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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to Section 240. 14a-12
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to which transaction applies:
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Aggregate number of securities to which transaction applies:
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined):
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Proposed maximum aggregate value of transaction:
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee if offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid:
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Form, Schedule or Registration Statement No.:
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Filing Party:
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Date Filed:
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1.
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considering, pursuant to an interim order of the Supreme Court of British Columbia dated , 2012 (the “Interim Order”), and, if thought fit, passing, with or without variation, a special resolution of Shareholders, the full text of which is set out in Appendix A to the proxy statement, approving a statutory arrangement (the “Arrangement”) under Section 288 of the Business Corporations Act (British Columbia) (“BCBCA”) pursuant to which Digital River, Inc. will, indirectly through LML Acquisition Corp., acquire all of the issued and outstanding common shares of our company, all as more fully described in the proxy statement; and
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transacting any other business that may properly come before the special meeting or any adjournment or adjournments thereof.
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By Order of the Board of Directors:
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Patrick H. Gaines
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Chief Executive Officer and Chairman
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Dated: ♦, 2012
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Appendix A
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Arrangement Resolution
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Appendix B
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Arrangement Agreement
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Appendix C
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Interim Order
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Appendix D
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Fairness Opinions
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Appendix E
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Business Corporations Act (British Columbia) Sections 237 to 247
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Appendix F
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Notice of Hearing
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LML Payment Systems Inc., originally incorporated under the laws of British Columbia in 1974, is a leading provider of payment processing solutions including electronic payment processing, risk management and authentication services, primarily to businesses and organizations that use the Internet to receive or send payments. LML links merchants selling products or services to customers wanting to buy them and financial institutions who allow the transfer of payments to occur. LML has partnership arrangements and certified connections to financial institutions, payment processors and other payment service providers in order to enable our customers to safely and reliably accept or make payments electronically, primarily using the Internet. Our corporate web site is located at www.lmlpayment.com.
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LML common stock is quoted on the Nasdaq Capital Market under the symbol “LMLP.”
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Digital River, Inc., a Delaware corporation since 1994, provides end-to-end global cloud-commerce, payments and marketing solutions to a wide variety of companies in software, consumer electronics, computer games, video games and other markets. Digital River’s services include design, development and hosting of online stores and shopping carts, store merchandising and optimization, order management, denied parties screening, export controls and management, tax compliance and management, fraud management, digital product delivery via download, physical product fulfillment, subscription management, online marketing including e-mail marketing, management of affiliate programs, paid search programs, payment processing services, website optimization, web analytics and reporting, and CD production and delivery. Digital River’s corporate web site is located at www.digitalriver.com.
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Digital River common stock is quoted on the Nasdaq Global Select Market under the symbol “DRIV.”
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LML Acquisition Corp. is a newly-formed British Columbia corporation that is a wholly-owned subsidiary of Digital River. LML Acquisition Corp. was incorporated on August 28, 2012, solely for the purpose of effecting the proposed arrangement and has not conducted any business activities to date. LML Acquisition Corp. is referred to as the “Purchaser” in this proxy statement.
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At the effective time of the arrangement, Digital River will indirectly, through the Purchaser, acquire all of the outstanding equity securities of LML for cash consideration, and LML will become a wholly-owned subsidiary of Digital River. The arrangement will occur according to the terms and conditions of the arrangement agreement, which is described in, and is attached as Appendix B to this proxy statement. You should read the description of the arrangement agreement in this proxy statement under the heading “The Arrangement Agreement” and the arrangement agreement carefully.
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Share Consideration (page 28)
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If the arrangement is completed you will receive $3.45 in cash for each of your shares of LML common stock outstanding at the time of the arrangement, unless you exercise and perfect your dissent rights. This cash payment is sometimes referred to as the “Share Consideration” in this proxy statement.
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Option and Warrant Consideration (page 28)
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At the effective time of the arrangement, holders of unexercised options and warrants to purchase shares of LML common stock (whether or not such options and warrants are vested and currently exercisable) will be entitled to receive, with respect to each such option or warrant, an amount in cash equal to: (1) the excess, if any, of $3.45 over the per share exercise price of the option or warrant, multiplied by (2) the number of shares of LML common stock issuable upon exercise of the option or warrant immediately prior to the completion of the arrangement. These cash payments are sometimes referred to as “Option Consideration” and “Warrant Consideration,” respectively, in this proxy statement.
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As a result of the arrangement:
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LML will no longer be a public company but will be a wholly-owned subsidiary of Digital River;
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LML common stock will no longer be quoted on the Nasdaq Capital Market, price quotations will no longer be available and the registration of LML common stock, and LML’s reporting obligations under the Securities Exchange Act of 1934, as amended, will terminate;
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You will no longer be a shareholder, optionholder, or warrantholder (as the case may be) of or have any ownership interest in LML, and therefore you will not be able to participate in any future earnings and growth of LML or benefit from any future increases in LML’s value; and
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Digital River will receive 100% of any future earnings and growth of LML and benefit from any future increases in LML’s value, but will also bear 100% of the risk of any future losses of LML and any future decreases in LML’s value.
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The arrangement agreement and the arrangement must be approved by at least sixty-six and two-thirds percent (66-2/3%) of votes cast in person or by proxy at the special meeting.
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LML’s board of directors and special committee each approved and adopted the arrangement agreement and the arrangement and recommend that you vote “FOR” approval of the special resolutions of the shareholders approving the arrangment.
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LML’s board of directors and special committee have determined that the terms of the arrangement agreement and the arrangement, including the purchase price of $3.45 per share being paid in the arrangement, are fair to and in the best interests of LML and its shareholders.
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On August 31, 2012, MNP LLP, in its capacity as financial advisor to LML’s special committee, orally delivered its opinion to the special committee and board of directors and subsequently confirmed in writing on October 1, 2012 that, as of September 21, 2012, the arrangement is fair, from a financial point of view, to the shareholders of LML.
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On September 19, 2012, William Blair & Company, L.L.C., in its capacity as financial advisor to LML’s board of directors, orally delivered its opinion to the board of directors and special committee and subsequently confirmed in writing on September 19, 2012 that, as of September 19, 2012, and based on and subject to the assumptions and conditions described in the opinion, the purchase price of $3.45 per share being paid in the arrangement is fair, from a financial point of view, to the holders of LML’s common stock.
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These opinions are attached as Appendix D to this proxy statement. We encourage you to read these opinions carefully in their entirety.
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In considering the recommendation of LML’s board of directors and special committee with respect to the arrangement agreement and the arrangement, you should be aware that some of LML’s directors and officers have interests in the arrangement, including those referred to below, that may present actual or potential, or the appearance of actual or potential, conflicts of interest in connection with the arrangement:
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LML’s directors and officers will be entitled to receive an aggregate of $5,440,981 in cash payments for their shares of LML common stock and $3,898,472 in cash payments for their options in the arrangement;
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Pursuant to their respective employment agreements, LML’s named executive officers will be entitled to receive an aggregate of approximately $3,511,496 in severance and related benefits if their employment is terminated without cause, or if they resign with good reason (which includes the right to resign in the event of a change of control), after the effective time of the arrangement;
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Pursuant to his employment agreement, and in addition to the amounts identified above, Patrick H. Gaines, LML’s Chief Executive Officer and Chairman, will also be entitled to receive an additional lump sum payment of approximately $3,598,000 (representing 3.5% of the total consideration to be paid by Digital River in the arrangement) if his employment is terminated without cause, or if he resigns with good reason (which includes the right to resign in the event of a change of control), after the effective time of the arrangement. We understand that Mr. Gaines intends to resign in connection with the arrangement.
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Pursuant to the arrangement agreement, LML’s directors and named executive officers will be entitled to certain indemnification rights following the consummation of the arrangement.
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The obligations of LML and Digital River to complete the arrangement are subject to several conditions. For example:
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the arrangement agreement and the arrangement must be approved by at least sixty-six and two-thirds percent (66-2/3%) of votes cast in person or by proxy at the special meeting;
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there must be no legal or regulatory restraints or prohibitions preventing completion of the arrangement;
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all necessary government and third party consents, waivers, permits, exemptions, orders and approvals must have been obtained or received; and
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the Supreme Court of British Columbia must have issued a final order approving the arrangement.
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Additionally, each party’s obligations are subject to a number of additional conditions.
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If these conditions are satisfied, the arrangement will be completed as soon as practicable after the Supreme Court of British Columbia issues its final order approving the arrangement. If these conditions are not satisfied (or, if permitted, waived), LML or Digital River or either of them may in certain circumstances be able to terminate the arrangement agreement.
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The arrangement agreement may be terminated before the arrangement is completed upon the occurrence of any of the following specified events:
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by mutual written consent of LML and Digital River;
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by either LML or Digital River if the shareholders of LML fail to approve the arrangement agreement and the arrangement at the special meeting or any adjournment thereof;
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by LML, if (i) any of the conditions to its obligation to effect the arrangement are not, or if it becomes apparent that any of such conditions cannot be, fulfilled by February 22, 2013, unless such failure is due to LML’s failure to perform or comply with any of the covenants, agreements or conditions of the arrangement agreement; (ii) LML enters into a definitive written agreement to enter into a third-party transaction, subject to compliance with the limits set forth in the arrangement agreement regarding LML’s ability to solicit and consider proposals for third-party transactions and payment of the required termination fee; (iii) Digital River materially breaches its obligations under the arrangement agreement; or (iv) the representations and warranties made by Digital River in the arrangement agreement fail to be true and correct in all material respects; or
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by Digital River, if (i) any of the conditions to its obligation to effect the arrangement are not, or if it becomes apparent that any of such conditions cannot be, fulfilled by February 22, 2013, unless such failure is due to Digital River’s failure to perform or comply with any of the covenants, agreements or conditions of the arrangement agreement; (ii) LML’s board of directors withdraws its approval and recommendation of the arrangement agreement and the arrangement; (iii) LML’s board of directors approves or recommends a proposal for a third-party transaction; (iv) LML materially breaches its obligations under the arrangement agreement; or (v) the representations and warranties made by LML in the arrangement agreement fail to be true and correct in all material respects.
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LML has agreed to pay Digital River a termination fee of $3,000,000, and to reimburse Digital River for all out of pocket expenses and fees incurred in connection with the negotiation, execution and performance of the arrangement agreement, if the arrangement agreement is terminated under certain specified circumstances.
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Digital River has agreed to pay LML a termination fee of $3,000,000 if the arrangement agreement is terminated under certain specified circumstances.
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If you are a registered shareholder and do not wish to accept the purchase price of $3.45 per share being paid in the arrangement and you do not vote in favor of the arrangement agreement and the arrangement, you have the right under British Columbia law to seek a judicial appraisal of your common shares to determine the “fair value” of your common shares, and to receive such fair value in lieu of the purchase price if the arrangement is completed.
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We refer you to the information under the heading “Dissent Rights” in this proxy statement, to the Interim Order attached as Appendix C to this proxy statement, and to the applicable British Columbia statutory sections attached as Appendix E to this proxy statement for information on how to exercise your dissent rights. Failure to follow all of the steps required under British Columbia law will result in the loss of your dissent rights.
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In the event shareholders holding more than 10% of the LML’s outstanding shares have exercised (and not withdrawn) their dissent rights, Digital River is not required to, and may refuse to, complete the arrangement.
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Generally speaking, you will be taxed on your receipt of the $3.45 in cash per share to the extent that the amount you receive exceeds your tax basis in your shares.
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Because determining the tax consequences of the arrangement can be complicated (particularly if you receive payment for options or warrants, or if you exercise dissent rights), you should consult your tax advisor in order to understand fully how the arrangement will affect you.
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Q:
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What is the proposed transaction?
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Digital River will acquire LML through a statutory plan of arrangement between LML and Digital River’s wholly-owned subsidiary, the Purchaser. At the effective time of the arrangement, Digital River will indirectly, through the Purchaser, acquire all of the outstanding equity securities of LML for cash consideration, and LML will become a wholly-owned subsidiary of Digital River.
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What will I receive in the arrangement?
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You will be entitled to receive $3.45 in cash for each share of LML common stock you own at the effective time of the arrangement, unless you exercise and perfect your dissent rights.
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What will happen to the market for LML common stock after the arrangement?
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At the effective time of the arrangement, trading in LML common stock on the Nasdaq Capital Market will cease. Price quotations for LML common stock will no longer be available and the registration of LML common stock, and LML’s reporting obligations under the Securities Exchange Act of 1934, as amended, and under Canadian securities laws will each terminate.
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Why are the board of directors and the special committee recommending that I vote in favor of the arrangement agreement and the arrangement?
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LML’s board of directors and special committee have determined that the terms of the arrangement agreement and the arrangement are fair to and in the best interests of LML and its shareholders. Accordingly, the board of directors and special committee each approved the arrangement agreement and the arrangement and recommend that you vote “FOR” the special resolutions approving the arrangement. Voting “FOR” approval of the special resolutions also constitutes your approval of the arrangement agreement and the arrangement. For more information, we refer you to “The Proposed Arrangement—Background to the Arrangement Agreement,” “—Recommendation of the Special Committee and the Board of Directors” and “—Reasons for the Arrangement.”
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What is the special committee?
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On May 29, 2012, LML’s board of directors formed a special committee of three independent directors, Greg MacRae, David Cooke and Jacqueline Pace, to provide oversight with respect to the negotiation and evaluation of potential strategic alternatives for LML. For more information, we refer you to “The Proposed Arrangement—Background to the Arrangement Agreement.”
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What will happen to my LML stock options and warrants?
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If you own options or warrants to purchase shares of LML common stock at the effective time of the arrangement, you will be entitled to receive for each option or warrant, regardless of whether such option or warrant is then vested and exercisable, an amount in cash determined by multiplying: (1) the excess, if any, of $3.45 over the per share exercise price of that option or warrant, by (2) the number of shares that could be acquired upon exercise of that option or warrant.
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What are the tax consequences of the arrangement?
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The exchange of your shares for cash in the arrangement will be a taxable transaction for Canadian and U.S. federal income tax purposes and may also be a taxable transaction under state, local, foreign and other tax laws. For more information, we refer you to “Certain Material Canadian Federal Income Tax Consequences” and “Certain Material U.S. Federal Income Tax Consequences.” We encourage you to consult with your own tax advisor with any questions you may have on the tax consequences of the arrangement, especially if you own LML stock options or warrants.
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When do you expect the arrangement to be completed?
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We are working to complete the arrangement as quickly as possible. Assuming we obtain shareholder approval, we expect to complete the arrangement as soon as practicable after the Supreme Court of British Columbia issues its final order approving the arrangement.
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When and where is the special meeting?
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The special meeting of shareholders will be held at ♦, on ♦, 2012, at 10:00 a.m. local time.
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Who can vote at the special meeting?
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Shareholders of record as of the close of business on ♦, 2012.
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How many shares need to be represented at the meeting?
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The holders of thirty-three and one-third percent (33-1/3%) of the outstanding shares of LML common stock entitled to vote at the special meeting must be present in person or represented by proxy to constitute a quorum for the transaction of business. If you vote by proxy or in person at the special meeting, you will be considered part of the quorum.
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How do I vote?
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If you are a shareholder of record, you may vote in person at the special meeting. You may also vote your shares directly by internet or telephone, or via proxy by mail:
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By Internet or Telephone — If you have internet or telephone access, you may vote by following the voting instructions on your proxy card no later than 10:00 am Pacific Time on ♦, 2012. If you vote by internet or telephone, you need not return your proxy card.
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By Mail — You may vote via proxy by signing and dating your proxy card and returning it to our transfer agent, Computershare Investor Services Inc., 6th Floor, 530 - 8th Avenue, S.W., Calgary, Alberta T2P 3S8 by facsimile to (403) 267-6529, or by mail in the enclosed envelope, provided that your proxy card must be received by Computershare no later than 10:00 am Pacific Time on ♦, 2012. You should sign your name exactly as it appears on the proxy card. If you are signing in a representative capacity (for example, as guardian, executor, trustee, custodian, attorney or officer of a corporation), you should indicate your name and title or capacity.
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If my shares are held in “street name” by my broker, will my broker vote my shares for me?
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Your broker will not have discretionary power to vote your shares on the arrangement agreement and the arrangement. Your broker will vote your shares only if you provide him or her with instructions on how to vote. Any failure to instruct your broker on how to vote on the proposal to approve and adopt the arrangement agreement and the arrangement will result in your shares being treated as present for the purpose of determining the presence of a quorum at the special meeting, but your shares will not be considered “votes cast” at the meeting and, therefore, will not have any effect on the outcome of the proposal to approve and adopt the arrangement agreement and the arrangement. Note that if your shares are registered under your bank or broker or an agent of that bank or broker, such intermediaries should seek your voting instructions as a beneficial shareholder in advance of the special meeting. Please ensure you follow the directions provided by your broker on how to instruct your broker to vote your shares and deliver your letter of transmittal.
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May I change my vote?
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Yes. If you are a shareholder of record, you may revoke your proxy and change your vote at any time before the special meeting by:
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giving written notice of your revocation to a LML’s corporate secretary;
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submitting a duly executed proxy card bearing a later date; or
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attending the special meeting and expressing the desire to vote your shares in person (attending the meeting will not in and of itself revoke your proxy).
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If you have shares that are registered in different names and/or are in more than one account, you will receive more than one proxy card. If you vote by mail, please sign and return each proxy card or, if you vote by internet or telephone, please vote once for each proxy card you receive to ensure that all of your shares are voted.
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How many votes are required to approve and adopt the special resolutions?
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Approval and adoption of the special resolutions approving the arrangement requires the affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the votes cast in person or by proxy at the special meeting. A failure to provide your broker with instructions on how to vote, or a vote to abstain, will result in your shares being treated as present for the purpose of determining the presence of a quorum at the special meeting, but your shares will not be considered “votes cast” at the meeting and, therefore, will not have any effect on the outcome of the proposal to approve the special resolutions.
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Do I have dissent rights?
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Yes. Registered shareholders who do not vote in favor of the arrangement agreement and the arrangement and who otherwise comply with all of the requirements of British Columbia law, as explained under the heading “Principal Legal Matters Related to the Arrangement—Dissent Rights” in this proxy statement and in Appendix E to this proxy statement, will be entitled to appraisal rights to receive the statutorily determined “fair value” of their shares.
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What happens if I sell my LML shares before the special meeting?
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If you transfer your LML shares after the record date, but before the date of the special meeting, you will retain your right to vote at the special meeting but the right to receive the $3.45 in cash per share will pass to the person to whom you transferred your shares.
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What do I need to do now?
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Please vote your shares by internet, telephone, or by completing, signing, dating, and returning the enclosed proxy card as soon as possible to ensure that your shares are represented at the special meeting.
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Should I send in my LML stock certificates now?
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If you are a registered shareholder, you should have received a letter of transmittal. In order to receive the $3.45 in cash per share following completion of the arrangement, you must complete and sign the letter of transmittal and deliver it, together with the certificate representing your shares of LML common stock and the other documents specified in the letter of transmittal, to our transfer agent in accordance with instructions in the letter of transmittal. The letter of transmittal contains procedural information relating to the arrangement and should be reviewed carefully.
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Who can help answer my other questions?
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If you have any questions about the special meeting or the arrangement, or need assistance voting your shares, you may contact LML at Suite 1680 - 1140 West Pender Street, Vancouver, British Columbia V6E 4G1, Tel: (604) 689-4440.
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by delivering a written notice of revocation to the Corporate Secretary of our Corporation;
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by submitting a duly executed proxy bearing a later date; or
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by attending our Meeting and expressing the desire to vote your Common Shares in person (attendance at our Meeting will not in and of itself revoke a proxy).
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Common Shares Beneficially Owned
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Name and Address of Beneficial Owner
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Amount and Nature of
Beneficial Ownership
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Percent of Class(1)
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Patrick H. Gaines (CEO/Chairman/Director)
1680 – 1140 West Pender St. Vancouver, British Columbia
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2,124,984 | (2) | 7.1 | % | ||||
Craig Thomson (President)
302 – 2659 Douglas Street, Victoria, British Columbia
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1,310,733 | (3) | 4.6 | % | ||||
Richard R. Schulz (Controller and Chief Accounting Officer)
1680 – 1140 West Pender St. Vancouver, British Columbia
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486,750 | (4) | 1.7 | % | ||||
Chris Koide (Executive Vice-President Operations)
302 – 2659 Douglas Street, Victoria, British Columbia
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387,767 | (5) | 1.4 | % | ||||
Carolyn L. Gaines (Corporate Secretary)
1680 – 1140 West Pender St. Vancouver, British Columbia
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457,112 | (6) | 1.6 | % | ||||
Greg A. MacRae (Director)
613 – 375 Water St. Vancouver, British Columbia
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175,000 | (7) | * | |||||
Jacqueline Pace (Director)
P.O. Box 141 Bailey, MS
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127,500 | (8) | * | |||||
David C. Cooke (Director)
12 Stacey Court, Selbyville, Delaware
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104,000 | (9) | * | |||||
Don G. Choquer
20290 – 25th Avenue, Langley, British Columbia
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5,279,584 | (10) | 18.7 | % | ||||
Millennium Partners, L.P.
c/o Millennium Management LLC
666 Fifth Avenue, 8th Floor, New York, NY
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2,529,171 | (11) | 9.0 | % | ||||
Directors and Executive Officers as a Group (8 persons)
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5,173,846 | (12) | 16.2 | % |
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(1)
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Based on 28,246,684 Common Shares issued and outstanding as of ♦, 2012. Except as otherwise indicated, we believe that the beneficial owners of the Common Shares listed above, based on information furnished by such owners, have sole investment and voting power with respect to such shares, subject to community property laws where applicable. Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and generally includes voting or investment power with respect to securities. Common Shares subject to options or warrants currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed to be vested immediately prior to the Effective Time, are deemed outstanding for purposes of computing the percentage ownership of the person holding such option or warrants, but are not deemed outstanding for purposes of computing the percentage ownership of any other person.
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(2)
|
Includes 1,700,000 shares subject to options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time. On March 31, 2008, we granted Mr. Gaines options to purchase 1,200,000 Common Shares, of which 240,000 options vested on each of March 31, 2008, March 31, 2009, March 31, 2010, March 31, 2011, and March 31, 2012. The options are exercisable at a price of $3.00 per share and will expire on March 31, 2018. On August 18, 2010 we granted to Mr. Gaines options to purchase 250,000 Common Shares of which 62,500 options vested on August 18, 2010, an additional 31,250 options vested on each of February 18, 2011, August 18, 2011, February 18, 2012 and August 18, 2012, and an additional 62,500 options will be deemed to be vested immediately prior to the Effective Time. The options are exercisable at a price of $1.62 per share and will expire on August 18, 2015. On November 17, 2011 we granted to Mr. Gaines options to purchase 250,000 Common Shares of which 62,500 options vested on November 17, 2011, an additional 31,250 options vested on May 17, 2012, an additional 31,250 will vest on November 17, 2012, and an additional 125,000 options will be deemed to be vested immediately prior to the Effective Time. The options are exercisable at a price of $2.12 per share and will expire on November 17, 2016.
|
(a)
|
Keats Investments Ltd.: 168,400 shares
|
(b)
|
397389 British Columbia Ltd.: 16,622 shares
|
(c)
|
Does not include 457,112 shares (including 410,000 options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time) that are beneficially held by Carolyn L. Gaines, Mr. Gaines’ spouse.
|
|
(3)
|
Includes 400,000 shares subject to options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time. On August 18, 2010 we granted to Mr. Thomson options to purchase 200,000 Common Shares, of which 50,000 options vested on August 18, 2010, an additional 25,000 options vested on each of February 18, 2011, August 18, 2011, February 18, 2012 and August 18, 2012 and an additional 50,000 options will be deemed to be vested immediately prior to the Effective Time. The options are exercisable at a price of $1.62 per share and will expire on August 18, 2015. On November 17, 2011 we granted to Mr. Thomson options to purchase 200,000 Common Shares of which 50,000 options vested on November 17, 2011, an additional 25,000 options vested on May 17, 2012, an additional 25,000 options will vest on November 17, 2012, and an additional 100,000 options will be deemed to be vested immediately prior to the Effective Time. The options are exercisable at a price of $2.12 per share and will expire on November 17, 2016.
|
|
(4)
|
Represents 486,750 shares subject to options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time. On March 31, 2008, we granted Mr. Schulz options to purchase 210,000 Common Shares, of which 70,000 options vested on each of March 31, 2008, March 31, 2009 and March 31, 2010. The options are exercisable at a price of $3.00 per share and will expire on March 31, 2018. On August 18, 2010 we granted to Mr. Schulz options to purchase 150,000 Common Shares, of which 37,500 options vested on August 18, 2010, an additional 18,750 options vested on each of February 18, 2011, August 18, 2011, February 18, 2012, and August 18, 2012 and an additional 37,500 options will be deemed to be vested immediately prior to the Effective Time. On March 11, 2011, Mr. Schulz exercised 23,250 of these options. The options are exercisable at a price of $1.62 per share and will expire on August 18, 2015. On November 17, 2011 we granted to Mr. Schulz options to purchase 150,000 common shares in the capital of our Corporation of which 37,500 options vested on November 17, 2011, an additional 18,750 options vested on May 17, 2012, an additional 18,750 will vest on November 17, 2012 and an additional 75,000 options will be deemed to be vested immediately prior to the Effective Time. The options are exercisable at a price of $2.12 per share and will expire on November 17, 2016.
|
|
(5)
|
Includes 300,000 shares subject to options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time. On August 18, 2010 we granted to Mr. Koide options to purchase 150,000 Common Shares, of which 37,500 options vested on August 18, 2010, an additional 18,750 options vested on each of February 18, 2011, August 18, 2011, February 18, 2012, and August 18, 2012 and an additional 37,500 options will be deemed to be vested immediately prior to the Effective Time. The options are exercisable at a price of $1.62 per share and will expire on August 18, 2015. On November 17, 2011 we granted to Mr. Koide options to purchase 150,000 Common Shares of which 37,500 options vested on November 17, 2011, an additional 18,750 options vested on May 17, 2012, an additional 18,750 will vest on November 17, 2012 and an additional 75,000 options will be deemed to be vested immediately prior to the Effective Date. The options are exercisable at a price of $2.12 per share and will expire on November 17, 2016.
|
|
(6)
|
Includes 410,000 shares subject to options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time. On March 31, 2008, we granted Mrs. Gaines options to purchase 210,000 Common Shares, of which 70,000 options vested on each of March 31, 2008, March 31, 2009, and March 31, 2010. The options are exercisable at a price of $3.00 per share and will expire on March 31, 2018. On August 18, 2010 we granted to Mrs. Gaines options to purchase 100,000 Common Shares, of which 25,000 options vested on August 18, 2010, an additional 12,500 options vested on each of February 18, 2011, August 18, 2011, February 18, 2012, and August 18, 2012 and an additional 25,000 options will be deemed to be vested immediately prior to the Effective Time. The options are exercisable at a price of $1.62 per share and will expire on August 18, 2015. On November 17, 2011 we granted to Mrs. Gaines options to purchase 100,000 common shares in the capital of our Corporation of which 25,000 options vested on November 17, 2011, an additional 12,500 options vested on May 17, 2012, , an additional 12,500 options will vest on November 17, 2012 and an additional 50,000 options will be deemed to be vested immediately prior to the Effective Time. The options are exercisable at a price of $2.12 per share and will expire on November 17, 2016.
|
|
(7)
|
Includes 75,000 shares subject to options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time. On August 18, 2010, we granted to Mr. MacRae options to purchase 25,000 Common Shares, all of which vested on August 18, 2011. These options are exercisable at a price of $1.62 per share and expire on August 18, 2015. On August 17, 2011, we granted to Mr. MacRae options to purchase 25,000 Common Shares, all of which vested on August 17, 2012. These options are exercisable at a price of $2.43 per share and expire on August 17, 2016. On August 28, 2012, we granted to Mr. MacRae options to purchase 25,000 Common Shares, all of which will be deemed to be vested immediately prior to the Effective Time. These options are exercisable at a price of $2.09 per share and expire on August 17, 2016.
|
|
(8)
|
Includes 125,000 shares subject to options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time. On August 17, 2009, we granted to Ms. Pace options to purchase 50,000 Common Shares, all of which vested on August 17, 2010. These options are exercisable at a price of $0.65 per share and expire on August 17, 2014. On August 18, 2010, we granted to Ms. Pace options to purchase 25,000 Common Shares, all of which vested on August 18, 2011. These options are exercisable at a price of $1.62 per share and expire on August 18, 2015. On August 17, 2011, we granted to Ms. Pace options to purchase 25,000 Common Shares, all of which vested on August 17, 2012. These options are exercisable at a price of $2.43 per share and expire on August 17, 2016. On August 28, 2012, we granted to Ms. Pace options to purchase 25,000 Common Shares, all of which will be deemed to be vested immediately prior to the Effective Time. These options are exercisable at a price of $2.09 per share and expire on August 17, 2016.
|
|
(9)
|
Includes 100,000 shares subject to options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time. On August 17, 2009, we granted to Mr. Cooke options to purchase 25,000 Common Shares, all of which vested on August 17, 2010. These options are exercisable at a price of $0.65 per share and expire on August 17, 2014. On August 18, 2010, we granted to Mr. Cooke options to purchase 25,000 Common Shares, all of which vested on August 18, 2011. These options are exercisable at a price of $1.62 per share and expire on August 18, 2015. On August 17, 2011, we granted to Mr. Cooke options to purchase 25,000 Common Shares, all of which vested on August 17, 2012. These options are exercisable at a price of $2.43 per share and expire on August 17, 2016. On August 28, 2012, we granted to Mr. Cooke options to purchase 25,000 Common Shares, all of which will be deemed to be vested immediately prior to the Effective Time. These options are exercisable at a price of $2.09 per share and expire on August 17, 2016.
|
(10)
|
Includes shares held by companies controlled by Mr. Choquer as follows:
|
(11)
|
On March 26, 2008, the Corporation entered into a definitive Securities Purchase Agreement with Millennium Partners, LLP (“Millennium”). Under the Securities Purchase Agreement, LML and Millennium completed a private placement transaction pursuant to which Millennium acquired 4,000,000 common shares of the Corporation for an aggregate purchase price of $7,200,000, or $1.80 per share.
|
(12)
|
Includes 3,596,750 shares subject to options that are currently exercisable, that are exercisable within 60 days of ♦, 2012, or that will be deemed vested immediately prior to the Effective Time.
|
|
(a)
|
to review, and provide guidance to management and the Board of Directors with respect to, the Corporation’s acquisition, investment, joint venture and divestiture strategies;
|
|
(b)
|
to assist management and the Board of Directors with the identification of acquisition, investment, joint venture and divestiture opportunities;
|
|
(c)
|
to execute, or authorize the Corporation’s officers to execute, non-binding term sheets, letters of intent, memoranda of understanding or similar agreements (which may contain customary binding provisions such as provisions relating to confidentiality and exclusivity) and oversee management and the Board of Director’s due diligence process with respect to proposed acquisitions, investments, joint ventures and divestitures;
|
|
(d)
|
to oversee management’s negotiation of definitive binding agreements and documents relating to proposed acquisitions, investments, joint ventures and divestitures;
|
|
(e)
|
to consider and make recommendations to the Board of Directors as to proposed acquisitions, investments, joint ventures or divestitures and, with respect to any proposed acquisition, investment, joint venture or divestiture that the Special Committee recommends be approved by the Board of Directors, coordinate with management to submit to the Board of Directors for its approval proposed definitive binding agreements and documents (in substantially final form) for such proposed acquisition, investment, joint venture or divestiture;
|
|
(f)
|
to conduct appropriate periodic evaluations of the transactions completed by the Corporation;
|
|
(g)
|
to retain and terminate advisors to assist in discharging its duties, including approving such advisors’ fees and retention terms; and
|
|
(h)
|
to provide a report of its meetings and activities to the Board of Directors on a regular basis, and report regularly to the Board of Directors on such issues as the Special Committee may determine are appropriate in the discharge of its duties.
|
|
·
|
On June 11, 2012, a potential purchaser (“Party A”) submitted a proposed non-binding letter of interest to acquire all outstanding Common Shares and Options of the Corporation at an implied price of $3.17 per Common Share.
|
|
·
|
On June 14, 2012, DRIV submitted a proposed non-binding letter of interest to acquire all outstanding Common Shares and Options of the Corporation at a price of $2.75 per Common Share.
|
|
·
|
On June 14, 2012, a potential purchaser (“Party B”) submitted a proposed non-binding letter of interest to acquire all outstanding Common Shares and Options of the Corporation at an implied price range of $2.25 - $2.49 per Common Share.
|
|
·
|
On June 15, 2012, a potential purchaser (“Party C”) proposed a non-binding expression of interest to acquire all outstanding Common Shares and Options of the Corporation at an implied price range of $3.40 - $4.07 per Common Share.
|
|
(a)
|
consider its responsibilities to the Board of Directors and the Corporation, and its fiduciary obligations to the Corporation and its Shareholders;
|
|
(b)
|
discuss with its advisors, the legal and regulatory requirements applicable to the Arrangement and provide instructions related thereto;
|
|
(c)
|
discuss the relevant issues arising from the structure of the Arrangement;
|
|
(d)
|
discuss in detail the proposed terms of the Arrangement Agreement;
|
|
(e)
|
review and discuss the Fairness Opinions and the assumptions and considerations contained therein; and
|
|
(f)
|
consider and make recommendations to the Board of Directors in respect of the Arrangement Agreement and the Arrangement.
|
|
·
|
Superior Alternative to Continuing as an Independent Concern. Our Board of Directors and Special Committee concluded that the Share Consideration of $3.45 per Common Share to be received by Shareholders of the Corporation compares favorably to the range of potential valuations of the Corporation as an independent concern, based on traditional valuation analyses such as discounted cash flow analyses, comparable companies analysis, and comparable transaction analysis, and taking into account the Corporation’s need as an independent concern to expand into additional markets, increase its market share, revenues, and profitability, and offer additional products and services, all in competition with other competitors, many of whom are larger and have greater resources than the Corporation.
|
|
·
|
Premium. The price to be paid for each Common Share under the Arrangement represents a premium of approximately 84.5% over the closing price of the Common Shares on September 21, 2012, the last trading day for the Common Shares on NASDAQ prior to the announcement of the Arrangement Agreement, and a premium of approximately 70% over the 20-day volume-weighted average price of the Common Shares on the NASDAQ for the period ended September 21, 2012. Similarly, according to the verbal Financial Advisor Fairness Opinion presented to the Board of Directors on August 31, 2012, the Corporation’s enterprise value and equity value on August 30, 2012 equaled approximately $29.1 million and $58.8 million respectively, compared to $73.1 million and $102.8 million as implied by the purchase price payable under the Arrangement Agreement.
|
|
·
|
Form, Amount, and Certainty of Consideration. The Share Consideration provides immediate liquidity and certainty to the Shareholders, particularly in comparison to a purchase price payable in purchaser securities or other consideration that fluctuates in value, and at a premium to the trading price of Common Shares prior to the announcement of the Arrangement. Additionally, in the view of the Board of Directors and the Special Committee, the Arrangement is likely to be completed, based on the commitment and ability of DRIV and the Purchaser to complete the transactions contemplated by the Arrangement Agreement and considering the totality of the terms of the Arrangement Agreement, including the absence of significant closing conditions (such as financing conditions) other than approval by Shareholders of the Arrangement Resolution, the approval of the Court, regulatory approvals, and other customary closing conditions.
|
|
·
|
Liquidity and Comparison with Open Market Share Prices. The Common Shares are thinly traded, and it is unlikely that a Shareholder would be able to sell any significant amounts of Common Shares in the public market without negatively impacting the price of Common Shares. Additionally, the Arrangement will allow each Shareholder to dispose of his, her or its Common Shares without incurring brokerage fees or commissions.
|
|
·
|
Alternatives to the Arrangement. Our Board of Directors and Special Committee believe that the Share Consideration represents the highest price reasonably obtainable for the Common Shares, based on the belief that such Share Consideration represents the highest price that would have been paid by DRIV for the Corporation, and the fact that our Special Committee, with the advice and assistance of our management, the Broker, the Financial Adviser, and Clark Wilson LLP, identified a significant list of third parties that it believed would reasonably be expected to have an interest in acquiring the Corporation, contacted such parties, and solicited competitive bids from such parties, but did not receive from any such third party a proposal that was superior to the proposal reflected by the Arrangement Agreement.
|
|
·
|
Possibility of Higher Offers. The terms and conditions of the Arrangement Agreement do not preclude an unsolicited third party from proposing or making a Superior Proposal. Shareholders that are not a party to a Lock-Up and Support Agreement are not prohibited from tendering their Common Shares to, or voting in favor of a transaction with, a third party that proposes or makes a Superior Proposal. Additionally, the Board of Directors and Special Committee are permitted under the terms of the Arrangement Agreement to, subject to the limitations and requirements contained in the Arrangement Agreement, furnish confidential information to and conduct negotiations with any third party that has made an unsolicited Superior Proposal to acquire the Corporation, and may ultimately terminate the Arrangement Agreement with DRIV to accept a Superior Proposal under certain circumstances and subject to certain conditions, including the payment to DRIV of a $3 million termination fee. The Board of Directors and Special Committee considered the amount of the termination fee reasonable in light of market comparables and not preclusive of third party proposals to acquire the Corporation.
|
|
·
|
Role of Special Committee. The Special Committee oversaw the conduct of arm’s length negotiations with DRIV and the Purchaser, including the negotiation of key transaction terms, key economic terms, and other terms of the Arrangement Agreement. In conducting the negotiations, the Special Committee engaged and consulted with the independent Financial Advisor and Knox, its independent legal counsel, as well as the Broker and Clark Wilson LLP, legal counsel to the Corporation.
|
|
·
|
Fairness Opinions. The Financial Advisor and the Broker each provided oral opinions to our Special Committee, which were subsequently confirmed in writing, that, as of September 21, 2012 and September 19, 2012, respectively, and subject to the considerations, limitations and other matters set forth in the Fairness Opinions, the Share Consideration to be received by Corporation Shareholders (other than Common Shares held in treasury or held by DRIV or any subsidiary of the Corporation or DRIV) pursuant to the Arrangement was fair, from a financial point of view, to such Shareholders. See “The Proposed Arrangement – Fairness Opinions”.
|
|
·
|
Terms of Arrangement Agreement. The Board of Directors and Special Committee consider the terms and conditions of the Arrangement Agreement, which were negotiated extensively and at arms’ length, reasonable, including the representations, warranties and covenants of the parties, the restrictions on the conduct of the Corporation’s business until completion of the Arrangement, the conditions to the respective obligations of the parties to complete the Arrangement, and the obligation of DRIV to pay the Corporation a $3 million termination fee if the Arrangement Agreement is terminated on the basis of a breach by DRIV.
|
|
·
|
Shareholder Approval. The Arrangement Resolution must be approved by the affirmative vote of at least 662/3% of the votes cast by Shareholders present in person or represented by proxy at the special meeting.
|
|
·
|
Court Approval and Dissent Rights. The Arrangement will be subject to a judicial determination of its fairness by the Court, and registered Shareholders who do not vote in favour of the Arrangement will have the right to require judicial appraisal of their Common Shares and obtain “fair value” pursuant to the proper exercise of Dissent Rights.
|
|
·
|
No Future Appreciation. Shareholders will not participate in any future growth potential or benefit from any future increase in the value of the Corporation.
|
|
·
|
Restrictions on Solicitation. The Arrangement Agreement restricts the ability of the Corporation and its representatives to solicit competing acquisition proposals, allows DRIV to match any competing acquisition proposal, and requires that the Corporation pay to DRIV a termination fee of $3 million in order to terminate the Arrangement Agreement and accept a Superior Proposal, all of which may discourage third parties from making a competing offer to acquire the Corporation.
|
|
·
|
Payment of Certain Amounts in the Event the Arrangement is Not Completed. If the Arrangement Agreement is terminated under certain circumstances, the Corporation may be required to pay to DRIV a termination fee of $3 million or reimburse DRIV for its transaction expenses.
|
|
·
|
Restrictions on the Conduct of the Corporation’s Business. Pursuant to the Arrangement Agreement, the Corporation is subject to a number of restrictions on the conduct of our business pending completion of the Arrangement, such as the requirement the Corporation’s business be operated in the ordinary course of business and that the Corporation refrain from taking certain specified actions, all of which could delay or prevent us from undertaking business opportunities that may arise pending completion of the Arrangement.
|
|
·
|
Disruption of Business. The announcement of the Arrangement Agreement will divert the Corporation’s management’s focus and resources from other strategic opportunities and from operational matters while working to implement the Arrangement, and may also result in the loss of customer, vendor, or other commercial relationships, as a result of such parties’ unwillingness to do business with DRIV, or otherwise. The announcement of the Arrangement Agreement could also negatively impact the Corporation’s ability to retain its management, technical, sales, and other key personnel. In the event the Arrangement is not for any reason completed, the Corporation would be required to continue to operate its business as an independent concern after experiencing these disruptions and negative consequences.
|
|
·
|
Taxable Transaction. The fact that the Arrangement will be a taxable transaction for most Shareholders and, as a result, taxes will generally be required to be paid by such Shareholders on any income and gains that result from receipt of the consideration in the Arrangement.
|
|
·
|
Interests of Directors and Officers. The interests that certain of our directors and executive officers may have with respect to the Arrangement, in addition to their interests as Shareholders generally, all of which are described in “The Proposed Arrangement – Interests of Directors and Officers in the Arrangement”.
|
In-the-Money Options
|
||||||||
Name/Position
|
Common Shares
|
Payment ($)
|
||||||
Patrick Gaines
Chief Executive Officer, Director and Chairman
|
1,700,000 | $ | 1,330,000 | |||||
Craig Thomson
President
|
400,000 | $ | 632,000 | |||||
Richard Schulz
Controller and Chief Accounting Officer
|
486,750 | 525,952 | ||||||
Chris Koide
Executive Vice-President Operations
|
300,000 | $ | 474,000 | |||||
Carolyn Gaines
Corporate Secretary
|
410,000 | $ | 410,500 | |||||
Greg A. MacRae
Director
|
75,000 | $ | 105,250 | |||||
Jacqueline Pace
Director
|
125,000 | $ | 245,520 | |||||
David C. Cooke
Director
|
100,000 | $ | 175,250 | |||||
TOTAL
|
3,596,750 | $ | 3,898,472 |
|
(i)
|
such Named Executive Officer terminates such officer’s employment for good reason (which includes the right of the Named Executive Officer to terminate such officer’s employment in the event of a change in control of the Corporation), or
|
|
(ii)
|
the Corporation terminates such Named Executive Officer’s employment without cause, such Named Executive Officer will be eligible to receive:
|
|
A.
|
a lump sum severance payment equal to two (2) years’ current base salary, all accrued vacation pay, and two (2) times the last annual bonus such officer received; and
|
|
B.
|
immediate vesting of all the granted but unexpired stock options awarded to such Named Executive Officer.
|
As of October 10, 2012
|
||||||||||||||||||
Termination Without Cause or
for Good Reason
|
No Termination
|
|||||||||||||||||
Name
|
Benefit(1)
|
Before Change in
Control
|
After Change in
Control
|
Before
Change in
Control
|
After
Change in
Control
|
|||||||||||||
Patrick H. Gaines
Chief Executive
|
Severance – Base Salary
|
$ | 530,244 | $ | 530,244 | - | - | |||||||||||
Officer (Principal
|
Severance – Bonus
|
148,468 | 148,468 | - | - | |||||||||||||
Executive Officer)
|
Accrued Vacation Pay
|
94,832 | 94,832 | |||||||||||||||
Stock Option Vesting Acceleration(2)
|
280,625 | 280,625 | - | 280,625 | ||||||||||||||
Benefits Continuation
|
5,799 | 5,799 | - | - | ||||||||||||||
3.5% of total consideration paid for the Corporation with respect to the Arrangement (3)
|
- | 3,598,000 | - | - | ||||||||||||||
Craig Thomson(4)
|
||||||||||||||||||
President
|
Severance – Base Salary
|
$ | 438,471 | $ | 438,471 | - | - | |||||||||||
Severance – Bonus
|
122,772 | 122,772 | - | - | ||||||||||||||
Accrued Vacation Pay
|
21,407 | 21,407 | - | - | ||||||||||||||
Stock Option Vesting Acceleration(2)
|
224,500 | 224,500 | - | $ | 224,500 | |||||||||||||
Richard R. Schulz
|
Severance – Base Salary
|
$ | 305,910 | $ | 305,910 | - | - | |||||||||||
Controller and Chief
|
Severance – Bonus
|
85,655 | 85,655 | - | - | |||||||||||||
Accounting Officer
|
Accrued Vacation Pay
|
45,298 | 45,298 | - | - | |||||||||||||
(Principal Financial Officer)
|
Stock Option Vesting Acceleration(2)
|
168,375 | 168,375 | - | 168,375 | |||||||||||||
Benefits Continuation
|
6,758 | 6,758 | - | - | ||||||||||||||
Chris Koide (4)
Executive Vice-
|
Severance – Base Salary
|
$ | 377,289 | $ | 377,289 | - | - | |||||||||||
President Operations
|
Severance – Bonus
|
105,641 | 105,641 | - | - | |||||||||||||
Accrued Vacation Pay
|
4,267 | 4,267 | - | - | ||||||||||||||
Stock Option Vesting Acceleration(2)
|
168,375 | 168,375 | - | $ | 168,375 | |||||||||||||
Benefits Continuation
|
9,055 | 9,055 | - | - | ||||||||||||||
Carolyn L. Gaines
Corporate Secretary
|
Severance – Base Salary
|
$ | 173,349 | $ | 173,349 | - | - | |||||||||||
Severance – Bonus
|
48,538 | 48,538 | - | - | ||||||||||||||
Accrued Vacation Pay
|
30,336 | 30,336 | - | - | ||||||||||||||
Stock Option Vesting Acceleration(2)
|
112,250 | 112,250 | - | 112,250 | ||||||||||||||
Benefits Continuation
|
3,282 | 3,282 | - | - |
(1)
|
Benefit amounts would be paid in Canadian dollars and, for purposes of reporting such in this table, have been converted to U.S. dollars at the exchange rate of $1.0197 which was the rate in effect on October 10, 2012
|
(2)
|
The value of the vesting acceleration was calculated by multiplying the number of unvested, in-the-money option shares as of November 18, 2012, the next scheduled stock option vesting date, by the spread between the Share Consideration of $3.45 per Common Share, and the exercise price of such unvested options. At November 18, 2012, Messrs. Gaines, Thomson, Schulz and Koide and Mrs. Gaines are expected to hold 62,500; 50,000; 37,500; 37,500 and 25,000 unvested stock options, respectively, that are expected to be in-the-money at an exercise price of $1.62 per Common Share. In addition, at November 18, 2012, Messrs. Gaines, Thomson, Schulz and Koide and Mrs. Gaines are expected to hold 125,000; 100,000; 75,000; 75,000 and 50,000 unvested stock options, respectively, that are expected to be in-the-money at an exercise price of $2.12 per Common Share. Together, these unvested stock options, if exercised at these values, would result in the gains on exercise as reported in the table.
|
(3)
|
The total consideration to be paid for the Corporation in the change of control transaction contemplated by the Arrangement is approximately $102.8 million.
|
(4)
|
To the knowledge of the Corporation, Messrs. Thomson and Koide have entered into employment agreements with DRIV and, as a result, Messrs. Thomson and Koide are not expected to receive base salary, bonus and benefits continuation amounts under their existing employment agreements at the Effective Date.
|
Financial Projections
|
||||||||||||||||||||
($ in thousands)
|
FY2013(1)
|
FY2014(1)
|
FY2015(1)
|
FY2016(1)
|
FY2017(1)
|
|||||||||||||||
Adjusted Revenue(2)
|
$ | 25,559 | $ | 31,213 | $ | 40,618 | $ | 52,549 | $ | 68,005 | ||||||||||
Adjusted Gross Profit(2)
|
$ | 10,817 | $ | 11,895 | $ | 15,175 | $ | 19,047 | $ | 24,050 | ||||||||||
Adjusted EBITDA(2)
|
$ | 5,551 | $ | 6,191 | $ | 8,759 | $ | 12,033 | $ | 16,381 |
|
(1)
|
Fiscal year information reflects the Corporation’s fiscal year ending on March 31 in the year noted.
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(2)
|
FY2013 revenue and gross profit adjusted for one-time legal settlements. FY2013 EBITDA adjusted for revenue and expenses related to extraordinary legal expenses from non-recurring legal expenses associated with IP litigation and stock-based compensation. FY2014 through FY2017, EBITDA adjusted for stock-based compensation.
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·
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a draft dated September 19, 2012 of the Arrangement Agreement;
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·
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audited historical financial statements of the Corporation for the three fiscal years ended March 31, 2010 through 2012;
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·
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unaudited financial statements of the Corporation for the three month periods ended June 30, 2011 and 2012;
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·
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certain internal business, operating and financial information and forecasts of the Corporation for the fiscal years 2013 through 2017 prepared by the Corporation’s senior management (the “Forecasts” – see “Proposed Arrangement – Fairness Opinions – Broker Fairness Opinion – Forecasts”);
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·
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information regarding publicly available financial terms of certain other business combinations the Broker deemed relevant;
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·
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the financial position and operating results of the Corporation compared with those of certain other publicly traded companies the Broker deemed relevant;
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·
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the current and historical market prices and trading volumes of the Common Shares; and
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·
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certain other publicly available information on the Corporation.
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Proposed
Transaction
|
Selected Companies
Valuation Multiples
|
|||||||||||||
Multiples
|
Min
|
Mean
|
Median
|
Max
|
||||||||||
Enterprise Value / LTM Adjusted Revenue
|
3.61x
|
|
|
0.90x
|
|
|
|
2.76x
|
|
1.97x
|
|
|
7.95x
|
|
Enterprise Value / CY 2012E Adjusted Revenue
|
3.14x
|
|
|
0.87x
|
|
|
|
2.56x
|
|
1.93x
|
|
|
6.75x
|
|
Enterprise Value / CY 2013E Revenue
|
2.57x
|
|
|
0.81x
|
|
|
|
2.35x
|
|
1.82x
|
|
|
6.13x
|
|
Enterprise Value / LTM Adjusted EBITDA
|
17.7x
|
|
|
4.3x
|
|
|
|
8.5x
|
|
8.2x
|
|
|
14.0x
|
|
Enterprise Value / CY 2012E Adjusted EBITDA
|
14.2x
|
|
|
5.1x
|
|
|
|
8.0x
|
|
8.0x
|
|
|
10.8x
|
|
Enterprise Value / CY 2013E Adjusted EBITDA
|
12.6x
|
|
|
5.0x
|
|
|
|
7.4x
|
|
7.4x
|
|
|
9.8x
|
|
Proposed
Transaction
|
Precedent Transactions
Valuation Multiples
|
|||||||||
Multiples
|
Min
|
Mean
|
Median
|
Max
|
||||||
Enterprise Value / LTM Adjusted Revenue
|
3.61x
|
0.85x
|
4.05x
|
3.16x
|
8.23x
|
|||||
Enterprise Value / LTM Adjusted EBITDA
|
17.7x
|
6.4x
|
14.2x
|
11.9x
|
30.8x
|
Premiums Paid Percentage Data by Percentile
|
||||||||||||||||||||||||||||||||||||||||||||
Premium
Period
Before
September 18, 2012
|
Corporation
Common
Share
Price
|
Implied
Corporation
Premium
at $3.45 /
Share
|
10th
|
20th
|
30th
|
40th
|
50th
|
60th
|
70th
|
80th
|
90th
|
|||||||||||||||||||||||||||||||||
One Day Prior
|
$ | 2.00 | 72.5 | % | 7.2 | % | 13.4 | % | 19.3 | % | 29.2 | % | 33.5 | % | 39.5 | % | 47.4 | % | 64.7 | % | 92.8 | % | ||||||||||||||||||||||
One Week Prior
|
$ | 2.00 | 72.5 | % | 9.9 | % | 17.0 | % | 22.9 | % | 29.9 | % | 36.2 | % | 41.9 | % | 52.0 | % | 68.0 | % | 98.1 | % | ||||||||||||||||||||||
One Month Prior
|
$ | 2.09 | 65.1 | % | 13.3 | % | 22.7 | % | 27.9 | % | 33.1 | % | 38.8 | % | 46.0 | % | 56.9 | % | 74.7 | % | 101.0 | % | ||||||||||||||||||||||
60 Days Prior
|
$ | 2.05 | 68.3 | % | 12.3 | % | 24.5 | % | 30.3 | % | 36.9 | % | 43.8 | % | 52.7 | % | 59.4 | % | 76.8 | % | 108.0 | % | ||||||||||||||||||||||
90 Days Prior
|
$ | 1.86 | 85.5 | % | 13.3 | % | 23.1 | % | 30.5 | % | 41.5 | % | 48.4 | % | 57.0 | % | 70.2 | % | 83.9 | % | 120.6 | % | ||||||||||||||||||||||
180 Days Prior
|
$ | 2.33 | 48.1 | % | 10.8 | % | 25.0 | % | 35.8 | % | 47.8 | % | 56.4 | % | 69.2 | % | 85.5 | % | 104.0 | % | 157.7 | % |
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(a)
|
at the Effective Time:
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(i)
|
each Option granted and outstanding immediately prior to the Effective Time will be and be deemed to be transferred by the holder thereof to the Corporation in exchange for a cash payment from the Corporation equal to the Option Consideration (if any) in respect of such Option;
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(ii)
|
with respect to each Option, the holder thereof will cease to be the holder thereof or to have any rights as a holder in respect of such Option or under the Stock Option Plans and the name of the holder thereof will be removed from the applicable securities register of the Corporation with respect to such Option; and
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(iii)
|
the Stock Option Plans and each of the Options transferred to the Corporation will be cancelled;
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(b)
|
at the Effective Time:
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(i)
|
each Warrant issued and outstanding immediately prior to the Effective Time will be and be deemed to be transferred by the holder thereof to the Corporation in exchange for a cash payment from the Corporation equal to the Warrant Consideration (if any) in respect of such Warrant;
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(ii)
|
with respect to each Warrant, the holder thereof will cease to be the holder thereof or to have any rights as a holder in respect of such Warrant and the name of the holder thereof will be removed from the applicable securities register of the Corporation with respect to such Warrant; and
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(iii)
|
each of the Warrants transferred to the Corporation will be cancelled;
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(c)
|
each Common Share held by a Dissenter who are ultimately determined to be entitled to be paid the fair value of the Common Shares in respect of which they have exercised Dissent Rights will be transferred to the Purchaser and such Dissenter will cease to have any rights as a Shareholder other than the right to be paid the fair value of their Common Shares;
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(d)
|
each Common Share outstanding immediately prior to the Effective Time (other than Common Shares held by Dissenters who are ultimately entitled to be paid the fair value of their Common Shares and Shares held by the Purchaser) will be transferred by the holder thereof to the Purchaser in exchange for a cash payment from or on behalf of the Purchaser equal to the Share Consideration;
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(e)
|
at the same time as the step contemplated in (d), with respect to each Common Share:
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(i)
|
the holder of such Common Share will cease to be the holder thereof, or to have any rights in respect thereof, and the name of the holder will be removed from the applicable securities register of the Corporation; and
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(ii)
|
legal and beneficial title to such Common Share will vest in the Purchaser and the Purchaser will be the transferee and legal and beneficial owner thereof and will be entered into the applicable securities register of the Corporation as the sole holder thereof; and
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(f)
|
Purchaser and the Corporation will amalgamate to form Amalco.
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●
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the Interim Order shall have been granted in form and substance satisfactory to the Parties thereto, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to the Parties thereto, acting reasonably, on appeal or otherwise;
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●
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the Shareholder approval shall have been obtained in accordance with the provisions of the Interim Order; and
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●
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the Final Order shall have been granted in form and substance satisfactory to DRIV and the Corporation, and shall not have been set aside or modified in a manner unacceptable to DRIV or the Corporation, on appeal or otherwise.
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●
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the representations and warranties made by DRIV and the Purchaser in the Arrangement Agreement shall be true and correct in all material respects (without giving effect to any qualifications or limitations indicated by the words “material adverse effect”, “in all material respects”, “material”, “materially” or other, similar qualifiers or limitations) as of the date of the Arrangement Agreement and as of the Effective Time as if made on and as of such date (except to the extent that such representations and warranties represent and warrant certain facts or information as at an earlier specified date, in which event such representations and warranties shall truly and correctly represent and warrant such facts and information as of such earlier specified date), and DRIV and the Purchaser shall have provided to the Corporation a certificate of a director or officer thereof certifying such accuracy on the Effective Date;
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●
|
The Purchaser and DRIV shall have complied in all material respects with its covenants therein and the Purchaser shall have provided to the Corporation a certificate of a director or officer thereof, certifying that, as of the Effective Time, DRIV and the Purchaser have so complied with such covenants therein;
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●
|
all consents, waivers, permits, exemptions, orders and approvals of, and any registrations and filings with, any governmental entity and the expiry of any waiting periods, required to permit the completion of the Arrangement, the failure of which to obtain or the non-expiry of which, either individually or in the aggregate would, or could reasonably be expected to materially impede the completion of the Arrangement, shall have been obtained or received; and
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●
|
there shall have been no action taken under any applicable law or by any governmental entity which:
|
|
(i)
|
makes it illegal or otherwise directly or indirectly restrains, enjoins or prohibits the completion of the Arrangement; or
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(ii)
|
results or would reasonably be expected to result in a judgment, order, decree or assessment of damages, directly or indirectly, relating to the Arrangement which would or would reasonably be expected to materially impede the completion of the Arrangement.
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●
|
there shall not have been any event, change, occurrence or state of facts that, either individually or in the aggregate, has or could reasonably be expected to have a material adverse effect on the Corporation;
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●
|
the representations and warranties made by the Corporation in the Arrangement Agreement shall be true and correct in all respects as of the date of the Arrangement Agreement and as of the Effective Time as if made on and as of such date (except to the extent that such representations and warranties represent and warrant certain facts or information as at an earlier specified date, in which event such representations and warranties shall truly and correctly represent and warrant such facts and information as of such earlier specified date), and the Corporation shall have provided to DRIV and the Purchaser a certificate of a director or officer of the Corporation certifying such accuracy on the Effective Date;
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●
|
the Corporation shall have complied in all material respects with its covenants therein and the Corporation shall have provided to DRIV and the Purchaser a certificate of a director or officer thereof certifying that, as of the Effective Time, the Corporation has so complied with its covenants therein;
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●
|
Shareholders holding more than 10% of the outstanding Common Shares shall not have exercised their Dissent Rights (and not withdrawn such exercise) and DRIV and the Purchaser shall have received a certificate dated the day immediately preceding the Effective Time of a director or officer of the Corporation to such effect;
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●
|
all consents, waivers, permits, exemptions, orders and approvals of, and any registrations and filings with:
|
|
(i)
|
any governmental entity and the expiry of any waiting periods required to permit the completion of the Arrangement, and
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|
(ii)
|
all third person and other consents, waivers, permits, exemptions, orders, approvals, agreements and amendments, supplements and modifications to agreements, indentures or arrangements, in each case considered necessary or desirable by the Purchaser and DRIV, acting reasonably, shall have been obtained or received on terms that are reasonably satisfactory to DRIV and the Purchaser;
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●
|
there shall have been no action taken under any applicable law or by any governmental entity which:
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|
(i)
|
makes it illegal or otherwise directly or indirectly restrains, enjoins or prohibits the completion of the Arrangement, or
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|
(ii)
|
results or would reasonably be expected to result in a judgment, order, decree or assessment of damages, directly or indirectly, relating to the Arrangement which would or would reasonably be expected to materially impede the completion of the Arrangement or have a material adverse effect on DRIV, the Purchaser, the Corporation or any of their respective businesses, property or assets subsequent to the Effective Date;
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●
|
the Board of Directors shall not have withdrawn, modified, qualified or changed in a manner adverse to DRIV or the Purchaser, or publicly stated that it intends to withdraw, modify, qualify or change in a manner adverse to DRIV or the Purchaser its recommendation to the Shareholders that they vote in favour of the Arrangement;
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●
|
neither of the Key Employees shall have rescinded or purported to rescind or otherwise challenged the validity or enforceability of his Key Employee Agreement;
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●
|
none of the parties identified on schedule 5.3(i) of the Corporation’s disclosure schedule shall have rescinded or purported to rescind or otherwise challenged the validity or enforceability of its consent to the Arrangement; and
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●
|
the Corporation shall have obtained a consent to the Arrangement, in form and substance reasonably satisfactory to DRIV and the Purchaser, from the holders of at least 85% of the Options to purchase Common Shares issued and outstanding under the Corporation’s 1996 Stock Option Plan, including all of the Corporation’s directors and executive officers.
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●
|
except as otherwise provided in the Arrangement Agreement, the business of the Corporation and its subsidiaries will be conducted only in the ordinary course of business and the Corporation will use best efforts to maintain the business organization and assets of the Corporation;
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●
|
the Corporation will keep the Purchaser fully informed as to all material decisions or actions required or required to be made with respect to the operations of the business of the Corporation and its subsidiaries, and will allow representatives of the Purchaser and DRIV to participate in any such material decision making process. The Corporation will grant the representatives of the Purchaser and DRIV access to the properties, assets, books and records of the Corporation and its subsidiaries as the Purchaser or DRIV may reasonably request.
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●
|
except as otherwise permitted in the Arrangement Agreement, the Corporation will not, directly or indirectly, do or permit to occur, and will cause its subsidiaries not to, directly or indirectly, do or permit to occur, any of the following:
|
|
(i)
|
issue, sell, or agree to issue or sell, or pledge any Common Shares, Options, Warrants, calls, conversion privileges or rights of any kind to acquire any shares or other securities, or create any encumbrance on any Common Shares, other than the issuance of Common Shares pursuant to the exercise of Options outstanding on the date hereof in accordance with their terms as of the date hereof;
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(ii)
|
amend or propose to amend its constating documents or, except as agreed to with the Purchaser or contemplated in the plan of Arrangement, any of the terms of Options as they exist on the date hereof;
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|
(iii)
|
split, combine or reclassify any of the shares or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to any shares;
|
|
(iv)
|
redeem, purchase or offer to purchase any Common Shares and, other than pursuant to the Stock Option Plans or outstanding Warrants;
|
|
(v)
|
adopt any resolution or enter into any agreement providing for an amalgamation, merger, consolidation, reorganization, liquidation, dissolution or other extraordinary transaction, adopt any plan of liquidation or reorganize, amalgamate or merge with any other person;
|
|
(vi)
|
sell, pledge, lease, encumber or otherwise dispose of any of the assets or property or any interest therein and, except as contemplated in the Arrangement Agreement, sell, pledge, encumber, lease or otherwise dispose of any other material properties or assets;
|
|
(vii)
|
except in the ordinary and regular course of business (up to an amount not to exceed, in the aggregate, $25,000) or as required by applicable laws, enter into or modify in any material respect any contract, agreement, license, franchise, lease transaction, commitment or other right or obligation or arrangement including, without limitation, any contract;
|
|
(viii)
|
make any investment in any person except in the ordinary and regular course of business, or acquire or agree to acquire (by merger, amalgamation, acquisition of shares or assets or otherwise) any person or any material properties or assets;
|
|
(ix)
|
incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other person, or make any loans or advances other than in the ordinary and regular course of business;
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|
(x)
|
authorize, recommend, propose or agree to any release or relinquishment of any standstill agreement or of any other material contractual right;
|
|
(xi)
|
except in the ordinary course of business, enter into any hedges, swaps or other similar financial instruments or transactions;
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|
(xii)
|
enter into any agreements with its directors or officers or their respective affiliates or associates other than in the ordinary and regular course of business;
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|
(xiii)
|
change any accounting method, principle or practice except for any changes as a result of transition to International Financial Reporting Standards or changes as required by applicable laws;
|
|
(xiv)
|
make or change any tax election, change an annual tax accounting period, adopt or change any tax accounting method, enter into any closing agreement, surrender any right to claim a refund of taxes, consent to any extension or waiver of the statute of limitations period applicable to any tax claim or assessment, (other than in the ordinary and regular course of business or as required by applicable laws); or
|
|
(xv)
|
authorize, propose, permit or agree to any of the foregoing.
|
|
●
|
the Corporation will not directly or indirectly, and shall cause each of its subsidiaries not to, directly or indirectly, enter into new commitments of a capital expenditure nature or incur any new contingent liabilities other than:
|
|
(i)
|
ordinary course expenditures where the amount of such other expenditures does not exceed $25,000 in the aggregate;
|
|
(ii)
|
expenditures required by applicable law;
|
|
(iii)
|
expenditures made in connection with the Arrangement and the transactions contemplated in the Arrangement Agreement;
|
|
(iv)
|
(without duplication) expenditures required by any of the Corporation’s contracts; and
|
|
(v)
|
(without duplication) capital expenditures required to prevent the occurrence of a material adverse effect on the Corporation.
|
|
●
|
the Corporation and each of its subsidiaries will not create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to officers, directors, employees or consultants of the Corporation or its subsidiaries other than for salary, bonuses and directors’ fees and options in the ordinary course, in each case in amounts consistent with past practice, or obligations or liabilities arising in the ordinary and regular course of business prior to the Effective Time.
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●
|
the Corporation and its subsidiaries will not adopt or amend or make any contribution to any profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees except in the ordinary course or except as required to give effect to the Arrangement.
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●
|
except as otherwise provided in the Arrangement Agreement, the Corporation will not, and will cause its subsidiaries not to, otherwise take any action that could reasonably be expected to interfere with or be inconsistent with the completion of the Arrangement or the other transactions contemplated in the Arrangement Agreement.
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●
|
the Corporation and its subsidiaries will use reasonable best efforts to cause its current insurance (or reinsurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and reinsurance companies of internationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect.
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|
·
|
the Corporation and its subsidiaries will use reasonable best efforts:
|
|
(i)
|
to preserve intact its business organizations and the rights under the Corporation’s contracts;
|
|
(ii)
|
to not do anything or fail to do anything which could lead to a breach under any of the Corporation’s contracts;
|
|
(iii)
|
to keep available the services of its officers, employees, agents and consultants listed as agreed by the Parties upon execution of the Arrangement Agreement;
|
|
(iv)
|
to maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it;
|
|
(v)
|
to not take any action which could reasonably be expected to be prejudicial to any of the property or assets of the Corporation or any of its subsidiaries; and
|
|
(vi)
|
to not take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in the Arrangement Agreement untrue at any time prior to the Effective Date if then made.
|
|
●
|
the Corporation and its subsidiaries will not engage in any business, enterprise or other activity different from that carried on by it at the date of the Arrangement Agreement that could reasonably be expected to have a material adverse effect on the Corporation, or enter into any transaction or incur (except in respect of obligations or liabilities to which it is already legally subject or are contemplated by the Arrangement Agreement) any material obligation, expenditure or liability other than in the ordinary and regular course of business as presently conducted.
|
|
●
|
the Corporation will furnish to the Purchaser such information, in addition to the information contained in the Arrangement Agreement, relating to the Corporation and its business, property and assets as may reasonably be requested by the Purchaser, and such information and any other information relating to the Corporation or its subsidiaries provided by the Corporation to the Purchaser will be true and complete in all material respects and will not contain a misrepresentation.
|
|
●
|
except as otherwise required by applicable laws and subject to reasonable best efforts, the Corporation will not, and will cause its subsidiaries not to, take any action, or refrain from taking any action, or permit any action to be taken or not taken, inconsistent with the provisions of the Arrangement Agreement or that would reasonably be expected to materially impede the completion of the Arrangement or the transactions contemplated in the Arrangement Agreement or would render, or that could reasonably be expected to render, any representation or warranty made by the Corporation in the Arrangement Agreement untrue or inaccurate in any material respect at any time prior to the Effective Time if then made, or that would or could have a material adverse effect on the Corporation.
|
|
●
|
The Corporation will promptly notify the Purchaser in writing if:
|
|
(i)
|
the Corporation obtains knowledge that any of the representations and warranties of the Corporation in the Arrangement Agreement are untrue or inaccurate in any material respect;
|
|
(ii)
|
there has been any breach of any covenant or agreement of the Corporation contained in the Arrangement Agreement; or
|
|
(iii)
|
there has been any Material Adverse Change in respect of the Corporation.
|
|
●
|
subject to applicable laws relating to the exchange of information, the Corporation will, and will cause its subsidiaries to, upon reasonable notice, afford to DRIV and DRIV’s representatives reasonable access during normal business hours to all of the Corporation’s and its subsidiaries’ properties, books, material contracts, commitments, records and correspondence (in each case, whether in physical or electronic form, and including all material environmentally related audits, studies, reports, analyses and results of investigations performed with respect to the currently or previously owned leased or operated properties of the Corporation or its subsidiaries), and to their respective, officers, employees, accounts, counsel, financial advisors and other representatives, and to all other information concerning the Corporation and its subsidiaries’ and their business, properties and personnel as DRIV may reasonably request, including without limitation for purposes of confirming the accuracy of the representations of the Corporation related to compliance with laws and other requirements. The Corporation shall furnish promptly to DRIV a copy of each report, schedule and other document filed or submitted by it pursuant to the requirements of applicable securities laws and a copy of any communication received by the Corporation from any securities authority concerning compliance with applicable securities laws. No such investigation, or information received, will modify any of the presentations and warranties of the Parties.
|
|
●
|
the Corporation will use reasonable best efforts to take, to cause its subsidiaries to take, or otherwise cause to be taken, all actions and to do, to cause its subsidiaries to do, or otherwise cause to be done, all things necessary to consummate and make effective as promptly as is practicable the Arrangement and the other transactions contemplated in the Arrangement Agreement, including the execution and delivery of such documents as the Purchaser may reasonably request, and will use reasonable best efforts to obtain all necessary waivers, consents and approvals and to effect all necessary registrations and filings, including, but not limited to, approvals and filings under applicable securities laws, the NASDAQ Capital Market, and submissions of information requested by governmental entities, and to otherwise satisfy or cause to be satisfied all conditions to closing.
|
|
●
|
the Corporation will cooperate, and will cause its subsidiaries and their respective affiliates, officers, employees, agents, auditors and representatives reasonably to co-operate, in preparing and filing all tax returns, resolving all disputes and audits with respect to all applicable periods relating to Taxes, and in any other matters relating to taxes, including by maintaining and making available to the Purchaser all books, records and other information of the Corporation related to taxes and will timely pay all taxes arising before the Effective Date.
|
|
●
|
the Corporation will execute and deliver, or cause to be executed and delivered, such customary agreements, certificates, resolutions and other documents and instruments as may be requested by the other Parties hereto, all in form satisfactory to the other Parties hereto, acting reasonably, necessary or required in order to complete the Arrangement and the other transactions contemplated in the Arrangement Agreement.
|
|
●
|
the Corporation will not amend the terms of the engagement agreement with the Broker or the engagement agreement with the Broker without the approval of the Purchaser.
|
|
●
|
the Corporation shall use its reasonable best efforts to obtain the consent of each holder of Options issued under the Corporation’s 1996 Stock Option Plan to the Arrangement.
|
|
●
|
So that it will be operational as of the Effective Date, the Corporation shall implement and enable functionality such that DRIV and/or the Purchaser may, via automated functionality, restrict:
|
|
(i)
|
processing of payments for transactions with certain consumers, and
|
|
(ii)
|
engaging in business with certain entities, based upon the consumer or entity’s geographical location, nation of origin, or identification on applicable restricted parties’ lists.
|
|
●
|
DRIV and the Purchaser will not take any action, or refrain from taking any action (subject to reasonable best efforts), or permit any action to be taken or not taken, inconsistent with the provisions of the Arrangement Agreement or that would reasonably be expected to materially impede the completion of the Arrangement or would render, or that could reasonably be expected to render, any representation or warranty made by DRIV and the Purchaser or made by the Corporation in the Arrangement Agreement untrue or inaccurate in any material respect at any time prior to the Effective Time if then made or that would or could have a material adverse effect on the Corporation.
|
|
●
|
the Purchaser will promptly notify the Corporation in writing if:
|
|
(i)
|
DRIV and the Purchaser becomes aware that any of the representations and warranties of DRIV and the Purchaser in the Arrangement Agreement is untrue or inaccurate in any material respect; or
|
|
(ii)
|
there has been any breach of any covenant or agreement of DRIV or the Purchaser contained in the Arrangement Agreement.
|
|
●
|
DRIV and the Purchaser will use all reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as is practicable the Arrangement and the other transactions contemplated in the Arrangement Agreement, including the execution and delivery of such documents as the Corporation may reasonably request, and to use reasonable best efforts to obtain all necessary waivers, consents and approvals and to effect all necessary registrations and filings, including, but not limited to, approvals and filings under applicable securities laws and the NASDAQ Capital Market and submissions of information requested by governmental entities.
|
|
·
|
In a timely and expeditious manner, DRIV and the Purchaser will provide to the Corporation all information as may be reasonably requested by the Corporation or as required by the Interim Order or applicable laws with respect to DRIV and the Purchaser and their businesses and properties for inclusion in Proxy Statement or in any amendment or supplement to Proxy Statement that complies in all material respects with all applicable laws on the date of the mailing thereof and containing all material facts relating to DRIV and the Purchaser required to be disclosed in the Proxy Statement and not containing any misrepresentation with respect thereto. DRIV and the Purchaser will fully cooperate with the Corporation in the preparation of the Proxy Statement and will provide such assistance as the Corporation may reasonably request in connection therewith.
|
|
(i)
|
make, solicit, initiate, encourage, entertain or promote or facilitate any inquiry or the making of any proposal to it or its shareholders which does or could constitute an Acquisition Proposal or potential Acquisition Proposal;
|
|
(ii)
|
participate in, directly or indirectly, any discussions or negotiations regarding any Acquisition Proposal or potential Acquisition Proposal;
|
|
(iii)
|
withdraw, modify, qualify or change in a manner adverse to DRIV or the Purchaser or publicly state that it intends to withdraw, modify, qualify or change in a manner adverse to DRIV or the Purchaser, the approval or recommendation of the Board of Directors and Special Committee;
|
|
(iv)
|
approve or recommend any Acquisition Proposal; or
|
|
(v)
|
enter into any agreement, written or verbal, related to any Acquisition Proposal or requiring the Corporation to abandon, terminate or fail to consummate the Arrangement or providing for the payment of a break, termination or other fee or expense to any person in the event that the Corporation completes the Arrangement or any other transaction with DRIV agreed prior to the termination of the Arrangement Agreement.
|
|
(i)
|
that was not solicited or encouraged after the date of the Acquisition Agreement;
|
|
(ii)
|
does not result from a breach of the Arrangement Agreement by the Corporation; and
|
|
(iii)
|
that the Board of Directors determines in good faith, after consultation with the Broker and legal counsel, is a Superior Proposal,
|
|
(i)
|
give notice to the Purchaser of such Acquisition Proposal; and
|
|
(ii)
|
obtain a confidentiality agreement from the person making such Acquisition Proposal in form and substance substantially similar to the confidentiality agreement entered into between DRIV and the Corporation.
|
|
(a)
|
by mutual written consent of Corporation, DRIV and the Purchaser;
|
|
(b)
|
by DRIV and the Purchaser if:
|
|
(i)
|
the Board of Directors shall have withdrawn or modified in a manner adverse to DRIV or the Purchaser its approval or recommendation of the Arrangement, or
|
|
(ii)
|
the Board of Directors shall have approved or recommended an Acquisition Proposal;
|
|
(c)
|
by the Corporation in order to enter into a definitive written agreement with respect to a Superior Proposal, subject to compliance with the relevant covenants in the Arrangement Agreement described above;
|
|
(d)
|
by the Corporation or DRIV and the Purchaser if the Shareholder approval has not been obtained at the Meeting;
|
|
(e)
|
by DRIV and Purchaser:
|
|
(i)
|
if there is a material breach by the Corporation or any of its respective directors, officers, agents or any other representative thereof of any of the covenants of the Corporation in the Arrangement Agreement prior to the Effective Date, or
|
|
(ii)
|
if at any time the representations and warranties made by the Corporation in the Arrangement Agreement are not true and correct in all material respects;
|
|
(f)
|
by the Corporation:
|
|
(i)
|
if there is a material breach by DRIV or the Purchaser of any of the covenants set forth in the Arrangement Agreement, or
|
|
(ii)
|
if at any time the representations and warranties made by DRIV and the Purchaser in the Arrangement Agreement are not true and correct in all material respects;
|
|
(g)
|
by the Corporation, if any of the mutual conditions or conditions for the sole benefit of the Corporation in the Arrangement Agreement are not, or if it becomes apparent that any of such conditions cannot be, fulfilled by the Termination Deadline, unless such failure is due to the failure of the Corporation to perform or comply with any of the covenants, agreements or conditions of the Arrangement Agreement; or
|
|
(h)
|
by DRIV and the Purchaser, if any of the mutual conditions or conditions for the sole benefit of DRIV and the Purchaser in the Arrangement Agreement are not, or if it becomes apparent that any of such conditions cannot be, fulfilled by the Termination Deadline, unless such failure is due to the failure of DRIV or the Purchaser to perform or comply with any of the covenants, agreements or conditions of the Arrangement Agreement.
|
|
●
|
In the event of termination:
|
|
(i)
|
A.
|
by DRIV pursuant to (b) above or by the Corporation pursuant to Section (c) above, the Corporation will pay to DRIV the Corporation Termination Fee, or
|
|
B.
|
by DRIV pursuant to (e) above, or (h) above, or by either Party under (d) above or the Termination Deadline described in the Arrangement Agreement and, in any of the foregoing circumstances, if prior to the one year anniversary of such termination, the Corporation consummates a transaction contemplated by an Acquisition Proposal that was received by the Corporation prior to the termination of the Arrangement Agreement, the Corporation will pay to DRIV the Corporation Termination Fee, and
|
|
(ii)
|
by DRIV pursuant to (e) above, or by either Party pursuant to (d) above, the Corporation will pay to DRIV the Expense Reimbursement Fee.
|
|
●
|
In the event of termination by the Corporation pursuant to (f) above, DRIV will pay to the Corporation the DRIV Termination Fee.
|
|
●
|
For purposes of the Arrangement Agreement, “Corporation Termination Fee” will mean an amount equal to $3,000,000 and “DRIV Termination Fee” will mean an amount equal to $3,000,000. For purposes of the Arrangement Agreement, “Expense Reimbursement Fee” will mean an amount equal to all out of pocket expenses and fees incurred by DRIV and the Purchaser in connection with the negotiation, execution and performance of the Arrangement Agreement.
|
|
(i)
|
a breach of a covenant, representation or warranty under the Arrangement Agreement by DRIV,
|
|
(ii)
|
the date the Arrangement Agreement is terminated in accordance with its terms,
|
|
(iii)
|
the closing of the Arrangement,
|
|
(iv)
|
the delivery of notice by the Purchaser of the termination of the Lock-Up and Support Agreements, and
|
|
(v)
|
the mutual written agreement of the Purchaser and the Supporting Shareholder.
|
LML PAYMENT SYSTEMS INC.
|
|
Suite 1680 - 1140 West Pender Street
|
|
Vancouver, British Columbia V6E 4G1
|
|
Attention: Corporate Secretary
|
|
(a)
|
determine the fair value that the Dissenting Securities had immediately before the passing of the Arrangement Resolution, or order that such value be established by arbitration or by reference to the registrar, or a referee of the Court;
|
|
(b)
|
join in the application each Dissenter who has not agreed with the Corporation on the amount of the payout value of the Dissenting Securities; and
|
|
(c)
|
make consequential orders and give directions as it considers appropriate.
|
Quarter Ended
|
High
|
Low
|
||||||
June 30, 2012
|
$ | 2.13 | $ | 1.69 | ||||
March 31, 2012
|
$ | 3.33 | $ | 1.77 | ||||
December 31, 2011
|
$ | 2.46 | $ | 1.49 | ||||
September 30, 2011
|
$ | 4.18 | $ | 1.45 | ||||
June 30, 2011
|
$ | 3.96 | $ | 2.11 | ||||
March 31, 2011
|
$ | 6.14 | $ | 2.81 | ||||
December 31, 2010
|
$ | 3.85 | $ | 1.47 | ||||
September 30, 2010
|
$ | 2.48 | $ | 1.38 | ||||
June 30, 2010
|
$ | 2.55 | $ | 1.47 |
Month Ended
|
High
|
Low
|
Volume
|
|||||||||
August 2012
|
$ | 2.32 | $ | 2.00 | 1,603,700 | |||||||
July 2012
|
$ | 2.35 | $ | 1.87 | 1,959,500 | |||||||
June 2012
|
$ | 2.00 | $ | 1.69 | 1,747,900 | |||||||
May 2012
|
$ | 2.12 | $ | 1.80 | 1,493,200 | |||||||
April 2012
|
$ | 2.13 | $ | 1.70 | 1,866,400 | |||||||
March 2012
|
$ | 2.50 | $ | 1.77 | 4,065,091 |
|
(a)
|
deals at arm’s length with the Corporation;
|
|
(b)
|
is not affiliated with the Corporation; and
|
|
(c)
|
holds the Common Shares as capital property (each such shareholder in this section, a “Holder”).
|
|
(i)
|
that is a “financial institution” as defined in the Tax Act for the purposes of the “mark-to-market property” rules contained in the Tax Act or a “specified financial institution” as defined in the Tax Act;
|
|
(ii)
|
who has acquired the Common Shares on the exercise of an employee stock option;
|
|
(iii)
|
an interest in which is, or whose Common Shares are, a “tax shelter investment” as defined in the Tax Act;
|
|
(iv)
|
to whom the “functional currency” reporting rules in Section 261 of the Tax Act apply; or
|
|
(v)
|
a Holder that acquired Common Shares pursuant to the exercise of an employee stock option or other equity-based employee compensation plan.
|
|
(i)
|
an insurer carrying on an insurance business in Canada and elsewhere;
|
|
(ii)
|
a “financial institution” (as defined in the Tax Act); or
|
|
(iii)
|
an “authorized foreign bank” (as defined in the Tax Act).
|
|
(a)
|
does not consider the effect of any applicable state, local or foreign tax laws;
|
|
(b)
|
does not address all aspects of federal income taxation that may affect particular U.S. resident Shareholders in light of their particular circumstances including, without limitation, the alternative minimum tax;
|
|
(c)
|
is not intended for U.S. resident Shareholders that may be subject to special federal income tax rules, such as:
|
|
(i)
|
insurance companies and banks;
|
|
(ii)
|
tax-exempt organizations;
|
|
(iii)
|
financial institutions or broker-dealers;
|
|
(iv)
|
Shareholders who hold their Common Shares as part of a hedge, straddle or conversion transaction;
|
|
(v)
|
Shareholders who acquired their Common Shares pursuant to the exercise of an employee stock option plan or otherwise as compensation; and
|
|
(vi)
|
Shareholders who are neither citizens nor residents of the United States or that are foreign corporations, foreign partnerships, foreign estates or foreign trusts as to the United States; and
|
|
(d)
|
does not address tax consequences to holders of Options or Warrants.
|
|
(a)
|
the amount of cash received by the U.S. resident Shareholder for the U.S. resident Shareholder’s Common Shares in the Arrangement; and
|
|
(b)
|
the U.S. resident Shareholder’s tax basis in the U.S. resident Shareholder’s Common Shares in respect of which that cash was received.
|
|
(a)
|
any capital gain recognized upon conversion of the U.S. resident Shareholder’s Common Shares in the Arrangement will be taxable at a maximum U.S. federal income tax capital gains rate of 15% if the U.S. resident Shareholder has held the Common Shares for more than one year at the time of the merger; gain on shares held for one year or less generally will be subject to taxation at ordinary income tax rates (with a current U.S. federal income tax maximum rate of 35%); and
|
|
(b)
|
any capital loss recognized upon the conversion of the U.S. resident Shareholder’s Common Shares in the merger may only be offset against capital gains or up to $3,000 per year of ordinary income, and any excess capital loss may be carried forward to subsequent years to the extent unused.
|
By Order of the Board of Directors:
|
|
/s/ Patrick H. Gaines
|
|
|
|
Patrick H. Gaines
|
|
Chief Executive Officer and Chairman
|
|
Dated: ♦, 2012
|
William Blair & Company L.L.C. (signed)
|
|
Dated: ♦, 2012
|
|
MNP LLP (signed)
|
|
Dated: ♦, 2012
|
1.
|
The arrangement (“Arrangement”) under Section 288 of the Business Corporations Act (British Columbia) (the “BCBCA”) substantially as set forth in the Plan of Arrangement (the “Plan of Arrangement”) attached as Schedule A to Appendix B to the Proxy Statement of LML Payment Systems Inc. (the “Corporation”) dated ♦, 2012 (the “Proxy Statement”) and all arrangements contemplated thereby, be and are hereby authorized and approved.
|
2.
|
The arrangement agreement (“Arrangement Agreement”) dated September 21, 2012 between the Corporation, Digital River, Inc. and LML Acquisition Corp., a copy of which is attached as Appendix B to the Proxy Statement, together with such amendments or variations thereto made in accordance with the terms of the Arrangement Agreement as may be approved by the persons referred to in paragraph 4 hereof, such approval to be evidenced conclusively by the execution and delivery of any such amendments or variations, is hereby confirmed, ratified and approved.
|
3.
|
Notwithstanding that this resolution has been duly passed and/or the Arrangement has received the approval of the Supreme Court of British Columbia, the board of directors of the Corporation may, without further notice to or approval of the holders of common shares of the Corporation, subject to the terms of the Arrangement, amend or terminate the Arrangement Agreement or the Plan of Arrangement or revoke this resolution at any time prior to the filing of the Articles of Arrangement in respect of the Arrangement.
|
4.
|
Any one director or officer of the Corporation is hereby authorized, for and on behalf of the Corporation, to execute and deliver with or without the corporate seal, and, if appropriate, deliver all documents and instruments and do all things as in the opinion of such director or officer may be necessary or advisable to implement this resolution and the matters authorized hereby, such determination to be conclusively evidenced by the execution and delivery of any such document or instrument, and the taking of such action.”
|
Article 1 INTERPRETATION
|
4
|
|||
1.1
|
Definitions
|
4
|
||
1.2
|
Number and Gender
|
11
|
||
1.3
|
Interpretation Not Affected by Headings
|
11
|
||
1.4
|
Date of Any Action
|
11
|
||
1.5
|
References to the Company
|
11
|
||
1.6
|
References to Statutes
|
12
|
||
1.7
|
References to persons
|
12
|
||
1.8
|
Accounting Matters
|
12
|
||
1.9
|
Knowledge
|
12
|
||
1.10
|
Schedules
|
12
|
||
Article 2 THE ARRANGEMENT
|
12
|
|||
2.1
|
Effective Date
|
12
|
||
2.2
|
Interim Order
|
12
|
||
2.3
|
Implementation Steps by the Company
|
13
|
||
2.4
|
Implementation Steps by the Purchaser
|
16
|
||
2.5
|
Information Circular
|
16
|
||
2.6
|
Court Proceedings
|
18
|
||
2.7
|
Dissenting Shareholders
|
18
|
||
2.8
|
Final Order
|
18
|
||
2.9
|
Payment of Consideration
|
19
|
||
2.10
|
Arrangement
|
19
|
||
2.11
|
Closing
|
19
|
||
2.12
|
Filings
|
19
|
||
Article 3 REPRESENTATIONS AND WARRANTIES
|
19
|
|||
3.1
|
Representations and Warranties of Digital River and the Purchaser
|
19
|
||
3.2
|
Representations and Warranties of the Company
|
22
|
||
3.3
|
Survival of Representations and Warranties
|
39
|
||
Article 4 COVENANTS
|
39
|
|||
4.1
|
Covenants of the Company
|
39
|
||
4.2
|
Covenants of the Company Regarding Non-Solicitation
|
45
|
||
4.3
|
Right to Accept a Superior Proposal
|
48
|
||
4.4
|
Covenants of Digital River and the Purchaser.
|
49
|
||
Article 5 CONDITIONS PRECEDENT
|
50
|
|||
5.1
|
Mutual Conditions Precedent
|
50
|
||
5.2
|
Conditions Precedent to Obligations of the Company
|
51
|
||
5.3
|
Conditions Precedent to Obligations of Digital River and the Purchaser
|
52
|
||
5.4
|
Co-operation
|
53
|
||
5.5
|
Notice and Cure Provisions
|
53
|
||
5.6
|
Merger of Conditions
|
54
|
||
5.7
|
Payment of Obligations to Employees
|
54
|
Article 6 INSURANCE AND INDEMNIFICATION
|
55
|
|||
6.1
|
Indemnification
|
55
|
||
6.2
|
Insurance
|
55
|
||
Article 7 TERMINATION AND AMENDMENT
|
55
|
|||
7.1
|
Rights of Termination
|
55
|
||
7.2
|
Effect of Termination
|
56
|
||
7.3
|
Termination Deadline
|
59
|
||
7.4
|
Amendment
|
59
|
||
7.5
|
Waiver
|
59
|
||
7.6
|
Remedies
|
60
|
||
Article 8 GENERAL
|
60
|
|||
8.1
|
Notice
|
60
|
||
8.2
|
Binding Effect
|
61
|
||
8.3
|
No Assignment
|
62
|
||
8.4
|
Public Statements
|
62
|
||
8.5
|
Entire Agreement
|
62
|
||
8.6
|
Time of Essence
|
63
|
||
8.7
|
Severability
|
63
|
||
8.8
|
Counterpart Executions and Facsimile Transmissions
|
63
|
||
8.9
|
Fees and Expenses
|
63
|
||
8.10
|
Investigation
|
63
|
||
8.11
|
Further Assurances
|
63
|
||
8.12
|
Waiver
|
63
|
||
8.13
|
Governing Law
|
63
|
||
Schedule A Form of Plan of Arrangement
|
1
|
A.
|
The Purchaser and the Company agree to proceed with a business combination transaction providing for the acquisition by the Purchaser of all of the outstanding securities of the Company;
|
B.
|
Digital River has taken the initiative of incorporating and organizing the Purchaser and indirectly owns all of the issued and outstanding shares of the Purchaser;
|
C.
|
The Company Board (including the independent directors) has determined that the Arrangement is fair to the Shareholders (as defined below) and that it is in the best interests of the Company to enter into this Agreement, has approved the execution, delivery, and performance of this Agreement by the Company, and has resolved, subject to the terms of this Agreement, to recommend that the Shareholders vote in favour of the Arrangement Resolution (as defined below);
|
D.
|
Contemporaneously with the execution of this Agreement, the Purchaser, the Company and certain Company shareholders have entered into Shareholder Lock-Up and Support Agreements agreeing in their capacity as shareholders of the corporation to vote in favor of the Arrangement Resolution and against any other Acquisition Proposal;
|
E.
|
Contemporaneously with the execution of this Agreement, the Company and the key employees identified in writing to the Company prior to the date of this Agreement (the “Key Employees”) have entered into employment arrangements with the Company or a Company Subsidiary (the “Key Employee Agreements”), which, from and after and subject to the consummation of the transactions contemplated by this Agreement, will govern the employment of the Key Employees; and
|
F.
|
The Parties hereto intend to carry out the proposed business combination transaction by way of a plan of arrangement under the provisions of the Business Corporations Act (British Columbia).
|
|
(a)
|
“Acquisition Proposal” means, other than from or with Digital River and the Purchaser, any proposal, public announcement of an intention or offer regarding any acquisition, merger, amalgamation, statutory arrangement, recapitalization, take-over bid, sale of the Company or any Company Subsidiary or any material properties or assets or other arrangement having the same economic effect as a sale of the Company or any Company Subsidiary or any material properties or assets, any liquidation, winding-up, sale or redemption of a material number of shares or rights or interests therein or thereto, or any similar transaction involving the Company or any Company Subsidiary which would, or could, impede the completion of the Arrangement or any of the other transactions contemplated in this Agreement;
|
|
(b)
|
“Agreement” means this agreement among Digital River, the Purchaser and the Company entered into for the purpose of effecting the Arrangement, including the Company Disclosure Schedule, as the same may be supplemented or amended from time to time;
|
|
(c)
|
“Applicable Laws” means any domestic or foreign statute, law, ordinance, rule, regulation, restriction, published and legally binding regulatory policy or guideline, by-law (zoning or otherwise), or order or any consent, exemption, approval or licence of any domestic or foreign Governmental Entity that applies in whole or in part to the Parties hereto, as the context requires, or to their respective subsidiaries, businesses, undertakings, properties or securities including, without limitation, Applicable Securities Laws, Canada export control law and regulations with respect to the Company and any and all Company Subsidiaries that are incorporated in or that do business in Canada, and United States export control laws and regulations with respect to any and all Company Subsidiaries incorporated in or that do business in the United States, including the Export Administration Act and implementing Export Administration Regulations.
|
|
(d)
|
“Applicable Securities Laws” means Canadian Securities Laws and the United States Securities Laws, as applicable in the circumstances;
|
|
(e)
|
“Arrangement” means the arrangement under the provisions of Section 288 of the BCBCA, on the terms and conditions set forth in the Plan of Arrangement, subject to any amendment or supplement thereto made in accordance with this Agreement and the Plan of Arrangement or made at the direction of the Court in the Final Order;
|
|
(f)
|
“Arrangement Filings” means the articles of arrangement and other records and information to give effect to any provision of the Arrangement, together with a copy of the entered Final Order;
|
|
(g)
|
“Arrangement Resolution” means the resolution to be considered and, if thought fit, approved by the Shareholders at the Company Meeting;
|
|
(h)
|
“BCBCA” means the Business Corporations Act (British Columbia), as amended;
|
|
(i)
|
“Broker” means William Blair & Company, financial advisors;
|
|
(j)
|
“Business Day” means a day which is not a Saturday, Sunday or a civic or statutory holiday in Vancouver, British Columbia;
|
|
(k)
|
“Canadian Securities Laws” means the Securities Act (British Columbia) and the equivalent legislation in the other provinces and in the territories of Canada, as amended from time to time, the rules, regulations and forms made or promulgated under any such statute and the published national instruments, multilateral instruments, policies, bulletins and notices of the securities commissions and similar regulatory authorities of each of the provinces and territories of Canada;
|
|
(l)
|
“Company” means LML Payment Systems Inc., a company existing under the laws of British Columbia;
|
|
(m)
|
“Company Board” means the board of directors of the Company;
|
|
(n)
|
“Company Board Recommendation” means the determination of the Company Board (including the independent directors) that the Arrangement is fair to the Shareholders and is in the best interests of the Company, and the recommendation of the Company Board (including the independent directors) that the Shareholders vote in favour of the Arrangement Resolution.
|
|
(o)
|
“Company Contract” means any contract, agreement, license, franchise, lease, arrangement, commitment, understanding, joint venture, partnership or other right or obligation (whether written or oral) to which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary is bound or affected or to which any of their respective properties or assets is subject as of the date hereof;
|
|
(p)
|
“Company Disclosure Documents” means:
|
|
(i)
|
the management information circular of the Company expected to be dated on or about October 31, 2012;
|
|
(ii)
|
the audited consolidated annual financial statements of the Company for the years ended March 31, 2012 and March 31, 2011, together with the auditor’s report thereon and the notes thereto;
|
|
(iii)
|
management’s discussion and analysis of the financial condition and operations of the Company for the year ended March 31, 2012 set forth in the Company’s Annual Report on Form 10-K for the year ended March 31, 2012 as filed with the SEC on June 20, 2012; and
|
|
(iv)
|
all reports filed by the Company on SEDAR and EDGAR after March 31, 2010 and on or prior to the Effective Time.
|
|
(q)
|
“Company Disclosure Schedule” has the meaning set out in section 3.2;
|
|
(r)
|
“Company Meeting” means the special meeting of the Shareholders, including any adjournment or adjournments or postponement or postponements thereof necessary to obtain a quorum or otherwise reasonably requested by Digital River and Purchaser during the term of this Agreement, to be held for the purposes of obtaining approval by the Shareholders of the Arrangement Resolution;
|
|
(s)
|
“Company Stock Option Plans” means the stock option plans of the Company as approved by the Company Board and by the Shareholders;
|
|
(t)
|
“Company Subsidiary” means any Subsidiary of the Company and “Company Subsidiaries” means more than one, as the case may be, and includes each of Beanstream Internet Commerce Inc. (Canada), LML Corp (USA). Legacy Promotions Inc (Canada), Beanstream Internet Commerce Corp. (USA), LML Payment Systems Corp. (USA) and LML Patent Corp. (USA);
|
|
(u)
|
“Court” means the British Columbia Supreme Court;
|
|
(v)
|
“Depositary” means Computershare Trust Company of Canada;
|
|
(w)
|
“Dissenting Shareholder” has the meaning ascribed thereto in the Plan of Arrangement;
|
|
(x)
|
“Dissent Rights” means the rights of dissent of the Shareholders in respect of the Arrangement Resolution described in the Plan of Arrangement;
|
|
(y)
|
“Effective Date” means no later than the third Business Day following the date on which all conditions precedent to the completion of the Arrangement as set out in Article 5 of this Agreement have been satisfied or waived in accordance with the provisions of this Agreement, or such other date as the Parties hereto may agree, which shall be the date on which the Arrangement Filings are filed under the BCBCA;
|
|
(z)
|
“Effective Time” means has the meaning defined in the Plan of Arrangement;
|
|
(aa)
|
“Encumbrance” means any mortgage, hypothecation, pledge, assignment, charge, lien, claim, security interest, adverse interest, other third person interest or encumbrance of any kind, whether contingent or absolute, and any agreement, option, right or privilege (whether by law, contract or otherwise) capable of becoming any of the foregoing;
|
|
(bb)
|
“Fairness Opinion” means the verbal and the subsequent written opinion of the Financial Advisor that the consideration to be received by the Shareholders pursuant to the Arrangement is fair, from a financial point of view, to the Shareholders, subject to the limitations and qualifications set out in the Fairness Opinion;
|
|
(cc)
|
“Final Order” means the final order of the Court approving the Arrangement, as such order may be amended by the Court (with the consent of Digital River and the Company) at any time prior to the Effective Date or, if appealed, then unless such appeal is withdrawn or denied, as affirmed or as amended on appeal;
|
|
(dd)
|
“Financial Advisor” means MNP LLP, in its capacity as financial advisor to the independent directors of the Company Board;
|
|
(ee)
|
“Financial Advisor Agreement” shall have the meaning ascribed thereto in subsection 3.2(1);
|
|
(ff)
|
“Governmental Entity” or “Governmental Entities” means any applicable:
|
|
(i)
|
multinational, federal, provincial, state, regional, municipal, local or other government, governmental or public department, central bank, court, tribunal, arbitral body, commission, board, bureau, agency, domestic or foreign;
|
|
(ii)
|
any subdivision, agent, commission, board or authority of any of the foregoing; or
|
|
(iii)
|
any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the foregoing;
|
|
(gg)
|
“IFRS” means International Financial Reporting Standards;
|
|
(hh)
|
“Information Circular” means the management information circular (including all appendices attached thereto), notice of meeting, proxy form and other related documents to be sent by the Company to the Shareholders regarding the approval of the Arrangement Resolution at the Company Meeting, which circular will, unless otherwise permitted by the terms of this Agreement, contain the Company Board Recommendation;
|
|
(ii)
|
“Interim Order” means the interim order of the Court providing for, among other things, the calling and holding of the Company Meeting, as such order may be amended, supplemented or varied by the Court;
|
|
(jj)
|
“Material Adverse Change” means any one or more change, event or occurrence which, either individually or in the aggregate, is or would reasonably be expected to have a Material Adverse Effect;
|
|
(kk)
|
“Material Adverse Effect” means any result, fact, change, effect, event, circumstance, occurrence or development that (i) has or would reasonably be expected to have a material and adverse effect on the business, operations, capitalization, assets, liabilities (including any contingent liabilities), obligations (whether absolute, accrued, conditional or otherwise), condition (whether financial or otherwise) of the Company, or (ii) prevents or materially delays or impedes the Company’s ability to perform its obligations under this Agreement or consummate the Arrangement, provided, however, that, in the case of the foregoing, any result, fact, change, effect, event, circumstance, occurrence or development that arises out of or relates to any of the following shall not be deemed to constitute, and shall not be taken into account in determining whether there has been, a Material Adverse Effect:
|
|
(i)
|
general international, political, economic or financial or capital market conditions, or political, economic or financial or capital market conditions in any jurisdiction in which the Company or any of its subsidiaries operate or carry on business (so long as the Company is not disproportionately affected thereby, and it being understood that the circumstances underlying any change in such conditions may be deemed to constitute, and may be taken into account in determining whether there has been, a Material Adverse Effect); or
|
|
(ii)
|
any change or proposed change in any Applicable Laws or the interpretation, application or non-application of any Applicable Laws by any Governmental Authority (so long as the Company is not disproportionately affected thereby); or
|
|
(iii)
|
the announcement of the execution of this Agreement or the transactions contemplated hereby, the performance of any obligation contemplated hereunder or the completion of any of the transactions contemplated hereby;
|
|
(ll)
|
“material fact” shall have the meaning ascribed thereto in the Securities Act (British Columbia), as amended;
|
|
(mm)
|
“Material Company Contract” shall have the meaning ascribed thereto in Section 3.2(q) hereof;
|
|
(nn)
|
“misrepresentation” shall have the meaning ascribed thereto in the Securities Act (British Columbia), as amended;
|
|
(oo)
|
“Nasdaq” means the Nasdaq Stock Market;
|
|
(pp)
|
“Options” means the outstanding options to acquire Shares which have been granted pursuant to the Company Stock Option Plans;
|
|
(qq)
|
“Party” means any one of Digital River, the Purchaser or the Company, and “Parties” means all of them as the context requires;
|
|
(rr)
|
“person” means any individual, corporation, firm, partnership (including, without limitation, a limited partnership), sole proprietorship, syndicate, joint venture, trustee, trust, any unincorporated organization or association, any government or instrumentality thereof and any tribunal;
|
|
(ss)
|
“Plan” or “Plan of Arrangement” means the plan of arrangement to be substantially in the form and content of Schedule A attached hereto as amended or varied pursuant to the terms hereof and thereof;
|
|
(tt)
|
“Purchaser” means LML Acquisition Corp., a corporation existing under the laws of British Columbia;
|
|
(uu)
|
“Records and Data” means all material books, contracts, documents, information and data (in paper or electronic form) owned by the Company;
|
|
(vv)
|
“Revised Termination Deadline” shall have the meaning ascribed thereto in Section 7.3;
|
|
(ww)
|
“Securities Authority” means the appropriate securities commissions or similar regulatory authorities in the United States and in each of the provinces of Canada;
|
|
(xx)
|
“SEDAR” means the System for Electronic Document Analysis and Retrieval described in National Instrument 13-101 of the Canadian Securities Administrators and available for public view at www.sedar.com;
|
|
(yy)
|
“Shareholder Approval” shall have the meaning ascribed thereto in subsection 2.2(b);
|
|
(zz)
|
“Shareholders” means beneficial owners and/or holders of record of Shares;
|
|
(aaa)
|
“Shares” means the common shares which the Company is authorized to issue as presently constituted;
|
|
(bbb)
|
“Special Committee” means a special committee of all the independent directors of the Company;
|
|
(ccc)
|
“Subsidiary” means, with respect to a specified body corporate, any body corporate of which the specified body corporate is entitled to elect a majority of the directors thereof and shall include any body corporate, partnership, joint venture or other entity over which such specified body corporate exercises direction or control or which is in a like relation to such a body corporate, excluding any body corporate in respect of which such direction or control is not exercised by the specified body corporate as a result of any existing contract, agreement or commitment;
|
|
(ddd)
|
“Superior Proposal” means any bona fide written Acquisition Proposal that the Company Board determines in good faith (based upon the oral or written advice of the Broker and after consultation with outside legal counsel):
|
|
(i)
|
is reasonably capable of being completed without undue delay, taking into account all legal, financial, regulatory and other aspects of such proposal and the person making such proposal;
|
|
(ii)
|
is made to all the Shareholders or in respect of all Shares on the same terms and conditions in compliance with Applicable Securities Laws; and
|
|
(iii)
|
would, if completed in accordance with its terms, result in a transaction more favourable to the Shareholders than, from a financial point of view, the Arrangement;
|
|
(eee)
|
“Superior Proposal Notice” shall have the meaning ascribed thereto in subsection 4.3(a)(ii);
|
|
(fff)
|
“Tax” and “Taxes” means all taxes, assessments, charges, dues, duties, rates, fees, levies and similar charges of any kind lawfully levied, assessed or imposed by any Governmental Entity, including any tax on or based upon net income, gross income, earnings, profits or selected items of income, earnings or profits and all capital taxes, gross receipts taxes, environmental taxes and charges, sales taxes, use taxes, ad valorem taxes, value added taxes, subsoil use or extraction taxes and ownership fees, transfer taxes (including, without limitation, taxes relating to the transfer of interests in real property or entities holding interests therein), franchise taxes, licence taxes, withholding taxes, health taxes, payroll taxes, employment taxes, Canada or Quebec Pension Plan premiums, excise, severance, social security, workers’ compensation, employment insurance or compensation taxes, mandatory pension and other social fund taxes or premium, stamp taxes, occupation taxes, premium taxes, property taxes, windfall profits taxes, alternative or add-on minimum taxes, goods and services tax, harmonized sales tax, customs duties or other taxes, and any installments in respect thereof; together with any interest and any penalties or additional amounts imposed by any Government Entity in respect thereof;
|
|
(ggg)
|
“Tax Act” means the Income Tax Act (Canada), as amended and the regulations thereunder, as amended;
|
|
(hhh)
|
“Tax Return” means any return, election, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof;
|
|
(iii)
|
“Termination Deadline” means February 22, 2013 or such other date as the Parties hereto may otherwise agree upon in writing;
|
|
(jjj)
|
“United States Securities Laws” means the Securities Act of 1933 (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”), each as amended from time to time, and the rules, regulations and forms made or promulgated under any such statute and the published policies, bulletins and notices of the United States Securities and Exchange Commission (the “SEC”), as well as any applicable rules or requirements of any self-regulatory organization (including Nasdaq) mandated thereby or promulgated thereunder from time to time; and
|
|
(kkk)
|
“Warrants” means the outstanding warrants to acquire Shares which have been issued pursuant to a prior private placement by the Company.
|
|
(a)
|
for the class of persons to whom notice is to be provided in respect of the Arrangement and for the Company Meeting and for the manner in which such notice is to be provided;
|
|
(i)
|
that the only requisite approvals required for the Arrangement Resolution shall be 66 2/3% of the votes cast, in person or by proxy, on the Arrangement Resolution by the Shareholders at the Company Meeting (together, the “Shareholder Approval”)
|
|
(b)
|
for the grant of Dissent Rights to the Shareholders who are registered holders of Shares as contemplated in the Plan of Arrangement;
|
|
(c)
|
that, in all other respects, the terms, restrictions and conditions of the articles and by-laws of the Company, including the quorum requirement and other matters, shall apply in respect of the Company Meeting;
|
|
(d)
|
for notice requirements with respect to the presentation of the application to the Court for the Final Order;
|
|
(e)
|
that the Company Meeting may be adjourned or postponed from time to time by the Company without the need for any additional approval of the Court; and
|
|
(f)
|
that the record date for the Shareholders entitled to notice of, and to vote at, the Company Meeting will not change in respect of any adjournment of the Company Meeting.
|
|
(a)
|
In a timely and expeditious manner, the Company shall:
|
|
(i)
|
forthwith carry out such terms of the Interim Order as are required thereby to be carried out by the Company;
|
|
(ii)
|
prepare, with the assistance of the Purchaser, and file the Information Circular (which shall be in a form satisfactory to the Parties, acting reasonably), together with any other documents required by Applicable Laws, in all jurisdictions where the Information Circular is required to be filed and mail the Information Circular, as ordered by the Interim Order and in accordance with all Applicable Laws, in and to all jurisdictions where the Information Circular is required to be mailed, complying in all material respects with all Applicable Laws on the date of the mailing thereof and in the form and containing the information required by all Applicable Laws, including all applicable corporate and securities legislation and requirements, and not containing any misrepresentation or omission, provided that the Company assumes no responsibility for the accuracy or completeness of any information relating to and provided by the Purchaser or Digital River;
|
|
(iii)
|
subject to the terms of this Agreement, the Company shall:
|
|
(A)
|
use reasonable best efforts to solicit proxies in favour of the Arrangement Resolution with it being understood that the Company is not required to engage a proxy solicitation firm in satisfying such obligation;
|
|
(B)
|
make the Company Board Recommendation at the Company Meeting, in the Information Circular, and in any other solicitation relating to the Arrangement Resolution; and
|
|
(C)
|
not withdraw, modify, qualify or change in a manner adverse to Digital River or the Purchaser, or publicly state that it intends to withdraw, modify, qualify or change in a manner adverse to Digital River or the Purchaser the Company Board Recommendation, or fail to recommend against acceptance of any third party tender offer or exchange offer within fifteen calendar days after the commencement of such offer, or make any public statement inconsistent with the Company Board Recommendation, except, in each case, as expressly permitted by this Agreement;
|
|
(iv)
|
use reasonable best efforts to convene the Company Meeting no later than 60 days after the mailing of the Information Circular, but in any event hold the Company Meeting no later than January 11, 2013, in the manner provided in the Interim Order, and, if and when reasonably requested by Digital River and the Purchaser, to adjourn or postpone the Company Meeting to a date no later than the Termination Date specified by Digital River and Purchaser;
|
|
(v)
|
provide notice to the Purchaser of the Company Meeting and allow representatives of Digital River and the Purchaser to attend the Company Meeting;
|
|
(vi)
|
conduct the Company Meeting in accordance with the Interim Order and Applicable Law; and
|
|
(vii)
|
take all such actions as may be required under the BCBCA to effect the Arrangement.
|
|
(b)
|
The Company will advise the Purchaser, not less than weekly and then at least on a daily basis on each of the seven Business Days prior to the date of the Company Meeting, as to the aggregate tally of the proxies received by the Company in respect of the Arrangement Resolution.
|
|
(c)
|
Except as permitted in this Agreement, the Company shall not adjourn, postpone or cancel the Company Meeting (or propose to do so), except:
|
|
(i)
|
if a quorum is not present at the Company Meeting;
|
|
(ii)
|
if required by Applicable Laws;
|
|
(iii)
|
if required by the Shareholders; or
|
|
(iv)
|
if otherwise requested by Digital River and the Purchaser in writing.
|
|
(d)
|
The Company shall provide the Purchaser with a copy of any purported exercise of the Dissent Rights and written communications with any Shareholder purportedly exercising such Dissent Rights and shall not settle or compromise any action brought by any present, former or purported holder of any of its securities in connection with the Arrangement or the other transactions contemplated by this Agreement, without the prior consent of the Purchaser.
|
|
(e)
|
In a timely and expeditious manner, the Company shall prepare (in consultation with the Purchaser) and file any mutually agreed (or as otherwise required by Applicable Laws) amendments or supplements to the Information Circular (which amendments or supplements shall be in a form satisfactory to the Purchaser, acting reasonably) with respect to the Company Meeting and mail such amendments or supplements, as required by the Interim Order and in accordance with all Applicable Laws, in and to all jurisdictions where such amendments or supplements are required to be mailed, complying in all material respects with all Applicable Laws on the date of the mailing thereof.
|
|
(f)
|
Upon the request of the Purchaser, the Company will cause to be prepared and provide to the Purchaser lists of registered holders of all classes and series of securities of the Company, including a list of the registered Shareholders, holders of Options and holders of Warrants as well as a security position listing from each depositary of its securities, including The Canadian Depositary for Securities Limited, to the extent reasonably practicable, within five Business Days after the date on which the Purchaser requests such lists and will obtain and deliver to the Purchaser thereafter on demand supplemental lists setting out any changes thereto, all such deliveries to be in printed form and, if available, in computer-readable format.
|
|
(g)
|
Except for proxies and other non-substantive communications, the Company shall furnish promptly to the Purchaser a copy of each notice, report, schedule or other document or communication delivered, filed or received by the Company in connection with this Agreement, the Arrangement and the transactions contemplated in this Agreement, the Interim Order or the Company Meeting or any other meeting at which all the Shareholders are entitled to attend relating to special business, any filings made under any Applicable Law and any dealings or communications with any Governmental Entity, securities regulatory authority or stock exchange in connection with, or in any way affecting, the transactions contemplated by this Agreement.
|
|
(a)
|
Subject to the Purchaser and Digital River complying with Section 2.5(d), the Company will, in consultation with the Purchaser and Digital River:
|
|
(i)
|
as soon as reasonably practicable after the execution of this Agreement, prepare the Information Circular together with any other documents required by the BCBCA or Applicable Laws in connection with the approval of the Arrangement Resolution by the Shareholders at the Company Meeting;
|
|
(ii)
|
as soon as reasonably practicable after the date of this Agreement, and, in any event, not later than 15 Business Days after the date of this Agreement, cause the Information Circular to be filed with the SEC, and use its reasonable best efforts to resolve (and will communicate to the Purchaser and Digital River and cooperate with the Purchaser and Digital River in resolving) all SEC comments with respect to the Information Circular as promptly as practicable after receipt thereof;
|
|
(iii)
|
as soon as reasonably practicable, and in any event, not later than 5 Business Days after the clearance of all SEC comments (or, if earlier, the date on which the SEC notifies the Company that it will not review the Information Circular or the expiration of the 10-day period for the SEC to provide such notice), the Company will apply for, and submit the Information Circular in connection with the Interim Order; and
|
|
(iv)
|
as soon as reasonably practicable after the issuance of the Interim Order, and, in any event, not later than 5 Business Days following such issuance, cause the Information Circular to be sent to the Shareholders and filed as required by the Interim Order and Applicable Laws.
|
|
(b)
|
The Company shall ensure that the Information Circular complies in all material respects with Applicable Laws, and, without limiting the generality of the foregoing, that the Information Circular (including with respect to any information incorporated therein by reference) complies with the requirements of all United States Securities Laws and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they are made (other than in each case with respect to any information furnished by the Purchaser and Digital River) and will provide the Shareholders with information in sufficient detail to permit them to form a reasoned judgment concerning the matters to be placed before them at the Company Meeting.
|
|
(c)
|
The Company and the Purchaser will cooperate in the preparation, filing and mailing of the Information Circular. The Company will provide legal counsel to the Purchaser with a reasonable opportunity to review and comment on drafts of the Information Circular and other documents related thereto prior to filing the Information Circular with applicable Governmental Entities and mailing the Information Circular to the Shareholders and will give reasonable consideration to such comments. The Purchaser acknowledges that whether or not any revisions will be made to the Information Circular as a result of such comments will be determined solely by the Company acting reasonably, provided, however, that all information relating solely to the Purchaser and Digital River included in the Information Circular shall be in form and content satisfactory to the Purchaser, acting reasonably, and the Information Circular will in any event include a copy of the Fairness Opinion, the Company Board Recommendation, and the rationale for the Company Board Recommendation.
|
|
(d)
|
The Purchaser will, in a timely and expeditious manner, furnish the Company with all such information regarding the Purchaser and Digital River as may reasonably be required to be included in the Information Circular pursuant to Applicable Laws and any other documents related thereto. If requested by the Company, the Purchaser will provide to the Company a certificate of the Purchaser, signed by a director or officer of the Purchaser, certifying that the information relating to the Purchaser and Digital River contained in the Information Circular does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they are made.
|
|
(e)
|
The Company and the Purchaser will each promptly notify the other if at any time before the Effective Date it becomes aware (in the case of the Company only with respect to the Company and in the case of the Purchaser only with respect to the Purchaser and Digital River) that the Information Circular or any other document referred to in Section 2.5(c) contains any misrepresentation or otherwise requires any amendment or supplement and promptly deliver written notice to the other Party setting out full particulars thereof. In any such event, the Company and the Purchaser will cooperate with each other in the preparation, filing and dissemination of any required supplement or amendment to the Information Circular or such other document, as the case may be, and any related news release or other document necessary or desirable in connection therewith.
|
|
(a)
|
prompt notice of any written notice of any dissent or purported exercise by any Shareholder of Dissent Rights, any withdrawal of such a notice, and any other instruments served pursuant to Dissent Rights and received by the Company; and
|
|
(b)
|
the opportunity to participate in all negotiations and proceedings with respect to any such dissent, notice or instrument. The Company shall not make any payment or settlement offer, or agree to any such settlement, prior to the Effective Time with respect to any such dissent, notice or instrument unless the Purchaser shall have given its written consent to such payment or settlement offer, as applicable.
|
|
(a)
|
the documents required or contemplated to be delivered by it hereunder in order to complete, or necessary or reasonably requested to be delivered by it by one of the other Parties hereto in order to effect the Arrangement and the transactions contemplated herein, provided that each such document required to be dated the Effective Date shall be dated as of, or become effective on, the Effective Date and shall be held in escrow to be released upon the Arrangement becoming effective; and
|
|
(b)
|
written confirmation as to the satisfaction or waiver of all of the conditions in its favour contained in Article 5.
|
|
(a)
|
Organization and Corporate Capacity. Digital River has been duly organized and is validly existing and in good standing under the Applicable Laws governing its formation. Digital River owns all of the issued and outstanding shares of the Purchaser. The Purchaser has been duly incorporated and validly exists under the BCBCA and has been formed solely for the purpose of engaging in the transactions contemplated hereby and has not owned any assets, engaged in any business activities or conducted any operations other than in connection with the transactions contemplated hereby.
|
|
(b)
|
Authority. Each of the Purchaser and Digital River has all necessary corporate power, authority and capacity to enter into and perform its obligations under this Agreement and to complete the transactions and fulfil its obligations contemplated hereby. The execution and delivery of this Agreement and the completion by the Purchaser and Digital River of the transactions contemplated by this Agreement have been duly authorized by the directors of the Purchaser and Digital River, as the case may be, and no other corporate proceedings on the part of the Purchaser or Digital River, as the case may be, are necessary to authorize the execution and delivery by it of this Agreement or the Arrangement or the completion by the Purchaser and Digital River of the transactions contemplated hereby. This Agreement has been duly executed and delivered by each of the Purchaser and Digital River and constitutes legal, valid and binding obligations of the Purchaser and Digital River enforceable against the Purchaser and Digital River, as the case may be, in accordance with its terms, subject to bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other Applicable Laws relating to or affecting the availability of equitable remedies and the enforcement of creditors’ rights generally and general principles of equity and public policy and to the qualification that equitable remedies such as specific performance and injunction may be granted only in the discretion of a court of competent jurisdiction.
|
|
(c)
|
Required Approvals. No authorization, licence, permit, certificate, registration, consent or approval of, or filing with, or notification to, any Governmental Entity is necessary for the execution and delivery by the Purchaser or Digital River of this Agreement, the performance by the Purchaser or Digital River of its obligations hereunder and the completion by the Purchaser and Digital River of the Arrangement, other than:
|
|
(i)
|
the Interim Order and any filings required in order to obtain, and approvals required under, the Interim Order;
|
|
(ii)
|
the Final Order, and any filings required in order to obtain the Final Order;
|
|
(iii)
|
such filings and other actions required under Applicable Securities Laws as are contemplated by this Agreement;
|
|
(iv)
|
such filings and other actions required pursuant to the Competition Act or the Investment Canada Act, if and to the extent applicable; and
|
|
(v)
|
any authorizations, licences, permits, certificates, registrations, consents, approvals and filings and notifications with respect to which the failure to obtain or make same would, or would reasonably be expected to, prevent or significantly impede or materially delay the completion of the Arrangement.
|
|
(d)
|
No Violation. Subject to obtaining the authorizations, consents and approvals and making the filings referred to in Section 3.1(c) and complying with applicable corporate, securities, competition and antitrust laws, the execution and delivery by each of the Purchaser and Digital River of this Agreement, the performance by each of the Purchaser and Digital River of its respective obligations hereunder and the completion of the transactions contemplated hereby do not and will not (nor will they with the giving of notice or the lapse of time or both):
|
|
(i)
|
result in a contravention, breach, violation or default under any Applicable Law applicable to it;
|
|
(ii)
|
result in a contravention, conflict, violation, breach or default under its constating documents; or
|
|
(iii)
|
result in a contravention, breach or default under or termination of, or acceleration or permit the acceleration of the performance required by, any material agreement, contract, covenant, undertaking, commitment, instrument, licence, permit or authorization to which it is a party or by which it is bound, except, in the case of each of clauses (i) and (iii) above, as would not reasonably be expected to prevent or significantly impede or materially delay the completion of the Arrangement.
|
|
(e)
|
Litigation. There are no claims, actions, suits, proceedings or investigations commenced against or involving the Purchaser or Digital River (whether in progress or, to the knowledge of the Purchaser, threatened) that, if adversely determined, would prevent or significantly impede or materially delay the completion of the Arrangement and, to the knowledge of Digital River, no event has occurred which might reasonably be expected to give rise to any such Proceeding. To the knowledge of Digital River, there is no judgment, writ, decree, injunction, rule, award or order of any Governmental Entity outstanding against the Purchaser or Digital River that would reasonably be expected to prevent or significantly impede or materially delay the completion of the Arrangement.
|
|
(f)
|
Sufficient Funds. Adequate arrangements have been made to ensure that at the Effective Time the Purchaser will have sufficient funds available to fully fund all of the obligations of the Purchaser under this Agreement, including funds sufficient to effect payment in full of the aggregate consideration to be paid to the Shareholders upon the terms contemplated by the Plan of Arrangement.
|
|
(a)
|
Organization of the Company; Ownership of Company Subsidiaries. The Company and each Company Subsidiary has been duly organized and is validly existing and in good standing under the Applicable Laws governing its formation. The Company and each Company Subsidiary has full corporate and legal power and authority to own its property and assets and to conduct its business as currently owned and conducted. The Company and each Company Subsidiary is registered, licensed or otherwise qualified as an extra-provincial corporation or a foreign corporation in each jurisdiction where the nature of the business or the location or character of the property and assets owned or leased by it requires it to be so registered, licensed or otherwise qualified, other than those jurisdictions where the failure to be so registered, licensed or otherwise qualified would not have, or reasonably be expected to have, a Material Adverse Effect on the Company. The Company owns all outstanding securities of each Company Subsidiary, and there are no outstanding securities convertible into or exchangeable for any ownership interest in any such Company Subsidiary, nor any option agreement or other Company Contract providing for or requiring the issuance of any ownership interest (or any securities convertible or exchangeable into any such ownership interest) in any such Company Subsidiary, nor any profit participation rights, “phantom stock” or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly on any Company Subsidiary.
|
|
(b)
|
Authority. The Company has all necessary corporate power, authority and capacity to enter into this Agreement, and to complete the transactions and fulfil its obligations contemplated hereby. The execution and delivery of this Agreement by the Company and the completion by the Company of the transactions contemplated by this Agreement have been authorized by the Company Board and, other than the Shareholder Approval, no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery by it of this Agreement or the Arrangement or the completion of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other Applicable Laws relating to or affecting creditors’ rights generally, and to general principles of equity.
|
|
(c)
|
Capitalization. The Company is authorized to issue 100,000,000 Shares, 150,000,000 Class A preferred stock and 150,000,000 Class B preferred stock. As of the date of this Agreement, there were:
|
|
(i)
|
28,246,684 Shares outstanding and no shares of either Class A preferred stock or Class B preferred stock outstanding;
|
|
(ii)
|
Options to acquire an aggregate of 5,125,300 Shares outstanding; and
|
|
(iii)
|
Warrants to acquire an aggregate of 70,000 Shares outstanding.
|
|
(d)
|
Options and Warrants to Purchase Shares. There are no options, warrants, conversion privileges or other rights, agreements, arrangements or commitments (pre-emptive, contingent or otherwise) obligating the Company to issue or sell any shares of the Company or any securities or obligations of any kind convertible into or exchangeable or exercisable for any shares of the Company other than 5,125,300 Options granted pursuant to the Company Stock Option Plans, all of which will have vested as a result of the transactions contemplated by this Agreement, and 70,000 Warrants issued pursuant to a prior private placement. As of the date hereof, there are no outstanding bonds, debentures or other evidences of indebtedness of the Company having the right to vote with the Shareholders on any matter. There are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any outstanding Shares or with respect to the voting or disposition of any outstanding Shares. Schedule 3.2(d) of the Company Disclosure Schedule sets forth as of the date of this Agreement a list of each outstanding Option granted under each Company Stock Option Plan and (A) the name of the holder of such Option, (B) the number of Shares subject to such Option, (C) the exercise price of such Option, (D) the date on which such Option was granted, (E) the applicable vesting schedule, and the extent to which such Option is vested and exercisable as of the date of this Agreement, and (F) the date on which such Option expires. All Shares issuable under the Company Stock Option Plan and the Warrants will, upon issuance in accordance with the terms and conditions specified in the instruments to which they are issuable, will be duly authorized, validly issued, fully paid and non-assessable.
|
|
(e)
|
Nasdaq Listing; SEC Filings; Internal Controls; Sarbanes-Oxley Act Compliance.
|
|
(i)
|
The outstanding Shares are listed on Nasdaq.
|
|
(ii)
|
The Company has timely filed with or furnished to, as applicable, the SEC all registration statements, prospectuses, reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference) required to be filed or furnished by it with the SEC since March 31, 2010 (the “Company SEC Documents”). All such Company SEC Documents that it has so filed or furnished prior to the date hereof are available on EDGAR. As of their respective filing dates (or, if amended or superseded by a subsequent filing, as of the date of the last such amendment or superseding filing prior to the date hereof), each of the Company SEC Documents complied in all material respects with the applicable requirements of the United States Securities Laws applicable to such Company SEC Documents. None of the Company SEC Documents, including any financial statements, schedules or exhibits included or incorporated by reference therein at the time they were filed (or, if amended or superseded by a subsequent filing, as of the date of the last such amendment or superseding filing prior to the date hereof), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the Company Subsidiaries is subject to the reporting requirements of Section 13(a) or 15(d) under the Exchange Act.
|
|
(iii)
|
The Company and the Company Subsidiaries have established and maintain a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that is sufficient, on a consolidated basis, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS, and includes those policies and procedures that meet the requirements of Rules 13a – 15(f) and 15d – 15(f) of the Exchange Act.
|
|
(iv)
|
The Company’s “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) are designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the chief executive officer and chief financial officer of the Company required under the Exchange Act and the Sarbanes-Oxley Act (as defined below) with respect to such reports. To the knowledge of the Company, it has disclosed, based on its most recent evaluation of such disclosure controls and procedures prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company Board (i) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information, and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. For purposes of this Agreement, the terms “significant deficiency” and “material weakness” shall have the meaning assigned to them in Public Company Accounting Oversight Board Auditing Standard 2, as in effect on the date of this Agreement.
|
|
(v)
|
Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive officer and each former principal financial officer of the Company, as applicable) has made and filed with or furnished to the SEC, as applicable, all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 (including the rules and regulations promulgated thereunder, the “Sarbanes-Oxley Act”) with respect to the Company SEC Documents, and the statements contained in such certifications were true and accurate in all material respects as of the date such certifications were made. For purposes of this Agreement, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act. Neither the Company nor any of the Company Subsidiaries has outstanding (nor has arranged or modified since the enactment of the Sarbanes-Oxley Act) any “extensions of credit” (within the meaning of Section 402 of the Sarbanes-Oxley Act) to directors or executive officers (as defined in Rule 3b-7 under the Exchange Act) of the Company or any of the Company Subsidiaries. The Company is otherwise in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act and the applicable listing and corporate governance rules of Nasdaq.
|
|
(f)
|
Disclosure Filings. The Company:
|
|
(i)
|
is a reporting issuer in British Columbia and the United States;
|
|
(ii)
|
is not subject to any cease trade order under Applicable Securities Laws; and
|
|
(iii)
|
is current with all material filings required to be made under Applicable Securities Laws.
|
|
(g)
|
The Company Disclosure Documents. The information and statements contained in the Company Disclosure Documents at the respective dates of such information and statements (or, if amended or superseded by a subsequent filing, as of the date of the last such amendment or superseding filing prior to the date hereof):
|
|
(i)
|
did not contain a material misrepresentation and did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; and
|
|
(ii)
|
complied, in all material respects, with Applicable Securities Laws.
|
|
(h)
|
Absence of Certain Changes or Events. Other than as disclosed in the Company Disclosure Documents, since March 31, 2012:
|
|
(i)
|
the Company and each Company Subsidiary has conducted its business only in the ordinary and regular course of business consistent with past practice;
|
|
(ii)
|
the Company has not incurred or suffered a Material Adverse Change;
|
|
(iii)
|
there has not been any acquisition or sale by the Company or any Company Subsidiary of any material property or assets;
|
|
(iv)
|
there has not been any incurrence, assumption or guarantee by the Company or any Company Subsidiary of any debt for borrowed money, any creation or assumption by the Company or any Company Subsidiary of any Encumbrance, any making by the Company or any Company Subsidiary of any loan, advance or capital contribution to or investment in any other person;
|
|
(v)
|
the Company has not effected any material change in its accounting methods, principles or practices;
|
|
(vi)
|
the Company has not declared or paid any dividends or made any other distributions on any of the Shares;
|
|
(vii)
|
the Company has not effected or passed any resolution to approve a split, consolidation or reclassification of any of the outstanding Shares;
|
|
(viii)
|
other than in the ordinary and regular course of business consistent with past practice, there has not been any material increase in or modification of the compensation payable to or to become payable by the Company or any Company Subsidiary to any of its directors, officers, employees or consultants or any grant to any such director, officer, employee or consultant of any increase in severance or termination pay or any increase or modification of any bonus, pension, insurance or benefit arrangement (including, without limitation, the granting of Options pursuant to the Company Stock Option Plan) to, for or with any of such directors, officers, employees or consultants; and
|
|
(ix)
|
except for amendments to the Company Stock Option Plans which may be required to give effect to the transactions contemplated by this Agreement, neither the Company nor any Company Subsidiary has adopted any, or materially amended any, collective bargaining agreement, bonus, pension, profit sharing, stock purchase, stock option or other benefit plan.
|
|
(i)
|
Financial Statements, Guarantees and Commitments. The financial statements of the Company forming part of the Company Disclosure Documents have been prepared in accordance with IFRS and fairly present in all material respects the consolidated financial condition of the Company at the respective dates indicated therein and the results of operations of the Company for the periods covered therein. Neither the Company nor any of the Company Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off balance sheet partnership or any similar Company Contract (including any Company Contract or arrangement relating to any transaction or relationship between or among the Company and any of the Company Subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Exchange Act)), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of the Company Subsidiaries in the Company’s or Company Subsidiary’s published financial statements or other Company SEC Documents. The Company does not have any liability or obligation (including, without limitation, liabilities or obligations to fund any operations or work or exploration program, to give any guarantees or for Taxes), whether accrued, absolute, contingent or otherwise, not reflected in the audited consolidated financial statements of the Company for the period ended March 31, 2012, except liabilities and obligations incurred in the ordinary and regular course of business or which liabilities or obligations do not in the aggregate exceed US$25,000.
|
|
(j)
|
No Conflict or Violation. Subject to receipt of the approvals set out in subsection 3.2(u) hereof, the execution and delivery of this Agreement and the completion of the Arrangement and the transactions contemplated herein, do not and will not:
|
|
(i)
|
result in a violation, contravention or breach of, require any consent to be obtained under or give rise to any termination rights under any provision of:
|
|
(A)
|
the articles or by-laws of the Company or any Company Subsidiary,
|
|
(B)
|
any Applicable Law, or
|
|
(C)
|
any Material Company Contract;
|
|
(ii)
|
give rise to any right of termination or acceleration of material indebtedness, or cause any material indebtedness owing by the Company or any Company Subsidiary to come due before its stated maturity or cause any available material credit to cease to be available;
|
|
(iii)
|
result in the imposition of any Encumbrance upon any material property or assets of the Company or any Company Subsidiary or materially restrict, hinder, impair or limit the ability of the Company or any Company Subsidiary to conduct business as and where it is now being conducted; or
|
|
(iv)
|
result in any material (individually or in the aggregate) payment (including severance, unemployment compensation, “golden parachute”, bonus or otherwise) becoming due to any director, officer or employee of the Company or any Company Subsidiary or increase any benefits otherwise payable under any pension or benefits plan of the Company or any Company Subsidiary or result in the acceleration of the time of payment or vesting of any such benefits.
|
|
(k)
|
No Contracts or Commitments. There are no agreements, covenants, undertakings or other commitments of or on behalf of the Company or any Company Subsidiary under which the completion of the Arrangement or other transactions contemplated herein would:
|
|
(i)
|
have the effect of imposing material restrictions or obligations on the Company;
|
|
(ii)
|
give a third party a right to terminate any Company Contract to which the Company or any Company Subsidiary is a party and pursuant to which the Company or any Company Subsidiary is or may be entitled to receive future payments in excess of US$25,000, or without which the Company or any Company Subsidiary would be unable to conduct its business as currently conducted in all material respects;
|
|
(iii)
|
impose restrictions on the ability of the Company or any Company Subsidiary to pay any dividends or make other distributions to its shareholders; or
|
|
(iv)
|
otherwise, individually or in the aggregate, have a Material Adverse Effect on the Company.
|
|
(l)
|
Brokers. A true and complete copy of all arrangements or agreements with the Financial Advisor (the “Financial Advisor Agreement”) and the Broker (the “Broker Agreement”) have been provided to Digital River and the Purchaser. Other than pursuant to the Financial Advisor Agreement and the Broker Agreement in connection with the transactions contemplated herein, neither the Company nor any Company Subsidiary has agreed to pay any brokerage fees, finder’s fees, financial advisory fees, agent’s commissions or other similar compensation in connection with this Agreement or the Arrangement or the transactions contemplated herein.
|
|
(m)
|
Compliance with Laws. To their knowledge, the Company and each Company Subsidiary has complied in all material respects with all Applicable Laws, orders, judgments and decrees. Without limiting the generality of the foregoing, all outstanding securities of the Company (including Shares, Options and Warrants) have been issued in compliance, in all material respects, with all Applicable Securities Laws and all securities of the Company to be issued upon exercise of any Options or Warrants will be issued in compliance with all Applicable Securities Laws.
|
|
(n)
|
Litigation. There are no claims, actions, suits, proceedings or investigations commenced or, to the knowledge of the Company, threatened or contemplated, against or affecting the Company or any Company Subsidiary or affecting any of their respective properties or assets before any Governmental Entity or before or by any person or before any arbitrator of any kind which, individually or in the aggregate, would prevent or hinder the consummation of the Arrangement or the transactions contemplated herein or which, individually or in the aggregate, involve the possibility of any judgment or liability in excess of US$25,000 or that would, or would reasonably be expected to, have a Material Adverse Effect on the Company. There is no pending or, to the knowledge of the Company, threatened claim against the Company or any Company Subsidiary which affects any assets or property of the Company or any Company Subsidiary.
|
|
(o)
|
No Insolvency. No act or proceeding has been taken by or against the Company or any Company Subsidiary in connection with the dissolution, liquidation, winding up, bankruptcy or reorganization of the Company or any Company Subsidiary nor, to the knowledge of the Company, is any threatened, or the appointment of a trustee, receiver, manager or other administrator of the Company or any Company Subsidiary properties or assets. Neither The Company nor any Company Subsidiary has sought protection under the Bankruptcy and Insolvency Act (Canada) or the Creditors Arrangement Act (Canada) or similar legislation. Neither the Company’s nor any Company Subsidiary’s properties or assets is subject to any outstanding judgment, order, writ, injunction or decree that involves or may involve, or restricts or may restrict, the right or ability of the Company or any Company Subsidiary to conduct its business in all material respects as it has been carried on prior to the date hereof, or that would or could materially impede the completion of the Arrangement or the transactions contemplated by this Agreement.
|
|
(p)
|
Books and Records. The corporate records and minute books of the Company and each Company Subsidiary have been maintained in accordance with all Applicable Laws and are complete and accurate in all material respects. Financial books and records and accounts of the Company and each Company Subsidiary in all material respects:
|
|
(i)
|
have been maintained in accordance with good business practices on a basis consistent with prior years and past practice;
|
|
(ii)
|
are stated in reasonable detail and accurately and fairly reflect the transactions and acquisitions and dispositions of property or assets of the Company or such Company Subsidiary; and
|
|
(iii)
|
accurately and fairly reflect the basis for the consolidated financial statements of the Company.
|
|
(q)
|
The Company Contracts. All Company Contracts are valid and subsisting, in full force and effect unamended, no material default exists in respect thereof on the part of the Company or, to the knowledge of the Company, on the part of any of the other parties thereto. Neither the Company nor, to the best knowledge of the Company, after due inquiry, any agent or consultant acting on behalf of the Company is aware of any intention on the part of any of the other parties thereto to terminate or materially alter any of the Company Contracts. Schedule 3.2(q) of the Company Disclosure Schedule sets forth a complete and accurate list of all Company Contracts that:
|
|
(i)
|
would be a considered a “material contract” (as such term is defined in Item 601(b)(10) of Regulations S-K under the Securities Act);
|
|
(ii)
|
is a customer, client or supply agreement under which the Company or any Company Subsidiary may be entitled to pay or receive future payments in excess of US$25,000;
|
|
(iii)
|
contains any non-compete or exclusivity provisions that purport to (A) limit, curtail, or restrict the ability of the Company or any Company Subsidiary to compete in any geographic area or line of business in any material respect or (B) restrict the person to whom the Company or any Company Subsidiary may sell products or deliver services in any material respect;
|
|
(iv)
|
creates any partnership, limited liability company, joint venture, or other similar agreement or contract with a third party;
|
|
(v)
|
provides for the acquisition, sale, lease, exchange or option to purchase any material properties or assets of the Company or any Company Subsidiary;
|
|
(vi)
|
provides for the Company or any Company Subsidiary to indemnify or hold harmless any director or officer of the Company or any Company Subsidiary;
|
|
(vii)
|
is a loan or credit agreement, mortgage, indenture, note or other contract or instrument evidencing indebtedness for borrowed money by the Company or any Company Subsidiary or pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any Company Subsidiary;
|
|
(viii)
|
provides for interest rate caps, collars or swaps, currency hedging or any other similar arrangement to which the Company or any Company Subsidiary is a party;
|
|
(ix)
|
relates to the voting or registration for sale under the Securities Act of any securities of the Company or any Company Subsidiary;
|
|
(x)
|
is material to the business or financial condition of the Company or any Company Subsidiary and provides for (A) the lease or rental of any property, (B) the provision of consulting services by or to the Company, (C) the license to or from any other person of any Intellectual Property Rights, (D) the development of software or other Technology by or for the Company or any Company Subsidiary, or (E) any right of first refusal or first negotiations; or
|
|
(xi)
|
any other Company Contract that is otherwise material to the operation of the business of the Company or any Company Subsidiary as currently conducted or that was entered into outside of the ordinary course of business.
|
|
(r)
|
Tax Matters.
|
|
(i)
|
The Company and each Company Subsidiary has filed or caused to be filed in a timely manner all Tax Returns required to be filed by it (all of which Tax Returns were correct and complete in all material respects and no material fact has been omitted therefrom) and has paid, collected, withheld or remitted, or caused to be paid, collected, withheld or remitted, all Taxes that are due and payable, collectible and remittable. No extension of time in which to file any Tax Returns is in effect. The Company and each Company Subsidiary has provided adequate accruals in accordance with IFRS in all published consolidated financial statements for any Taxes for the period covered by such financial statements which have not been paid, whether or not shown as being due on any Tax Returns. Since such publication date, no material liability for Taxes not reflected in such consolidated financial statements has been incurred or accrued by the Company or any Company Subsidiary other than in the ordinary and regular course of business. No lien for Taxes has been filed or exists other than for Taxes not yet due and payable.
|
|
(ii)
|
All Taxes have been paid or made by the Company or a Company Subsidiary in respect of the Company Assets. There are no reassessments of Taxes in respect of the Company or any Company Subsidiary that are outstanding and there are no outstanding issues which have been raised and communicated to the Company or any Company Subsidiary by any Governmental Entity for any taxation year in respect of which a Tax Return of the Company or any Company Subsidiary has been audited. No governmental Entity has challenged, disputed or questioned the Company or any Company Subsidiary in respect of any Taxes or Tax Returns. Neither the Company nor any Company Subsidiary is negotiating any draft assessment or reassessment with any Governmental Entity. Neither the Company nor the Company Subsidiary is aware of any contingent liabilities for Taxes or any grounds for an assessment or reassessment of the Company or any Company Subsidiary, including, without limitation, unreported benefits conferred on any shareholder, aggressive treatment of income, expenses, credits or other claims for deduction under any return or notice other than as disclosed in the consolidated financial statements of the Company. Neither the Company nor the Company Subsidiary has received any indication from any Governmental Entity that an assessment or reassessment of the Company or any Company Subsidiary is proposed in respect of any Taxes, regardless of its merits. Neither the Company nor any Company Subsidiary has executed or filed with any Governmental Entity any agreement or waiver extending the period for the assessment, reassessment or collection of any Taxes.
|
|
(iii)
|
The Company and each Company Subsidiary has withheld from each payment made to any of its present or former employees, officers and directors, and to all other persons, all amounts required by Applicable Law to be withheld, and furthermore, has remitted such withheld amounts within the prescribed periods to the appropriate Governmental Entity. The Company and each Company Subsidiary has remitted all Canada Pension Plan contributions, provincial pension plan contributions, employment insurance premiums, employer health taxes and other Taxes payable by it in respect of its employees, agents and consultants, as applicable, and has remitted such amounts to the proper Governmental Entity within the time required under Applicable Laws. The Company and each Company Subsidiary has charged, collected and remitted on a timely basis all Taxes required under Applicable Laws on any sale, supply or delivery whatsoever, made by them.
|
|
(s)
|
Pension and Employee Benefits. The Company and each Company Subsidiary has complied, in all material respects, with all of the provisions of any collective agreement, funding and investment contract or obligation applicable thereto, arising under or relating to each plan, program, policy, agreement, pension, collective bargaining agreement or other arrangement providing for compensation, severance, deferred compensation, performance awards, stock or stock-based awards, fringe, retirement, death, disability or medical benefits or other employee benefits or remuneration of any kind, whether written or oral, that are maintained by or binding upon the Company or any Company Subsidiary, and each such plan, program, policy, agreement, pension, collective bargaining agreement or other arrangement was established and has been maintained in compliance in all material respects with all Applicable Laws, and there are no unfunded liabilities with respect to the same. Schedule 3.2(s) of the Company Disclosure Schedule contains an accurate and complete list, as of the date of this Agreement, of each material plan, program, policy, agreement, pension, collective bargaining agreement or other arrangement providing for compensation, severance, deferred compensation, performance awards, stock or stock-based awards, fringe, retirement, death, disability or medical benefits or other employee benefits or remuneration of any kind, whether written or oral, that are maintained by or binding upon the Company or any Company Subsidiary. The Company has made available to Digital River and the Purchaser correct and complete copies of all of the foregoing plans and any amendments thereto that in each case are in effect as of the date of this Agreement, and, to the extent applicable, all related trust agreements, funding arrangements and insurance contracts now in effect or required in the future, and all communications with or from any Governmental Entity in the last three (3) fiscal years regarding such plans. There are no audits, inquiries or litigation pending, or to the knowledge of the Company, threatened with respect to any of the foregoing plans, programs, policies, agreements, pensions, collective bargaining agreements or other arrangements.
|
|
(t)
|
The Company Board Approval. The Company Board, after a positive recommendation by the Special Committee, by resolutions duly adopted at a meeting of all Company directors duly called and held, and the independent directors of the Company Board, voting separately;
|
|
(i)
|
have approved the Arrangement and the transactions contemplated herein and authorized the entering into of this Agreement, the execution thereof and the performance of its provisions by the Company;
|
|
(ii)
|
have determined that the Arrangement is fair to the Shareholders and that the Arrangement is in the best interests of the Company; and
|
|
(iii)
|
will, except as otherwise permitted by this Agreement, make the Company Board Recommendation at the Company Meeting, in the Information Circular, and in any other solicitation relating to the Arrangement Resolution.
|
|
(u)
|
Consents; Takeover Statutes. No consent, approval, order or authorization of, or declaration or filing with, any Governmental Entity or other person is required to be obtained or made by the Company or any Company Subsidiary in connection with the execution and delivery of this Agreement. No consent, approval, order or authorization of or declaration or filing with, any Governmental Entity is required to be obtained or made by the Company or any Company Subsidiary in connection with the Arrangement and the transactions contemplated herein other than:
|
|
(i)
|
any approvals required by the Interim Order;
|
|
(ii)
|
any approvals required by the Final Order;
|
|
(iii)
|
any filings or approvals required under the rules and policies of Nasdaq, the BCBCA or under Applicable Securities Laws;
|
|
(iv)
|
such Filings and other actions required pursuant to the Competition Act or the Investment Canada Act, if and to the extent applicable; and
|
|
(v)
|
any other consents, approvals, orders, authorizations, declarations or filings of or with a Governmental Entity with respect to which the failure to obtain or make the same would, or would reasonably be expected to prevent or significantly impede or materially delay the completion of the Arrangement.
|
|
(v)
|
Intellectual Property; Software and other Technology.
|
|
(i)
|
The Company or a Company Subsidiary owns sole and exclusive right, title and interest in and to, or has validly licensed (and is not in material breach of such licenses), all patents, trademarks, trade names, service marks, copyrights, trade secrets, software, technology and all other intellectual property and proprietary rights that are material to the conduct of the business, as presently conducted, of the Company and each Company Subsidiary (collectively, the “Intellectual Property Rights”), free and clear of all Encumbrances. Schedule 3.2(v)(i) of the Company Disclosure Schedule contains a complete and correct list, as of the date hereof, of all Intellectual Property Rights that are the subject of any issuance, registration, certificate, application or other filing by, to or with any Governmental Entity or authorized private registrar, including registered trademarks, registered copyrights, issued patents, domain name registrations, and pending applications for any of the foregoing, and identifies whether such Intellectual Property Rights are owned or are subject to license (and, if licensed, the material terms of such license). Each employee of the Company and each of the Company Subsidiaries that was involved in the development or creation of Intellectual Property Rights has executed a proprietary invention assignment agreement in the substantially the form(s) as delivered to Digital River and the Purchaser. No such employee of the Company or any Company Subsidiary has excluded works or inventions made prior to his or her employment with the Company or any Company Subsidiary from his or her assignment of inventions pursuant to such employee’s invention assignment agreement. Neither the Company nor any Company Subsidiary, nor any of their respective employees during the course of their employment, have participated in, contributed to, or submitted materials for any industry setting standards organization that would, whether under law, in equity or under the policies, procedures, rules or regulations of such organization, adversely affect the Company’s or any Company Subsidiary’s rights in any Intellectual Property Rights.
|
|
(ii)
|
The Intellectual Property Rights are sufficient, in all material respects, for conducting the business, as presently conducted, of the Company and the Company Subsidiaries.
|
|
(iii)
|
To the knowledge of the Company, all of the Intellectual Property Rights are valid and enforceable, and no event will occur as a result of the transactions contemplated hereby that would render invalid or unenforceable any of the Intellectual Property Rights, except for such invalidity or unenforceability as would not reasonably be expected to materially and adversely impact the conduct of the Company’s or any Company Subsidiary’s business as presently conducted. To the knowledge of the Company, neither the Technology nor the business of the Company and the Company Subsidiaries as presently conducted infringes any third party’s intellectual property or proprietary rights, except for such infringements as would not reasonably be expected to materially and adversely impact the conduct of the Company’s or any Company Subsidiary’s business as presently conducted.
|
|
(iv)
|
To the knowledge of the Company, no third party is infringing upon the Intellectual Property Rights in any material respect.
|
|
(v)
|
All hardware, software and firmware, processed data, technology infrastructure and other computer systems used in connection with the conduct of the business, as presently conducted, of the Company and the Company Subsidiaries (collectively, the “Technology”) are sufficient, in all material respects, for conducting the business, as presently conducted, of the Company and the Company Subsidiaries.
|
|
(vi)
|
The Company or a Company Subsidiary owns or has validly licensed (and are not in material breach of such licenses) the Technology and has commercially reasonable virus protection, security, back-up and recovery systems in place in relation to the Technology.
|
|
(vii)
|
As used in this subsection, the term “Open Source Materials” shall mean all software or other material that is distributed as “free software,” “open source software” or under a similar licensing or distribution model (including but not limited to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL) and the Apache License). To their knowledge, neither the Company nor any Company Subsidiary has used Open Source Materials in any manner that would, with respect to any product or service offered by the Company or a Company Subsidiary (i) require its disclosure or distribution in course code form, (ii) require the licensing thereof for the purpose of making derivative works, (iii) impose any restriction on the consideration to be charged for the distribution thereof, (iv) create, or purport to create, obligations for the Company or any Company Subsidiary with respect to any Company Intellectual Property Rights or grant, or purport to grant, to any third party, any rights or immunities under any Company Intellectual Property Rights, or (v) impose any other material limitation, restriction, or condition on the rights of the Company with respect to its use or distribution.
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|
(viii)
|
Excluding any tools that are commercially available at a cost of less than US$10,000 and are used in their generally available form, the Company or a Company Subsidiary has all right, title, and interest in or right to use all software development tools currently in use by the Company or a Company Subsidiary in connection with its products, services, or Technology or that are otherwise necessary in the conduct of its business as currently conducted, and will continue to enjoy such rights following the consummation of the Arrangement. To the extent that any Material Company Contract provides for the development by another person of any software or hardware to be utilized by the Company or a Company Subsidiary in the conduct of its business: (i) such development has been timely completed in accordance with the terms of such Material Company Contract; and (ii) to the knowledge of the Company, there are no facts and circumstances from which it could reasonably be inferred that the other person who is a party to such Material Company Contract will fail to meet any milestones or any final delivery date specified in such Material Company Contract, or otherwise materially breach such Material Company Contract.
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|
(w)
|
Residency. The Company is not a non-resident of Canada for purposes of the Tax Act.
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|
(x)
|
Fairness Opinion. The Company has received the Fairness Opinion of the Financial Advisor (and, if it is in writing, has provided a copy of such opinion to Digital River) and, as of the date of this Agreement, such opinion has not been withdrawn, revoked or modified.
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|
(y)
|
Compliance with Laws and Other Requirements.
|
|
(i)
|
To their knowledge, the Company and each Company Subsidiary is, and at all times has been, in compliance with all Applicable Laws in all material respects (including without limitation the Personal Information Protection and Electronic Documents Act). Neither the Company nor any Subsidiary has received any notice or other communication from any Governmental Entity or person regarding any actual or possible violation of, or failure to comply with, any Applicable Laws. Without limiting the generality of the foregoing, the Company has complied in all material respects with the Fair Debt Practices Act, the Federal Fair Credit Reporting Act, the National Automated Clearing House Association Operating Rules, and the requirements of the Payment Card Industry’s Security Standard, as applicable.
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|
(ii)
|
Neither the Company nor any Company Subsidiary (A) export products, software or technology from the United States except intercompany among the Company and the Company Subsidiaries in Canada and the United States, (B) has pending or, to the Company’s knowledge, threatened claims against the Company or any Company Subsidiary with respect to export licenses or other export approvals from any Governmental Entity, (C) to the Company’s knowledge, has any actions, conditions, or circumstances pertaining to the Company’s or any Company Subsidiary’s exports of product, software or technology that may give rise to any future claims, or (D) hold export licenses. Data related to historical transactions transacted two or more years ago for which Company or any Company Subsidiary has processed any payments has never been retained for a period of more than two years, is now unavailable, and does not exist in the United States or Canada on any server, in any archive, back-up tape, database or in any other capacity.
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|
(iii)
|
The Company has at all times provided adequate notice of, and complied with, its privacy practices in its privacy policy or policies in all material respects. The privacy policies of the Company, Company Subsidiaries and their respective subcontractors processing personal and user information on their behalf conform in all material respects, and at all times have conformed in all material respects, to all of the Company’s and the Company Subsidiaries’ respective contractual commitments to their customers and the viewers of all Internet websites owned, maintained or operated by or on behalf of the Company or any Company Subsidiary (collectively, the “Company Websites”). With respect to all personal and user information described in this subsection, the Company has at all times taken all commercially reasonable efforts necessary (including, without limitation, implementing and monitoring compliance with adequate measures with respect to technical and physical security, but in no event less than Payment Card Industry Data Security Standards or the most restrictive legislative, regulatory or other binding requirements regarding information security applicable to Company and the Company Subsidiaries, whichever is more stringent) to ensure that the information is protected against loss and against unauthorized access, use, modification, disclosure or other misuse. Neither Company nor any Company Subsidiary has identified the access to, or exposure of, personal or user information to an unauthorized third party.
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|
(z)
|
Title to Assets.
|
|
(i)
|
Neither the Company nor any Company Subsidiary owns any real property.
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|
(ii)
|
Section 3.2(z) of the Company Disclosure Schedule contains a complete and correct list of all real property leased, subleased, licensed or otherwise occupied (whether as tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any of the Company Subsidiaries (collectively, including the improvements thereon, the “Leased Real Property”), and for each Leased Real Property, identifies the street address of such Leased Real Property. Complete and correct copies of all agreements under which the Company or any Company Subsidiary thereof is the landlord, sublandlord, tenant, subtenant, or occupant (each a “Real Property Lease”) that have not been terminated or expired as of the date hereof have been delivered or made available to Digital River.
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|
(iii)
|
The Company or one of the Company Subsidiaries has good and valid title to, or in the case of leased properties and assets, valid leasehold interests in, all of their other material tangible properties and assets, free and clear of all Encumbrances except (A) statutory liens securing payments not yet due, and (B) such other imperfections or irregularities of title or other Encumbrances that, individually or in the aggregate, do not and would not reasonably be expected to materially affect the use of the properties or assets subject thereto or otherwise materially impair business operations as presently conducted.
|
|
(iv)
|
The Company or one of the Company Subsidiaries is the lessee or sublessee of all Leased Real Property. Each of the Company and such Company Subsidiaries enjoys peaceful and undisturbed possession under all Real Property Leases.
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|
(aa)
|
Insurance. Schedule 3.2(aa) of the Company Disclosure Schedule sets forth a correct and complete list of all insurance policies (including information on the premiums payable in connection therewith and the scope and amount of the coverage provided thereunder) maintained by the Company or the Company Subsidiaries (the “Policies”). Neither the Company nor the Company Subsidiaries is in material breach or default, and neither the Company nor any of the Company Subsidiaries have taken any action or failed to take any action which, with notice or the lapse of time, would constitute such a breach or default, or permit termination or modification, of any of the Policies. No notice of cancellation or termination has been received by the Company or any Company Subsidiary with respect to any of the Policies. The consummation of the Arrangement, in and of itself, will not cause the termination, revocation or cancellation of any Policy.
|
|
(a)
|
Except as otherwise provided in this Agreement, the Company shall, and shall cause each Company Subsidiary to, conduct its business only in, not take any action except in, and maintain its facilities in, the ordinary and regular course of business consistent with past practice and it shall use its best efforts to maintain and preserve its business organization and assets.
|
|
(b)
|
The Company shall keep the Purchaser fully informed as to all material decisions or actions required or required to be made with respect to the operations of the business of the Company or any Company Subsidiary, and will allow representatives of the Purchaser and Digital River to participate in any such material decision making process. The Company shall grant the representatives of the Purchaser and Digital River access to the properties, assets, books and records of the Company or any Company Subsidiary as the Purchaser or Digital River may reasonably request.
|
|
(c)
|
Except as otherwise permitted in this Agreement or in connection with the Arrangement, the Company will not, directly or indirectly, do or permit to occur, and will cause each Company Subsidiary not to, directly or indirectly, do or permit to occur, any of the following:
|
|
(i)
|
issue, sell, or agree to issue or sell, or pledge any Shares, Options, Warrants, calls, conversion privileges or rights of any kind to acquire any shares or other securities, or create any Encumbrance on any Shares, other than the issuance of Shares pursuant to the exercise of Options or Warrants outstanding on the date hereof in accordance with their terms as of the date hereof;
|
|
(ii)
|
amend or propose to amend its constating documents or, except as agreed to with the Purchaser or contemplated in the Plan of Arrangement, any of the terms of Options or Warrants as they exist on the date hereof;
|
|
(iii)
|
split, combine or reclassify any of the shares or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to any shares;
|
|
(iv)
|
redeem, purchase or offer to purchase any Shares and, other than pursuant to the Company Stock Option Plans or outstanding Warrants;
|
|
(v)
|
adopt any resolution or enter into any agreement providing for an amalgamation, merger, consolidation, reorganization, liquidation, dissolution or other extraordinary transaction, adopt any plan of liquidation or reorganize, amalgamate or merge with any other person;
|
|
(vi)
|
sell, pledge, lease, encumber or otherwise dispose of any assets or property or any interest therein and, except as contemplated herein, sell, pledge, encumber, lease or otherwise dispose of any other material properties or assets;
|
|
(vii)
|
except in the ordinary and regular course of business (up to an amount not to exceed, in the aggregate, US$25,000) or as required by Applicable Laws, enter into or modify in any material respect any contract, agreement, licence, franchise, lease transaction, commitment or other right or obligation or arrangement including, without limitation, any Company Contract;
|
|
(viii)
|
make any investment in any person except in the ordinary and regular course of business, or acquire or agree to acquire (by merger, amalgamation, acquisition of stock or assets or otherwise) any person or any material properties or assets;
|
|
(ix)
|
incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other person, or make any loans or advances other than in the ordinary and regular course of business;
|
|
(x)
|
authorize, recommend, propose or agree to any release or relinquishment of any standstill agreement or of any other material contractual right;
|
|
(xi)
|
except in the ordinary course of business, enter into any hedges, swaps or other similar financial instruments or transactions;
|
|
(xii)
|
enter into any agreements with its directors or officers or their respective affiliates or associates other than in the ordinary and regular course of business;
|
|
(xiii)
|
change any accounting method, principle or practice except for any changes as a result of transition to IFRS or changes as required by Applicable Laws;
|
|
(xiv)
|
make or change any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, enter into any closing agreement, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment, (other than in the ordinary and regular course of business or as required by Applicable Laws); or
|
|
(xv)
|
authorize, propose, permit or agree to any of the foregoing.
|
|
(d)
|
The Company shall not directly or indirectly, and shall cause each Company Subsidiary not to, directly or indirectly, enter into new commitments of a capital expenditure nature or incur any new contingent liabilities other than:
|
|
(i)
|
ordinary course expenditures where the amount of such other expenditures does not exceed US$25,000 in the aggregate;
|
|
(ii)
|
expenditures required by Applicable Law;
|
|
(iii)
|
expenditures made in connection with the Arrangement and the transactions contemplated in this Agreement;
|
|
(iv)
|
(without duplication) expenditures required by any of the Company Contracts; and
|
|
(v)
|
(without duplication) capital expenditures required to prevent the occurrence of a Material Adverse Effect on the Company.
|
|
(e)
|
The Company and each Company Subsidiary shall not create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to officers, directors, employees or consultants of the Company or any Company Subsidiary other than for salary, bonuses and directors’ fees and options in the ordinary course, in each case in amounts consistent with past practice, or obligations or liabilities arising in the ordinary and regular course of business prior to the Effective Time.
|
|
(f)
|
The Company and each Company Subsidiary shall not adopt or amend or make any contribution to any profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees except in the ordinary course or except as required to give effect to the Arrangement.
|
|
(g)
|
Except as otherwise provided in this Agreement, the Company shall not, and shall cause each Company Subsidiary not to, otherwise take any action that could reasonably be expected to interfere with or be inconsistent with the completion of the Arrangement or the other transactions contemplated in this Agreement.
|
|
(h)
|
The Company and each Company Subsidiary shall use reasonable best efforts to cause its current insurance (or reinsurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and reinsurance companies of internationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect.
|
|
(i)
|
The Company and each Company Subsidiary shall use reasonable best efforts:
|
|
(i)
|
to preserve intact its business organizations and the rights under the Company Contracts;
|
|
(ii)
|
to not do anything or fail to do anything which could lead to a breach under any Company Contract;
|
|
(iii)
|
to keep available the services of its officers, employees, agents and consultants listed as agreed by the parties upon execution of this Agreement;
|
|
(iv)
|
to maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it;
|
|
(v)
|
to not take any action which could reasonably be expected to be prejudicial to any of the property or assets of the Company or any Company Subsidiary; and
|
|
(vi)
|
to not take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at any time prior to the Effective Date if then made.
|
|
(j)
|
The Company and each Company Subsidiary will not engage in any business, enterprise or other activity different from that carried on by it at the date of this Agreement that could reasonably be expected to have a Material Adverse Effect on the Company, or enter into any transaction or incur (except in respect of obligations or liabilities to which it is already legally subject or are contemplated by this Agreement) any material obligation, expenditure or liability other than in the ordinary and regular course of business as presently conducted.
|
|
(k)
|
The Company will furnish to the Purchaser such information, in addition to the information contained in this Agreement, relating to the Company and its business, property and assets as may reasonably be requested by the Purchaser, and such information and any other information relating to the Company or any Company Subsidiary provided by the Company to the Purchaser will be true and complete in all material respects and will not contain a misrepresentation.
|
|
(l)
|
Except as otherwise required by Applicable Laws and subject to reasonable best efforts, the Company shall not, and shall cause each Company Subsidiary not to, take any action, or refrain from taking any action, or permit any action to be taken or not taken, inconsistent with the provisions of this Agreement or that would reasonably be expected to materially impede the completion of the Arrangement or the transactions contemplated herein or would render, or that could reasonably be expected to render, any representation or warranty made by the Company in this Agreement untrue or inaccurate in any material respect at any time prior to the Effective Time if then made, or that would or could have a Material Adverse Effect on the Company.
|
|
(m)
|
The Company will promptly notify the Purchaser in writing if:
|
|
(i)
|
the Company obtains knowledge that any of the representations and warranties of the Company in this Agreement are untrue or inaccurate in any material respect;
|
|
(ii)
|
there has been any breach of any covenant or agreement of the Company contained in this Agreement; or
|
|
(iii)
|
there has been any Material Adverse Change in respect of the Company.
|
|
(n)
|
Subject to Applicable Laws relating to the exchange of information, the Company shall, and shall cause each of the Company Subsidiaries to, upon reasonable notice, afford to Digital River and Digital River’s representatives reasonable access during normal business hours to all of the Company’s and the Company Subsidiaries’ properties, books, Material Company Contracts, commitments, records and correspondence (in each case, whether in physical or electronic form, and including all material environmentally related audits, studies, reports, analyses and results of investigations performed with respect to the currently or previously owned leased or operated properties of the Company or any of the Company Subsidiaries), and to their respective, officers, employees, accounts, counsel, financial advisors and other representatives, and to all other information concerning the Company and the Company Subsidiaries’ and their business, properties and personnel as Digital River may reasonably request, including without limitation for purposes of confirming the accuracy of the representations set forth in Section 3.2(y)(ii). The Company shall furnish promptly to Digital River a copy of each report, schedule and other document filed or submitted by it pursuant to the requirements of Applicable Securities Laws and a copy of any communication (including SEC “comment letter”) received by the Company from any Securities Authority concerning compliance with Applicable Securities Laws. No investigation, or information received, pursuant to this Section 4.1(n) will modify any of the presentations and warranties of the parties hereto.
|
|
(o)
|
The Company shall use reasonable best efforts to take, to cause the Company Subsidiaries to take, or otherwise cause to be taken, all actions and to do, to cause the Company Subsidiaries to do, or otherwise cause to be done, all things necessary to consummate and make effective as promptly as is practicable the Arrangement and the other transactions contemplated in this Agreement, including the execution and delivery of such documents as the Purchaser may reasonably request, and shall use reasonable best efforts to obtain all necessary waivers, consents and approvals and to effect all necessary registrations and filings, including, but not limited to, approvals and filings under Applicable Securities Laws, Nasdaq, and submissions of information requested by Governmental Entities, and to otherwise satisfy or cause to be satisfied all conditions to Closing.
|
|
(p)
|
The Company shall cooperate, and shall cause the Company Subsidiaries and their respective affiliates, officers, employees, agents, auditors and representatives reasonably to co-operate, in preparing and filing all Tax Returns, resolving all disputes and audits with respect to all applicable periods relating to Taxes, and in any other matters relating to Taxes, including by maintaining and making available to the Purchaser all books, records and other information of the Company related to Taxes and shall timely pay all Taxes arising before the Effective Date.
|
|
(q)
|
The Company shall execute and deliver, or cause to be executed and delivered, such customary agreements, certificates, resolutions and other documents and instruments as may be requested by the other Parties hereto, all in form satisfactory to the other Parties hereto, acting reasonably, necessary or required in order to complete the Arrangement and the other transactions contemplated herein.
|
|
(r)
|
The Company shall not amend the terms of the Financial Advisor Agreement or the Broker Agreement without the approval of the Purchaser.
|
|
(s)
|
The Company shall use its reasonable best efforts to obtain the consent of each holder of options issued under the Company’s 1996 Stock Option Plan to the Arrangement.
|
|
(t)
|
So that it will be operational as of the Effective Date, the Company shall implement and enable functionality such that Digital River and/or the Purchaser may, via automated functionality, restrict (i) processing of payments for transactions with certain consumers, and (ii) engaging in business with certain entities, based upon the consumer or entity’s geographical location, nation of origin, or identification on applicable restricted parties lists.
|
|
(a)
|
The Company shall, and the Company shall direct and cause the Company Subsidiaries and their respective representatives and their respective representatives (including, without limitation, the Company’s advisors and investment bankers) to, immediately cease and cause to be terminated any solicitation, encouragement, activity, discussion, negotiation or process with any person that may be ongoing with respect to any proposal that constitutes, or may reasonably be expected to constitute, an Acquisition Proposal whether or not initiated by the Company, until termination of this Agreement pursuant to Article 7. The Company and each Company Subsidiary will discontinue access to any other third party (other than Digital River, the Purchaser, or their representatives) to any data room (virtual or otherwise) and promptly request the return or deletion from all data retrieval systems and data bases or destruction of all confidential information regarding the Company or any Company Subsidiary previously provided to any person (other than Digital River and the Purchaser) and use reasonable best efforts to ensure that such requests are honoured. The Company further agrees not to release any such person from any standstill or confidentiality agreement or provision to which such person is a party with the Company and to take all actions required to enforce such standstill and confidentiality agreements and provisions.
|
|
(b)
|
Subject to subsection 4.2(d) and Section 4.3, the Company hereby covenants and agrees that it shall not, and the Company shall not authorize or permit any Company Subsidiary or any of their respective representatives (including, without limitation, the Company’s advisors and investment bankers) directly or indirectly, to:
|
|
(i)
|
make, solicit, initiate, encourage, entertain, promote or facilitate, including by way of furnishing information, permitting any visit to facilities or properties of the Company or entering into any form of agreement, written or verbal, any inquiries or the making of any proposal which does or could constitute an Acquisition Proposal or potential Acquisition Proposal;
|
|
(ii)
|
participate, directly or indirectly, in any discussions or negotiations regarding any Acquisition Proposal or potential Acquisition Proposal;
|
|
(iii)
|
withdraw, modify, qualify or change in a manner adverse to Digital River or the Purchaser, or publicly state that it intends to withdraw, modify, qualify or change in a manner adverse to Digital River or the Purchaser, the Company Board Recommendation (it being understood that failing to affirm the Company Board Recommendation after an Acquisition Proposal has been publicly announced shall be considered a modification which is adverse to Digital River or the Purchaser for the purposes of this subsection if the Company Board has not affirmed the Company Board Recommendation on the date which is the earlier of:
|
|
(A)
|
15 calendar days after the date on which the Acquisition Proposal has been publicly announced; and
|
|
(B)
|
five Business Days prior to the Company Meeting (unless the Acquisition Proposal has been publicly announced within such five Business Day period);
|
|
(iv)
|
approve or recommend any Acquisition Proposal; or
|
|
(v)
|
enter into any agreement, written or verbal, related to any Acquisition Proposal or requiring the Company to abandon, terminate or fail to consummate the Arrangement and the transactions contemplated herein or providing for the payment of any break, termination or other fee or expense to any person in the event that the Company completes the Arrangement or the other transactions contemplated herein or any other transaction with Digital River agreed to prior to the termination of this Agreement.
|
|
(c)
|
The Company shall not, and shall cause the Company Subsidiaries not to, directly or indirectly, consider, discuss, negotiate, accept, approve or recommend an Acquisition Proposal or provide information to any person proposing an Acquisition Proposal, in each case after the date of the approval of the Arrangement Resolution by the Shareholders.
|
|
(d)
|
Notwithstanding subsection 4.2(b), the Company Board may, prior to the approval of the Arrangement Resolution by the Shareholders, consider and participate, directly or indirectly, in any discussions or negotiations with, or provide information to, or permit any visit to the properties or facilities of the Company by, any person who has delivered a bona fide written Acquisition Proposal:
|
|
(i)
|
which was not solicited or encouraged after the date of this Agreement;
|
|
(ii)
|
did not otherwise result from a breach of this Section 4.2; and
|
|
(iii)
|
that the Company Board determines in good faith, after consultation with the Broker and outside legal counsel, is a Superior Proposal;
|
|
(iv)
|
give notice to the Purchaser of such Acquisition Proposal as provided in subsection 4.2(e); and
|
|
(v)
|
obtain a confidentiality agreement from the person making such Acquisition Proposal in form and substance substantially similar to the confidentiality agreement entered into between Digital River and the Company.
|
|
(e)
|
From and after the date of this Agreement, the Company shall promptly (and in any event within 24 hours) notify the Purchaser, at first orally and then in writing, of any inquiry, proposal or offer relating to or constituting an Acquisition Proposal, or any request for non-public information relating to the Company or any Company Subsidiary. Such notice shall include a description of the terms and conditions of any such proposal, inquiry or offer and provide such other details of the proposal, inquiry or offer and the identity of the person making such proposal, inquiry or offer as the Purchaser may reasonably request. The Company shall keep the Purchaser fully informed on a prompt basis of the status, including any change to the material terms, of any such inquiry, proposal or offer.
|
|
(f)
|
Nothing contained in this Agreement shall relieve the Company from its obligation to proceed to call and hold the Company Meeting and to hold a vote of the Shareholders on the Arrangement Resolution, except in circumstances where this Agreement is terminated in accordance with the terms hereof prior to the date of the Company Meeting.
|
|
(g)
|
The Company shall ensure that each of the Company Subsidiaries and their respective officers and directors and all advisors and representatives (including, without limitation, the Company’s advisors) retained by any of them are aware of the provisions of this Section 4.2, and it shall be responsible for any breach of this Section 4.2 by such officers, directors, advisors or representatives. Any breach by the Company of Section 4.2 or 4.3 shall be deemed material and incurable.
|
|
(a)
|
If the Company has complied with Section 4.2 of this Agreement, the Company Board may accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal and may refrain from affirming the Company Board Recommendation prior to the Shareholder Approval and terminate this Agreement if, and only if (with the exception of a confidentiality agreement which complies with subsection 4.2(d) the execution of which shall not be subject to the conditions of this Section 4.3):
|
|
(i)
|
the Company has provided the Purchaser with a copy of the document containing the Superior Proposal;
|
|
(ii)
|
five Business Days have elapsed from the later of:
|
|
(A)
|
the date the Purchaser received written notice (a “Superior Proposal Notice”) advising the Purchaser that the Company Board has resolved, subject to compliance with this Section 4.3, to accept, approve, recommend or enter into an agreement in respect of such Superior Proposal, specifying the terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal; and
|
|
(B)
|
the date the Purchaser received a copy of the document containing such Superior Proposal;
|
|
(iii)
|
the Company Board has determined in good faith (after consultation with outside legal counsel) that it is necessary for the Company Board to take such action in order to discharge properly its fiduciary duties; and
|
|
(iv)
|
taking into account any revised proposal made by the Purchaser and Digital River since receipt of the Superior Proposal Notice, such Superior Proposal remains a Superior Proposal and the Company Board has again made the determinations referred to in this subsection 4.3(a).
|
|
(b)
|
During the five Business Day period referred to in subsection 4.3(a)(ii) above, Digital River and the Purchaser shall have the right but not the obligation, to offer to amend the terms of this Agreement or the Plan of Arrangement. The Company Board will review any proposal by Digital River and the Purchaser to amend the terms of this Agreement or the Plan of Arrangement in good faith in order to determine whether the amended proposal upon acceptance by the Company would result in such Superior Proposal ceasing to be a Superior Proposal. If the Company Board so determines, the Company shall enter into an amended agreement with Digital River and the Purchaser reflecting the amended proposal. If the Company Board continues to believe, in good faith and after consultation with the Broker and outside legal counsel, that such Superior Proposal remains a Superior Proposal and therefore rejects Digital River’s amended proposal, the Company may terminate this Agreement pursuant to Section 7.1(c) and enter into an agreement regarding the Superior Proposal or the Company Board may recommend the Superior Proposal and withdraw the Company Board Recommendation.
|
|
(c)
|
The Company hereby acknowledges and agrees that each successive material modification of any Acquisition Proposal shall constitute a new Acquisition Proposal for purposes of Section 4.2 and the requirement under subsection 4.3(a)(ii) to initiate an additional five Business Day notice period.
|
|
(d)
|
If the Information Circular has been sent to the Shareholders prior to the expiry of the five Business Day period set forth in subsection 4.3(a)(ii) and, during such period, the Purchaser requests in writing that the Company Meeting proceed, unless otherwise ordered by the Court, the Company shall continue to take all reasonable actions necessary to hold the Company Meeting and to cause the Arrangement to be voted on at the Company Meeting.
|
|
(e)
|
Notwithstanding anything to the contrary in this Section 4.3, the Company may not enter into any agreement regarding an Acquisition Proposal unless this Agreement has been or concurrently is validly terminated pursuant to Article 7.
|
|
(a)
|
Digital River and the Purchaser shall not take any action, or refrain from taking any action (subject to reasonable best efforts), or permit any action to be taken or not taken, inconsistent with the provisions of this Agreement or that would reasonably be expected to materially impede the completion of the Arrangement or the transactions contemplated herein or would render, or that could reasonably be expected to render, any representation or warranty made by Digital River and the Purchaser or made by the Company in this Agreement untrue or inaccurate in any material respect at any time prior to the Effective Time if then made or that would or could have a Material Adverse Effect on the Company.
|
|
(b)
|
the Purchaser will promptly notify the Company in writing if:
|
|
(i)
|
Digital River and the Purchaser becomes aware that any of the representations and warranties of Digital River and the Purchaser in this Agreement is untrue or inaccurate in any material respect; or
|
|
(ii)
|
there has been any breach of any covenant or agreement of Digital River or the Purchaser contained in this Agreement.
|
|
(c)
|
Digital River and the Purchaser shall use all reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as is practicable the Arrangement and the other transactions contemplated in this Agreement, including the execution and delivery of such documents as the Company may reasonably request, and to use reasonable best efforts to obtain all necessary waivers, consents and approvals and to effect all necessary registrations and filings, including, but not limited to, approvals and filings under Applicable Securities Laws and Nasdaq and submissions of information requested by Governmental Entities.
|
|
(d)
|
In a timely and expeditious manner, Digital River and the Purchaser shall provide to the Company all information as may be reasonably requested by the Company or as required by the Interim Order or Applicable Laws with respect to Digital River and the Purchaser and their businesses and properties for inclusion in Information Circular or in any amendment or supplement to Information Circular that complies in all material respects with all Applicable Laws on the date of the mailing thereof and containing all material facts relating to Digital River and the Purchaser required to be disclosed in Information Circular and not containing any misrepresentation with respect thereto. Digital River and the Purchaser shall fully co-operate with the Company in the preparation of Information Circular and shall provide such assistance as the Company may reasonably request in connection therewith.
|
|
(a)
|
the Interim Order shall have been granted in form and substance satisfactory to the Parties hereto, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to the Parties hereto, acting reasonably, on appeal or otherwise;
|
|
(b)
|
the Shareholder Approval shall have been obtained in accordance with the provisions of the Interim Order; and
|
|
(c)
|
the Final Order shall have been granted in form and substance satisfactory to Digital River and the Company, and shall not have been set aside or modified in a manner unacceptable to Digital River or the Company, on appeal or otherwise.
|
|
(a)
|
the representations and warranties made by Digital River and the Purchaser in this Agreement shall be true and correct in all material respects (without giving effect to any qualifications or limitations indicated by the words “Material Adverse Effect”, “in all material respects”, “material”, “materially” or other, similar qualifiers or limitations) as of the date of this Agreement and as of the Effective Time as if made on and as of such date (except to the extent that such representations and warranties represent and warrant certain facts or information as at an earlier specified date, in which event such representations and warranties shall truly and correctly represent and warrant such facts and information as of such earlier specified date), and Digital River and the Purchaser shall have provided to the Company a certificate of a director or officer thereof certifying such accuracy on the Effective Date;
|
|
(b)
|
The Purchaser and Digital River shall have complied in all material respects with its covenants herein and the Purchaser shall have provided to the Company a certificate of a director or officer thereof, certifying that, as of the Effective Time, Digital River and the Purchaser have so complied with such covenants herein;
|
|
(c)
|
all consents, waivers, permits, exemptions, orders and approvals of, and any registrations and filings with, any Governmental Entity and the expiry of any waiting periods, required to permit the completion of the Arrangement, the failure of which to obtain or the non-expiry of which, either individually or in the aggregate would, or could reasonably be expected to materially impede the completion of the Arrangement, shall have been obtained or received; and
|
|
(d)
|
there shall have been no action taken under any Applicable Law or by any Governmental Entity which:
|
|
(i)
|
makes it illegal or otherwise directly or indirectly restrains, enjoins or prohibits the completion of the Arrangement; or
|
|
(ii)
|
results or would reasonably be expected to result in a judgment, order, decree or assessment of damages, directly or indirectly, relating to the Arrangement which would or would reasonably be expected to materially impede the completion of the Arrangement.
|
|
(a)
|
there shall not have been any event, change, occurrence or state of facts that, either individually or in the aggregate, has or could reasonably be expected to have a Material Adverse Effect on the Company;
|
|
(b)
|
the representations and warranties made by the Company in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Effective Time as if made on and as of such date (except to the extent that such representations and warranties represent and warrant certain facts or information as at an earlier specified date, in which event such representations and warranties shall truly and correctly represent and warrant such facts and information as of such earlier specified date), and the Company shall have provided to Digital River and the Purchaser a certificate of a director or officer of the Company certifying such accuracy on the Effective Date;
|
|
(c)
|
the Company shall have complied in all material respects with its covenants herein and the Company shall have provided to Digital River and the Purchaser a certificate of a director or officer thereof certifying that, as of the Effective Time, the Company has so complied with its covenants herein;
|
|
(d)
|
Shareholders holding more than 10% of the outstanding Shares shall not have exercised their Dissent Rights (and not withdrawn such exercise) and Digital River and the Purchaser shall have received a certificate dated the day immediately preceding the Effective Time of a director or officer of the Company to such effect;
|
|
(e)
|
all consents, waivers, permits, exemptions, orders and approvals of, and any registrations and filings with:
|
|
(i)
|
any Governmental Entity and the expiry of any waiting periods required to permit the completion of the Arrangement; and
|
|
(ii)
|
all third person and other consents, waivers, permits, exemptions, orders, approvals, agreements and amendments, supplements and modifications to agreements, indentures or arrangements, in each case considered necessary or desirable by Digital River and the Purchaser, acting reasonably, shall have been obtained or received on terms that are reasonably satisfactory to Digital River and the Purchaser;
|
|
(f)
|
there shall have been no action taken under any Applicable Law or by any Governmental Entity which:
|
|
(i)
|
makes it illegal or otherwise directly or indirectly restrains, enjoins or prohibits the completion of the Arrangement; or
|
|
(ii)
|
results or would reasonably be expected to result in a judgment, order, decree or assessment of damages, directly or indirectly, relating to the Arrangement which would or would reasonably be expected to materially impede the completion of the Arrangement or have a Material Adverse Effect on Digital River, the Purchaser, the Company or any of their respective businesses, property or assets subsequent to the Effective Date; and
|
|
(g)
|
the Company Board shall not have withdrawn, modified, qualified or changed in a manner adverse to Digital River or the Purchaser, or publicly stated that it intends to withdraw, modify, qualify or change in a manner adverse to Digital River or the Purchaser the Company Board Recommendation;
|
|
(h)
|
Neither of the Key Employees shall have rescinded or purported to rescind or otherwise challenged the validity or enforceability of his Key Employee Agreement;
|
|
(i)
|
None of the parties identified on Schedule 5.3(i) of the Company Disclosure Schedule shall have rescinded or purported to rescind or otherwise challenged the validity or enforceability of its consent to the Arrangement; and
|
|
(j)
|
the Company shall have obtained a consent to the Arrangement, in form and substance reasonably satisfactory to Digital River and the Purchaser, from the holders of at least 85% of the options to purchase Shares issued and outstanding under the Company’s 1996 Stock Option Plan, including all of the Company’s directors and executive officers.
|
|
(a)
|
cause any of the representations or warranties of such Party hereto contained herein to be untrue or inaccurate in any material respect between the date hereof and the Effective Date;
|
|
(b)
|
result in the failure to comply with or satisfy any covenant or agreement to be complied with or satisfied by such Party hereto prior to the Effective Date; or
|
|
(c)
|
result in the failure to satisfy any of the conditions precedent in favour of the other Parties hereto contained in Sections 5.1, 5.2 or 5.3, as the case may be.
|
|
(d)
|
promptly and in any event prior to the Effective Date, the Party hereto intending to rely thereon has delivered a written notice to the other Parties hereto specifying in reasonable details the breaches of covenants or untruthfulness or inaccuracy of representations and warranties or other matters which the Party hereto delivering such notice is asserting as the basis for the exercise of the termination right, as the case may be; and
|
|
(e)
|
if any such notice is delivered, and a Party hereto is proceeding diligently, at its own expense, to cure such matter, if such matter is susceptible to being cured, the Party hereto which has delivered such notice may not terminate this Agreement until the earlier of the Termination Deadline and the expiration of a period of 14 days from the date of delivery of such notice, provided that, if such notice has been delivered prior to the date of the Company Meeting, the Company Meeting shall be adjourned or postponed until the expiry of such period,
|
|
(a)
|
by the mutual written consent and agreement of the Company, Digital River and the Purchaser;
|
|
(b)
|
by Digital River and the Purchaser if:
|
|
(i)
|
the Company Board shall have withdrawn or modified in a manner adverse to Digital River or the Purchaser the Company Board Recommendation (including as contemplated by Sections 4.2 and 4.3); or
|
|
(ii)
|
the Company Board shall have approved or recommended an Acquisition Proposal;
|
|
(c)
|
by the Company, in order to enter into a definitive written agreement with respect to a Superior Proposal, subject to compliance with Section 4.3;
|
|
(d)
|
by the Company or Digital River and the Purchaser if the Shareholder Approval shall not have been obtained at the Company Meeting;
|
|
(e)
|
by Digital River and the Purchaser (i) if there is a material breach by the Company or any of its respective directors, officers, agents or any other representative thereof of any of the covenants set forth in this Agreement; or (ii) if at any time the representations and warranties made by the Company herein are not true and correct in all material respects;
|
|
(f)
|
by the Company (i) if there is a material breach by Digital River or Purchaser of any of the covenants set forth in this Agreement; or (ii) if at any time the representations and warranties made by Digital River and the Purchaser herein are not true and correct in all material respects;
|
|
(g)
|
by the Company, if any of the conditions set forth in Section 5.1 or 5.2 shall not have been, or if it becomes apparent that any of such conditions cannot be, fulfilled by the Termination Deadline, unless such failure shall be due to the failure of the Company perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; or
|
|
(h)
|
by Digital River and the Purchaser, if any of the conditions set forth in Section 5.1 or 5.3 shall not have been, or it becomes apparent that any of such conditions cannot be, fulfilled by the Termination Deadline, unless such failures shall be due to the failure of Digital River or the Purchaser to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by them prior to the Closing.
|
|
(a)
|
The Party desiring to terminate this Agreement pursuant to Section 7.1 above shall deliver written notice of such termination to each other Party or Parties hereto specifying with particularity the reason for such termination, and such termination will be effective immediately upon delivery. If this Agreement is terminated pursuant to Section 7.1 above, it will become void and of no further force and effect, with no liability on the part of any Party to this Agreement (or any director, officer, employee, agent or representative of such Party), except that (i) if applicable, Digital River will be entitled to the Company Termination Fee and/or the Expense Reimbursement described in Section 7.2(b) below, and (ii) if applicable, the Company will be entitled, as its sole and exclusive remedy, to the Purchaser Termination Fee described in Section 7.2(c) below.
|
|
(b)
|
In the event of termination (i)(A) by Digital River pursuant to Section 7.1(b) (inclusive) or by the Company pursuant to Section 7.1(c), the Company will pay to Digital River as soon as reasonably practicable (and in any event, within two Business Days following such termination) by wire transfer of same day funds the Company Termination Fee, or (B) by Digital River pursuant to Section 7.1(e), or (h), or by either Party under Section 7.1(d) or Section 7.3 and, in any of the foregoing circumstances, if prior to the one year anniversary of such termination, the Company consummates a transaction contemplated by an Acquisition Proposal that was received by the Company prior to the termination of this Agreement, the Company will pay to Digital River as soon as reasonably practicable (and in any event within two Business Days following the consummation of such transaction) by wire transfer of same day funds the Company Termination Fee, and (ii) by Digital River pursuant to Section 7.1(e), or by either Party pursuant to Section 7.1(d), the Company will pay to Digital River as soon as reasonably practicable (and in any event within two Business Days following such termination) by wire transfer of same day funds the Expense Reimbursement Fee. In the event that termination of this Agreement results in the payment of an Expense Reimbursement Fee (ie. pursuant to Section 7.2(b)(ii) above) and a Company Termination Fee subsequently becomes payable (ie. pursuant to Section 7.2(b)(i)(B) above), the Expense Reimbursement Fee actually paid will be deducted from the Company Termination Fee due and owing. Notwithstanding anything to the contrary in this Agreement, the Purchaser’s and Digital River’s right to terminate this Agreement pursuant to Section 7.1 above and receive payment of the Company Termination Fee and/or Expense Reimbursement Fee pursuant to this Section 7.2(b) shall be the sole and exclusive remedy of the Purchaser and Digital River or any of their Affiliates for monetary damages against the Company or any of their respective Affiliates or any of their respective stockholders, partners, members or representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee and/or Expense Reimbursement Fee in accordance with this Section 7.2(b), none of the Company or any of their respective Affiliates or any of their respective stockholders, partners, members or representatives shall have any further liability or obligation relating to or arising out of this Agreement or any of the agreements, certificates, or documents contemplated hereby or the transactions contemplated by this Agreement or any of the agreements, certificates, or documents contemplated hereby. In no event shall Digital River or the Purchaser seek any money damages or any other recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, other than the Company Termination Fee and/or Expense Reimbursement Fee, but the foregoing will not eliminate or limit the right of Digital River and Purchaser to seek equitable relief pursuant to the terms of Section 7.6(a) of this Agreement. In no event will more than one Company Termination Fee be due and owing.
|
|
(c)
|
In the event of termination by the Company pursuant to Section 7.1(f), Digital River will pay to the Company as soon as reasonably practicable (and in any event within two Business Days following such termination) by wire transfer of same day funds the Purchaser Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Company’s right to terminate this Agreement pursuant to Section 7.1 above and receive payment of the Purchaser Termination Fee pursuant to this Section 7.2(c) shall be the sole and exclusive remedy of the Company or any of its Affiliates against Digital River or the Purchaser or any of their respective Affiliates or any of their respective stockholders, partners, members or representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Purchaser Termination Fee in accordance with this Section 7.2(c), none of Digital River or the Purchaser or any of their respective Affiliates or any of their respective stockholders, partners, members or representatives shall have any further liability or obligation relating to or arising out of this Agreement or any of the agreements, certificates, or documents contemplated hereby or the transactions contemplated by this Agreement or any of the agreements, certificates, or documents contemplated hereby. In no event shall the Company seek any (y) equitable relief or equitable remedies of any kind whatsoever or (z) money damages or any other recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, other than the Purchaser Termination Fee. In no event will more than one Purchaser Termination Fee be due and owing.
|
|
(d)
|
For purposes of this Agreement, “Company Termination Fee” will mean an amount equal to US $3,000,000 and “Purchaser Termination Fee” will mean an amount equal to US $3,000,000. For purposes of this Agreement, “Expense Reimbursement Fee” will mean an amount equal to all out of pocket expenses and fees incurred by Digital River and the Purchaser in connection with the negotiation, execution and performance of this Agreement. In the event any Company Termination Fee, Purchaser Termination Fee, or Expense Reimbursement Fee is not paid when due, the Party obligated to pay such amount will additionally pay interest at a rate of 4% per annum from the date due and reimburse the Party entitled to such amount for its costs of collection.
|
|
(e)
|
Each Party acknowledges that the Company Termination Fee, Purchaser Termination Fee, and Expense Reimbursement Fee amounts set forth in Section 7.2(b) and Section 7.2(c) above will constitute payment of liquidated damages which are a genuine pre-estimate of the damages which the Party in question will suffer or incur as a result of the event giving rise to such damages and resultant termination of this Agreement, and is not a penalty. Each Party irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive.
|
|
(a)
|
change the time for the performance of any of the obligations or acts of any of the Parties hereto;
|
|
(b)
|
waive any inaccuracies or modify any representations or warranty contained herein or in any document delivered pursuant hereto;
|
|
(c)
|
waive compliance with or modify any of the covenants herein contained and waive or modify the performance of any of the obligations of any of the Parties hereto; or
|
|
(d)
|
waive compliance with or modify any mutual conditions precedent herein contained.
|
|
(a)
|
extend the time for the performance of any of the obligations or other acts of the other Parties hereto; or
|
|
(b)
|
waive compliance with any of the covenants or agreements of the other Parties hereto or with any conditions to its own obligations, but in each case only to the extent such obligations, agreements and conditions are intended for its benefit.
|
|
(a)
|
The Parties acknowledge and agree that an award of money damages is not available for certain breaches of this Agreement by the Company or its representatives and advisors and that such breaches may cause Digital River and the Purchaser irreparable harm. Accordingly, the Company agrees that, only so long as this Agreement has not been terminated in accordance with the terms of Sections 7.1 or 7.3, Digital River and the Purchaser will be entitled to specific performance by the Company of any affirmative covenant or obligation of the Company, or an injunction prohibiting any actual or threatened breach by the Company of any negative or prohibitory covenant or obligation of the Company: (i) under Section 4.2 or Section 4.3 of this Agreement, or (ii) which non-performance or breach would reasonably be expected to prevent or to in any material respect interfere with, hinder, or delay the consummation of the Arrangement pursuant to this Agreement.
|
|
(b)
|
In the event that Digital River and the Purchaser are entitled to specific performance or an injunction pursuant to Section 7.6(a), the Company agrees that it will not oppose the granting of such relief on the basis that Digital River and the Purchaser have an adequate remedy at law or an award of specific performance or injunction is not an appropriate remedy for any reason at law or equity. Except as set forth in Section 7.6(a) and the preceding sentence of this Section 7.6(b), the Parties agree that Digital River and the Purchaser shall not be entitled to an injunction, specific performance or other equitable relief to prevent breaches of this Agreement or to enforce specifically the terms hereof.
|
|
(c)
|
Notwithstanding anything to the contrary in this Agreement, the Parties hereto agree that the Company shall not be entitled to an injunction, specific performance or other equitable relief to prevent breaches of this Agreement or to enforce specifically the terms hereof.
|
DIGITAL RIVER, INC.
|
||
Per:
|
/s/ Joel Ronning
|
|
Authorized Signatory
|
||
LML ACQUISITION CORP.
|
||
Per:
|
/s/ Joel Ronning
|
|
Authorized Signatory
|
||
LML PAYMENT SYSTEMS INC.
|
||
Per:
|
/s/ Greg A. MacRae
|
|
Authorized Signatory
|
1.1
|
Definitions
|
|
(a)
|
“Amalco” means the corporation resulting from the amalgamation of the Purchaser and the Company contemplated by this Plan of Arrangement;
|
|
(b)
|
“Arrangement” means the arrangement under the provisions of Section 288 of the Business Corporations Act (British Columbia), on the terms and conditions set forth in this Plan of Arrangement, subject to any amendment or supplement made hereto in accordance herewith and the Arrangement Agreement or made at the direction of the Court in the Final Order;
|
|
(c)
|
“Arrangement Agreement” means the arrangement agreement dated as of September 21, 2012 between the Company, the Purchaser and Digital River, including the schedules attached thereto, as the same may be supplemented or amended from time to time;
|
|
(d)
|
“Articles of Arrangement” means the articles of arrangement of the Company to be filed after the Final Order is made, which shall be in form and content satisfactory to the Company and the Purchaser, acting reasonably;
|
|
(e)
|
“Arrangement Resolution” means the resolution of the Shareholders approving the Arrangement to be considered at the Company Meeting;
|
|
(f)
|
“BCBCA” means the Business Corporations Act (British Columbia), as amended;
|
|
(g)
|
“Business Day” means a day which is not a Saturday, Sunday or a civic or statutory holiday in Vancouver, British Columbia;
|
|
(h)
|
“Certificate of Arrangement” means the certificate of arrangement to be issued with respect to the Arrangement;
|
|
(i)
|
“Company” means LML Payment Systems Inc., a company existing under the laws of Canada;
|
|
(j)
|
“Company Meeting” means the special meeting of the Shareholders, including any adjournment or adjournments or postponement or postponements thereof, to be held in accordance with the Interim Order to consider the Arrangement Resolution;
|
|
(k)
|
“Company Securityholders” means, collectively, the Shareholders, the Company Optionholders and the Company Warrantholders;
|
|
(l)
|
“Company Stock Option Plan” means the three (3) stock option plans of the Company, as approved by the board of directors of the Company and the Shareholders;
|
|
(m)
|
“Court” means the Supreme Court of British Columbia;
|
|
(n)
|
“Depositary” means Computershare Trust Company of Canada, or such other depositary as may be designated by the Company and the Purchaser for the purposes of the Arrangement;
|
|
(o)
|
“Dissent Rights” has the meaning ascribed thereto in Section 4.1;
|
|
(p)
|
“Dissenting Shareholder” means a registered Shareholder who has validly exercised his, her or its Dissent Rights in accordance with Article 4;
|
|
(q)
|
“Effective Date” means the Business Day following the date on which all conditions precedent to the completion of the Arrangement as set out in Article 5 of the Arrangement Agreement have been satisfied or waived in accordance with the provisions of this Agreement as the Parties hereto may agree, which shall be the date shown on the Certificate of Arrangement;
|
|
(r)
|
“Effective Time” means 12:01 a.m. on the Effective Date, or such other time as the Purchaser and the Company may agree;
|
|
(s)
|
“Final Order” means the final order of the Court approving the Arrangement, as such order may be amended by the Court (with the consent of the Company and the Purchaser) at any time prior to the Effective Date or, if appealed, then, unless such appeal is withdrawn or denied, as affirmed or as amended on appeal;
|
|
(t)
|
“Interim Order” means the interim order of the Court providing for, among other things, the calling and holding of the Company Meeting, as such order may be amended, supplemented or varied by the Court;
|
|
(u)
|
“Letter of Transmittal” means the letter of transmittal sent by the Company to Shareholders, Optionholders and Warrantholders providing for the delivery of the certificates representing their Shares, Options or Warrants, as applicable, to the Depositary;
|
|
(v)
|
“Lien” means any mortgage, lien, hypothec, security interest, pledge or other encumbrance, charge or adverse right or claim, defect of title, restriction or other right of third parties;
|
|
(w)
|
“Meeting Date” means the date of the Company Meeting;
|
|
(x)
|
“Option Consideration” means in respect of each Option, a cash amount equal to the amount, if any, by which (i) the product obtained when (x) the number of Shares underlying such Option is multiplied by (y) the Share Consideration exceeds (ii) the aggregate exercise price payable under such Option by the Optionholder to acquire the Shares underlying such Option;
|
|
(y)
|
“Optionholders” means holders of the Options;
|
|
(z)
|
“Options” means the outstanding options to acquire Shares which have been issued pursuant to the Company Stock Option Plan, whether or not vested;
|
|
(aa)
|
“Digital River” means Digital River, Inc., a corporation existing under the laws of Delaware;
|
|
(bb)
|
“Plan of Arrangement” means this plan of arrangement as amended or varied from time to time in accordance herewith and the Arrangement Agreement;
|
|
(cc)
|
“Purchaser” means LML Acquisition Corp., a corporation existing under the laws of British Columbia;
|
|
(dd)
|
“Share Consideration” means, in respect of each Share, US$3.45 in cash;
|
|
(ee)
|
“Shareholders” means holders of Shares;
|
|
(ff)
|
“Shares” means the common shares which the Company is authorized to issue as presently constituted;
|
|
(gg)
|
“Warrant Consideration” means in respect of each Warrant, a cash amount equal to the amount, if any, by which (i) the product obtained when (x) the number of Shares underlying such Warrant is multiplied by (y) the Share Consideration exceeds (ii) the aggregate exercise price payable under such Warrant by the Warrantholder to acquire the Shares underlying such Warrant;
|
|
(hh)
|
“Warrantholders” means the holders of the Warrants; and
|
|
(ii)
|
“Warrants” means the outstanding warrants to acquire Shares.
|
1.2
|
Singular, Plural, etc.
|
1.3
|
Headings, etc.
|
1.4
|
Date of Any Action
|
1.5
|
Currency
|
1.6
|
References to Statutes
|
3.1
|
Arrangement
|
|
(a)
|
At the Effective Time:
|
|
(i)
|
each Option granted and outstanding immediately prior to the Effective Time will be and be deemed to be transferred by the holder thereof to the Company in exchange for a cash payment from the Company equal to the Option Consideration (if any) in respect of such Option;
|
|
(ii)
|
with respect to each Option, the holder thereof will cease to be the holder thereof or to have any rights as a holder in respect of such Option or under the Company Stock Option Plan and the name of the holder thereof will be removed from the applicable securities register of the Company with respect to such Option; and
|
|
(iii)
|
the Company Stock Option Plan and each of the Options transferred to the Company pursuant to the step contemplated in Section 3.1(a) will be cancelled;
|
|
(b)
|
At the Effective Time:
|
|
(i)
|
each Warrant issued and outstanding immediately prior to the Effective Time will be and be deemed to be transferred by the holder thereof to the Company in exchange for a cash payment from the Company equal to the Warrant Consideration (if any) in respect of such Warrant;
|
|
(ii)
|
with respect to each Warrant, the holder thereof will cease to be the holder thereof or to have any rights as a holder in respect of such Warrant and the name of the holder thereof will be removed from the applicable securities register of the Company with respect to such Warrant; and
|
|
(iii)
|
each of the Warrants transferred to the Company pursuant to the step contemplated in Section 3.1(b) will be cancelled;
|
|
(c)
|
each of the outstanding Shares held by Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of the Shares in respect of which they have exercised their Dissent Rights will be and be deemed to be irrevocably transferred to the Purchaser (free and clear of any Liens) and such Dissenting Shareholders shall cease to have any rights as shareholders of the Company other than the right to be paid the fair value of their Shares in accordance with Article 4;
|
|
(d)
|
at the same time as the step contemplated by Section 3.1(c), with respect to each Share transferred to the Purchaser:
|
|
(i)
|
the Dissenting Shareholder who was the registered holder of such Share immediately prior to the Effective Time will cease to be the holder of such Share and the name of such Dissenting Shareholder will be removed from the securities register of the Company with respect to such Share; and
|
|
(ii)
|
legal and beneficial title to such Share will vest in the Purchaser and the Purchaser will be and be deemed to be the transferee and the legal and beneficial owner (free and clear of any Liens) of such Share and will be entered in the securities register of the Company as the sole holder of such Share;
|
|
(e)
|
each of the outstanding Shares (excluding the Shares held by Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of the Shares in respect of which they have exercised their Dissent Rights and any Shares held, directly or indirectly, by the Purchaser immediately prior to the Effective Time) will be and be deemed to be irrevocably transferred to the Purchaser in exchange for a cash payment from or on behalf of the Purchaser in an amount equal to the Share Consideration;
|
|
(f)
|
at the same time as the step contemplated by Section 3.1(e), with respect to each Share transferred to the Purchaser:
|
|
(i)
|
the Shareholder who was the registered holder of such Share immediately prior to the Effective Time will cease to be the holder of such Share and the name of such Shareholder will be removed from the securities register of the Company with respect to such Share; and
|
|
(ii)
|
legal and beneficial title to such Share will vest in the Purchaser and the Purchaser be and be deemed to be the transferee and the legal and beneficial owner (free and clear of any Liens) of such Share and will be entered in the securities register of the Company as the sole holder of such Share.
|
|
(g)
|
The Purchaser and the Company shall amalgamate to form Amalco and shall continue as one corporation under the BCBCA and unless and until otherwise determined in the manner permitted or required by the BCBCA or otherwise by law, by Amalco or by its directors or shareholders with the following effects:
|
|
(i)
|
the outstanding Shares of the Company shall be cancelled without any repayment of capital in respect thereof;
|
|
(ii)
|
the articles of amalgamation of Amalco shall be the same as the articles of incorporation of the Purchaser;
|
|
(iii)
|
the outstanding share capital and the stated capital of Amalco shall be the same as the outstanding share capital and stated capital of the Purchaser;
|
|
(iv)
|
the name of Amalco shall be “LML Payment Systems Inc.”;
|
|
(v)
|
the property of the Company and the Purchaser will continue to be the property of Amalco;
|
|
(h)
|
Amalco will continue to be liable for the obligations of the Company and the Purchaser including, but not limited to:
|
|
(i)
|
any change of control obligations;
|
|
(ii)
|
all costs and expenses associated with the cessation of business by the Company;
|
|
(iii)
|
any brokerage fees payable by the Company; and
|
|
(iv)
|
any expenses associated with the transactions contemplated herein.
|
|
(i)
|
an existing cause of action, claim or liability to prosecution relating to the Company and the Purchaser will be unaffected;
|
|
(j)
|
a civil, criminal or administrative action or proceeding pending by or against the Company or the Purchaser may be continued or prosecuted by or against Amalco;
|
|
(k)
|
the articles of arrangement shall be deemed to be the articles of amalgamation of Amalco and the certificate of arrangement is deemed to be the certificate of incorporation of Amalco; and
|
|
(l)
|
the bylaws for Amalco shall be in the form of the bylaws of the Purchaser immediately prior to the amalgamation becoming effective, until repealed or amended.
|
4.1
|
Rights of Dissent
|
|
(a)
|
are ultimately determined to be entitled to be paid fair value by the Purchaser for the Shares in respect of which they have validly exercised Dissent Rights will be deemed to have irrevocably transferred such Shares to the Purchaser (free and clear of any Liens) pursuant to Section 3.1(a) as of the Effective Time; or
|
|
(b)
|
are ultimately not entitled, for any reason, to be paid fair value by the Purchaser for the Shares in respect of which they have exercised Dissent Rights will be deemed to have participated in the Arrangement on the basis set forth in Section 3.1(e) on the same basis as the Shareholders who did not exercise Dissent Rights and will be deemed to have irrevocably transferred such Shares to the Purchaser (free and clear of any Liens) pursuant to Section 3.1(e) as of the Effective Time;
|
|
(c)
|
but in no case will the Company, the Purchaser or Digital River or any other person, including the Depositary, be required to recognize any Dissenting Shareholder as a holder of Shares after the Effective Time, and the names of each Dissenting Shareholders will he removed from the securities register of the Company at the Effective Time. For greater certainty, and in addition to any other restriction under Section 242 of the BCBCA, neither:
|
|
(i)
|
Optionholders, nor
|
|
(ii)
|
Warrantholders, nor
|
|
(iii)
|
Shareholders who vote, or who have instructed a proxyholder to vote, in favour of the Arrangement Resolution,
|
5.1
|
Delivery of Consideration
|
|
(a)
|
At or before the Effective Time, the Purchaser will deposit or cause to be deposited with the Depositary cash in an aggregate amount sufficient to satisfy the payment of obligations contemplated by Section 3.1(a), 3.1(b), and 3.1(e) (calculated without reference to whether any Shareholders have exercised exercise Dissent Rights). Such amount will be held for the purpose of satisfying such obligations. The cash so deposited shall be held in a corporate interest bearing account and any interest earned on such funds will be for the account of the Purchaser or its successors.
|
|
(b)
|
As soon as practicable following the later of the Effective Time and the delivery to the Depositary by or on behalf of a former holder of Options, Warrants or Shares of a duly completed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require including, in the case of the Shares, a certificate which immediately prior to the Effective Time represented the outstanding Shares that were transferred under Section 3.1(e), and such other documents and instruments as would have been required to effect such transfer under the BCBCA and the articles and by-laws of the Company after giving effect to Section 3.1(e), the former holder of such Options, Warrants and Shares will be entitled to receive the cash payment or payments which such former holder is entitled to receive pursuant to Sections 3.1(a)(i), 3.1(b)(i) or 3.1(e), as applicable, less any amounts withheld pursuant to Section 5.4.
|
|
(c)
|
Until surrendered as contemplated by this Section 5.1, each certificate which immediately prior to the Effective Time represented Shares will be deemed after the time described in Section 3.1(e) to represent only the right to receive upon such surrender the applicable cash payment pursuant to Section 3.1(e) or, in the case of Dissenting Shareholders who are ultimately determined to be entitled to be paid fair value by the Purchaser for the Shares in respect of which they have validly exercised Dissent Rights, the fair value of their Shares, less any amounts withheld pursuant to Section 5.4.
|
|
(d)
|
Subject to Section 5.3, the Purchaser will cause the Depositary, as soon as practicable following the later of the Effective Time and the date of deposit by any former holder of Shares of the documentation required pursuant to Section 5.1(b), to:
|
|
(i)
|
forward or cause to be forwarded by first class mail (postage prepaid) to such former holder of Shares, Options or Warrants at the address specified in the Letter of Transmittal;
|
|
(ii)
|
if requested by such former holder of Shares in the Letter of Transmittal, make available at the offices of the Depositary specified in the Letter of Transmittal for pick-up by such former holder of Shares; or
|
|
(iii)
|
if the Letter of Transmittal neither specifies an address as described in Section 5.1(d)(i) nor contains a request as described in Section 5.1(d)(ii), forward or cause to be forwarded by first class mail (postage prepaid) to such former holder of Shares at the address of such former holder as shown on the securities register of the Company maintained by or on behalf of the Company immediately prior to the Effective Time;
|
|
(iv)
|
a cheque in an amount equal to the net cash payment to which such former holder of Shares is entitled in accordance with the provisions hereof, less any amounts withheld pursuant to Section 5.4.
|
|
(e)
|
From and after the Effective Time, each option and warrant certificate representing Options or Warrants outstanding immediately prior to the Effective Time will thereafter be deemed to represent only the right to receive a cash payment equal to the Option Consideration or Warrant Consideration, as the case may be, which such holder is entitled to receive pursuant to Section 3.1(a) and Section 3.1(b).
|
|
(f)
|
Subject to Section 5.3, the Company will cause the Depositary, as soon as practicable following the later of the Effective Time and the date of deposit by any former holder of Options or Warrants of the documentation required pursuant to Section 5.1(b), to:
|
|
(i)
|
forward or cause to be forwarded by first class mail (postage prepaid) to such former holder of Options or Warrants at the address specified in the Letter of Transmittal;
|
|
(ii)
|
if requested by such former holder of Options or Warrants in the Letter of Transmittal, make available at the offices of the Depositary specified in the Letter of Transmittal for pick-up by such former holder of Options or Warrants; or
|
|
(iii)
|
if the Letter of Transmittal neither specifies an address as described in Section 5.1(f)(i) nor contains a request as described in Section 5.1(f)(ii), forward or cause to be forwarded by first class mail (postage prepaid) to such former holder of Options or Warrants at the address of such former holder as shown on the central securities register of the Company maintained by or on behalf of the Company immediately prior to the Effective Time;
|
|
(iv)
|
a cheque in an amount equal to the net cash payment to which such former holder of Options or Warrants is entitled in accordance with the provisions hereof, less any amounts withheld pursuant to Section 5.4.
|
5.2
|
Lost Certificates
|
5.3
|
Extinguishment of Rights
|
5.4
|
Withholding Rights
|
6.1
|
Amendments to Plan of Arrangement
|
|
(a)
|
The Company, the Purchaser and Digital River reserve the right to amend, modify or supplement this Plan of Arrangement at any time and from time to time prior to the Effective Time; provided, however, that each such amendment, modification or supplement must be:
|
|
(i)
|
set out in writing;
|
|
(ii)
|
approved or agreed to in writing by the Company, the Purchaser and Digital River;
|
|
(iii)
|
contained in a written document which is filed with the Court; and
|
|
(iv)
|
if made following the Company Meeting, approved by the Court and communicated to the Company Securityholders if and as required by the Court.
|
|
(b)
|
Any amendment, modification or supplement to this Plan of Arrangement may be proposed by the Company at any time prior to the Company Meeting, provided that the Purchaser and Digital River have consented to such amendment, modification or supplement in writing, with or without any other prior notice or communication and, if so proposed and accepted by the persons voting at the Company Meeting (other than as may be required under the Interim Order), shall become part of this Plan of Arrangement for all purposes.
|
|
(c)
|
Any amendment, modification or supplement to this Plan of Arrangement that is approved or directed by the Court following the Company Meeting shall be effective only if such amendment, modification or supplement:
|
|
(i)
|
is consented to in writing by each of the Company, the Purchaser and Digital River; and
|
|
(ii)
|
if required by the Court or applicable law, is consented to by the Company Shareholders in the manner directed by the Court.
|
|
(d)
|
Any amendment, modification or supplement to this Plan of Arrangement may be made following the Effective Date unilaterally by the Purchaser; provided, however, that any such amendment, modification or supplement concerns a matter which, in the reasonable opinion of the Company, is of an administrative nature required to better give effect to the implementation of this Plan of Arrangement and is not adverse to the financial or economic interest of any Company Securityholder.
|
|
(e)
|
The Purchaser shall be entitled to propose an amendment, modification or supplement to this Plan of Arrangement at any time prior to the Effective Date and, unless such proposal shall be adverse to the financial or economic interests of any Company Securityholder, the Company shall propose and implement such amendment, modification or supplement in accordance with the process described in paragraphs (a) to (c), as may be applicable.
|
6.2
|
Termination
|
)
|
THE HONOURABLE JUSTICE
|
)
|
||
BEFORE
|
)
|
)
|
___/Oct/2012
|
|
)
|
)
|
I.
|
DEFINITIONS
|
II.
|
THE MEETING
|
|
(a)
|
considering, pursuant to this Interim Order, and, if thought fit, passing, with or without variation, a special resolution of the Shareholders, the full text of which is set out in Appendix A to the Draft Proxy Statement, approving a statutory arrangement (the “Arrangement”) under Section 288 of the Business Corporations Act (British Columbia) (“BCBCA”) pursuant to which Digital River, Inc. will, indirectly through LML Acquisition Corp., acquire all of the issued and outstanding common shares of LML, all as more fully described in the Draft Proxy Statement; and
|
|
(b)
|
transacting any other business that may properly come before the special meeting or any adjournment or adjournments thereof.
|
III.
|
ADJOURNMENTS
|
IV.
|
AMENDMENTS
|
V.
|
NOTICE OF MEETING
|
VI.
|
METHOD OF DISTRIBUTION OF MEETING MATERIALS
|
|
(a)
|
in the case of the registered Shareholders, by unregistered mail, postage prepaid addressed to each registered Shareholder at his/her last address on the books of LML, mailed at least 21 days before the Meeting;
|
|
(b)
|
in the case of the Board of Directors and auditors of LML, by pre-paid ordinary mail, by expedited parcel post, by email or by facsimile, by courier or by delivery in person, addressed to the individual directors and the auditors; and
|
|
(c)
|
in the case of holders of the non-registered Shares, by providing copies of the relevant portion of the Meeting Materials to intermediaries and registered nominees for sending to beneficial owners in accordance with National Instrument 54-101 – Communications with Beneficial Owners of Securities of a Reporting Issuer of the Canadian Securities Administrators.
|
VII.
|
DEEMED RECEIPT OF NOTICE and SERVICE OF PETITION
|
|
(a)
|
in the case of mailing, when deposited in a post office or public letter box;
|
|
(b)
|
when provided to intermediaries and registered nominees; and
|
|
(c)
|
in the case of any means of transmitted, recorded or electronic communication, when dispatched or delivered for dispatch.
|
VIII.
|
UPDATING MEETING MATERIALS
|
IX.
|
QUORUM and VOTING
|
X.
|
SCRUTINEER
|
XI.
|
SOLICITATION OF PROXIES
|
XII.
|
DISSENT RIGHTS
|
XIII.
|
APPLICATION FOR FINAL ORDER
|
|
(a)
|
approving the Arrangement pursuant to section 291(4)(a) of the BCBCA; and
|
|
(b)
|
declaring that the terms and conditions of the Arrangement are substantively and procedurally fair with respect to the Securityholders of LML pursuant to section 291(4)(c) of the BCBCA;
|
|
(a)
|
file a Response to Petition, in the form prescribed by the Supreme Court Civil Rules, with this Court; and
|
|
(b)
|
serve the filed Response to Petition on the Petitioner’s solicitors at:
|
XIV.
|
VARIANCE
|
Signature of Lawyer for the Petitioner,
|
||
LML Payment Systems Inc.
|
||
Lawyer: Oliver C. Hanson
|
||
BY THE COURT
|
||
Registrar
|
Very truly yours,
|
|
/s/ William Blair & Company
|
|
WILLIAM BLAIR & COMPANY, L.L.C.
|
Attention:
|
Board of Directors
|
Re:
|
LML Payment Systems Inc.
|
·
|
There has been full disclosure of any independent offers to purchase the shares or significant assets of the Company by others;
|
·
|
The financial forecasts as provided by Management have been prepared with a reasonable degree of care and attention to reflect the judgment of Management;
|
·
|
Relied on Management’s written representations to us as to the completeness of the disclosure of material information and facts available up to the date of the Fairness Opinion;
|
·
|
The Company is expected to continue as a going concern into the foreseeable future;
|
·
|
In arriving at the conclusion set out herein, we have assumed that all quantitative and qualitative information provided to us is complete and accurate;
|
·
|
The financial statements and/or financial information provided to us and upon which we have relied in arriving at the conclusion expressed herein, present fairly, in all material respects, the financial position of the Company as well as the results of operations for the relevant periods, and include all, and only, the revenues, expenses, assets and liabilities of the Company;
|
·
|
The Company has no significant undisclosed liabilities, contractual obligations, substantial commitments or litigation, pending or threatened;
|
·
|
There were no significant events subsequent to the Valuation Date but prior to the date of our report that would materially impact on either the Company’s expected future operations, or its current financial position;
|
·
|
The financial information referred to under “Scope of Review” are complete in all material aspects;
|
·
|
The financial statements of the Company contain all, and reflect only those, revenues, expenses, assets and liabilities of the Company;
|
·
|
The reported net book value of all the recorded assets and liabilities of the Company fairly approximates their respective fair market value; and,
|
·
|
MNP has been engaged to prepare a Fairness Opinion of the Proposed Transaction, and is not expressing an opinion as to the value of the common shares of LML and this Fairness Opinion should not be constructed as such.
|
·
|
Transaction payment processing (“TPP”);
|
·
|
Intellectual property licensing (“IPL”); and,
|
·
|
Check processing (“CP”).
|
·
|
Discounted cash flow approach – analysis of the present value of the future cash flows of LML;
|
·
|
Market premium approach – analysis of premiums paid over pre-announcement share price for public traded companies;
|
·
|
Market approach – quantitative analysis of comparable transactions;
|
·
|
Market approach – quantitative analysis of LML’s acquisition of Beanstream; and,
|
·
|
Market approach – analysis of comparable public traded companies.
|
·
|
Somewhat comparable companies; and,
|
·
|
Recent equity transactions.
|
·
|
We identified and reviewed publically available information for transaction multiples paid in the market for somewhat comparable companies;
|
·
|
Since the future cash flows of LML will be largely derived from revenue generated by TPP, the former Beanstream division, we reviewed the historical valuation multiples paid for Beanstream; and,
|
·
|
We analyzed somewhat comparable public traded companies for valuation multiples implied in publically available market data.
|
·
|
The audited consolidated financial statements of the Company, as audited by Grant Thornton LLP, for the fiscal years ended March 31, 2008 through 2012, inclusive;
|
·
|
The Company’s corporate income tax return for the fiscal year ended March 31, 2011 for Canada and United States;
|
·
|
The Company’s United States Securities and Exchange Commission Form 10-K for the fiscal years ended March 31, 2008 through 2012, inclusive;
|
·
|
The Company’s United States Securities and Exchange Commission Form 10-Q for the quarterly period ended June 30, 2012;
|
·
|
The Company’s United States Securities and Exchange Commission Form 8-K dated August 8, 2007, Management presentation to shareholders of the Beanstream Internet Commerce Inc. acquisition;
|
·
|
The unaudited interim financial statements of the Company, provided by management, for the interim period ended July 31, 2012;
|
·
|
The financial forecast of the Company, as provided by Management, for the fiscal years ended
|
·
|
The Company’s 2012 Annual Report;
|
·
|
Information obtained through our meetings and discussion with officers of LML, including, Mr. Greg A. MacRae, Board of Directors; and, Mr. Richard R. Schulz, Controller and Chief Accounting Officer;
|
·
|
Information located in the Company’s online dataroom, including, but not limited to:
|
|
·
|
Financial information;
|
|
·
|
Sales and marketing;
|
|
·
|
Contracts and agreements; and,
|
|
·
|
Corporate information.
|
·
|
A letter of representation obtained from the management of LML Payment System Inc. wherein they confirmed certain representations and warranties that they have made to us, including a general representation that they have no information or knowledge of any facts or material information not specifically noted in this Fairness Opinion which, in their view, would reasonably be expected to affect the fairness conclusions expressed herein;
|
·
|
The Purchase Price Allocation Report in regards to LML’s acquisition of Beanstream Internet Commerce Inc., as prepared by Wolrige Mahon LLP, dated January 31, 2008;
|
·
|
Overview of LML’s corporate website, www.lmlpayment.com;
|
·
|
A review of LML’s corporate presentation, titled, Executive Briefing Book, as provided by Management;
|
·
|
Our review of Digital River’s corporate website, www.digitalriver.com;
|
·
|
A review of Digital River’s Letter of Indication and Letter Agreement to LML Payments Solutions Inc., dated August 10, 2012;
|
·
|
Pratt’s Stats, Business Valuation Resource. www.bvmarketdata.com;
|
·
|
Information from Capital IQ, Inc. website, www.capitaliq.com, including, but not limited to the following:
|
|
·
|
Market information;
|
|
·
|
Comparable companies and transactions; and,
|
|
·
|
Guideline companies information.
|
·
|
Various Standard & Poor’s equity research reports;
|
·
|
Bank of Canada, Rates and Statistics, including:
|
|
·
|
Government of Canada benchmark bond yields - 10 year;
|
|
·
|
Prime business interest rate; and,
|
|
·
|
Consumer price index.
|
·
|
Various industry databases, including, but not limited to the following:
|
|
·
|
First Research, Inc; and,
|
|
·
|
IBISWorld Inc.
|
·
|
International Equity Risk Premia Report 2012, Morningstar Inc.; and,
|
·
|
Ibbotson SBBI 2012 Valuation Yearbook: Market Results for Stocks, Bonds, Bills, and Inflation, Morningstar Inc.
|
237
|
(1) |
In this Division:
|
|
(a)
|
in the case of a dissent in respect of a resolution, the fair value that the notice shares had immediately before the passing of the resolution,
|
|
(b)
|
in the case of a dissent in respect of an arrangement approved by a court order made under section 291 (2) (c) that permits dissent, the fair value that the notice shares had immediately before the passing of the resolution adopting the arrangement, or
|
|
(c)
|
in the case of a dissent in respect of a matter approved or authorized by any other court order that permits dissent, the fair value that the notice shares had at the time specified by the court order,
|
(2)
|
This Division applies to any right of dissent exercisable by a shareholder except to the extent that
|
|
(a)
|
the court orders otherwise, or
|
|
(b)
|
in the case of a right of dissent authorized by a resolution referred to in section 238 (1) (g), the court orders otherwise or the resolution provides otherwise.
|
238
|
(1) |
A shareholder of a company, whether or not the shareholder's shares carry the right to vote, is entitled to dissent as follows:
|
|
(a)
|
under section 260, in respect of a resolution to alter the articles to alter restrictions on the powers of the company or on the business it is permitted to carry on;
|
|
(b)
|
under section 272, in respect of a resolution to adopt an amalgamation agreement;
|
|
(c)
|
under section 287, in respect of a resolution to approve an amalgamation under Division 4 of Part 9;
|
|
(d)
|
in respect of a resolution to approve an arrangement, the terms of which arrangement permit dissent;
|
|
(e)
|
under section 301 (5), in respect of a resolution to authorize or ratify the sale, lease or other disposition of all or substantially all of the company's undertaking;
|
|
(f)
|
under section 309, in respect of a resolution to authorize the continuation of the company into a jurisdiction other than British Columbia;
|
|
(g)
|
in respect of any other resolution, if dissent is authorized by the resolution;
|
|
(h)
|
in respect of any court order that permits dissent.
|
(2)
|
A shareholder wishing to dissent must
|
|
(a)
|
prepare a separate notice of dissent under section 242 for
|
|
(i)
|
the shareholder, if the shareholder is dissenting on the shareholder's own behalf, and
|
|
(ii)
|
each other person who beneficially owns shares registered in the shareholder's name and on whose behalf the shareholder is dissenting,
|
|
(b)
|
identify in each notice of dissent, in accordance with section 242 (4), the person on whose behalf dissent is being exercised in that notice of dissent, and
|
|
(c)
|
dissent with respect to all of the shares, registered in the shareholder's name, of which the person identified under paragraph (b) of this subsection is the beneficial owner.
|
(3)
|
Without limiting subsection (2), a person who wishes to have dissent exercised with respect to shares of which the person is the beneficial owner must
|
|
(a)
|
dissent with respect to all of the shares, if any, of which the person is both the registered owner and the beneficial owner, and
|
|
(b)
|
cause each shareholder who is a registered owner of any other shares of which the person is the beneficial owner to dissent with respect to all of those shares.
|
239
|
(1) |
A shareholder may not waive generally a right to dissent but may, in writing, waive the right to dissent with respect to a particular corporate action.
|
(2)
|
A shareholder wishing to waive a right of dissent with respect to a particular corporate action must
|
|
(a)
|
provide to the company a separate waiver for
|
|
(i)
|
the shareholder, if the shareholder is providing a waiver on the shareholder's own behalf, and
|
|
(ii)
|
each other person who beneficially owns shares registered in the shareholder's name and on whose behalf the shareholder is providing a waiver, and
|
|
(b)
|
identify in each waiver the person on whose behalf the waiver is made.
|
|
(a)
|
the shareholder in respect of the shares of which the shareholder is both the registered owner and the beneficial owner, and
|
|
(b)
|
any other shareholders, who are registered owners of shares beneficially owned by the first mentioned shareholder, in respect of the shares that are beneficially owned by the first mentioned shareholder.
|
|
(a)
|
a copy of the proposed resolution, and
|
|
(b)
|
a notice of the meeting that specifies the date of the meeting, and contains a statement advising of the right to send a notice of dissent.
|
|
(a)
|
a copy of the proposed resolution, and
|
|
(b)
|
a statement advising of the right to send a notice of dissent.
|
|
(a)
|
a copy of the resolution,
|
|
(b)
|
a statement advising of the right to send a notice of dissent, and
|
|
(c)
|
if the resolution has passed, notification of that fact and the date on which it was passed.
|
(a)
|
a copy of the entered order, and
|
(b)
|
a statement advising of the right to send a notice of dissent.
|
|
(a)
|
if the company has complied with section 240 (1) or (2), send written notice of dissent to the company at least 2 days before the date on which the resolution is to be passed or can be passed, as the case may be,
|
|
(b)
|
if the company has complied with section 240 (3), send written notice of dissent to the company not more than 14 days after receiving the records referred to in that section, or
|
|
(c)
|
if the company has not complied with section 240 (1), (2) or (3), send written notice of dissent to the company not more than 14 days after the later of
|
|
(i)
|
the date on which the shareholder learns that the resolution was passed, and
|
|
(ii)
|
the date on which the shareholder learns that the shareholder is entitled to dissent.
|
|
(a)
|
on or before the date specified by the resolution or in the statement referred to in section 240 (2) (b) or (3) (b) as the last date by which notice of dissent must be sent, or
|
|
(b)
|
if the resolution or statement does not specify a date, in accordance with subsection (1) of this section.
|
|
(a)
|
within the number of days, specified by the court order, after the shareholder receives the records referred to in section 241, or
|
|
(b)
|
if the court order does not specify the number of days referred to in paragraph (a) of this subsection, within 14 days after the shareholder receives the records referred to in section 241.
|
|
(a)
|
if the notice shares constitute all of the shares of which the shareholder is both the registered owner and beneficial owner and the shareholder owns no other shares of the company as beneficial owner, a statement to that effect;
|
|
(b)
|
if the notice shares constitute all of the shares of which the shareholder is both the registered owner and beneficial owner but the shareholder owns other shares of the company as beneficial owner, a statement to that effect and
|
|
(i)
|
the names of the registered owners of those other shares,
|
|
(ii)
|
the number, and the class and series, if applicable, of those other shares that are held by each of those registered owners, and
|
|
(iii)
|
a statement that notices of dissent are being, or have been, sent in respect of all of those other shares;
|
|
(c)
|
if dissent is being exercised by the shareholder on behalf of a beneficial owner who is not the dissenting shareholder, a statement to that effect and
|
|
(i)
|
the name and address of the beneficial owner, and
|
|
(ii)
|
a statement that the shareholder is dissenting in relation to all of the shares beneficially owned by the beneficial owner that are registered in the shareholder's name.
|
243
|
(1) |
A company that receives a notice of dissent under section 242 from a dissenter must,
|
|
(a)
|
if the company intends to act on the authority of the resolution or court order in respect of which the notice of dissent was sent, send a notice to the dissenter promptly after the later of
|
|
(i)
|
the date on which the company forms the intention to proceed, and
|
|
(ii)
|
the date on which the notice of dissent was received, or
|
|
(b)
|
if the company has acted on the authority of that resolution or court order, promptly send a notice to the dissenter.
|
(2)
|
A notice sent under subsection (1) (a) or (b) of this section must
|
|
(a)
|
be dated not earlier than the date on which the notice is sent,
|
|
(b)
|
state that the company intends to act, or has acted, as the case may be, on the authority of the resolution or court order, and
|
|
(c)
|
advise the dissenter of the manner in which dissent is to be completed under section 244.
|
|
(a)
|
a written statement that the dissenter requires the company to purchase all of the notice shares,
|
|
(b)
|
the certificates, if any, representing the notice shares, and
|
|
(c)
|
if section 242 (4) (c) applies, a written statement that complies with subsection (2) of this section.
|
(2)
|
The written statement referred to in subsection (1) (c) must
|
|
(a)
|
be signed by the beneficial owner on whose behalf dissent is being exercised, and
|
|
(b)
|
set out whether or not the beneficial owner is the beneficial owner of other shares of the company and, if so, set out
|
|
(i)
|
the names of the registered owners of those other shares,
|
|
(ii)
|
the number, and the class and series, if applicable, of those other shares that are held by each of those registered owners, and
|
|
(iii)
|
that dissent is being exercised in respect of all of those other shares.
|
(3)
|
After the dissenter has complied with subsection (1),
|
|
(a)
|
the dissenter is deemed to have sold to the company the notice shares, and
|
|
(b)
|
the company is deemed to have purchased those shares, and must comply with section 245, whether or not it is authorized to do so by, and despite any restriction in, its memorandum or articles.
|
|
(a)
|
promptly pay that amount to the dissenter, or
|
|
(b)
|
if subsection (5) of this section applies, promptly send a notice to the dissenter that the company is unable lawfully to pay dissenters for their shares.
|
|
(a)
|
determine the payout value of the notice shares of those dissenters who have not entered into an agreement with the company under subsection (1), or order that the payout value of those notice shares be established by arbitration or by reference to the registrar, or a referee, of the court,
|
|
(b)
|
join in the application each dissenter, other than a dissenter who has entered into an agreement with the company under subsection (1), who has complied with section 244 (1), and
|
|
(c)
|
make consequential orders and give directions it considers appropriate.
|
|
(a)
|
pay to each dissenter who has complied with section 244 (1) in relation to those notice shares, other than a dissenter who has entered into an agreement with the company under subsection (1) of this section, the payout value applicable to that dissenter's notice shares, or
|
|
(b)
|
if subsection (5) applies, promptly send a notice to the dissenter that the company is unable lawfully to pay dissenters for their shares.
|
|
(a)
|
the dissenter may, within 30 days after receipt, withdraw the dissenter's notice of dissent, in which case the company is deemed to consent to the withdrawal and this Division, other than section 247, ceases to apply to the dissenter with respect to the notice shares, or
|
|
(b)
|
if the dissenter does not withdraw the notice of dissent in accordance with paragraph (a) of this subsection, the dissenter retains a status as a claimant against the company, to be paid as soon as the company is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors of the company but in priority to its shareholders.
|
(5)
|
A company must not make a payment to a dissenter under this section if there are reasonable grounds for believing that
|
(a)
|
the company is insolvent, or
|
(b)
|
the payment would render the company insolvent.
|
|
(a)
|
the corporate action approved or authorized, or to be approved or authorized, by the resolution or court order in respect of which the notice of dissent was sent is abandoned;
|
|
(b)
|
the resolution in respect of which the notice of dissent was sent does not pass;
|
|
(c)
|
the resolution in respect of which the notice of dissent was sent is revoked before the corporate action approved or authorized by that resolution is taken;
|
|
(d)
|
the notice of dissent was sent in respect of a resolution adopting an amalgamation agreement and the amalgamation is abandoned or, by the terms of the agreement, will not proceed;
|
|
(e)
|
the arrangement in respect of which the notice of dissent was sent is abandoned or by its terms will not proceed;
|
|
(f)
|
a court permanently enjoins or sets aside the corporate action approved or authorized by the resolution or court order in respect of which the notice of dissent was sent;
|
|
(g)
|
with respect to the notice shares, the dissenter consents to, or votes in favour of, the resolution in respect of which the notice of dissent was sent;
|
|
(h)
|
the notice of dissent is withdrawn with the written consent of the company;
|
|
(i)
|
the court determines that the dissenter is not entitled to dissent under this Division or that the dissenter is not entitled to dissent with respect to the notice shares under this Division.
|
|
(a)
|
the company must return to the dissenter each of the applicable share certificates, if any, sent under section 244 (1) (b) or, if those share certificates are unavailable, replacements for those share certificates,
|
|
(b)
|
the dissenter regains any ability lost under section 244 (6) to vote, or exercise or assert any rights of a shareholder, in respect of the notice shares, and
|
|
(c)
|
the dissenter must return any money that the company paid to the dissenter in respect of the notice shares under, or in purported compliance with, this Division.
|
TO:
|
THE SECURITYHOLDERS OF LML PAYMENT SYSTEMS INC.
|
Solicitors for the Petitioner,
|
|
LML Payment Systems Inc.
|
|
Bernard Pinsky
|
TO:
|
LML ACQUISITION CORP.
|
AND TO:
|
COMPUTERSHARE INVESTOR SERVICES INC. (“Computershare”)
|
Certificate
Number(s)
|
Number of
Common Shares
|
Name in Which Common Shares
are Registered
|
NOTE:
|
If the space provided above is insufficient, details may be listed on a separate schedule to this Letter of Transmittal.
|
o
|
Please check here if you are a holder of a DRS Advice rather than a physical certificate. Please complete the letter of transmittal and return to Computershare as noted on the back page of the letter of transmittal.
|
Number of
Options
|
Number of Common Shares Issuable
Upon Exercise
|
Exercise Price
per Option
|
Name in Which
Options are Granted
|
Number of
Warrants
|
Number of Common Shares Issuable
Upon Exercise
|
Exercise Price
per Warrant
|
Name in Which
Warrants are Registered
|
|
(i)
|
receipt by Computershare of this Letter of Transmittal and, if applicable, the certificate(s) representing the Common Shares surrendered herewith (the “Deposited Shares” and together with any Options or Warrants hereby exchanged, the “Deposited Securities”), and
|
|
(ii)
|
completion of the Arrangement,
|
|
(i)
|
the undersigned is, and will immediately prior to the Effective Time be, the registered holder of the Deposited Securities;
|
|
(ii)
|
the undersigned has, and will have immediately prior to the Effective Time, good title to the Deposited Securities free and clear of any mortgage, hypothec, lien, pledge, assignment for security, security interest, lease or other charge or encumbrance, including the lien or retained title of a conditional vendor;
|
|
(iii)
|
the undersigned has full power and authority to execute and deliver this Letter of Transmittal and to deposit, sell, assign, transfer and deliver such Deposited Securities;
|
|
(iv)
|
the Deposited Securities have not been sold, assigned or transferred, nor has any agreement been entered into to sell, assign or transfer any such Deposited Securities to any other person;
|
|
(v)
|
the surrender of the Deposited Securities complies with applicable laws;
|
|
(vi)
|
all information inserted by the undersigned into this Letter of Transmittal is accurate; and
|
|
(vii)
|
the undersigned irrevocably attorns to the jurisdiction of the Courts of the Province of British Columbia in respect of all matters arising under or in relation to this Letter of Transmittal.
|
BOX A
PAYMENT INSTRUCTIONS
|
BOX B
DELIVERY INSTRUCTIONS
|
||||
Issue cheque in the name of (please print):
|
Issue cheque (Unless Box C is checked) to:
|
||||
(Name)
|
(Name)
|
||||
(Street Address and Number)
|
(Street Address and Number)
|
||||
(City and State or Province)
|
(City and State or Province)
|
||||
(Telephone – Business Hours)
|
(Telephone – Business Hours)
|
||||
(Social Insurance, Social Security or
Taxpayer Identification Number)
|
(Social Insurance, Social Security or
Taxpayer Identification Number)
|
||||
BOX C
PICK-UP INSTRUCTIONS
|
BOX D
DELIVERY INSTRUCTIONS
|
||||
(in the event that the Arrangement is
not completed)
|
|||||
o |
Hold cheque for pick-up at the office of Computershare at 9th Floor, 100 University Avenue, Toronto, Ontario, M5J2Y1
|
TO BE COMPLETED BY ALL SHAREHOLDERS, OPTIONHOLDERS OR WARRANTHOLDERS BY SELECTING ONE BOX BELOW. SEE INSTRUCTIONS BELOW.
|
o |
Mail certificate(s) to (please fill in address for mailing)
|
|||
OR
|
||||
o |
Hold certificate(s) for pick-up at the office of Computershare listed in Box C
|
|||
BOX E - SIGNATURE GUARANTEE
|
BOX F - SIGNATURE
|
|||
Signature guarantee by
|
Dated:
|
|||
(if required under Instruction 3)
|
Authorized Signature
|
(Signature of holder or Authorized Representative)
|
||||
Name of Guarantor (please print or type)
|
(Signature of any Joint Holder)
|
||||
Address (please print or type)
|
(Name of Authorized Representative)
|
||||
(Social Insurance Number, Social Security Number or Taxpayer Identification Number)
|
|||||
Area code and Telephone Number
|
|||||
(Daytime Telephone Number of holder or Authorized Representative)
|
|||||
(Daytime Facsimile Number of holder or
Authorized Representative)
|
BOX G
TO BE COMPLETED BY ALL HOLDERS BY SELECTING ONE OF THE BOXES BELOW
|
|
Indicate whether you are a U.S. holder (as defined below) or are acting on behalf of a U.S. holder.
|
|
o |
The owner signing below represents that it is not a U.S. holder and is not acting on behalf of a U.S. holder;
|
OR
|
|
o |
The owner signing below represents that it is a U.S. holder or is acting on behalf of a U.S. holder.
|
A “U.S. holder” is any shareholder, optionholder or warrantholder that is either (A) providing an address above that is located within the United States or any territory or possession thereof, or (B) a U.S. person for United States federal tax purposes (as further described in Instruction 10).
|
|
If you are a U.S. holder or are acting on behalf of a U.S. holder, then in order to avoid United States backup withholding you must complete the Substitute Form W-9 enclosed herewith or otherwise provide certification that you are exempt from backup withholding, as provided in the instructions.
|
|
BOX H
SUBSTITUTE FORM W-9
To be completed by U.S. Residents/Citizens only )(see Instruction 10)
Under penalties of perjury, I certify that:
|
|
1.
|
The social security or other taxpayer identification number stated below is my correct taxpayer identification number (or I am waiting for a number to be issued to me and have so indicated by writing “Applied For” in the space below for social security or taxpayer identification number),
|
2.
|
I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the United States Internal Revenue Service (the “IRS”) that I am subject to backup withholding as a result of a failure to report interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and
|
3.
|
I am a U.S. person (including a U.S. resident alien).
|
Certification Instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because of under reporting interest or dividends on your tax return.
|
(Signature of Shareholder)
|
(Date)
|
|||
(Social Security or taxpayer identification number)
|
||
NOTE: FAILURE TO COMPLETE THIS FORM OR TO PROVIDE COMPUTERSHARE WITH A SOCIAL SECURITY OR TAXPAYER IDENTIFICATION NUMBER MAY RESULT IN PENALTIES IMPOSED BY THE IRS AND BACKUP WITHHOLDING OF 28% OF ANY CASH CONSIDERATION SUBJECT TO TAX TO BE DELIVERED TO YOU PURSUANT TO THE ARRANGEMENT.
|
||
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE “APPLIED FOR” IN THE SPACE FOR THE “SOCIAL SECURITY OR TAXPAYER IDENTIFICATION NUMBER” ABOVE.
|
||
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
|
||
I certify under penalties of perjury that a taxpayer identification number has not been issued to me and either: (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate IRS Centre or Social Security Administration Office; or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number within 60 days, 28% of all reportable cash consideration to be delivered to me thereafter may be withheld until I provide a number.
|
(Signature of Shareholder)
|
(Date)
|
1.
|
Use of the Letter of Transmittal
|
(a)
|
In order to permit the timely receipt of the Share Consideration, Option Consideration and/or Warrant Consideration issuable in connection with the Arrangement, it is recommended that this Letter of Transmittal (or an originally signed facsimile copy thereof) together with accompanying certificate(s) representing the Deposited Shares, if applicable, be received by Computershare at the office specified below before 4:00 p.m. (Vancouver time) on ♦ or, in the case of any adjournment or postponement of the Meeting, no later than 4:00 p.m. (Vancouver time) on the business day of the reconvened Meeting. Do not send the certificates or the Letter of Transmittal to the Corporation or Purchaser.
|
(b)
|
The method used to deliver this Letter of Transmittal and any accompanying certificates representing Deposited Shares is at the option and risk of the Shareholder, Optionholder, or Warrantholder, and delivery will be deemed effective only when such documents are actually received by Computershare. The Corporation, the Purchaser and Computershare recommend that the necessary documentation be hand delivered to Computershare at the office specified below, and a receipt obtained; otherwise the use of registered mail with return receipt requested, properly insured, is recommended. Shareholders whose Common Shares are registered in the name of a broker, investment dealer, bank, trust company or other nominee should contact that nominee for assistance in depositing those Common Shares.
|
2.
|
Signatures
|
(a)
|
If this Letter of Transmittal is signed by the registered owner(s) of the accompanying certificate(s), such signature(s) on this Letter of Transmittal must correspond with the name(s) as registered or as written on the face of such certificate(s) without any change whatsoever, and the certificate(s) need not be endorsed. If such deposited certificate(s) are owned of record by two or more joint owners, all such owners must sign the Letter of Transmittal.
|
(b)
|
If this Letter of Transmittal is signed by a person other than the registered owner(s) of the accompanying certificate(s), or if a cheque is to be issued to a person other than the registered owner(s):
|
|
(i)
|
such deposited certificate(s) must be endorsed or be accompanied by appropriate share transfer power(s) of attorney duly and properly completed by the registered owner(s); and
|
|
(ii)
|
the signature(s) on such endorsement or share transfer power(s) of attorney must correspond exactly to the name(s) of the registered owner(s) as registered or as appearing on the certificate(s) and must be guaranteed as noted in Instruction 3 below.
|
(c)
|
If any of the Deposited Shares are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of Common Shares.
|
3.
|
Guarantee of Signatures
|
4.
|
Fiduciaries, Representatives and Authorizations
|
5.
|
Payment and Delivery Instructions
|
6.
|
Miscellaneous
|
(a)
|
If the space on this Letter of Transmittal is insufficient to list all certificates for Deposited Shares, all Options or all Warrants being exchanged hereby, additional certificate numbers and number of Deposited Shares, Options or Warrants may be included on a separate signed list affixed to this Letter of Transmittal.
|
(b)
|
If Deposited Shares, Options or Warrants are registered in different forms (e.g. “John Doe” and “J. Doe”), a separate Letter of Transmittal should be signed for each different registration.
|
(c)
|
No alternative, conditional or contingent deposits of Deposited Securities will be accepted.
|
(d)
|
Additional copies of the Proxy Statement and the Letter of Transmittal may be obtained from Computershare or at the office specified below. The Proxy Statement and the Letter of Transmittal are also available at the website maintained by The Canadian Depository for Securities Limited www.sedar.com and at the website maintained by the Securities and Exchange Commission www.sec.gov.
|
(e)
|
It is strongly recommended that prior to completing this Letter of Transmittal, the undersigned read the accompanying Proxy Statement and discuss any questions with a tax advisor.
|
(f)
|
The Corporation and Purchaser reserve the right, if either so elects in its absolute discretion, to instruct Computershare to waive any defect or irregularity contained in the Letter of Transmittal received by it.
|
(g)
|
This Letter of Transmittal will be construed in accordance with and governed by the laws of the Province of British Columbia and the laws of Canada applicable therein. By executing and returning this Letter of Transmittal to Computershare, you agree and irrevocably attorn to the Courts of the Province of British Columbia in respect of all matters arising under or in relation to this Letter of Transmittal.
|
7.
|
Lost Certificates
|
8.
|
Return of Certificates
|
9.
|
Privacy Notice
|
10.
|
U.S. Federal Income Tax and Backup Withholding – Substitute Form W-9 Instructions
|
Computershare
|
||
9th Floor, 100 University Avenue
|
||
Toronto, Ontario M5J 2Y1
|
||
www.computershare.com
|
000001
|
||
Sam Sample
|
||
123 Samples Street
|
Security Class:COMMON-NEW
|
|
Sampletown SS X9X X9X
|
||
Holder Account Number
|
||
C9999999999 I N D
|
1.
|
Every holder has the right to appoint some other person or company of their choice, who need not be a holder, to attend and act on their behalf at the meeting. If you wish to appoint a person or company other than the persons whose names are printed herein, please insert the name of your chosen proxyholder in the space provided (see reverse)
|
2.
|
If the securities are registered in the name of more than one owner (for example, joint ownership, trustees, executors, etc.), then all those registered should sign this proxy. If you are voting on behalf of a corporation or another individual you must sign this proxy with the signing capacity stated, and you may be required to provide documentation evidencing your power to sign this proxy.
|
3.
|
This proxy should be signed in the exact manner as the name(s) appear(s) on the proxy.
|
4.
|
If this proxy is not dated, it will be deemed to bear the date on which it is mailed to the holder.
|
5.
|
The securities represented by this proxy will be voted as directed by the holder, however, if such a direction is not made in respect of any matter, this proxy will be voted as recommended by the Board of Directors.
|
6.
|
The securities represented by this proxy will be voted in favour or voted against each of the matters described herein, as applicable, in accordance with the instructions of the holder, on any ballot that may be called for and, if the holder has specified a choice with respect to any matter to be acted on, the securities will be voted accordingly.
|
7.
|
This proxy confers discretionary authority in respect of amendments or variations to matters identified in the Notice of Meeting or other matters that may properly come before the meeting or any adjournment or postponement thereof.
|
8.
|
This proxy should be read in conjunction with the accompanying Proxy Statement.
|
9.
|
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting of Shareholders to be Held on : This Notice and Proxy Statement are available electronically at https://materials.proxyvote.com/50208p.
|
To Vote Using the Telephone
|
To Vote Using the Internet
|
To Receive Documents Electronically
|
Call the number listed BELOW from a touch-tone telephone
|
Go to the following web site: www.investorvote.com
Smartphone? Scan the QR Code to vote now
|
You can enrol to receive future securityholder communications electronically by visiting www.computershare.com/edelivery and clicking on “eDelivery Signup”.
|
1-866-732-VOTE (8683) Toll Free
|
CONTROL NUMBER
|
12345
|
Appointment of Proxyholder
|
|||
I/We, being holder(s) of LML Payment Systems Inc. hereby appoint: Greg A. MacRae, or failing him, Craig Thomson
|
or
|
Enter the name of the person you are appointing if this person is someone other than the foregoing.
|
For
|
Against
|
Abstain
|
||
1. Approval of Plan of Arrangement
|
||||
To approve by special resolution, the full text of which is set out in the proxy statement of the Corporation dated ♦, 2012 (the “Proxy Statement”), the plan of arrangement under section 288 of the Business Corporations Act (British Columbia), involving the Corporation, LML Acquisition Corp. and Digital River, Inc., as more fully described in the Proxy Statement.
|
o
|
o
|
o
|
Authorized Signature(s) - This section must be completed for your instructions to be executed.
|
Signature(s)
|
Date
|
||
I/We authorize you to act in accordance with my/our instructions set out above. I/We hereby revoke any proxy previously given with respect to the Meeting. If no voting instructions are indicated above, this Proxy will be voted as recommended by the Board of Directors.
|
mm/dd/yy
|