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ECN Capital Corp. — M&A Activity 2022
Sep 7, 2022
47378_rns_2022-09-06_64ec74ec-6306-4658-9a3a-b30bdde4488d.pdf
M&A Activity
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VOTING SUPPORT AGREEMENT
August 26, 2022
N. Harris Computer Corporation 100 – 1 Antares Drive Ottawa, Ontario, Canada K2E 8C4
Dear Sirs/Madams:
Re: Voting and Support Agreement
The undersigned understands that N. Harris Computer Corporation (the “ Purchaser ”) and NexJ Systems Inc. (the “ Company ”) wish to enter into an arrangement agreement dated as of the date hereof (the “ Arrangement Agreement ”) contemplating a plan of arrangement (the “ Arrangement ”) of the Company under Section 192 of the Canada Business Corporations Act , the result of which shall be the acquisition by the Purchaser of all the outstanding common shares in the capital of the Company (the “ Common Shares ”). The undersigned is the beneficial owner of the securities set forth on the signature page hereof (collectively, the “ Holder Securities ”). The undersigned acknowledges that the Purchaser would not enter into the Arrangement Agreement but for the execution and delivery of this Agreement by the undersigned.
All capitalized terms used but not otherwise defined herein shall have the respective meaning ascribed to them in the Arrangement Agreement.
The undersigned hereby agrees, in his or her capacity as securityholder and, to the extent applicable, not in his or her capacity as an officer or director of the Company, from the date hereof until the date the Arrangement Agreement is terminated in accordance with its terms:
- (a) at any meeting of shareholders of the Company (including in connection with any combined or separate vote of any sub-group of securityholders of the Company that may be required to be held and of which sub-group the undersigned forms part) held to consider the Arrangement or any adjournment or postponement thereof, or in any other circumstances upon which a vote, consent or other approval with respect to the Arrangement is sought, to vote or to cause to be voted the voting rights attached to the Common Shares comprising the Holder Securities, and to other voting securities of the Company, directly or indirectly acquired by or issued to the undersigned after the date hereof, (i) in favour of the Arrangement and any other matter necessary for the completion of the Arrangement (including in favour of all matters recommended by management of the Company in favour of the Arrangement) and (ii) against any Acquisition Proposal or any proposed action or agreement which could impede, prevent, frustrate, interfere with or delay, or in any way adversely affect the completion of the Arrangement and any other transactions contemplated by the Arrangement Agreement, including any transaction involving the acquisition by any other party of Common Shares, other voting securities of the Company or assets of the Company;
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(b) no later than 10 days prior to the Company Meeting, to deliver or to cause to be delivered to the Company duly executed proxies or voting instruction forms voting in favour of the Arrangement, such proxy or voting instruction forms not to be revoked or withdrawn without the prior written consent of the Purchaser;
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(c) except as contemplated by the Arrangement Agreement or upon the settlement of awards or the exercise of other rights to purchase Common Shares, not to, directly or indirectly, acquire or seek to acquire Common Shares or other voting securities of the Company, or sell, assign, transfer, dispose of, hypothecate, alienate, grant a security interest in, encumber or tender to offer, transfer any economic interest (directly or indirectly) or otherwise convey any of the Holder Securities, in each case without the Purchaser’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed);
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(d) not to exercise any rights of dissent in connection with the Arrangement or otherwise oppose in any manner the treatment of any Holder Securities pursuant to the Arrangement;
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(e) to revoke any and all previous proxies granted or voting instruction forms or other voting documents delivered that may conflict or be inconsistent with the matters set forth in this Agreement;
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(f) except as required pursuant to this Agreement (including to give effect to clause (a) above), not to grant or agree to grant any proxy or other right to vote the Holder Securities or enter into any voting trust or pooling agreement or arrangement in respect of the Holder Securities or enter into or subject any of the Holder Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
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(g) not to take any action which could impede, interfere with or delay, or in any way adversely affect the completion of the Arrangement and any other transactions contemplated by the Arrangement Agreement;
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(h) not to, directly or indirectly, through any officer, director, employee, representative, agent or otherwise, and shall not permit any such person, to make or participate in or take any action that may reasonably be expected to result in or facilitate an Acquisition Proposal, or engage in any discussion, negotiation or inquiries that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal; and
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(i) to immediately cease and cause to be terminated any existing solicitation, encouragement, discussion, negotiation or any other activities with any person (other than the Purchaser) conducted prior to the date hereof by the undersigned or, if applicable, any of its officers, directors, employees, representatives, agents or otherwise, with respect to any potential Acquisition Proposal, or any inquiry, proposal or offer that reasonably could be expected to constitute or lead to an Acquisition Proposal.
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Notwithstanding any provision of this Agreement to the contrary, the Purchaser hereby agrees and acknowledges that the undersigned is executing this Agreement and is bound hereunder solely in his or her capacity as a securityholder of the Company. Nothing contained in this Agreement shall, to the extent applicable, limit or affect any actions the undersigned may take in his or her capacity as a director or officer of the Company or limit or restrict in any way the exercise of his or her fiduciary duties as director or officer of the Company including, without limitation, responding in his or her capacity as a director or officer of the Company to an Acquisition Proposal in accordance with the terms of the Arrangement Agreement and making any determinations in that regard in the exercise of his or her fiduciary duties.
The undersigned hereby represents and warrants that (a) he or she is the sole and unconditional beneficial owner of the Holder Securities, with good and valid title thereto, free and clear of all liens, and has the sole right to sell and vote all of the Holder Securities and does not directly or indirectly control or direct, or own or have any registered or beneficial interest in, any other securities of the Company, other than as disclosed on the signature page hereof; (b) this Agreement has been duly executed and delivered and is a valid and binding agreement, enforceable against the undersigned in accordance with its terms, and the entering into of this Agreement, and the performance by the undersigned of its obligations hereunder will not constitute a violation or breach of or default under, or conflict with, any constating documents, contract, license, commitment, agreement, note, loan agreement, mortgage, bond, indenture, lease, understanding or arrangement of any kind to which the undersigned is or will be a party and by which the undersigned is bound or will be bound at the time of such performance, (c) no person has any agreement or option, or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase, acquisition or transfer of any of the Holder Securities, or any interest therein or right thereto, except pursuant to this Agreement or the Arrangement Agreement; (d) the undersigned has the sole and exclusive right to enter into this Agreement and to vote (or cause to be voted) the Holder Securities (which have a right to vote at such meeting) as contemplated herein and none of the Holder Securities is subject to any proxy, power of attorney, attorney-in-fact, voting trust, vote pooling or other agreement with respect to the right to vote, call meetings of shareholders or give consents or approvals of any kind; (e) no consent, approval, order or authorization of, or declaration or filing with, any Governmental Entity or other person is required to be obtained by the undersigned in connection with the execution, delivery or performance of this Agreement; (f) there are no legal proceedings in progress or pending before any Governmental Entity or threatened against the undersigned or any judgment, decree or order against the undersigned that would adversely affect in any material manner the ability of the undersigned to enter into this Agreement and to perform its obligations hereunder or the title of the undersigned to any of the Holder Securities; and (g) he or she has been afforded the opportunity to obtain independent legal advice and confirms by the execution of this Agreement that he or she has either done so or waived his or her right to do so in connection with the entering into of this Agreement, and that any failure on the undersigned’s part to seek independent legal advice shall not affect (and the undersigned shall not assert that it affects) the validity, enforceability or effect of this Agreement or the Arrangement Agreement.
The undersigned hereby consents to the disclosure of the substance of this Agreement in any press release or any circular relating to the Company Meeting and the filing of a copy hereof by the Company at www.sedar.com. Except as set forth above or in the Arrangement Agreement, or as required by applicable laws or regulations or by any Governmental Entity or in accordance with the requirements of any stock exchange, the undersigned shall not make any public announcement or statement with
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respect to this Agreement without the approval of the Purchaser, which shall not be unreasonably withheld or delayed. The undersigned agrees to consult with the Purchaser prior to issuing each public announcement or statement with respect to this Agreement, subject to the overriding obligations of Laws.
The undersigned will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the Purchaser may reasonably require and to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
It is recognized and acknowledged that a breach by the undersigned of any material obligations contained in this Agreement will cause the Purchaser to sustain injury for which it would not have an adequate remedy at law for money damages. Accordingly, in the event of any such breach, the Purchaser shall be entitled to the remedy of specific performance of such obligations and interlocutory, preliminary and permanent injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity.
This Agreement shall terminate and be of no further force and effect upon the termination of the Arrangement Agreement in accordance with its terms.
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, and the parties hereto irrevocably attorn to the jurisdiction of the Ontario courts situated in the City of Toronto and waive objection to the venue of any Proceeding in such court or that such court provides an inconvenient forum. This Agreement may be executed in any number of counterparts (including counterparts by electronic copy) and all such counterparts taken together shall be deemed to constitute one and the same instrument.
If the foregoing is in accordance with the Purchaser’s understanding and is agreed to by the Purchaser, please signify the Purchaser’s acceptance by the execution of the enclosed copies of this Agreement where indicated below by an authorized signatory of the Purchaser and return the same to the undersigned, upon which this Agreement as so accepted shall constitute an agreement among the Purchaser and the undersigned.
[Remainder of page left intentionally blank. Signature page follows.]
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Yours truly,
By: (signed) “William M. Tatham”
(Signature)
Tatham Family Holdings II Ltd.
(Print Name)
(Place of Residency)
(Name and Title)
Address:
1,973,497
(Number of Common Shares (including any Pledged Company Shares))
If Common Shares (other than any Pledged Common Shares) are registered in name other than above, provide:
Name of registered owner:
Address of registered owner:
Account number (if applicable):
0
(Number of DSUs)
0
(Number of Company Options)
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(Principal Amount of Share Loan Indebtedness)
Number of Pledged Company Shares
Number of Pledged NexJ Health Shares
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N. HARRIS COMPUTER CORPORATION
By: (signed) “ Todd Richardson” Name: Todd Richardson Title: Chief Financial Officer
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