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Exhibit 10.16
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SUBSCRIPTION AGREEMENT
THIS AGREEMENT is made as of the 7th day of February, 2000
BETWEEN:
DELANO TECHNOLOGY CORPORATION, a corporation governed by the laws of
the Province of Ontario, (the "Corporation")
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NORTEL NETWORKS CORPORATION, a corporation governed by the laws of
Canada, (the "Investor")
RECITALS:
The authorized capital of the Corporation consists of an unlimited number of
redeemable convertible special shares, an unlimited number of common shares, and
an unlimited number of preferred shares. There are presently issued and
outstanding 7,789,476 redeemable convertible special shares and 5,500,000 common
shares of the Corporation, giving effect to articles of amendment to be filed on
or about the date hereof in respect of a three for two split in the common
shares of the Corporation.
The corporation has filed an amended and restated Canadian prospectus dated
January 12, 2000 in respect of the offer and sale of New Common Shares (as
defined herein) and common shares in the capital of the Corporation issuable
upon the exercise of 4,326,924 special warrants and has filed a registration
statement in the United States in respect of the offer and sale of the New
Common Shares.
The Investor wishes to subscribe for the Purchased Shares (as defined herein).
THEREFORE, the parties agree as follows:
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ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 DEFINITIONS
Whenever used in this Agreement, unless there is something inconsistent in the
subject matter or context, the following words and terms shall have the meanings
set out below:
"AGREEMENT" means this subscription agreement, including the schedules, and
all instruments supplementing or amending or confirming this Agreement;
"hereof", "hereto" and "hereunder" and similar expressions mean and refer
to this Agreement and not to any particular article or section; "Article"
or "Section" means and refers to the specified article or section of this
Agreement;
"BUSINESS DAY" means a day, other than a Saturday or Sunday, on which the
principal commercial banks located at Toronto, Ontario are open for
business during normal banking hours;
"CLOSING" means the completion of the issue, sale and purchase of the
Purchased Shares at the Closing Date by the deliveries of share
certificates representing the Purchased Shares to the Investor and the
payment of the purchase price therefor, all in accordance with this
Agreement;
"CLOSING TIME" means immediately following the completion of the Prospectus
Closing, or such other time or date as may be agreed upon by the parties;
"DISPOSITION" shall have the meaning assigned thereto in Section 7.1;
"IPO PRICE" means the price per New Common Shares, as set forth in the
final Offering Memorandum, which price is presently estimated to be in the
range of $9.00 to $11.00 but is subject to change;
"LOCK-UP PERIOD" shall have the meaning assigned thereto in Section 7.1;
"NEW COMMON SHARES" shall mean the common shares in the capital of the
Corporation to be issued to and purchased by the underwriters, as set forth
in the Offering Memorandum;
"OFFERING MEMORANDUM" means the amended and restated preliminary prospectus
of the Corporation dated January 12, 2000, together with the Offering
Memorandum supplement thereto, as the same may be supplemented or amended;
"PARTIES" shall mean the Corporation and the Investor, collectively;
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"PERSON" includes any individual, legal or personal representative,
partnership, corporation, incorporated syndicate, unincorporated or
incorporated association, trust or governmental body, howsoever designated
or constituted;
"PROSPECTUS CLOSING" shall mean the issue of New Common Shares;
"PUBLIC OFFERING" means the public offering of common shares in the capital
of the Corporation described in the Offering Memorandum;
"PURCHASED SHARES" means 500,000 common shares in the capital of the
Corporation or such lesser number of common shares in the capital of the
Corporation having an aggregate value of $10,000,000 at the IPO Price,
giving effect to a 3 for 2 stock split in respect of which articles of
amendment are to be filed by the Corporation before Closing;
"SECURITIES" shall have the meaning assigned thereto in Section 7.1;
"SUBSCRIPTION PRICE" shall have the meaning assigned thereto in Section
2.1; and
"UNDERWRITING AGREEMENT" means the underwriting agreement to be entered
into between the Corporation and the underwriters in respect of the issue
of the New Common Shares.
1.2 CERTAIN RULES OF INTERPRETATION
In this Agreement:
(a) time is of the essence in the performance of the parties' respective
obligations;
(b) unless otherwise specified, all references to money amounts are to
United States currency;
(c) the descriptive headings of Articles and Sections are inserted solely
for convenience of reference and are not intended as complete or
accurate descriptions of content; and
(d) the use of words in the singular or plural, or with a particular
gender, shall not limit the scope or exclude the application of any
provision of this Agreement to such person or persons or circumstances
as the context otherwise permits.
1.3 INVALIDITY OF PROVISIONS
The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions hereof and such
invalid or unenforceable provision shall be deemed severable.
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1.4 ENTIRE AGREEMENT
This Agreement together with the letter agreement between the parties dated the
date hereof and the documents to be delivered pursuant to this Agreement,
constitute the entire agreement between the parties pertaining to the subject
matter of this Agreement and supersede all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties and there
are no warranties, representations or other agreements between the parties or
any of them in connection with the subject matter of this Agreement except as
specifically set forth in this Agreement and any document delivered pursuant to
this Agreement. No supplement, modification or waiver or termination of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions (whether or not similar) nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
1.5 APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the Province of
Ontario and the laws of Canada applicable therein and shall be treated, in all
respects, as an Ontario contract.
ARTICLE 2
SUBSCRIPTION AND CLOSING
2.1 SUBSCRIPTION
Subject to the completion of all of the deliveries and other actions and
conditions provided for in this Agreement, the Investor hereby subscribes for
and agrees to purchase at Closing, and the Corporation agrees to issue and sell
to the Investor at Closing, the Purchased Shares for an aggregate amount equal
to the IPO Price multiplied by the number of Purchased Shares (the "Subscription
Price").
2.2 CLOSING ARRANGEMENTS
The completion of the transactions contemplated by this Agreement shall take
place at the offices of Osler, Hoskin & Harcourt, 66th Floor, 1 First Canadian
Place, Toronto, Ontario at the Closing Time or at such other time and place as
may be determined by the Corporation.
2.3 DELIVERIES AT CLOSING
At Closing:
(a) the Investor shall make full payment of the Subscription Price to the
Corporation for the Purchased Shares being purchased by it by delivery
to the Corporation of a certified cheque or bank draft payable to or
to the order of the Corporation or by wire transfer to the Corporation
in the amount of the Subscription Price;
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(b) the Corporation shall deliver to or to the order of the Investor a
share certificate representing the Purchased Shares;
(c) there shall be delivered to the Investor legal opinions of counsel to
the Corporation which are substantially the same as the opinions
delivered to the underwriters pursuant to the Underwriting Agreement,
with such deviations therefrom as are necessary to reflect the private
placement nature of the purchase of the Purchased Shares by a resident
of Canada, including an opinion that the Purchased Shares have been
duly authorized and validly issued and are outstanding as fully paid
and non-assessable shares of the Corporation;
(d) there shall be delivered to the Investor a long form comfort letter
from the Corporation's auditors which is substantially the same as the
long form comfort letter delivered to the underwriters pursuant to the
Underwriting Agreement, with such deviations therefrom as are
necessary to reflect the private placement nature of the purchase of
the Purchased Shares by a resident of Canada; and
(e) the Corporation and the Investor shall deliver all other documents,
instruments or contracts reasonably required to implement the
transactions contemplated hereby.
ARTICLE 3
REPRESENTATIONS OF THE CORPORATION
The Corporation hereby represents and warrants to the Investor the matters set
out below.
3.1 DUE AUTHORIZATION
Prior to Closing, the Corporation shall have all the necessary corporate power
and capacity to enter into this Agreement, to issue and sell the Purchased
Shares to be issued to the Investor pursuant to this Agreement, and the
execution and delivery of this Agreement and the issue and sale of such
Purchased Shares to the Investor shall have been duly authorized by all
necessary corporate action on the part of the Corporation.
3.2 ENFORCEABILITY OF OBLIGATIONS
This Agreement constitutes a valid and binding obligation of the Corporation
enforceable against it in accordance with its terms.
3.3 SHARES
Upon receipt of the Subscription Price by the Corporation for the Purchased
Shares, the Purchased Shares shall be issued as fully paid and non-assessable
common shares in the capital stock of the Corporation.
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3.4 ABSENCE OF CONFLICTING AGREEMENTS
The Corporation is not a party to, bound or affected by or subject to any
contract, mortgage, lease, charter or by-law provision, statute, regulation,
judgment, decree or law which would be violated, contravened, breached by or
under which default would occur or under which any payment or repayment would be
accelerated as a result of the execution and delivery of this Agreement or the
issuance and sale of the Purchased Shares as provided for in this Agreement.
3.5 NO CONSENTS
No consent, approval, authorization, order, registration or qualification of, or
with, any court or governmental agency or body is required for the issue and
sale of the Purchased Shares, as contemplated by this Agreement, the performance
or consummation by the Corporation of the transaction contemplated in this
Agreement and the compliance by the Corporation with the terms of this
Agreement, other than the filing of a Form 45-501F1 under the Securities Act
(Ontario) with the Ontario Securities Commission.
3.6 UNDERWRITING AGREEMENT
The Corporation agrees and confirms that the Investor will be entitled to the
full benefit of all representations and warranties to be made by the Corporation
to the underwriters in the Underwriting Agreement, if and when the Underwriting
Agreement is executed, as if such representations and warranties were fully set
forth in this Agreement and such representations and warranties will be deemed
to be incorporated by reference herein.
ARTICLE 4
REPRESENTATIONS OF THE INVESTOR
The Investor hereby represents, warrants and acknowledges to the Corporation the
matters set out below.
4.1 ENFORCEABILITY
This Agreement constitutes a valid and binding obligation of the Investor
enforceable against it in accordance with its terms.
4.2 PURCHASING AS PRINCIPAL
The Investor is purchasing the Purchased Shares under this Agreement as
principal and not for the account of or on behalf of any other person.
4.3 INCORPORATION, AUTHORIZATION AND CAPACITY
The Investor is duly incorporated or organized and validly existing under the
laws of the jurisdiction of its incorporation or organization and has all the
necessary corporate or legal
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power, authority and capacity to enter into this Agreement and the execution and
delivery of this Agreement has been duly authorized by all necessary corporate
action on the part of the Investor. The Investor has such knowledge and
experience in financial and business affairs as to be capable of evaluating the
merits and risks of the investment hereunder in the Purchased Shares and the
restrictions on their transfer and is able to bear the economic risk of loss of
such investment.
4.4 OFFERING MEMORANDUM
The Investor has received from the Corporation a copy of the Offering Memorandum
and is basing its investment decision solely on the Offering Memorandum and not
on any other information concerning the Corporation. The Investor acknowledges
and agrees that the offer and sale of the Purchased Shares hereunder has not
been accompanied by any advertisement in any printed medium of general and
regular paid circulation, radio or television or any other form of advertising.
4.5 RESALE
The Investor acknowledges that the Purchased Shares are being issued by the
Corporation pursuant to registration and prospectus exemptions pursuant to the
Securities Act (Ontario) and, accordingly, any resale of Purchased Shares must
be made through an appropriately registered dealer and in accordance with, or
pursuant to an exemption from, the prospectus requirements of said Act and the
regulations, rules and written policies made thereunder.
4.6 U.S. SECURITIES LAWS
(a) The Investor is neither a "U.S. Person" nor a person within the United
States (as such terms are defined in Regulation S under the Securities
Act of 1933, as amended, which definitions include but are not limited
to, a natural person resident in United States, an estate or trust of
which any executor or administrator or trustee, respectively, is a
U.S. Person and any partnership or corporation organized or
incorporated under the laws of the United States) nor purchasing the
Purchased Shares, directly or indirectly, for the account or benefit
of a U.S. Person or a person within the United States for resale in
the United States in violation of U.S. federal or state securities
laws, and the Investor does not have any agreement or understanding
(either written or oral) with any U.S. Person or a person within the
United States respecting:
(i) the transfer or assignment of any rights or interest in any of
the Purchased Shares; or
(ii) the division of profits, losses, fees, commissions, or any
financial stake in connection with the purchase of the Purchased
Shares.
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(b) The Purchased Shares were not offered to the Investor in the United
States and this Agreement has not been signed in the United States.
(c) Notwithstanding anything to the contrary in Section 7.1 hereof, for a
period of 40 days following the Closing Date, the Investor may not
offer, sell or otherwise transfer any Purchased Shares to a person
within the United States or a U.S. Person.
ARTICLE 5
SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES
5.1 SURVIVAL
All representations and warranties set forth in Articles 3 and 4 shall survive
the execution, delivery and performance of this Agreement and the Closing and
continue in full force and effect for the benefit of the parties to which they
were given, notwithstanding any investigation at any time made by or on behalf
of the party to which it has been given, for a period of 180 days subsequent to
the Closing Time, provided, however, that any such representations or warranties
which are fraudulently made shall survive the Closing and shall continue in full
force and effect indefinitely.
ARTICLE 6
CLOSING CONDITIONS
6.1 INVESTOR'S CONDITIONS OF CLOSING
The obligations of the Investor under this Agreement shall be conditional upon
the following:
(a) the representations and warranties of the Corporation set forth in
Article 3 shall be true and correct as at Closing, except for the
transactions contemplated by this Agreement, including the Prospectus
Closing;
(b) the completion of all the deliveries contemplated by Section 2.3 by
the Corporation;
(c) the completion of the Prospectus Closing with aggregate gross proceeds
of not less than $50,000,000 from the issuance of New Common Shares;
and
(d) such other documentation as the Investor and its legal counsel may
reasonably require.
The foregoing conditions are inserted for the exclusive benefit of the Investor
and may be waived, in whole or in part, by the Investor, and will be deemed to
have been so waived if the purchase of the Purchased Shares from the Corporation
is completed hereunder.
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6.2 CORPORATION'S CONDITIONS OF CLOSING
The obligations of the Corporation under this Agreement shall be conditional
upon the following:
(a) the representations and warranties of the Investor set forth in
Article 4 shall be true and correct as at Closing;
(b) the completion of all the deliveries contemplated by Section 2.3 by
the Investor;
(c) the completion of the Prospectus Closing; and
(d) such other documentation as the Corporation and its legal counsel may
reasonably require.
The foregoing conditions are inserted for the exclusive benefit of the
Corporation and may be waived, in whole or in part, by the Corporation, and will
be deemed to have been so waived if the issue of the Purchased Shares is
completed hereunder.
ARTICLE 7
OTHER CONDITIONS
7.1 AGREEMENT NOT TO SELL SHARES
The Investor shall not offer to sell, contract to sell, or otherwise sell,
dispose of, loan, pledge or grant any rights with respect to (collectively, a
"Disposition") any common shares of the Corporation, any options or warrants to
purchase any common shares of the Corporation, or any securities convertible
into or exchangeable for common shares of the Corporation (collectively,
"Securities") now owned or hereafter acquired directly by the Investor or with
respect to which the Investor has or hereafter acquires the power of
disposition, otherwise than (a) as a bona fide gift or gifts, provided that the
donee or donees thereof agree in writing to be bound by this restriction, (b)
with respect to Dispositions of common shares of the Corporation acquired on the
open market, or (c) with the prior written consent of FleetBoston Robertson
Stephens Inc., for a period commencing on the Closing Date and continuing to a
date 180 days after the date on which the registration statement filed in
connection with the Public Offering is declared effective by the Securities and
Exchange Commission (the "Lock-up Period"). The foregoing restriction has been
expressly agreed to preclude the holder of the Securities from engaging in any
hedging or other transaction that is designed to or reasonably expected to lead
to or result in a Disposition of Securities during the Lock-up Period, even if
such Securities would be disposed of by someone other than such holder. Such
prohibited hedging or other transactions include, without limitation, any short
sale (whether or not against the box) or any purchase, sale or grant of any
right (including, without limitation, any put or call option) with respect to
any Securities or with respect to any security (other than a broad-based market
basket or index) that included, relates to or derives any significant part of
its value from Securities. The Investor also agrees and consents to the entry of
stop transfer instructions with the Corporation's transfer agent and registrar
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against the transfer of Securities held by the Investor except in compliance
with the foregoing restrictions.
ARTICLE 8
CONTRACTUAL RIGHT OF ACTION
8.1 RIGHTS OF ACTION
If the final Offering Memorandum contains an untrue statement of a material fact
or omits to state a material fact that is required to be stated or is necessary
in order to make any statement therein not misleading in the light of the
circumstances in which it was made (herein called a "misrepresentation") and it
was a misrepresentation at the Closing Time, the Investor shall have, subject as
hereinafter in this section provided, a right of action, exercisable on written
notice given not more than 180 days subsequent to the date of investment in the
case of rescission and not later than 180 days subsequent to the date of
investment in the case of damages while still the owner of any of the Purchased
Shares provided that:
(a) the Corporation will not be held liable under this section if the
Investor purchased the Purchased Shares with knowledge of the
misrepresentation;
(b) in an action for damages, the Corporation will not be liable for all
or any portion of such damages that it proves do not represent the
depreciation in value of the Purchased Shares as a result of the
misrepresentation relied upon;
(c) in no case will the amount recoverable under this paragraph exceed the
price at which the Purchased Shares are sold to the Investor;
(d) if the Investor elects to exercise the right of rescission, the
Investor will have no right of action of damages against the
Corporation; and
(e) the rights herein conferred are in addition to any other right or
remedy available at law to the Investor.
ARTICLE 9
GENERAL
9.1 ASSIGNMENT
This Agreement shall not be assigned by either party without the prior written
consent of the other party.
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9.2 FURTHER ASSURANCES
Each of the parties covenants and agrees to take all such action and to execute
all such documents as may be necessary or advisable to implement the provisions
of this Agreement fully and effectively and to make them binding on the parties
hereto.
9.3 ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the parties to
this Agreement and their respective heirs, executors, administrators and
successors.
9.4 NOTICES
Any notice or other writing required or permitted to be given under this
Agreement or for the purposes of this Agreement (referred to in this Section as
a "notice") to any Party shall be sufficiently given if delivered personally, or
if sent by prepaid registered mail or if transmitted by fax or other form of
recorded communication tested prior to transmission to such Party:
(a) in the case of a notice to the Corporation at:
40 West Wilmont Street
Richmond Hill, Ontario
Canada
L4B 1H8
Attention: Mr. David Lewis
General Counsel and Secretary
FAX: (905) 764-7445
(b) in the case of a notice to the Investor at:
Nortel Networks Corp.
8200 Dixie Road, Suite 100
Brampton, Ontario
L6T 5P6
Attention: Deborah J. Noble, Corporate Secretary
FAX: (905) 863-8386
or at such other address as the party to whom such notice is to be given shall
have last notified to the party giving the notice in the manner provided in this
Section. Any notice personally delivered to the party to whom it is addressed as
provided in this Section shall be deemed to have been given and received on the
day it is so delivered at such address, provided that if such day is
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not a Business Day then the notice shall be deemed to have been given and
received on the Business Day next following such day. Any notice mailed to the
address and in the manner provided for in this Section shall be deemed to have
been given and received on the fifth Business Day next following the date of its
mailing. Any notice transmitted by fax or other form of recorded communication
shall be deemed given and received on the first Business Day next following its
transmission.
9.5 PUBLIC NOTICES
All public notices to third parties and all other publicity concerning the
transactions contemplated by this Agreement shall be jointly planned and
coordinated by the Corporation and the Investor and no party shall act
unilaterally in this regard without the prior approval of the other party, such
approval not to be unreasonably withheld, except:
(a) in the case of the Corporation for communications made in confidence
to the Corporation's employees affected by such transactions; or
(b) where required to do so by law or by the applicable regulations or
policies of any provincial or Canadian or other regulatory agency of
competent jurisdiction or any stock exchange in circumstances where
prior consultation with the other party is not possible.
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9.6 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall be deemed to constitute one and the
same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement, or a
counterpart hereof, all as of the date first above written.
DELANO TECHNOLOGY CORPORATION
By:
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Name:
Title:
NORTEL NETWORKS CORPORATION
By:
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Name:
Title:
By:
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Name:
Title: