or merger, of the continuing corporation or other entity
resulting therefrom, unless, but may do so if:
(a) such other person or continuing corporation or other entity (herein
called the "MetaSolv Successor"), by operation of law, becomes,
without further action, 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 supplemental
hereto and such other instruments (if any) as are reasonably necessary
or advisable to evidence the assumption by MetaSolv Successor of
liability for all moneys payable and property deliverable hereunder
and the covenant of such MetaSolv Successor to pay and deliver or
cause to be delivered the same and its agreement to observe and
perform all the covenants and obligations of MetaSolv under this
Agreement; and
(b) such transaction shall be upon such terms and conditions which
substantially preserve and do not impair in any material respect any
of the rights, duties, powers and authorities of the Shareholders
hereunder.
4.2 Vesting of Powers in Successor
Whenever the conditions of section 4.1 have been duly observed and
performed and if requested by the MetaSolv or the MetaSolv Successor, MetaSolv
Successor and NewCo shall execute and deliver, for their own benefit and for the
benefit of the Shareholders, the supplemental agreement provided for in Article
5 and thereupon MetaSolv Successor shall possess and from time to time may
exercise each and every right and power of MetaSolv and perform each and every
obligation of MetaSolv under this Agreement in the name of MetaSolv or otherwise
and any act or proceeding by any provision of this Agreement required to be done
or performed by the Board of Directors of MetaSolv or any officers of MetaSolv
may be done and performed with like force and effect by the directors or
officers of such MetaSolv Successor.
4.3 Wholly-Owned Subsidiaries
Nothing herein shall be construed as preventing the amalgamation or merger
of any wholly-owned direct or indirect subsidiary of MetaSolv with or into
MetaSolv or the winding-up, liquidation or dissolution of any wholly-owned
subsidiary of MetaSolv provided that all of the assets of such subsidiary are
transferred to MetaSolv or another wholly-owned direct or indirect subsidiary of
MetaSolv (and, for greater certainty, all such transactions are expressly
permitted by this Article 4).
ARTICLE 5
AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
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5.1 Amendments, Modifications, etc.
Subject to sections 5.2 and 5.4 hereof, this Agreement may not be amended,
modified or waived except by an agreement in writing executed by MetaSolv and
NewCo, which agreement has been:
(a) approved of by Shareholders holding at least 50% of the Exchangeable
Shares at the time outstanding, or
(b) voted in favour of by holders from time to time of the Exchangeable
Shares at meetings held in accordance with the share provisions of the
Exchangeable Shares.
5.2 Ministerial Amendments
Notwithstanding the provisions of section 5.1 hereof, MetaSolv and NewCo
may in writing, at any time and from time to time, without the approval of the
Shareholders, amend or modify this Agreement for the purposes of:
(a) adding to the covenants of any or all parties hereto for the
protection of the Shareholders hereunder provided that the board of
directors of each of NewCo and MetaSolv shall be of the good faith
opinion that such additions will not be prejudicial in any material
respect to the rights or interests of the Shareholders as a whole;
(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 good faith opinion of the board of directors
of each of MetaSolv and NewCo, having in mind the best interests of
the Shareholders, it may be expedient to make, provided that such
boards of directors shall be of the opinion that such amendments and
modifications will not be prejudicial in any material respect to the
interests of the Shareholders as a whole; or
(c) making such changes or corrections which, on the advice of counsel to
MetaSolv and NewCo, 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
Board of Directors of each of MetaSolv and NewCo shall be of the
opinion that such changes or corrections will not be prejudicial in
any material respect to the rights and interests of the Shareholders.
5.3 Meeting to Consider Amendments
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NewCo, at the request of MetaSolv, shall call a meeting or meetings of the
Shareholders for the purpose of considering any proposed amendment or
modification requiring approval pursuant hereto. Any such meeting or meetings
shall be called and held in accordance with the Articles of Association of
NewCo, the Exchangeable Share Provisions and all applicable laws.
5.4 Changes in Capital of MetaSolv and NewCo
At all times after the occurrence of any event contemplated pursuant to
sections 2.5 of the Support Agreement or otherwise, as a result of which either
MetaSolv Common Shares or the Exchangeable Shares or both are in any way
changed, this Agreement shall forthwith be deemed to 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 MetaSolv Common Shares or the
Exchangeable Shares or both are so changed and MetaSolv and NewCo shall, if
requested by MetaSolv, execute and deliver a supplemental agreement giving
effect to and evidencing such necessary amendments and modifications, whereupon
this Agreement shall, notwithstanding the provisions of section 5.1, be amended
as contemplated therein.
5.5 Execution of Supplemental Agreements
Except as contemplated herein, 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 all of the parties hereto. From
time to time NewCo (when authorized by a resolution of its Board of Directors),
MetaSolv AcquisitionCo (when authorized by a resolution of its board of
directors) and MetaSolv (when authorized by a resolution of its board of
directors) may, subject to the provisions of these presents, and they shall,
when so directed by these presents, execute and deliver by their proper
officers, agreements or other instruments supplemental hereto, which thereafter
shall form part hereof, for any one or more of the following purposes:
(a) evidencing the succession of MetaSolv Successors and the covenants of
and obligations assumed by each such MetaSolv Successor in accordance
with the provisions of Article 5;
(b) making any additions to, deletions from or alterations of the
provisions of this Agreement, the Exchange Right or the Automatic
Exchange Rights which will not be prejudicial in any material respect
to the interests of the Shareholders or are, in the opinion of
MetaSolv and NewCo, necessary or advisable in order to incorporate,
reflect or comply with any legislation the provisions of which apply
to MetaSolv, NewCo or this Agreement; and
(c) for any other purposes not inconsistent with the provisions of this
Agreement, including without limitation, to make or evidence any
amendment or modification to
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this Agreement as contemplated hereby, provided that, in the opinion
of MetaSolv and NewCo, the rights of the Shareholders will not be
materially prejudiced thereby.
ARTICLE 6
GENERAL
6.1 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 are held by any person or entity other than MetaSolv and any
of its Affiliates.
6.2 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; and to this end the provisions of this Agreement
are intended to be and shall be deemed severable; provided, however, that if the
provision or provisions so held to be invalid, in the reasonable judgment of the
parties hereto, is or are so fundamental to the intent of the parties hereto and
the operation of this Agreement that the enforcement of the other provisions
hereof, in the absence of such invalid provision or provisions, would damage
irreparably the intent of the parties in entering into this Agreement, the
parties hereto shall agree to amend or otherwise modify this Agreement so as to
carry out the intent and purposes hereof and the transactions contemplated
hereby.
6.3 Enurement
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns and to the
benefit of the Shareholders.
6.4 Notice to NewCo, MetaSolv AcquisitionCo and MetaSolv
Any notice or other communication required or permitted to be delivered to
any party under this Agreement shall be in writing and shall be deemed properly
delivered, given and received when delivered (by hand, by registered mail, by
courier or express delivery service or by facsimile) to the address or facsimile
telephone number set forth beneath the name of such party below (or to such
other address or facsimile telephone number as such party shall have specified
in a written notice given to the other parties hereto):
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if to MetaSolv, MetaSolv AcquisitionCo or NewCo:
MetaSolv, Inc.
5560 Tennyson Parkway
Plano, Texas
75024
Attention: Jonathan K. Hustis
Facsimile No.: (972) 403-8989
with a copy to:
Vinson & Elkins L.L.P.
3700 Trammel Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Attention: Jeffrey A. Chapman
Facsimile No.:(214) 999-7797
and to:
Aird & Berlis LLP
BCE Place
Suite 1800, Box 754
181 Bay Street
Toronto, Ontario M5J 2T9
Attention: Jay A. Lefton, Esq.
Facsimile No.: (416) 863-1515
and to:
Mendelsohn Rosentzveig Shacter
1000 Sherbrooke Street West
27th Floor
Montreal, Quebec H3A 3G4
Attention: David L. Rosentzveig
Facsimile No.: (514) 987-1213
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,
provided such notice or other communication is received prior to 5:00 p.m.
(local time) on a Business Day, and otherwise it shall be deemed to have been
given and received upon the immediately following Business Day. If, by reason of
any actual or threatened interruption of mail service due to strike, lock-out or
otherwise, any notice to be given
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would be unlikely to reach its destination in a timely manner, such notice shall
be valid and effective only if delivered as provided above other than by mail to
the intended recipient in accordance with the foregoing provisions.
6.5 Notice to Shareholders
Any and all notices to be given and any documents to be sent to any
Shareholders may be given or sent to the address of such Shareholder shown on
the register of holders of Exchangeable Shares in any manner permitted by the
Articles of Association of NewCo or the Exchangeable Share Provisions from time
to time in force in respect of notices to shareholders and shall be deemed to be
received (if given or sent in such manner) at the time specified in such
Articles of Association or Exchangeable Share Provisions, the provisions of
which Articles of Association or Exchangeable Share Provisions shall apply
mutatis mutandis to notices or documents as aforesaid sent to such Shareholders.
6.6 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.
6.7 Governing Law
The provisions of section 8.12 of the SPA are hereby incorporated by
reference herein, mutatis mutandis.
6.8 Language
The parties hereto confirm that it is their wish that this Agreement, as
well as all other documents related hereto, including legal notices, have been
and shall be drawn up in the English language only. Les parties confirment leur
desir que cet accord ainsi que tous les documents, y compris tous les avis qui
s'y rattachent, soient rediges en langue anglaise.
6.9 Rules of Construction
The parties hereto agree that they have been represented by counsel during
the negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
[the remainder of this page has been intentionally left blank]
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
METASOLV, INC.
By: ________________________________c/s
Name: Jonathan K. Hustis
Title: Vice President - Business Services
Authorized Signing Officer
METASOLV CANADA HOLDINGS INC.
By ________________________________
Name: Jonathan K. Hustis
Title: Director and Secretary
Authorized Signing Officer
METASOLV CANADA INC.
By ________________________________
Name: Jonathan K. Hustis
Title: Director and Secretary
Authorized Signing Officer
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SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Elie Abboud, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Perihane Abdallah Nasrallah, by Joseph
Hatchuel, her attorney-in-fact duly
appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Antonio Arcuri, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
B.A.G.H. TECHNOLOGIES INC.
By: __________________________________c/s
Name:
Title:
Authorized Signing Officer
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SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Francoise Bellon, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Francoise Benichou, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) David Bitton, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Nassim Bouabcha, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
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SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Samuel Bouhadana, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Ghada Boutanios, by Joseph Hatchuel, her
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Pascal Bouvry, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Jean-Francois Brisson, by Joseph Hatchuel,
his attorney-in-fact duly appointed.
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SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Joseph Cohen, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Gilbert Cousineau, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Yves Desrosiers, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Charles Elazar, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
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FIDUCIE CLOALIMA
By: __________________________________c/s
Name:
Title:
Duly Appointed Authorized Signing Officer,
by Power of Attorney
FIDUCIE FAMILIALE TOUSAGAMI
By: __________________________________c/s
Name:
Title:
Duly Appointed Authorized Signing Officer,
by Power of Attorney
FIDUCIE PERSONNEL-CLE LAT45
By: __________________________________c/s
Name:
Title:
Duly Appointed Authorized Signing Officer,
by Power of Attorney
FIDUCIE TOM-TOM
By: __________________________________c/s
Name:
Title:
Duly Appointed Authorized Signing Officer,
by Power of Attorney
-25-
FIDUCIE YADA
By: __________________________________c/s
Name:
Title:
Duly Appointed Authorized Signing Officer,
by Power of Attorney
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Herve Francois, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Antoinette Giuffrida, by Joseph Hatchuel,
her attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Fernando Gutierrez, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
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SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Theodora Hatchuel, by Joseph Hatchuel, her
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Toufik Issad, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Claude Jean, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Benoit Lemieux, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
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Witness ) Celine Lessard, by Joseph Hatchuel, her
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Aaron Minciotti, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Sarah Minciotti, by Joseph Hatchuel, her
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Patrick Murris, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Paula Oriani, by Joseph Hatchuel, her
attorney-in-fact duly appointed.
OXHENHAM INTERNATIONAL LTD.
-28-
By: __________________________________c/s
Name:
Title:
Duly Appointed Authorized Signing Officer,
by Power of Attorney
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Ginette Pelletier, by Joseph Hatchuel, her
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Sylvain Plourde, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Gina Ratte, by Joseph Hatchuel, her
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Isabelle Sicotte, by Joseph Hatchuel, her
attorney-in-fact duly appointed.
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SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Robert Kimbal Solar, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Christian St-Po, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Abdul Hafiz Sultani, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Tounissoux, Sandrine, by Joseph Hatchuel,
her attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
-30-
______________________________) __________________________________ l.s.
Witness ) Marie Tremblay, by Joseph Hatchuel, her
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Patrice Trudel, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
______________________________) __________________________________ l.s.
Witness ) Roland Younes, by Joseph Hatchuel, his
attorney-in-fact duly appointed.
Schedule "A"
to the Exchange Agreement dated July 20, 2001
LIST OF SHAREHOLDERS
--------------------
Abboud, Elie
Abdallah Nasrallah, Perihane
Arcuri, Antonio
B.A.G.H. Technologies Inc.
Bellon, Francoise
Benichou, Francoise
Bitton, David
Bouabcha, Nassim
Bouhadana, Samuel
Boutanios, Ghada
Bouvry, Pascal
Brisson, Jean-Francois
Cohen, Joseph
Cousineau, Gilbert
Desrosiers, Yves
Elazar, Charles
Fiducie Cloalima
Fiducie Familiale Tousagami
Fiducie Personnel-cle Lat45
Fiducie Tom-Tom
Fiducie Yada
Francois, Herve
Giuffrida, Antoinette
Gutierrez, Fernando
Hatchuel, Theodora
Issad, Toufik
Jean, Claude
Lemieux, Benoit
Lessard, Celine
Minciotti, Aaron
Minciotti, Sarah
Murris, Patrick
Oriani, Paula
Oxhenham International Ltd.
Pelletier, Ginette
Plourde, Sylvain
Ratte, Gina
Sicotte, Isabelle
Solar, Robert Kimbal
St-Po, Christian
Sultani, Abdul Hafiz
Tounissoux, Sandrine
Tremblay, Marie
Trudel, Patrice
Younes, Roland