-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, USJBmlPiQd1wJy+tqMPNjMF7m4qcv4pTki93f/w464qOsBZJtb9mi3RjV34YxJ7V 2RQpZl64XTgjOWTms+Kr1Q== 0000950136-02-001071.txt : 20020416 0000950136-02-001071.hdr.sgml : 20020416 ACCESSION NUMBER: 0000950136-02-001071 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20020412 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MOORE CORPORATION LTD CENTRAL INDEX KEY: 0000067931 STANDARD INDUSTRIAL CLASSIFICATION: MANIFOLD BUSINESS FORMS [2761] IRS NUMBER: 980154502 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-82728 FILM NUMBER: 02609376 BUSINESS ADDRESS: STREET 1: 40 KING STREET WEST STREET 2: SUITE 3501 CITY: TORONTO ONTARIO CANA STATE: A6 BUSINESS PHONE: 4163642600 MAIL ADDRESS: STREET 1: 40 KING STREET WEST SUITE 3501 CITY: TORONTO ONTARIO S-3/A 1 file001.txt AMENDMENT #1 TO THE REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on April 12, 2002 Registration No. 333-82728 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------- MOORE CORPORATION LIMITED (Exact name of registrant as specified in its charter) ONTARIO, CANADA 98-0154502 (State or other (I.R.S. employer jurisdiction of identification number) incorporation or organization) ONE CANTERBURY GREEN STAMFORD, CONNECTICUT 06901 (203) 406-3700 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) JENNIFER O. ESTABROOK SENIOR VICE PRESIDENT, GENERAL COUNSEL AND ASSISTANT SECRETARY ONE CANTERBURY GREEN STAMFORD, CONNECTICUT 06901 (203) 406-3700 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At such time or times as may be determined by the selling shareholders after this registration statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] _____________ If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] _____________ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] ---------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. ================================================================================ PROSPECTUS (Subject to Completion) Dated April 12, 2002 [SIDERBAR] The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Comission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. [END SIDEBAR] [MOORE CORPORATION LOGO] MOORE CORPORATION LIMITED 15,660,213 COMMON SHARES This prospectus relates to an offering by the selling shareholders named herein of 15,660,213 common shares of Moore Corporation Limited. See "Selling Shareholders". Moore will not receive any of the proceeds from the sale of the common shares. The selling shareholders may offer the common shares from time to time and in any of several different ways in accordance with their registration rights, as described under "Selling Shareholders" and "Plan of Distribution". Moore's common shares are currently listed on the New York Stock Exchange and the Toronto Stock Exchange under the symbol "MCL". On April 11, 2002, the last sale reported on the New York Stock Exchange was $13.71 per common share and the last sale reported on the Toronto Stock Exchange was C$21.87 per common share. ------------------------ AN INVESTMENT IN OUR COMMON SHARES INVOLVES SIGNIFICANT RISKS. PLEASE READ THE INFORMATION UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE 3 TO LEARN ABOUT SOME FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR COMMON SHARES. ------------------------ NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. IT IS ILLEGAL FOR ANYONE TO TELL YOU OTHERWISE. ------------------------ THE DATE OF THIS PROSPECTUS IS __________ __, 2002. TABLE OF CONTENTS
PAGE ---- Table of Contents.................................................................................................2 Moore Corporation Limited.........................................................................................3 Risk Factors......................................................................................................3 Where You Can Find More Information...............................................................................5 Forward-Looking Statements........................................................................................7 Use of Proceeds...................................................................................................7 Price Range Of Our Common Shares And Dividends....................................................................8 Description of Share Capital......................................................................................9 Selling Shareholders.............................................................................................11 Shares Eligible for Future Sale..................................................................................14 Plan of Distribution.............................................................................................15 Validity of Common Shares........................................................................................17 Experts..........................................................................................................17
-------------- NO DEALER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST NOT RELY ON ANY UNAUTHORIZED INFORMATION OR REPRESENTATIONS. THIS PROSPECTUS IS AN OFFER TO SELL OR TO BUY ONLY THE SHARES OFFERED BY THIS PROSPECTUS, BUT ONLY UNDER CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS LAWFUL TO DO SO. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS CURRENT ONLY TO THE DATE OF THE PROSPECTUS. Unless otherwise indicated, all references in this prospectus to currency are to United States dollars. References in this prospectus to "C$" are to Canadian dollars. -2- MOORE CORPORATION LIMITED Moore Corporation Limited is an international leader in the management and distribution of print and digital information. As a result of a realignment of our businesses in 2001 to focus on our core printing businesses, we operate in three complementary business segments: Forms and Labels; Outsourcing; and Commercial. The Forms and Labels business designs, manufactures and sells paper based and electronic business forms and labels and provides electronic print management solutions. The Outsourcing business provides high-quality, high-volume variably imaged print and mail, electronic statement and database management services. The Commercial business produces high-quality, multicolor personalized business communications and provides direct marketing services, including project, database and list management services. Our three business segments are more fully described in the "Business" section of our Form 10-K. In 2001, we had net sales of $2.2 billion and a net loss of $358 million, principally as a result of $392 million of pre-tax restructuring and other related non-recurring charges. Our results of operations, including these restructuring and other non-recurring charges, are more fully described in "Management's Discussion and Analysis of Financial Condition and Results of Operations" in our Form 10-K, which is incorporated herein by reference. Our executive offices are located at One Canterbury Green, Stamford, Connecticut 06901. Our telephone number is (203) 406-3700 and our internet address is www.moore.com. RISK FACTORS A purchase of the common shares offered by this prospectus involves various risks. These risks include, but are not limited to, the principal factors listed below and the other matters set forth in this prospectus or incorporated by reference in this prospectus. You should carefully consider all of these risks. o OUR FINANCIAL PERFORMANCE IS SUBJECT TO THE RISK OF BUSINESS ACQUISITIONS, INCLUDING THE EFFECTS OF INCREASED BORROWING AND THE INTEGRATION OF BUSINESSES. Our business strategy includes growth through acquisitions. Our success is dependent in part upon our ability to effectively integrate acquired operations with our operations. We also rely on sellers for transition assistance. While we believe that we have sufficient management and other resources to accomplish the integration of our past and future acquisitions, there can be no assurance in this regard or that we will not experience difficulties with retaining customers, suppliers, employees or others. In addition, while we are generally entitled to customary indemnification from sellers of businesses for any difficulties that may have arisen prior to our acquisition of each business, the amount and time for claiming under these indemnification provisions is limited. There can be no assurance that we will be able to identify and make acquisitions on acceptable terms or that we will be able to obtain financing for such acquisitions on acceptable terms. As a result, our financial performance is now and will continue to be subject to various risks associated with the acquisition of businesses, including the financial effects associated with any increased borrowing required to fund such acquisitions or with the integration of such businesses. o OUR 2000 AND 2001 FINANCIAL STATEMENTS REFLECT SUBSTANTIAL NET LOSSES AND WE CANNOT ASSURE YOU THAT WE WILL BE PROFITABLE IN THE FUTURE. We reported net losses of $358.0 million in 2001 and $66.4 million in 2000. The net losses in 2001 primarily reflected a substantial amount of restructuring and non-recurring charges. The net losses in 2000 primarily reflected increasing cost of sales as a percentage of revenues and increased depreciation and amortization charges. We can not assure that we will realize net income in future. If our net losses continue, our ability to raise financing, or to do so on favorable terms, may be limited as those losses are taken into account by investors and credit ratings organizations. o OUR INITIATIVES TO REDUCE COSTS MAY NOT BE SUCCESSFUL. As described in our Form 10-K, Management has developed a six point action plan to increase revenue and reduce costs. As a result of the implementation of the plan, we incurred $391.2 million of pre-tax restructuring and other related charges during 2001. Although the plan has been implemented to improve our cost structure in 2002 and beyond, cost reductions, revenue enhancements and attractive acquisition opportunities may not arise and we may not achieve the goals of the six-point plan. A failure to successfully implement the improvements to our cost structure in 2002 and beyond could have a material adverse effect on our financial position and results of operations. -3- o OUR PERFORMANCE IS DEPENDENT UPON OUR KEY PERSONNEL. Our performance depends in large part on the continued service of the management team that joined Moore in late 2000 and 2001 to lead our turnaround. Our performance is also dependent upon our ability to attract, retain and motivate highly qualified personnel to complete the turnaround and execute our business strategy. There can be no assurance that we will be able to retain our management team or to attract and retain other highly qualified personnel and our inability to do so could have a material adverse effect upon our financial position and results of operations. o THE HIGHLY COMPETITIVE MARKET FOR OUR PRODUCTS MAY CREATE ADVERSE PRICING PRESSURES. Although we are a diversified printing company, the market for most of our product categories is highly competitive. Most of the markets we serve are relatively fragmented and have a large number of competitors. Some of these competitors are larger than we are and have greater financial and technical resources. We believe that excess capacity in each of these markets combined with the current economic conditions have caused downward pricing pressure and increased competition. o VOLATILITY OF RAW MATERIALS PRICES AND AVAILABILITY MAY ADVERSELY AFFECT OUR FINANCIAL RESULTS. The primary raw materials used by us are paper and ink. The cost of paper and ink represents a significant portion of our costs of sales. Increases in price or a lack of availability of supply of these raw materials could have a material adverse effect on our financial condition and results of operations. We use our significant purchasing volume to negotiate long term supply contracts that give us favorable prices, terms, quality and service. While we believe that these long term contracts will enable us to receive adequate supplies of paper in the event of a tight paper supply, there can be no assurance in this regard. o FOREIGN CURRENCY EXCHANGE RATES MAY ADVERSELY AFFECT OUR FINANCIAL RESULTS. We are exposed to market risks resulting from changes in foreign currency exchange rates. We manage our exposure by having our various subsidiaries and business units abroad operate in the local currency. To the extent revenues and expenses are not in local currency, we enter into foreign currency forward contracts to hedge the currency risk. o OUR PRIVATE PLACEMENT NOTES CONTAIN COVENANTS THAT MAY LIMIT OUR FLEXIBILITY OR PREVENT US FROM TAKING ACTIONS. We have a series of senior guaranteed notes outstanding that contain certain restrictive covenants, including covenants, in each case subject to exceptions, prohibiting us from incurring certain indebtedness, acquiring or disposing of certain assets or businesses or engaging in certain fundamental transactions. A failure to comply with these covenants would result in an event of default under the senior guaranteed notes and could have a material adverse effect on our financial position and results of operations. As a result, the covenants under our senior guaranteed notes affect, and in many respects significantly limit or prohibit, among other things, our ability to: o incur indebtedness; o engage in transactions with affiliates; o sell assets; o engage in mergers and acquisitions; and o realize important elements of our business strategy. The terms of the senior guaranteed notes also require us to meet certain financial ratios and tests, including, but not limited to, ratios and tests based on our net worth, leverage and interest coverage. These covenants may prevent us from integrating our acquired businesses, pursuing acquisitions, significantly limit our operating and financial flexibility and limit our ability to respond to changes in our business or competitive activities. In addition, indebtedness that we incur in the future, including indebtednesses that we may incur to fund acquisitions, may have similar, or more stringent, restrictive covenants and financial tests. o WE SUSPENDED PAYMENT OF DIVIDENDS ON OUR COMMON SHARES IN 2001 AND PRESENTLY DO NOT INTEND TO RESUME DIVIDEND PAYMENTS ON OUR COMMON SHARES. On April 23, 2001, our board of directors suspended the -4- payment of dividends on our common shares in light of our financial condition. The board does not intend to resume the payment of dividends for the foreseeable future. This could reduce demand for our common shares among investors that only purchase shares that pay cash dividends. o OUR SHARE PRICE MAY DECLINE DUE TO THE LARGE NUMBERS OF SHARES ELIGIBLE FOR FUTURE SALE. Future sales of substantial amounts of our common shares in the public market or otherwise, or the perception that such sales may occur, could adversely affect the prevailing market price of our common shares. A substantial number of common shares are eligible for future sale under this prospectus or otherwise. See "Shares Eligible for Future Sale". WHERE YOU CAN FIND MORE INFORMATION THE REGISTRATION STATEMENT We have filed a registration statement with the Securities and Exchange Commission, or the SEC, that registers the shares offered by this prospectus. The registration statement that we filed with the SEC, including the attached exhibits and schedules, contains additional relevant information about Moore and its common shares. The SEC allows us to omit some information included in the registration statement from this prospectus. You should read the entire registration statement in order to obtain this additional information. FILINGS WITH THE SEC In addition, we file reports, proxy statements and other information with the SEC on a regular basis. You may read and copy this information or obtain copies of this information by mail from the Public Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. Further information on the operation of the SEC's Public Reference Room in Washington, D.C. can be obtained by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet world wide web site that contains reports, proxy statements and other information about issuers, like Moore, who file electronically with the SEC. The address of that site is http://www.sec.gov. DOCUMENTS INCORPORATED BY REFERENCE THE SEC ALLOWS US TO "INCORPORATE BY REFERENCE" INFORMATION INTO THIS PROSPECTUS. THIS MEANS THAT WE CAN DISCLOSE IMPORTANT INFORMATION TO YOU BY REFERRING YOU TO ANOTHER DOCUMENT FILED SEPARATELY WITH THE SEC. This information incorporated by reference is a part of this prospectus, unless we provide you with different information in this prospectus or the information is modified or superceded by a subsequently filed document. This prospectus incorporates by reference the documents listed below that we have previously filed with the SEC. They contain important information about Moore and its financial condition. o Moore's Annual Report on Form 10-K for the year ended December 31, 2001 (our "Form 10-K"). o Moore's Current Reports on Form 8-K filed January 3, 2002, January 15, 2002 and April 4, 2002. This prospectus also incorporates by reference additional documents that we may file with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the time of filing of the initial registration statement and before effectiveness of the registration statement, and after the date of this prospectus and before the termination of this offering. These documents include annual reports, quarterly reports and other current reports, as well as proxy statements that will automatically update and supersede the information in this prospectus. -5- You can obtain any of the documents incorporated by reference in this document from us or from the SEC through the SEC's web site at the address described above. Documents incorporated by reference are available from us without charge, excluding any exhibits to those documents unless we specifically incorporated by reference the exhibit in this prospectus. You can obtain these documents from us by requesting them in writing or by telephone at the following address or number: Secretary Moore Corporation Limited c/o Moore Executive Offices One Canterbury Green Stamford, Connecticut 06901 Telephone: (203) 406-3700 OTHER INFORMATION We have not authorized anyone to give you any information about us or this offering that is different from what we tell you in this prospectus or in any of the materials that we have incorporated into this document. If anyone gives you any other information about us, you should not rely on it. If you are in a jurisdiction where offers to sell, or solicitations of offers to buy, the securities offered by this document are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer presented in this document does not extend to you. The information contained in this document speaks only as of the date of this document unless the information specifically indicates that another date applies. -6- FORWARD-LOOKING STATEMENTS FORWARD-LOOKING STATEMENTS MADE IN THIS PROSPECTUS In this prospectus, we make forward-looking statements about our financial condition, results of operations and business. Forward-looking statements are statements made by us concerning events that may or may not occur in the future. These statements may be made directly in this document or may be "incorporated by reference" from other documents. You can find many of these statements by looking for words like "believes," "expects," "anticipates," "estimates" or similar expressions. FORWARD-LOOKING STATEMENTS ARE NOT GUARANTEES OF FUTURE PERFORMANCE Forward-looking statements involve known and unknown risks, uncertainties and other factors, including those identified under "Risk Factors" below, elsewhere in this prospectus and incorporated by reference in this prospectus that may cause our actual results, performance or achievements, or industry results, to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Such factors include, but are not limited to, the following: o general economic and business conditions; o changes in customer preferences; o competition; o availability of raw materials; o the integration of any acquisition, including the integration of transferred employees; o changes in our business strategy; o our indebtedness; o quality of our management and business abilities and the judgment of our personnel; o the availability, terms and deployment of capital; and o various other factors referenced in this prospectus and our Form 10-K. See "Item 7: Management's Discussion and Analysis of Financial Condition and Results of Operations" and "Item 1: Business" in our Form 10-K for a further discussion of these factors. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. We do not undertake any obligation to publicly release any revisions to these forward-looking statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events. USE OF PROCEEDS The shares may be sold by this prospectus by the selling shareholders. We will not receive any proceeds from the sales of the shares, but we will bear some of the expenses. See "Plan of Distribution -- Expenses" for a description of the payment of expenses. -7- PRICE RANGE OF OUR COMMON SHARES AND DIVIDENDS The following table sets forth the high and low closing sales prices of our common shares on The Toronto Stock Exchange and the New York Stock Exchange.
THE TORONTO NEW YORK STOCK STOCK EXCHANGE (C$) EXCHANGE ($) ------------------- -------------- High Low High Low ---- --- ---- --- 2000 4th quarter 5.10 3.50 3.31 2.31 3rd quarter 5.15 3.35 3.44 2.31 2nd quarter 6.85 3.25 4.82 2.19 1st quarter 9.90 4.56 6.75 3.13 2001 4th quarter 15.30 10.88 9.50 6.90 3rd quarter 12.95 8.00 8.05 6.90 2nd quarter 9.25 5.67 5.95 3.67 1st quarter 7.70 4.55 5.19 3.06 2002 1st quarter 21.18 14.51 13.38 9.18 2nd quarter (through April 11) 21.87 19.60 13.71 12.35
On December 31, 2001, there were 10,186 holders of record of our common shares. DIVIDENDS In 2000, we paid a dividend of $0.05 per share each quarter. We also paid a dividend of $0.05 per share on April 2, 2001 to holders of record as of March 2, 2001. On April 23, 2001, our board of directors suspended the payment of dividends on our common shares in light of our financial condition. The board does not intend to resume the payment of dividends for the foreseeable future. Withholding taxes at the rate of 25% are imposed on the payment of dividends to non-residents of Canada. Under the present Canada/United States tax treaty, that rate is generally reduced to 15%. -8- DESCRIPTION OF SHARE CAPITAL The following description of our share capital and provisions of our articles of amalgamation and bylaws is intended as a summary only and is qualified in its entirety by reference to the provisions of our articles of amalgamation and bylaws, which are filed as exhibits to our Form 10-K, which is incorporated in this prospectus by reference, and to Ontario law. GENERAL Our authorized share capital currently consists of an unlimited number of common shares and an unlimited number of preference shares issuable in one or more series. COMMON SHARES As of February 4, 2002, there were 111,821,073 common shares issued and outstanding. As of February 4, 2002, an additional 6,363,169 common shares were reserved for issuance under our stock option plans. Subject to the preferences, limitations and relative rights of holders of our preference shares described below, the holders of our common shares are entitled, among other things: o to share ratably in dividends if, when, and as declared by our board of directors out of funds legally available therefor, o to receive notice of any meeting of shareholders and to one vote for each share held of record on all matters at all meetings of shareholders, except at a meeting where holders of one class or a particular series are entitled to vote separately, and o in the event of our liquidation, dissolution or winding-up, to share ratably in the distribution of assets remaining after payment of debts, obligations and expenses. Holders of our common shares have no cumulative voting rights or preemptive rights to subscribe for or purchase any additional shares of capital stock issued by us. PREFERENCE SHARES SHARES ISSUABLE. We are currently authorized to issue an unlimited number of preference shares, none of which are currently issued and outstanding. Our preference shares may be issued in one or more series by our board of directors without further action by shareholders. PRIORITY AND DIVIDEND RIGHTS. Our preference shares are entitled to a preference over our common shares and to any other of our other shares ranking junior to the preference shares with respect to payment of dividends and amounts payable in the event of our liquidation, dissolution or winding up. The preference shares of any series are entitled to such other preferences over the common shares and any other shares ranking junior to the preference shares as may be determined by the directors when authorizing the respective series. VOTING RIGHTS. The holders of preference shares are not entitled to receive notice of or to attend or to vote at any meeting of our shareholders and are not entitled to vote separately as a class or as a series on any proposal to amend our articles to change the maximum number of the shares of any class or series thereof, or to effect an exchange, reclassification or cancellation of the preference shares or any series thereof, or to create a new class of shares or series thereof having rights or privileges equal or superior to the preference shares or any series thereof, provided, -9- o the holder of any series of preference shares is entitled to receive notice of and to attend and to vote at meetings of our shareholders to the extent specifically provided in the rights and privileges attached to such series, provided, that such voting rights, if any, may only arise in the event of non-payment of dividends on such series; o the holders of the preference shares or of any series are entitled to vote separately as a class or as a series in respect of any matter for which a separate class vote is specifically provided in the Ontario Business Corporations Act (other than a proposal to amend the articles in the manner described above); and o the holders of preference shares are entitled to receive notice of a meeting of the shareholders called for the purpose of authorizing the dissolution of Moore or the sale of its undertaking or a substantial part thereof. OTHER MATTERS. Our board of directors is authorized to fix as to any such series the number of shares to be issued and the designation, rights, privileges, restrictions and conditions attaching to the preference shares of such series, including the rate of preferential dividends, whether dividends will be cumulative or non-cumulative, the dates of payment of dividends, whether the shares will be redeemable and, if so, the redemption price and the terms and conditions of redemption, any voting rights, any conversion rights, any sinking fund, purchase fund or other provisions attaching thereto, and the amount payable on return of capital in the event of our liquidation, dissolution or winding-up. Depending upon the rights of any preference shares, their issuance could have an adverse effect on holders of our common shares by delaying or preventing a change in control, making removal of our present management more difficult or resulting in restrictions upon the payment of dividends and other distributions to the holders of our common shares. SERIES 1 PREFERENCE SHARES SHARES ISSUABLE. On December 11, 2000, our board of directors approved the creation of the Series 1 Preference Shares and issued 1,580,000 options to purchase Series 1 Preference Shares in order to induce certain members of our management to join Moore. On December 11, 2001, 25% of these options vested and became exercisable. An additional 25% will become vested and exercisable on each of December 11, 2002, 2003 and 2004. Such options contain a cash-out provision permitting the holder to receive, at the holder's election and in lieu of the delivery of Series 1 Preference Shares, an amount with respect to each Series 1 Preference Share equal to the positive difference between the Current Market Value per Series 1 Preference Share (as defined below) and the exercise price per share of such option. The Current Market Value per Series 1 Preference Share is equal to the closing price per Moore common share on the trading day immediately prior to exercise on the principal stock exchange (which will be The Toronto Stock Exchange as long as the common shares are listed thereon) on which the common shares are then listed, or if not so listed, shall be conclusively deemed to be equal to the closing price of a common share as is applicable under Moore's customary form of option grant and the plans relating thereto. No Series 1 Preference Shares have been issued. PRIORITY. In the event of liquidation, dissolution or winding-up of Moore, each holder of a Series 1 Preference Share has the right to receive C$0.001 in respect of each such share, together with all dividends declared and unpaid on such share. After that, the holder of a Series 1 Preference Share will share ratably in any remaining assets with holders of common shares. DIVIDEND RIGHTS. Each Series 1 Preference Share entitles the holder to receive a non-cumulative preferential annual dividend of C$0.001 per share as the directors may from time to time determine, and to receive any dividend paid on a common share. VOTING RIGHTS. Each Series 1 Preference Share is non-voting. OTHER MATTERS. If, at the time of issuance of any Series 1 Preference Shares, our authorized capital includes a class of non-voting common shares, the Series 1 Preference Shares will be automatically converted into such non-voting common shares on a one-for-one basis. Holders of Series 1 Preference Shares are not be entitled to dissent or vote separately as a class on any proposal to amend our articles to increase or decrease any maximum number of authorized Series 1 Preference Shares or any share having equal or superior rights or privileges thereto, or to effect -10- any exchange, reclassification or cancellation of the Series 1 Preference Shares or to create a new class of shares equal or superior to the Series 1 Preference Shares. Each holder of Series 1 Preference Shares will exercise any voting rights in respect of the Series 1 Preference Shares in accordance with the recommendation of the board of directors. The Series 1 Preference Shares also entail certain anti-dilution rights. TRANSFER AGENT AND REGISTRAR The transfer agent and registrar for our common shares is Computershare Trust of Canada. SELLING SHAREHOLDERS All of the shares offered by this prospectus by the selling shareholders under registration rights received in connection with the purchase in December 2000 by Chancery Lane/GSC Investors, L.P., which we refer to as the Partnership, of our $70.5 million subordinated convertible debenture due June 30, 2009 and the conversion of that debenture in December 2001 into 21,692,311 of our common shares. As an inducement to obtain the conversion, we issued an additional 1,650,000 common shares (the "additional shares") to Greenwich Street Capital Partners II, L.P., GSCP Offshore Fund, L.P., Greenwich Fund, L.P., Greenwich Street Employees Fund, L.P. and TRV Executive Fund, L.P. (collectively, the "GSC Investors"), which under the terms of the agreement governing the Partnership, were entitled to all of the interest paid on the debenture and any redemption premium, as well as the additional shares. In addition, we also agreed to make a payment in cash to the GSC Investors if the 20 day weighted average trading price of the common shares on the New York Stock Exchange at December 31, 2002 is less than $8.00. The amount payable, if any, would be the difference between $14 million and the value at December 31, 2002 of the additional shares issued, provided the maximum amount payable by us shall not, in any event, exceed the value of 3,000,000 common shares at such date. This payment would be due even if the GSC Investors no longer hold the additional shares. In addition, if at December 31, 2003, the 20 day weighted average trading price of the common shares on the New York Stock Exchange is less than $10.83, we agreed to make a further cash payment equal to the lesser of $9 million and the value of 6 million common shares at such date. At our option, any such payments may be made in common shares, subject to regulatory approval. The registration rights also are applicable to the additional shares. Alfred C. Eckert III, the Chairman and CEO of Greenwich Street Capital Partners II, L.P. is our director. Additionally Robert G. Burton, our President and Chief Executive Officer and director; Mark A. Angelson, our Non-Executive Chairman and director; Robert B. Lewis, our President, Business Communications Services; James E. Lillie, our Executive Vice President, Operations and Secretary; Thomas J. Quinlan, our Executive Vice President, Treasurer; Mark S. Hiltwein, our Executive Vice President, Chief Financial Officer; Robert G. Burton, Jr., our Senior Vice President, Investor Relations; and Michael Burton, our Vice President, Operations - Commercial and Subsidiary Operations Division were Class B limited partners of the Partnership and, therefore, had an interest in the debenture conversion. Of the 21,692,311 common shares issued upon conversion of the debenture, 11,446,155 were issued to the GSC Investors, 306,237 were issued to Mr. Angelson and a trust controlled by Mr. Angelson, 1,107,693 were issued to Mr. Burton, 166,154 were issued to each of Messrs. Lewis and Lillie, 138,462 were issued to Mr. Quinlan and 55,385 were issued to Messrs. Hiltwein, Robert Burton, Jr. and Michael Burton. Under the terms of the registration rights agreement with the Partnership entered into in December 2000, the Partnership had certain rights to request that we file a registration statement registering, for offer and sale, the shares issued upon conversion of the debenture and the additional shares. The right to request registration under the terms of the registration rights agreement was assigned to the GSC Investors in connection with the conversion of the debenture and the dissolution of the Partnership. On January 10, 2002, the GSC Investors exercised this right and requested that we file the registration statement that includes this prospectus. The registration rights agreement, along with a second registration rights agreement entered into among Moore, the Partnership and the GSC Investors in December 2001, provides, among other things, that the GSC Investors have the right to request two widely-distributed underwritten offerings under this prospectus. In addition, (1) the GSC Investors, as the parties requesting the registration of the shares covered by this prospectus, have the right to request an unlimited number of block trades (whether or not underwritten) and an unlimited number of non-underwritten takedowns and (2) the other -11- selling shareholders exercising piggy-back rights have the right to participate in a widely-distributed underwritten offering requested by the GSC Investors, subject to cutback rights, and to sell their shares in block trades. The following table sets forth, based on information currently available to Moore: o the name of each selling shareholder; o the number of shares and the percentage of common shares beneficially owned by each selling shareholder prior to the date of this prospectus, if such selling shareholder owns more than one percent of the outstanding common shares; o the number of common shares being offered hereby by each selling shareholder; and o the number of shares and the percentage of common shares to be beneficially owned by each selling shareholder after the sale of all common shares registered hereby, if such selling shareholder will own more than one percent of the outstanding common shares. To the extent not described above, the footnotes to the table below and the following discussion set forth all material relationships between us and the selling shareholders during the past three years, including the options that were granted to certain of the selling shareholders who are also our officers in order to induce them to join Moore in December 2000. The selling shareholders may offer and sell, from time to time, some or all of the common shares covered by this prospectus. We have registered the common shares covered by this prospectus for offer and sale by the selling shareholders so that those shares may be freely sold to the public by them. Registration of the common shares covered by this prospectus does not mean, however, that those shares necessarily will be offered or sold. -12-
SHARES BENEFICIALLY SHARES BENEFICIALLY OWNED AS OF OWNED IF ALL SHARES MARCH 31, 2002 REGISTERED ARE SOLD ------------------------- ------------------------------ PERCENT NUMBER OF PERCENT NAME NUMBER AGE SHARES OFFERED NUMBER AGE - ---------------------------------------------- ---------- ------- -------------- ------ ----------- Greenwich Street Capital Partners II, L.P.(1) 11,699,816 10.46 11,699,816 0 Robert G. Burton(3) 1,268,691 1.12 1,107,693 160,998 * Greenwich Street Employees Fund, L.P. (1) 698,445 * 698,445 Greenwich Fund, L.P. (1) 396,315 * 396,315 0 GSCP Offshore Fund, L.P. (1) 243,916 * 243,916 0 Mark A. Angelson(4) 223,160 * 223,160 0 James E. Lillie(3) 211,828 * 166,154 45,674 * Robert B. Lewis(3) 193,219 * 166,154 27,065 * Thomas J. Quinlan, III(3) 166,042 * 138,462 27,580 * Jeffrey L. Berenson(2) 157,635 * 157,635 0 Raymond Minella(2) 110,504 * 110,504 0 Gregg Feinstein 100,875 * 100,875 0 Mark Alan Angelson Trust(4) 83,077 * 83,077 0 Robert G. Burton, Jr.(3) 78,191 * 55,385 22,806 * Mark S. Hiltwein(3) 72,248 * 55,385 16,863 * Michael Burton(3) 70,637 * 55,385 15,252 * Michael Kraus 69,096 * 69,096 0 TRV Executive Fund, L.P. (1) 57,663 * 57,663 0 Roger Altman 27,385 * 27,385 0 David Wheeler 13,838 * 13,838 0 Berenson & Minella(2) 12,510 * 12,510 0 Richard Oh 8,303 * 8,303 0 Garth Klimchuk 6,919 * 6,919 0 Steven Wayne 6,138 * 6,138 0 ----- ----- ------- TOTAL 15,976,451 15,660,213 315,238
- ----------------- * Before the date of this prospectus, the selling shareholder owns, and after the completion of the sale of all of the common shares the selling shareholder will own, less than 1% of the outstanding common shares. 1. Greenwich Street Investments II, L.L.C. and GSCP (NJ), L.P. are the general partner and manager, respectively, of Greenwich Street Capital Partners II, L.P., GSCP Offshore Fund, L.P., Greenwich Fund, L.P., Greenwich Street Employees Fund, L.P. and TRV Executive Fund, L.P. GSCP (NJ), Inc. is the general partner of GSCP (NJ), L.P. For the purposes of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, Greenwich Street Investments II, L.L.C., as general partner of these selling shareholders, GSCP (NJ), L.P., as manager of these selling shareholders, and GSCP (NJ), Inc., as general partner of the manager of these selling shareholders, may be deemed to beneficially own the shares held by these selling shareholders. Notwithstanding the foregoing, Greenwich Street Investments II, L.L.C., GSCP (NJ), L.P. and GSCP (NJ), Inc. disclaim beneficial ownership of the shares held by these selling shareholders. Alfred C. Eckert III is a director of Moore. As one of nine managing members of the general partner of, and through his position with the manager of, these selling shareholders, Mr. Eckert may be deemed for the purposes of Rule 13d-3 to beneficially own the shares held by these selling shareholders. Notwithstanding the foregoing, Mr. Eckert disclaims beneficial ownership of the shares held by these selling shareholders. -13- 2. Berenson & Minella has performed advisory and investment banking services on behalf of Moore and received customary compensation in connection therewith. Jeffrey L. Berenson and Raymond Minella are principals of Berenson & Minella and may be deemed to beneficially own the shares held by Berenson & Minella. 3. The following individuals are officers of Moore: Robert G. Burton (President and Chief Executive Officer), Robert B. Lewis (President, Business Commication Services), James E. Lillie (Executive Vice President, Operations and Secretary), Thomas J. Quinlan, III (Executive Vice President, Treasurer), Mark S. Hiltwein (Executive Vice President, Chief Financial Officer), Robert G. Burton, Jr. (Senior Vice President, Investor Relations) and Michael Burton (Vice President, Operations-Commercial and Subsidiary Operations Division). Robert G Burton, Jr. and Michael Burton are sons of Robert G. Burton. In addition to the shares set forth in the foregoing table, options to purchase Series 1 Preference Shares were granted to Messrs. Robert G. Burton, Lewis, Lillie, Quinlan, Hiltwein, Robert Burton, Jr. and Michael Burton in order to induce them to join Moore in December 2000. Mr. Robert G. Burton received 1,000,000 options, Messrs. Lewis and Lillie each received 200,000 options, Mr. Quinlan received 100,000 options, Mr. Hiltwein received 40,000 options, Mr. Robert Burton, Jr. received 30,000 options and Mr. Michael Burton received 10,000 options. 4. Mr. Angelson is the non-executive Chairman of the Board of Directors. Mr. Angelson may be deemed to beneficially own the shares beneficially owned by the Mark Alan Angelson Trust. AGREEMENT REGARDING DESIGNATION OF DIRECTOR NOMINEES Under the terms of the December 2000 debenture purchase agreement that we entered into with the Partnership, it was agreed that: (1) Mr. R. Theodore Ammon and Mr. Alfred C. Eckert, III (or two other persons specified by the Partnership as to which a majority of the Board does not have a bona fide objection) would be nominated for election as our directors; (2) Mr. Robert G. Burton, as our Chief Executive Officer, would be nominated for election as our director; and (3) Mr. Newton N. Minow and Mr. John W. Stevens (or, if Mr. Minow or Mr. Stevens are unable or unwilling to act, other persons acceptable to the Partnership, acting reasonably) would be nominated for election as our directors. Upon Mr. Ammon's death, in November 2001, Mark A. Angelson was appointed to serve as non-executive Chairman and our director. The 2000 debenture purchase agreement provided that if, at any time, the Partnership and certain other specified entities, which we collectively refer to as the Restricted Group, own common shares issued on the conversion of the debenture which in the aggregate equal less than 50% of the initial number of common shares to which the Restricted Group was entitled, the Partnership would lose its right to designate one of the two director nominees denoted in each of (1) and (3) in the paragraph above. Similarly, if at any time the Restricted Group owns common shares issued on the conversion of the debenture which in the aggregate equal less than 33 1/3% of the initial number of common shares to which the Restricted Group was entitled, the Partnership would have no further rights with respect to the nomination of directors. The Partnership dissolved on December 28, 2001 when the debenture was converted. In connection with the dissolution of the Partnership, the rights of the Partnership with respect to the nomination of directors were assigned to Greenwich Street Capital Partners II, L.P. and Greenwich Street Capital Partners II, L.P. advised us that so long as it was entitled to nominate two directors for election, it would nominate Messrs. Angelson and Eckert and in the event it was entitled to nominate only one director for election, it would nominate Mr. Eckert. SHARES ELIGIBLE FOR FUTURE SALE As of February 28,2002, the Company had outstanding 111,871,698 common shares. The common shares registered hereby are not freely tradeable without restriction or registration under the Securities Act. Other than 1,650,000 common shares newly issued on December 28, 2001, all of these shares are eligible for sale in accordance with Rule 144 or Rule 145 under the Securities Act. In general, under Rule 144 as currently in effect, any person who has beneficially owned shares for at least one year, including persons who may be deemed an "affiliate" of the Company, is entitled to sell within any three-month period a number of common shares that does not exceed the greater of (i) 1% of the then outstanding common shares or (ii) the average weekly trading volume in our common shares during the four calendar weeks preceding such sale. Such sales under Rule 144 are also subject to certain manner of sale provisions, notice requirements and -14- to the availability of our current public information. In addition, any person who is not deemed our "affiliate," and who has beneficially owned his or her shares for at least two years, is entitled to sell such shares under Rule 144 without regard to the volume limitations, manner of sale provisions or notice requirements. While no predictions can be made of any effect that open market sales of shares or the availability of shares for sale will have on the market price prevailing from time to time, sales of substantial amounts of our common shares in the public market, or the perception that such sales will occur, could adversely affect market prices and trading activities in our common stock. See "Risk Factors - Our share price may decline due to large numbers of shares eligible for future sale". PLAN OF DISTRIBUTION The selling shareholders may offer and sell, from time to time, some or all of the common shares covered by this prospectus. We have registered the common shares covered by this prospectus for offer and sale by the selling shareholders so that those shares may be freely sold to the public by them. Registration of the common shares covered by this prospectus does not mean, however, that those shares necessarily will be offered or sold. We will not receive any proceeds from any sale by the selling shareholders of the securities. See "Use of Proceeds". METHODS OF DISTRIBUTION BY SELLING SHAREHOLDERS Each of the selling shareholders may offer and sell any or all of the shares from time to time and in several different ways. For example, they may make sales: o in privately negotiated transactions; o through broker-dealers, who may act as agents or principals; o in a block trade in which a broker-dealer will attempt to sell a block of common shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; o through one or more underwriters on a firm commitment or best-efforts basis; o directly to one or more purchasers; o through agents; or o in any combination of the above. When selling the shares, the selling shareholders may enter into hedging transactions. For example, the selling shareholders may: o enter into transactions involving short sales of common shares by broker-dealers; o sell common shares short themselves and deliver the shares registered under this prospectus to settle such short sales or to close out stock loans incurred in connection with their short positions; o enter into option or other types of transactions that require the selling shareholders to deliver common shares to a broker-dealer or other person, who will then resell or transfer the common shares under this prospectus; or o loan or pledge the common shares to a broker-dealer or other person, who may sell the loaned shares or, in the event of default, sell the pledged shares. -15- From time to time, the selling shareholders may offer shares through brokers, dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from any selling shareholder, agents and/or the purchasers for whom they may act as agent. Unless otherwise agreed, all shares will be sold in accordance with the terms of the registration rights agreements we have entered into with respect to the shares. PREPARATION OF AN ADDITIONAL PROSPECTUS TO DESCRIBE THE METHOD OF SALE If necessary, we will prepare another prospectus to describe the method of sale in greater detail. As of the date of this prospectus, we do not know of any arrangements by the selling shareholders to sell the shares, nor do we know which brokerage firms the selling shareholders may select to sell the shares. In addition, the selling shareholders may sell the shares without the aid of a registration statement if it follows certain SEC rules, including Rule 144 under the Securities Act. PARTIES THAT MAY BE DEEMED UNDERWRITERS The selling shareholders and any brokers, dealers or agents that participate in the distribution of the shares may be considered "underwriters" under the federal securities laws. If a selling shareholder is considered an underwriter, any profits on the sale of shares by it and any associated discounts, concessions or commissions may be considered underwriting compensation under the federal securities laws. In addition, if a selling shareholder is considered an underwriter, the selling shareholder may be subject to some liabilities for misstatements and omissions in the registration statement. We have agreed to indemnify the selling shareholders against certain liabilities arising in connection with this offering, including liabilities under the Securities Act or to contribute to payments that the selling shareholders may be required to make in that respect. REGULATION OF SALES BY SELLING SHAREHOLDERS The selling shareholders and any other person participating in a sale or distribution of shares will be subject to applicable provisions of the Securities Exchange Act of 1934, which is the federal statute regulating sales of securities. Some rules and regulations issued by the SEC, including some limitations on activities during securities offerings and anti-fraud provisions, may limit when the selling shareholders, or any other person, may sell or purchase the shares. Specifically, and without limiting the preceding paragraph, the selling shareholders will be subject to Regulation M, the provisions of which may limit the timing of purchases and sales of common shares by the selling shareholders. These limitations may affect the marketability of the common shares. In some jurisdictions, the state securities laws require that the shares be offered or sold only through registered or licensed brokers or dealers. In addition, in some jurisdictions the shares may not be offered or sold unless they have been registered or qualified for sale in such jurisdictions or an exemption from registration or qualification is available and is complied with. EXPENSES We will not receive any part of the proceeds from the sale of the shares. We will bear expenses we incur in registering the shares with the SEC. We estimate these expenses to be approximately $_____. If and when we are required to update this prospectus, we may incur additional expenses in excess of the amount estimated above. The selling shareholders will pay their own expenses, including underwriting discounts, brokerage commissions, legal fees or similar expenses, in offering and selling the shares. -16- VALIDITY OF COMMON SHARES The validity of the common shares offered hereby has been passed upon for the Company by Osler, Hoskin & Harcourt LLP, Canadian counsel for Moore. EXPERTS The financial statements and the related financial statement schedule as of December 31, 2001 and for the year then ended, incorporated by reference in this prospectus have been audited by Deloitte & Touche LLP, independent auditors, as stated in their reports, which are incorporated by reference herein, and have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing. The financial statements and the related financial statement schedule as of December 31, 2000 and for the two years then ended, incorporated by reference in this prospectus have been audited by PricewaterhouseCoopers LLP, independent accountants, as stated in their reports, which are incorporated by reference herein, and have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing. -17- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following table sets forth an itemization of all estimated expenses in connection with the issuance and distribution of the securities hereby registered, all of which are payable by Moore:
Registration statement filing fee.................................... $ 17,682 Legal fees and expenses.............................................. Accounting fees and expenses......................................... Miscellaneous fees and expenses...................................... ------- Total........................................................... $ =======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 136 of the Ontario Business Corporations Act (the "Ontario Law") provides that a corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or a person who acts or acted at the corporation's request as a director or officer of a body corporate of which the corporation is or was a shareholder or creditor, and his or her heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal or administrative action or proceeding to which he or she is made a party by reason of being or having been a director or officer of such corporation or body corporate, if, (a) he or she acted honestly and in good faith with a view to the best interests of the corporation; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he or she had reasonable grounds for believing that his or her conduct was lawful. Section 28 of Moore's By-laws provides as follows: Section 28 Indemnity of directors, officers, etc. (a) Subject to the provisions of paragraph (b), the Corporation shall indemnify each director or officer of the Corporation, each former director or officer of the Corporation and each person who acts or acted at the Corporation's request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor, and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the Corporation or such body corporate, if, (i) he acted honestly and in good faith with a view to the best interests of the Corporation; and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful. (b) The Corporation may only indemnify a person referred to in paragraph (a) in respect of an action by or on behalf of the Corporation or a body corporate referred to therein to procure a judgment in its favour, to which he is made a party by reason of being or having been a director or an officer of the Corporation or body corporate, against all costs, charges and expenses reasonably incurred by him in connection with such action if he fulfills the conditions set out in clauses (i) and (ii) of paragraph (a) and if such indemnity is made with the approval of a court. II-1 ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES EXHIBIT NO. DESCRIPTION - ----------- ----------- 4.1 Registration Rights Agreement, dated as of December 21, 2000, between the registrant and Chancery Lane/GSC Investors, L.P.* 4.2 Registration Rights Agreement, dated as of December 28, 2001, among the registrant, the GSC Investors 5.1 Opinion of Osler, Hoskin & Harcourt LLP, as to validity of the common shares.*** 10.1 Debenture Purchase Agreement, dated as of December 12, 2000, between the registrant and Chancery 10.2 Conversion Inducement Agreement, dated as of December 28, 2001, between the registrant and Chancery 10.3 Transfer Agreement, dated as of December 28, 2001, among the registrant, Greenwich Street Capital 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Deloitte & Touche LLP 23.3 Consent of Osler, Hoskin & Harcourt LLP (included in Exhibit 5.1). - --------------- * Incorporated by reference from Exhibit 4.5 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2001. ** Incorporated by reference from our Annual Report on Form 10-K for the year ended December 31, 2001. *** Previously filed. ITEM 17. UNDERTAKINGS The undersigned registrant (the "Registrant") hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (a) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (as amended, and together with the rules and regulations thereunder, the "Securities Act"); (b) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in II-2 the maximum offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. (c) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (as amended, and together with the rules and regulations thereunder, the "Securities Exchange Act") that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise (other than pursuant to insurance), the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and may, therefore, be unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding and other than insurance payments) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stamford and the State of Connecticut, on this 12th day of April, 2002. MOORE CORPORATION LIMITED By: /s/ Robert G. Burton ---------------------------------------- Name: Robert G. Burton Title: President & Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on April 12, 2002.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Mark A. Angelson Non-Executive Chairman of the Board April 12, 2002 - --------------------------- and Director Mark A. Angelson /s/ Robert G. Burton President, Chief Executive April 12, 2002 - --------------------------- Officer and Director Robert G. Burton /s/ Mark S. Hiltwein Executive Vice President, Chief Financial Officer April 12, 2002 - --------------------------- Mark S. Hiltwein /s/ Richard T. Sansone Vice President, Controller April 12, 2002 - --------------------------- (Principal Accounting Officer) Richard T. Sansone /s/ Ronald J. Daniels Director April 12, 2002 - --------------------------- Ronald J. Daniels /s/ Shirley A. Dawe Director April 12, 2002 - --------------------------- Shirley A. Dawe /s/ Alfred C. Eckert, III Director April 12, 2002 - --------------------------- Alfred C. Eckert, III - --------------------------- Director April 12, 2002 David R. McCamus /s/ Joan D. Manley Director April 12, 2002 - --------------------------- Joan D. Manley /s/ Lionel H. Schipper Director April 12, 2002 - --------------------------- Lionel H. Schipper /s/ John W. Stevens Director April 12, 2002 - --------------------------- John W. Stevens
II-4 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION LOCATION - ----------- ----------- -------- 4.1 Registration Rights Agreement, dated as of December Incorporated by reference from Exhibit 21, 2000, between the registrant and Chancery 4.5 to our Quarterly Report on Form 10-Q Lane/GSC Investors, L.P. for the quarter ended September 30, 2001. 4.2 Registration Rights Agreement, dated as of December Incorporated by reference from Exhibit 28, 2001, among the registrant, the GSC Investors 4.5 to our Annual Report on Form 10-K for listed on a schedule thereto and Chancery Lane/GSC the year ended December 31, 2001. Investors, L.P. 5.1 Opinion of Osler, Hoskin & Harcourt LLP, as to the Previously filed. validity of the common shares 10.1 Debenture Purchase Agreement, dated as of December 12, Incorporated by reference from Exhibit 2000, between the registrant and Chancery Lane/GSC 4.2 to our Annual Report on Form 10-K for Investors, L.P. (including the form of 8.70% the year ended December 31, 2001. Subordinated Convertible Debenture Due June 30, 2009). 10.2 Conversion Inducement Agreement, dated as of December Filed herewith. 28, 2001, between the registrant and Chancery Lane/GSC Investors, L.P. 10.3 Transfer Agreement, dated as of December 28, 2001, Filed herewith. among the registrant, Greenwich Street Capital Partners II, L.P. and the other persons listed on the Schedule of Investors thereto. 23.1 Consent of PricewaterhouseCoopers LLP Filed herewith. 23.2 Consent of Deloitte & Touche LLP Filed herewith. 23.3 Consent of Osler, Hoskin & Harcourt LLP Included in Exhibit 5.1.
II-5 EX-10.2 3 file002.txt CONVERSION INDUCEMENT AGREEMENT CONVERSION INDUCEMENT AGREEMENT CONVERSION INDUCEMENT AGREEMENT (the "AGREEMENT") dated as of December 28, 2001 between MOORE CORPORATION LIMITED, a corporation incorporated under the laws of the Province of Ontario (the "CORPORATION") and Chancery Lane/GSC Investors L.P., a Delaware limited partnership (together with its permitted assigns, the "PARTNERSHIP"). Capitalized terms used herein but not defined when used shall have the meanings ascribed to such terms in Section 1.1. WITNESSETH: WHEREAS, the Corporation and the Partnership entered into that certain Debenture Purchase Agreement dated as of December 12, 2000 (the "DEBENTURE PURCHASE AGREEMENT"); WHEREAS, as contemplated under the Debenture Purchase Agreement, on December 21, 2000, the Partnership purchased, and the Corporation sold and issued to the Partnership, 8.70% Subordinated Convertible Debentures due 2009 in the original aggregate principal amount of $70,500,000 (the "DEBENTURES"); WHEREAS, the Corporation has paid to the Partnership all interest accrued under the Debentures through the Closing Date; WHEREAS, the Corporation desires that the Partnership effect the conversion in full of the Debentures into Common Shares pursuant to the terms of the Debentures; WHEREAS, in order to induce the Partnership to effect the conversion in full of the Debentures prior to the time at which the Partnership otherwise would have effected such conversion, the Corporation will cause Moore Holdings U.S.A. Inc., a corporation incorporated under the laws of the State of Delaware and a wholly-owned subsidiary of the Corporation ("SUBCO"), to issue to the Partnership an aggregate amount of 1,650,000 Preferred Shares (the "SUBCO PREFERRED SHARES") and will deliver the Contingent Consideration, if any, upon the terms and conditions hereof; and WHEREAS, following the issuance and delivery of the Subco Preferred Shares by Subco to the Partnership and the conversion in full of the Debentures into Common Shares, the Subco Preferred Shares will be transferred to the Corporation in exchange for 1,650,000 Common Shares (the "INITIAL SHARES"), upon the terms and conditions under the Transfer Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each party), the parties hereto agree as follows: 1. INTERPRETATION 1.1 DEFINITIONS. Where used in this Agreement and any Schedule annexed hereto or in any amendments hereto, the following terms shall have the following meanings, respectively: "2002 ADDITIONAL SHARES" has the meaning set out in Section 2.2(b); "2003 ADDITIONAL SHARES" has the meaning set out in Section 2.2(c); "2002 CONTINGENT CASH PAYMENT" has the meaning set out in Section 2.2(b); "2003 CONTINGENT CASH PAYMENT" has the meaning set out in Section 2.2(c); "2002 PRICE" has the meaning set out in Section 2.2(b); "2003 PRICE" has the meaning set out in Section 2.2(c); "ADDITIONAL SHARES" means the 2002 Additional Shares, if any, and the 2003 Additional Shares, if any; "AFFILIATE" means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. As used in this definition, "CONTROL" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Unless the context otherwise clearly requires, any reference to an "Affiliate" is a reference to an Affiliate of the Corporation; "ANCILLARY AGREEMENTS" means, collectively, the Registration Rights Agreement and the Transfer Agreement and any agreements or other documents delivered pursuant to this Agreement or thereto; "BOARD" means the Board of Directors of the Corporation; "BUSINESS DAY" means a day which is not a Saturday, a Sunday or a day observed as a banking holiday in Toronto, Ontario or New York, New York; "CAPITAL LEASE" means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP; "CLAIM" has the meaning set out in Section 7.2; "CLOSING" has the meaning set out in Section 3.1; "CLOSING DATE" has the meaning set out in Section 3.1; "COMMON SHARES" means the common shares in the capital of the Corporation as currently constituted, any shares resulting from the change of the designation of such common shares, and any shares into which such common shares may be changed, converted, exchanged or reclassified; "CONTINGENT CASH PAYMENTS" means the 2002 Contingent Cash Payment, if any, and the 2003 Contingent Cash Payment, if any; -2- "CONTINGENT CONSIDERATION" means (i) the 2002 Contingent Cash Payment or, at the option of the Corporation as provided in Section 2.2(b), the 2002 Additional Shares and (ii) the 2003 Contingent Cash Payment or, at the option of the Corporation as provided in Section 2.2(c), the 2003 Additional Shares, as the case may be; "CORPORATION" has the meaning set out in the Preamble; "DEBENTURE PURCHASE AGREEMENT" has the meaning set out in the Recitals; "DEBENTURES" has the meaning set out in the Recitals; "DOJ" has the meaning set out in Section 5.3; "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended; "EXCHANGES" means The Toronto Stock Exchange and the NYSE; "FTC" has the meaning set out in Section 5.3; "GAAP", in respect of any Person, means generally accepted accounting principles as in effect from time to time in the country of organization of such Person (it being understood that for the Corporation, GAAP means Canadian GAAP); "GENERAL PARTNER" means MIC Investors, Inc.; "GOVERNMENTAL AUTHORITY" means any national, federal, state, provincial, county, municipal, district or local government or government body, or any public administrative or regulatory agency, political subdivision, commission, court, arbitral body, board or body, or representative of any of the foregoing, foreign or domestic, of, or established by any such government or government body which has authority in respect of a particular matter or any quasi-governmental body having the right to exercise any regulatory authority thereunder; "GUARANTEE" means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person (other than Guarantees between members of such Person's consolidated financial reporting group) in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person: (a) to purchase such Indebtedness or obligation or any property constituting security therefor; (b) to advance or supply funds (i) for the purchase or payment of such Indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such Indebtedness or obligation; -3- (c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such Indebtedness or obligation of the ability of any other Person to make payment of the Indebtedness or obligation; or (d) otherwise to assure the owner of such Indebtedness or obligation against loss in respect thereof; "HSR ACT" has the meaning set out in Section 5.3; "INDEBTEDNESS" means, in respect of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of such Person's business), (c) all obligations of such Person evidenced by notes, bonds, debentures (including the Debentures) or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Leases of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party under acceptance, letter of credit or similar facilities, (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any capital stock (other than common shares) of such Person, (h) all Guarantees of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above to the extent quantified as liabilities, contingent obligations or like term in accordance with GAAP on the balance sheet (including notes thereto) of such Person, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, (but only to the extent of the fair market value of such Property), (j) all Swaps of such Person and (k) the liquidation value of any preferred capital stock of such Person or its Subsidiaries held by any Person other than such Person and its Wholly-Owned Subsidiaries; "INDEMNIFIED PARTY" has the meaning set out in Section 7.2; "INDEMNIFYING PARTY" has the meaning set out in Section 7.2; "INITIAL SHARES" has the meaning set out in the Recitals; "ITA" means the Income Tax Act (Canada); "LIEN" means, with respect to any Person, any voluntary or involuntary, mortgage, lien, pledge, charge, security interest, right of first offer, right of first refusal or other similar right or obligation under a shareholders or similar agreement, or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of shares, shareholder agreements, voting trust agreements and all similar arrangements); -4- "LOSSES", in respect of any matter, means all claims, demands, proceedings, losses, damages (other than punitive, special or consequential damages and including incidental damages), liabilities, diminution in value, deficiencies, costs and expenses (including, without limitation, all reasonable legal and other professional fees and disbursements and all interest, penalties and amounts paid in settlement) arising directly or indirectly as a consequence of such matter; "MATERIAL" means material in relation to the business, operations, results of operations, financial or other condition, assets, properties or liabilities of the Corporation and its Subsidiaries taken as a whole; "MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the business, operations, results of operations, financial or other condition, assets, properties or liabilities of the Corporation and its Subsidiaries taken as a whole, or (b) the ability of the Corporation to perform its obligations under this Agreement and the Ancillary Agreements, or (c) the validity or enforceability of this Agreement or the Ancillary Agreements; "MATERIAL CONTRACT" means all of the Corporation's material contracts (including any contract evidencing Indebtedness) which a corporation registered under Section 12 of the Exchange Act would be required to file in response to Item 10 of Rule 601 of Regulation S-K promulgated under the U.S. Securities Act; "NYSE" means The New York Stock Exchange, Inc.; "OBCA" means the Business Corporations Act (Ontario); "ONTARIO SECURITIES ACT" means the Securities Act (Ontario), as the same may be amended, re-enacted or replaced from time to time; "OSC" means the Ontario Securities Commission; "PARTNERSHIP" has the meaning set out in the Preamble; "PARTNERSHIP AGREEMENT" means that certain Partnership Agreement of the Partnership dated as of December 12, 2000, as amended, supplemented, changed or modified from time to time; "PERSON" means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization or Governmental Authority; "PREFERRED SHARES" means the exchangeable preferred stock, no par value per share, of Subco; "PROPERTY" or "PROPERTIES" means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate; "PUBLIC FILINGS" has the meaning set out in Section 4.1(l); "REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement to be entered into by the Corporation, the Partnership and certain limited partners of the Partnership on the Closing -5- Date, substantially in the form annexed hereto as EXHIBIT 1, as amended, supplemented, changed or modified from time to time; "RESPONSIBLE OFFICERS" means, with respect to any Person, any chief financial officer, treasurer or controller of the Person and any other officer of the Person reasonably expected to have knowledge of the matter as to which such officer's knowledge is required; "SEC" means the United States Securities and Exchange Commission; "SIGNIFICANT SUBSIDIARY" means (i) any Subsidiary that, as of the relevant date of determination, had assets that had a fair market value representing 10% or more of the total consolidated assets of the Corporation and its Subsidiaries or revenues representing 10% or more of the total consolidated revenues of the Corporation and its Subsidiaries and (ii) Subco (for the purposes of this Agreement); "SUBCO" has the meaning set out in the Preamble; "SUBCO PREFERRED SHARES" has the meaning set out in the Recitals; "SUBSIDIARY" means, as to any Person, any corporation, association or other business entity in which such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such entity, and any partnership, limited liability company or joint venture if more than a 50% interest in the profits or capital thereof is owned by such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries (unless such partnership, limited liability company or joint venture can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the Corporation; "SWAPS" means, with respect to any Person, payment obligations with respect to interest rate swaps, currency swaps and similar obligations obligating such Person to make payments, whether periodically or upon the happening of a contingency. For the purposes of this Agreement, the amount of the obligation under any Swap shall be the amount determined in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based on the assumption that such Swap had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such Swap provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined; "TRANSFER AGREEMENT" means the Transfer Agreement to be entered into by and among the Corporation and the Partnership or its permitted assignees on the Closing Date; "TSE NOTICE" means the notice required to be filed by the Corporation with, and accepted by, The Toronto Stock Exchange pursuant to Section 619 of the Company Manual of The Toronto Stock Exchange; -6- "U.S. SECURITIES ACT" means the Securities Act of 1933, as amended from time to time; and "WEIGHTED AVERAGE TRADING PRICE PER SHARE" means the weighted average of the reported per share prices at which transactions in the Common Shares are executed on the NYSE during the twenty consecutive NYSE trading days (defined as 9:30 a.m. through 4:00 p.m., Eastern Time) ending on the trading day immediately prior to the date of determination (weighted based on the number of shares of Common Shares traded), as such weighted average price appears on the Bloomberg screen "Volume at Price" page for the Common Shares. 1.2 RULES OF CONSTRUCTION. Unless the context otherwise requires, in this Agreement: (a) "Agreement", "this Agreement", "the Agreement", "hereto", "hereof", "herein", "hereby", "hereunder" and similar expressions mean or refer to this Agreement as amended from time to time, including the Schedules and Exhibits annexed hereto or to any amendment to this Agreement, and any agreement or instrument supplemental hereto and the expressions "Article", "Section", "Schedule" and "Exhibit" followed by a number or letter mean and refer to the specified Article, Section, Schedule or Exhibit of this Agreement; (b) the division of this Agreement into Articles and Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation thereof; (c) words importing the singular number only shall include the plural and vice versa and words importing the use of any gender shall include all genders; (d) reference to any agreement, indenture or other instrument in writing means such agreement, indenture or other instrument in writing as amended, modified, replaced or supplemented from time to time; (e) reference to any statute shall be deemed to be a reference to such statute as amended, re-enacted or replaced from time to time; (f) if there is any conflict or inconsistency between the provisions contained in the body of this Agreement and those of any Schedule or Exhibit (other than the Ancillary Agreements) hereto, the provisions contained in the body of this Agreement shall prevail; (g) time periods within which a payment is to be made or any other action is to be taken hereunder shall be calculated excluding the day on which the period commences and including the day on which the period ends; and (h) whenever any payment to be made or action to be taken hereunder is required to be made or taken on a day other than a Business Day, such payment shall be made or action taken on the next following Business Day. 1.3 SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such determination shall not -7- impair or affect the validity, legality or enforceability of the remaining provisions hereof, and each provision is hereby declared to be separate, severable and distinct. To the extent that any such provision is found to be invalid, illegal or unenforceable, the parties hereto shall act in good faith to substitute for such provision, to the extent possible, a new provision with content and purpose as close as possible to the provision so determined to be invalid, illegal or unenforceable. 1.4 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the State of New York, without regard to principles governing conflicts of law. Each of the parties hereby submits to the exclusive jurisdiction of the courts of the State of New York and all courts competent to hear appeals therefrom, and waives any objection as to venue in the County of New York, State of New York with respect to any suit, claim or other dispute arising out of or related to this Agreement or the Ancillary Agreements. 1.5 WAIVER OF IMMUNITY. To the extent that any of the parties hereto has or hereafter may be entitled to claim or may acquire, for itself or any of its assets, any immunity from suit, jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations hereunder or under the Ancillary Agreements to which it may be a party to the fullest extent permitted by applicable law and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 1.5 shall be effective to the fullest extent now or hereafter permitted under the Foreign Sovereign Immunities Act of 1976 of the United States of America and are intended to be irrevocable for purposes of such Act. 1.6 WAIVER OF JURY TRIAL. Each party hereto hereby waives, to the fullest extent permitted by applicable laws, any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of, under or in connection with this Agreement or the Ancillary Agreements. Each party hereto (a) certifies that no representative, agent or counsel of the other party has represented expressly or otherwise that the other party would not, in the event of litigation, seek to enforce the foregoing waiver, and (b) acknowledges that it and the other party hereto have been induced to enter into this Agreement and the Ancillary Agreements by, among other things, the mutual waivers and certifications contained in this Section 1.6. 1.7 CURRENCY. All references to currency herein are to lawful money of the United States of America. 1.8 TAX EFFECT. The parties hereto intend, for United States federal income tax purposes, that the transactions contemplated hereby qualify as a reorganization within the meaning of Section 368(a)(1)(E) of the United States Internal Revenue Code of 1986, as amended, and shall file all United States federal income tax returns consistently with such treatment. -8- 2. ISSUANCE AND EXCHANGE OF SUBCO PREFERRED SHARES; CONTINGENT CONSIDERATION 2.1 INITIAL SHARES. -------------- (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Corporation shall cause Subco to issue to the Partnership the Subco Preferred Shares, free and clear of any Liens, other than Liens created under this Agreement or the Transfer Agreement and shall deliver to the Partnership the Contingent Consideration in accordance with the terms of Section 2.2. (b) Upon the terms and subject to the conditions of this Agreement and the Transfer Agreement, the Subco Preferred Shares shall be transferred to the Corporation in exchange for the Initial Shares, free and clear of any Liens, other than Liens created under this Agreement or the Transfer Agreement. 2.2 CONTINGENT CONSIDERATION. ------------------------ (a) Upon the terms and subject to the conditions of this Agreement and the Transfer Agreement, the Corporation shall issue or pay the Contingent Consideration to the Partnership in accordance with the terms of this Section 2.2. (b) If the Weighted Average Trading Price Per Share determined as of December 31, 2002 (as adjusted pursuant to paragraph (e) of this Section 2.2, the "2002 PRICE") is less than $8.00 per share (as adjusted pursuant to paragraph (e) of this Section 2.2), then the Corporation shall pay to the Partnership, on December 31, 2002, an amount in cash (the "2002 CONTINGENT CASH PAYMENT") equal to the lesser of : (i) (A) $14,000,000 minus (B) the value of the Initial Shares on such date, determined by multiplying the number of Initial Shares (as adjusted pursuant to paragraph (e) of this Section 2.2) by the 2002 Price; and (ii) the value of 3,000,000 Common Shares (as adjusted pursuant to paragraph (e) of this Section 2.2), on such date, determined by multiplying 3,000,000 by the 2002 Price. At the option of the Corporation, the Corporation may satisfy the 2002 Contingent Cash Payment obligation by issuing to the Partnership, on December 31, 2002, instead of the 2002 Contingent Cash Payment, an additional number of Common Shares, free and clear of any Liens other than Liens created under this Agreement or the Transfer Agreement (the "2002 ADDITIONAL SHARES") equal to the number obtained by dividing the 2002 Contingent Cash Payment by the 2002 Price. (c) If the Weighted Average Trading Price Per Share determined as of December 31, 2003 (as adjusted pursuant to paragraph (e) of this Section 2.2, the "2003 PRICE") is less than $10.83 per share (as adjusted pursuant to paragraph (e) of this Section 2.2), then the Corporation shall pay to the Partnership, on December 31, 2003, an amount in cash (the "2003 CONTINGENT CASH PAYMENT") equal to the lesser of : (i) $9,000,000 and (B) the value of 6,000,000 Common Shares (as adjusted pursuant to paragraph (e) of this Section 2.2), on such date, determined by multiplying 6,000,000 by the 2003 Price; provided, however, that if, prior to -9- December 31, 2003, the Partnership sells any of the Initial Shares or the 2002 Additional Shares issued pursuant to paragraph (b) of this Section 2.2 to any Person (other than any permitted assignee of the Partnership or an Affiliate of a permitted assignee), then the foregoing amount shall be reduced on a dollar-for-dollar basis by the amount, if any, that the aggregate cash proceeds received from any such sale(s) prior to December 31, 2003 of Initial Shares or 2002 Additional Shares exceeds the product of (i) the number of such Initial Shares and 2002 Additional Shares that have been sold prior to December 31, 2003 and (ii) the Weighted Average Trading Price Per Share determined as of the Closing Date. At the option of the Corporation, the Corporation may satisfy the 2003 Contingent Cash Payment obligation by issuing to the Partnership, on December 31, 2003, instead of the 2003 Contingent Cash Payment, an additional number of Common Shares, free and clear of any Liens other than Liens created under this Agreement or the Transfer Agreement (the "2003 ADDITIONAL SHARES") equal to the number obtained by dividing the 2003 Contingent Cash Payment by the 2003 Price. In order to determine whether any Initial Shares or 2002 Additional Shares have been sold as provided in the proviso of the first sentence of this paragraph (c), all Common Shares received by the Partnership (or any permitted assignee of the Partnership, as the case may be) upon conversion of the Debentures shall be deemed to have been sold first and shall not be considered in the application of such proviso. In addition, the Initial Shares and any 2002 Additional Shares that were issued pursuant to paragraph (b) of Section 2.1 and paragraph (b) of this Section 2.2 shall be kept in a segregated account separate and apart from any shares issued upon conversion of the Debentures or otherwise acquired by the Partnership (or such permitted assignee or an Affiliate of such permitted assignee). Prior to issuing any of the 2003 Additional Shares, the Partnership shall provide a certificate to the Corporation certifying the number and sale price of any Initial Shares and any 2002 Additional Shares that were issued pursuant to paragraph (b) of Section 2.1 and paragraph (b) of this Section 2.2 that were sold by the Partnership (or such permitted assignee or an Affiliate of such permitted assignee) prior to December 31, 2003 (other than to any permitted assignee of the Partnership or an Affiliate of a permitted assignee), together with a copy of the broker's account statement for such sales if requested by the Corporation. (d) Any Additional Shares issued in satisfaction of the Contingent Cash Payments may be issued to the Partnership on exchange of exchangeable preferred shares of a wholly-owned non-Canadian subsidiary of the Corporation using the structure contemplated in Sections 3.2(a), 3.2(b) and 3.3(a) hereof; provided, that, at the time of such issuance, the Corporation makes representations, warranties, covenants and indemnities to the Partnership with respect to such exchangeable preferred shares that are substantially the same as those made by the Corporation to the Partnership with respect to the Subco Preferred Shares. (e) The number of Common Shares used to determine the 2002 Contingent Cash Payment and the 2003 Contingent Cash Payment pursuant to paragraphs (b) and (c) above and the 2002 Price and the 2003 Price shall be adjusted in the event of a merger, consolidation, recapitalization, stock split, reclassification or other similar -10- event or distribution in which the Common Shares are converted, exchanged or otherwise changed. The Corporation shall forthwith give notice to the Partnership in the manner provided in Section 11 specifying the event requiring such adjustment or readjustment and the results thereof, including the number of Common Shares used to determine the 2002 Contingent Cash Payment and the 2003 Contingent Cash Payment pursuant to paragraphs (b) or (c) above and the resulting 2002 Price and 2003 Price. Furthermore, the Corporation shall give notice to the Partnership, in the manner provided in Section 11, of its intention to take any action that may give rise to any such adjustment or readjustment at the same time as any public announcement thereof and in any event no later than the time at which holders of Common Shares are notified of any such action, and, in each case, such notice shall specify the particulars of such event and the record date and the effective date for such event; provided, that the Corporation shall only be required to specify in such notice such particulars of such event as shall have been fixed and determined on the date on which such notice is given. Such notice shall be given not less than 7 days in each case prior to such applicable record date or effective date, whichever is earlier. (f) Upon the issuance of any 2002 Additional Shares and 2003 Additional Shares as contemplated by this Section 2.2, the Corporation shall deliver to the Partnership a duly executed stock certificate or certificates representing such shares registered in the name of the Partnership as requested by the Partnership as promptly on or after the relevant December 31 delivery date as the Corporation's transfer agent can prepare such certificate or certificates for such delivery. In addition, the Corporation shall issue the opinions of counsel to the Corporation, dated the issuance dates of the 2002 Additional Shares and the 2003 Additional Shares, with respect to the issuance of such Additional Shares, each substantially in the form of the opinions deliverable to the Partnership pursuant to Section 3.2(d)(ii). 3. CLOSING; DELIVERY 3.1 CLOSING. The closing of the transactions contemplated by Section 3 (the "CLOSING") shall take place at 10:00 a.m. (New York City time) at the offices of Squadron Ellenoff Plesent & Sheinfeld LLP, 551 Fifth Avenue, New York, New York, on December 28, 2001 (such closing day or such other time being hereinafter referred to as the "CLOSING DATE") or at such other time or place as may be agreed by the parties hereto in writing. 3.2 ACTIONS BY THE CORPORATION AT CLOSING. At the Closing, the Corporation shall undertake the following steps in the following order and the completion of the action set out in Section 3.3(a) is a condition precedent to the issuance of the Subco Preferred Shares and the covenant to pay the Contingent Consideration: (a) immediately after the action set forth in Section 3.3(a) below is taken, cause Subco to deliver to the Partnership a duly executed stock certificate or certificates registering the Subco Preferred Shares in the name of the Partnership; -11- (b) against delivery of the Subco Preferred Shares as contemplated in Section 3.3(c) below, deliver to the holder(s) of the Subco Preferred Shares a duly executed stock certificate or certificates registering the Initial Shares as directed by the holder(s) of the Subco Preferred Shares; (c) deliver to the Partnership the Ancillary Agreements duly executed by the Corporation; and (d) deliver or cause to be delivered to the Partnership the following: (i) copies of resolutions of the Board and the board of directors of Subco authorizing the transactions contemplated by this Agreement and the Ancillary Agreements, each certified as being true and correct and not having been modified or rescinded since their adoption by the Secretary or Assistant Secretary of each of the Corporation and Subco, together with incumbency certificates duly executed by the Secretary or Assistant Secretary of each of the Corporation and Subco for those officers of the Corporation and Subco executing this Agreement and any of the Ancillary Agreements on their behalf; (ii) opinions of counsel addressed to the Partnership, each dated the Closing Date, covering the matters set forth on EXHIBIT 2; and (iii) such other documents and certificates duly executed as the Partnership may reasonably request in order to effect the transactions contemplated hereby. 3.3 ACTIONS BY THE PARTNERSHIP AT CLOSING. At the Closing, the Partnership shall: (a) exchange an aggregate of $18 million principal amount of Debentures for the entire Class B limited partnership interest of two Class B limited partners of the Partnership, subject to the agreement of such Class B limited partners immediately to convert such Debentures in accordance with the terms of the Debentures; (b) effect the conversion of the remaining Debentures into Common Shares (either by converting or causing its remaining limited partners to convert) in accordance with the terms of the Debentures; (c) upon receipt from Subco of the Subco Preferred Shares, deliver or cause its permitted assigns to deliver the Subco Preferred Shares to the Corporation in exchange for the Initial Shares contemplated in Section 3.2(b) above; (d) deliver to the Corporation the Ancillary Agreements fully executed by the parties thereto other than the Corporation; and; (e) deliver or cause to be delivered to the Corporation the following: -12- (i) copies of resolutions of the board of directors of the General Partner authorizing the transactions contemplated by this Agreement and the transactions being entered into by the Partnership as contemplated in the Ancillary Agreements to which it is a party, each certified as being true and correct and not having been modified or rescinded since their adoption by the Secretary or Assistant Secretary of the General Partner, together with incumbency certificates duly executed by the Secretary or Assistant Secretary of the General Partner for those officers of the General Partner executing this Agreement and any of the Ancillary Agreements on its behalf; (ii) the opinion of counsel addressed to the Corporation, each dated the Closing Date, covering the matters set forth on EXHIBIT 3; and (iii) such other documents and certificates duly executed as the Corporation may reasonably request in order to effect the transactions contemplated hereby. 4. REPRESENTATIONS AND WARRANTIES 4.1 REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The Corporation represents and warrants to the Partnership as follows (in each case except as disclosed in the applicable referenced paragraphs of the Disclosure Schedule Letter of even date herewith delivered by the Corporation to the Partnership in connection with the transactions contemplated hereby (the "DISCLOSURE LETTER")) and acknowledges that the Partnership is relying upon such representations and warranties in connection with their entering into this Agreement: (a) ORGANIZATION; POWER AND AUTHORITY. Each of the Corporation and Subco is duly incorporated or organized and is validly subsisting under the laws of its jurisdiction of incorporation or organization; each of the Corporation and Subco has all necessary corporate or other legal power and authority to own or lease its property and to carry on its business as presently carried on by it and the Corporation has all necessary corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements and to comply with its obligations hereunder and thereunder. Each of the Corporation and Subco is duly qualified as a corporation or other applicable legal entity to carry on business and is in good standing in each jurisdiction in which the nature of the business conducted by it or the property owned or leased by it makes such qualification necessary except where any failure to so qualify would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (b) AUTHORIZED CAPITAL. The authorized capital of the Corporation consists of an unlimited number of preference shares issuable in series and an unlimited number of Common Shares, of which, on December 28, 2001, no preference shares and 88,456,940 Common Shares are issued and outstanding and all of which are validly issued, fully paid, non-assessable and free of pre-emptive rights. -13- (c) NO OPTIONS, ETC. As of December 28, 2001, there are no outstanding agreements, warrants, options, rights or privileges, pre-emptive or contractual, capable of becoming an agreement, including convertible or exchangeable securities, to subscribe for, purchase or otherwise acquire, or otherwise obligating the Corporation or any of its Subsidiaries to issue, any shares of the Corporation or any of its Subsidiaries or securities convertible into or exchangeable for shares of the Corporation or any of its Subsidiaries, other than: (i) options to purchase an aggregate of 5,193,000 Common Shares held by employees of the Corporation and its Subsidiaries, of which options to purchase 3,228,000 Common Shares are vested and exercisable, and the remaining options to acquire 1,965,000 Common Shares are not vested or exercisable, and which become vested and exercisable in accordance with the terms of the relevant plans; (ii) rights under joint venture and similar agreements governing Subsidiaries that are not Significant Subsidiaries; and (iii) as contemplated by this Agreement. Neither the Corporation nor any of its Subsidiaries is a party to any voting or sale agreements with respect to the Corporation's or any Subsidiary's share capital. Except as provided in this Agreement and the Transfer Agreement and except as set forth in the Public Filings, neither the Corporation nor any of its Subsidiaries is under any obligation to redeem or purchase any of the Corporation's or any Subsidiary's outstanding securities. The Compensation Committee of the Board has proposed option grants covering approximately 1,000,000 Common Shares under the Corporation's 2001 Long Term Incentive Plan. The proposed grants have been approved by the Board and will become effective upon the determination of an officer of the Corporation to whom the authority to make the grants has been delegated. (d) AUTHORIZATION, ETC. (i) The directors of the Corporation have taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements, including the due creation, issuance and delivery of the Initial Shares and the payment of the Contingent Cash Payments. No action of the shareholders of the Corporation is required to authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements, including the due creation, issuance and delivery of the Initial Shares and the payment of the Contingent Cash Payments. Each of this Agreement and the Ancillary Agreements has been duly executed and delivered on behalf of the Corporation and constitute and will constitute legal, valid and binding obligations of the Corporation enforceable by the Partnership in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency or other laws of general application affecting the enforcement of creditors' rights and subject to the qualification that specific performance and injunction, being equitable remedies, may be granted only in the discretion of a court of competent jurisdiction. -14- (ii) The directors of Subco have taken all necessary corporate action to authorize the issuance and delivery of the Subco Preferred Shares, including the due creation, issuance and delivery of the Subco Preferred Shares. No action of the shareholders of Subco which has not been taken is required to authorize the issuance and delivery of the Subco Preferred Shares. (e) TITLE TO SECURITIES. ------------------- (i) Upon the issuance thereof, the Initial Shares will be validly issued, fully paid, non-assessable and free of pre-emptive rights or any other Liens, other than any Liens created by the Partnership, this Agreement or the Ancillary Agreements. (ii) Upon the issuance thereof, the Subco Preferred Shares will be validly issued, fully paid, non-assessable and free of pre-emptive rights or any other Liens, other than any Liens created by the Partnership, this Agreement or the Ancillary Agreements. (f) COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. None of: (i) the authorization, execution, delivery or performance by the Corporation of this Agreement and the Ancillary Agreements, including, without limitation, the allotment and issuance of the Initial Shares and the Subco Preferred Shares; or (ii) the issuance or the acquisition of the Initial Shares and the Subco Preferred Shares as provided herein, (A) will violate the provision of any statute or other rule or regulation of any Governmental Authority applicable to the Corporation or any of its Subsidiaries, except the HSR Act, or (B) will contravene, result in any breach of or is in conflict with and does not and will not result in a breach of and does not and will not create a state of facts which after notice or lapse of time or both will result in a breach of any of the terms or provisions of the articles or by-laws of the Corporation or Subco, the resolutions of the directors or shareholders of the Corporation or Subco or any Material Contract to which the Corporation or any of its Subsidiaries is a party or by which the Corporation or any of its Subsidiaries or the properties or assets of the Corporation or any of its Subsidiaries are or may become bound or results or would result in the creation or imposition of any Lien upon any of the Material Properties or assets of the Corporation or any of its Subsidiaries pursuant to the terms of any such contract or result in any acceleration or other change in rights of others or an imposition of any penalty or other payments under any of the foregoing. All legal, regulatory, administrative, corporate and shareholder approvals, consents, authorizations, rulings, orders and permits, including, without limitation, the TSE Notice, which are necessary for completion of all of the transactions contemplated hereby, including the issuance of the Initial Shares by the Corporation and the Subco Preferred Shares by Subco and any required approvals, have been obtained and are in full force and effect. The issuance to and receipt by the Partnership of the Subco Preferred Shares and the Initial Shares do not (x) violate any applicable law or regulation other than violations that do not have a material adverse effect on the transactions -15- contemplated hereby or by the Ancillary Agreements and (y) subject the Corporation or Subco to any material Canadian tax, penalty or liability under or pursuant to any applicable law or regulation. (g) NO ACTION, ORDERS, ETC. No order suspending the sale or ceasing the trading of the Common Shares, or the issuance of the Initial Shares, the Subco Preferred Shares or the payment of the Contingent Cash Payments, has been issued by any court, securities commission or regulatory authority in Canada or the United States. There is no action or proceeding in Canada or in the United States in front of any Governmental Authority shall be (i) pending or, to the knowledge of the Responsible Officers of the Corporation and Subco after reasonable inquiry, threatened by any Governmental Authority to cease trade, enjoin or prohibit or (ii) pending or, to the knowledge of the Responsible Officers of the Corporation and Subco after reasonable inquiry, threatened in writing by any other Person where such action or proceeding would be reasonably likely to cease trade, enjoin or prohibit, in either such case, the issuance of the Initial Shares, the Subco Preferred Shares and the payment of the Contingent Cash Payments contemplated hereby, or the obligation of the Corporation to issue Common Shares upon the valid conversion right of the Debentures. (h) REPORTING ISSUER STATUS. The Corporation is a "reporting issuer", as defined in the Ontario Securities Act, has been a reporting issuer in Ontario and the other Provinces of Canada that have a "reporting issuer" concept for at least six months prior to the date hereof, and is not in material default of any filings required to be made pursuant to the Ontario Securities Act and the regulations made thereunder or pursuant to other securities laws and regulations and rules made thereunder or under the securities laws of the other Provinces of Canada and applicable to the Corporation. (i) SECURITIES LAWS. Subject to the filing by the Corporation of a Form 45-501F1 or Form 45-501F2 pursuant to Rule 45-501 of the OSC within 10 days following the Closing Date, compliance with the requirements of the Exchanges and the Partnership and each of its limited partners meeting applicable reporting requirements and requirements as to its status (including purchasing as principal, investment intent and status as an accredited investor), the allotment and issuance of the Initial Shares and the allotment and issuance of the Subco Preferred Shares will not require registration under the U.S. Securities Act and will be exempt from the registration and prospectus requirements of the Ontario Securities Act and will not result in any contravention of such securities laws of the United States (other than blue sky laws) or Canada or the securities laws of any other applicable jurisdiction (other than blue sky laws), and regulations and rules made thereunder and applicable to the Corporation. The Corporation is a "qualifying issuer" within the meaning of Multilateral Instrument 45-102. (j) LITIGATION, ETC. There is not pending against the Corporation or any of its Subsidiaries or, to the knowledge of the Responsible Officers of the Corporation, threatened against the Corporation or any of its Subsidiaries, any litigation, action, -16- suit or other proceeding by or before any court, tribunal, Governmental Authority, securities commission or regulatory body that, individually or in the aggregate, would reasonably be expected to adversely affect the ability of the Corporation or Subco to consummate the transactions contemplated in this Agreement or the Ancillary Agreements. (k) TAXES. There is no Canadian non-resident withholding tax under Part XIII of the ITA and, provided: (i) none of the Partnership, any of its partners and any person with whom the Partnership or its partners does not deal at arm's length for purposes of the ITA owns (or, at any time during the 60 month period that ends on the Closing Date, owned), or has (or at any time during the 60 month period that ends on the Closing Date, had) an absolute or contingent right to acquire, any shares of the Corporation other than as contemplated in this Agreement or the Ancillary Agreements ,which ownership or right, either by itself or together, or when combined with the right of the Partnership and its partners to acquire shares of the Corporation as contemplated by this Agreement and the Ancillary Agreements, would result in the Debentures constituting taxable Canadian property of the Partnership or any of its partners for purposes of the ITA; (ii) each of DB Capital Investors, L.P. and BTIP/Berenson Minella deals at arm's length with each other, the Partnership and all the other partners of the Partnership for purposes of the ITA; (iii) for purposes of the ITA, the Debentures are not used or held by the Partnership or any of its partners in carrying on business in Canada and do not constitute designated insurance property of any partner that is an insurer; and (iv) no partner of the Partnership or of any partnership that is directly or indirectly a member of the partnership, and no beneficiary of a trust that is a member of any such partnership, is a resident of Canada for purposes of the ITA, there is no other Canadian tax or Canadian tax filing requirement applicable in respect of the transactions contemplated in this Agreement or the Ancilllary Agreements. (l) FILED DOCUMENTS AND FINANCIAL STATEMENTS. Each of the documents filed by the Corporation with the SEC under the U.S. Securities Act and the Exchange Act and the OSC under the Ontario Securities Act and other Canadian securities regulatory authorities under Canadian securities legislation since December 31, 2000 (the "PUBLIC FILINGS") complied as to form in all material respects with all of the applicable requirements of the Ontario Securities Act, the U.S. Securities Act, the Exchange Act and other applicable Canadian securities legislation, as applicable, and did not contain any untrue statement of a material fact or omit to state any material fact required to be contained therein or necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading, except to the extent superseded by subsequent filings in effect as of the date of this Agreement and included in the Public Filings. (m) LISTING AND STOCK EXCHANGE APPROVALS. The Common Shares are listed and posted for trading on the Exchanges. The Corporation is in good standing with the Exchanges and in full compliance with the rules and regulations thereof. To -17- the extent required under the rules thereof, the Exchanges have approved the issuance of the Subco Preferred Shares and the Initial Shares in accordance with the terms of this Agreement and the Transfer Agreement pursuant to all applicable by-laws, rules, policies and regulations of the Exchanges, and each of the Exchanges have accepted as at such time the listing or posting for trading of that number of Initial Shares which shall be issued under Section 2.1(b) hereof, subject to the filing of required documents and payment of the necessary listing fees by the Corporation. (n) STATUS UNDER CERTAIN STATUTES. Neither the Corporation nor any of its Subsidiaries is subject to regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding Company Act of 1935, as amended, the Interstate Commerce Act, as amended, or the Federal Power Act, as amended. (o) FOREIGN CORRUPT PRACTICES ACT. The Corporation and its Subsidiaries and each of their respective officers, directors and employees are not in violation of section 30A of the Exchange Act or any similar non-U.S. statute or law. (p) NO BROKERS OR FINDERS. Except for the financial advisor retained by the Independent Committee of the Board, no agent, broker, finder, or investment or commercial banker or other Person or firm engaged by or acting on behalf of the Corporation or any Subsidiary in connection with the negotiation, execution or performance of this Agreement or the transactions contemplated by this Agreement, is or will be entitled to any brokerage or finder's or similar fee or other commission as a result of this Agreement or such transactions. (q) STATE TAKEOVER STATUS. No takeover statute or regulation having consequences similar to Section 203 of the Delaware General Corporation Law applies to this Agreement, the Ancillary Agreements or the Initial Shares or any of the transactions contemplated hereby and thereby. Neither the Corporation nor any of its Subsidiaries has any rights plan, preference shares or similar arrangement which have any of the aforementioned consequences in respect of the transactions contemplated hereby. 4.2 REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to the Corporation as follows and acknowledges that the Corporation is relying upon such representations and warranties in connection with its entering into this Agreement: (a) ORGANIZATION; POWER AND AUTHORITY. The Partnership is a limited partnership duly organized and is validly existing under the laws of Delaware; the General Partner is the sole general partner of the Partnership; the General Partner has all necessary corporate power to execute and deliver this Agreement and the Ancillary Agreements to which the Partnership is a party on behalf of the Partnership and the Partnership has all necessary partnership power to enter into this Agreement and the Ancillary Agreements to which the Partnership is a party and to comply with its obligations hereunder and thereunder. -18- (b) AUTHORIZATION, ETC. The General Partner has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements to which the Partnership is a party; this Agreement and the Ancillary Agreements to which the Partnership is a party has been duly executed and delivered by the General Partner on behalf of the Partnership and constitutes the legal, valid and binding obligations of the Partnership enforceable by the Corporation in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws of general application affecting the enforcement of creditors' rights and subject to the qualification that specific performance and injunction, being equitable remedies, may be granted only in the discretion of a court of competent jurisdiction. (c) COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither: (i) the authorization, execution, delivery or performance by the Partnership of this Agreement and the Ancillary Agreements to which it is a party; (ii) the conversion of the Debentures or (iii) the acquisition of the Subco Preferred Shares as provided herein, is in conflict with and does not and will not result in any breach of and does not and will not create a state of facts which after notice or lapse of time or both will result in a breach of any of the terms or provisions of the Partnership Agreement, the resolutions of the board of directors of the General Partner, or results or would result in the creation or imposition of any security interest, mortgage, Lien, charge or encumbrance of any nature whatsoever upon any of the Material Properties or assets of the Partnership pursuant to the terms of any indenture, instrument, agreement or undertaking. (d) NO ORDERS. To the knowledge of the General Partner, after reasonable inquiry, no order suspending the acquisition of the the Subco Preferred Shares by the Partnership or the conversion of the Debentures has been issued by any court, securities commission or regulatory authority in Canada or the United States, and no proceedings for such purpose are pending or threatened. (e) INVESTMENT REPRESENTATIONS. Except as contemplated herein (including the distribution of the Subco Preferred Shares or the Debentures to certain of the Partnership's limited partners), the Partnership is acquiring the Subco Preferred Shares for investment purposes only, and not with a view to, or for, resale, distribution or any present intention of distributing or selling the Initial Shares or the Subco Preferred Shares or any part thereof. The Partnership and each partner of the Partnership is an "accredited investor" as the term is defined in Regulation D under the U.S. Securities Act and OSC Rule 45-501. The Partnership and its partners are not residents of Canada. (f) ACKNOWLEDGEMENT RE: SECURITIES LAWS. The Partnership understands, recognizes and acknowledges that the Subco Preferred Shares have not been qualified for distribution or registered under any applicable securities legislation, including the Ontario Securities Act, the U.S. Securities Act or any other applicable federal, provincial or state securities laws by reason of exemptions from such requirements being available, and that the Subco Preferred Shares and -19- the Initial Shares may not be sold, pledged, assigned or otherwise disposed of in the absence of compliance with such law or unless an exemption from the application of such law is applicable, and certificates issued in respect of the Subco Preferred Shares and the Initial Shares will be legended to reflect such restrictions. 4.3 SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES. All covenants, representations and warranties of each party made herein and in any certificate or other document delivered by it or on its behalf pursuant to the provisions hereof or otherwise with respect to this Agreement and the transactions contemplated hereby, shall survive the Closing and, notwithstanding such closing, nor any investigation made by or on behalf of such party, shall continue in full force and effect, subject as hereinafter provided, for a period of eighteen months from the Closing Date for the benefit of the party to whom the covenants, representations and warranties are made; provided, however, that notwithstanding anything herein contained, the representations and warranties contained in Sections 4.1(b), (c), (d) and (e) hereof shall survive the Closing and shall continue in full force and effect for the benefit the Partnership without any limitation period and the representation and warranty contained in Section 4.1(k) hereof shall survive the Closing and shall continue in full force and effect for the benefit of the Partnership until the 60th day after the expiration of the relevant statute of limitations period. 5. COVENANTS OF THE PARTIES 5.1 AFFIRMATIVE COVENANTS OF THE CORPORATION. The Corporation covenants and agrees with the Partnership that it will do or cause to be done, and, as applicable, will cause Subco to do or cause to be done, the following: (a) use its reasonable best efforts to comply with, satisfy and fulfill promptly all prerequisites, conditions and requirements imposed by or arising out of legal, regulatory and administrative requirements applicable to the Corporation with respect to the consummation of the transactions contemplated hereby, including, without limiting the generality of the foregoing, (i) filing or causing to be filed all documents, certificates, opinions, forms or undertakings required to be filed by the Corporation in connection with the acquisition by the Partnership of the Initial Shares, the issuance of the Initial Shares and the listing and posting for trading of the Initial Shares on the Exchanges, and (ii) subject to Section 5.3, obtaining all necessary legal, regulatory and administrative approvals, consents, authorizations, rulings, orders and permits; (b) maintain its status as a "reporting issuer" in good standing under the Ontario Securities Act and other applicable Canadian securities legislation and as a "registrant" in good standing under the Exchange Act; (c) maintain the listing or posting for trading of the Common Shares (including the Initial Shares) on the NYSE; and (d) pay all stamp or duty or similar taxes, if any, associated with the issuance and/or delivery of the Initial Shares and the Subco Preferred Shares. -20- 5.2 AFFIRMATIVE COVENANTS OF THE PARTNERSHIP. Subject to Section 5.3, the Partnership covenants and agrees with the Corporation that it will use its reasonable best efforts to comply with, satisfy and fulfill promptly all prerequisites, conditions and requirements imposed by or arising out of legal, regulatory and administrative requirements applicable to the Partnership with respect to the consummation of the transactions contemplated hereby, including, without limiting the generality of the foregoing, (i) filing or causing to be filed all documents, certificates, opinions, forms or undertakings required to be filed by the Partnership in connection with the acquisition by the Partnership of the Initial Shares and the Subco Preferred Shares and the issuance of the Initial Shares and the Subco Preferred Shares, and (ii) obtaining all necessary legal, regulatory and administrative approvals, consents, authorizations, rulings, orders and permits. 5.3 HSR ACT. The Corporation has filed or will file concurrently with the execution of this Agreement (a) all Notification and Report Forms and related material required to be filed by it with the Federal Trade Commission ("FTC") and the Antitrust Division of the United States Department of Justice ("DOJ") under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the "HSR ACT") with respect to the transactions contemplated hereby and by the Ancillary Agreements and (b) the necessary filings and notifications with any other jurisdictions with respect to the transactions contemplated hereby and the Ancillary Agreements to the extent required to effect the conversion of the Debentures and, in each case, shall promptly make any further filings pursuant thereto that may be required by law. The Corporation shall use its commercially reasonable efforts to furnish to the Partnership such information, cooperation and assistance as the Partnership reasonably may request in connection with the submissions to, or agency proceedings by, any Governmental Authority under the HSR Act, or any comparable laws of foreign jurisdictions, and each of the parties hereto shall keep the other promptly apprised of any communications with, and inquiries or requests for information from, such Governmental Authorities. 6. [INTENTIONALLY DELETED] 7. INDEMNIFICATION 7.1 INDEMNIFICATION BY THE CORPORATION. From and after the Closing, the Corporation agrees to indemnify and save harmless the Partnership and its Affiliates and the directors, officers, general partners, employees, shareholders, representatives and agents of the Partnership and its Affiliates (collectively, the "INDEMNITEES") from all Losses suffered or incurred by any of them as a result of or arising directly or indirectly out of or in connection with: (a) any breach by the Corporation of or any inaccuracy of any representation or warranty of the Corporation contained in this Agreement, the Ancillary Agreements or in any agreement, certificate or other document delivered pursuant hereto and (b) any breach or non-performance by the Corporation of any covenant to be performed by any of them which is contained in this Agreement, the Ancillary Agreements or in any agreement, certificate or other document delivered pursuant hereto. Notwithstanding anything contained herein to the contrary, the indemnification provided above (except with respect to any breach of Sections 4.1(b), (c), (d), (e) and (k) hereof) shall (i) only apply to the extent that, and not until, the aggregate of all amounts subject to indemnification under clause (a) of this Section 7.1 exceeds $1,000,000 (in which event, the -21- Indemnitees shall be entitled to indemnification as provided herein for all such Losses and not just the excess over $1,000,000) and (ii) not exceed $23,000,000 in the aggregate. The indemnification with respect to any breach of Section 4.1(k) hereof shall be increased by an amount such that the Indemnitees will receive cash, after taking into account any Canadian non-resident withholding tax imposed under Part XIII of the ITA, equal to the amount owing pursuant to this Section 7.1 (without regard to this sentence) as a result of the breach of Section 4.1(k). 7.2 NOTICE OF CLAIM; INVESTIGATIONS; DETERMINATION. Subject to Section 7.3, in the event that a party (the "INDEMNIFIED PARTY") shall become aware of any claim, proceeding or other matter (a "CLAIM") in respect of which another party (the "INDEMNIFYING PARTY") agreed to indemnify the Indemnified Party pursuant to this Agreement and, if a claim for breach of representation and warranty of the Indemnifying Party, in respect of which the applicable survival period shall not have lapsed, the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party. Such notice shall specify the factual basis for the Claim and the amount of the Claim, if known. Following receipt of notice from the Indemnified Party of the Claim, the Indemnifying Party shall have 60 days to make such investigation of the Claim as is considered necessary or desirable. For the purpose of such investigation, the Indemnified Party shall make available to the Indemnifying Party the information relied upon by the Indemnified Party to substantiate the Claim, together with all such other information as the Indemnifying Party may reasonably request. If both parties agree at or prior to the expiration of such 60-day period (or any mutually agreed upon extension thereof) to the validity and amount of such Claim, the Indemnifying Party shall immediately pay to the Indemnified Party the full agreed upon amount of the Claim. 7.3 CERTAIN CLAIMS. If any Claim arises directly or indirectly out of or in connection with the Corporation's execution, delivery and performance of this Agreement or the Ancillary Agreements and is asserted against any Indemnitee, such Indemnitee shall promptly give the Corporation notice thereof in accordance with Section 7.2. The Corporation shall have the right to control negotiations toward resolution of such Claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel chosen by the Corporation and reasonably acceptable to the such Indemnitee, at the Corporation's expense with respect to the conduct of such defense, and such Indemnitee shall in such case extend reasonable cooperation in connection with such negotiation and defense and the Corporation shall keep such Indemnitee reasonably informed as to such case. If the Corporation fails to assume control of the negotiations prior to litigation or to defend such action within a reasonable time, such Indemnitee shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and the Corporation shall be liable to such Indemnitee for its expenses reasonably incurred in connection therewith which the Corporation shall promptly pay. Neither party shall settle, compromise, or make any other disposition of any Claims, which would or might result in any liability to the Indemnitee or the Corporation, respectively, under this Section 7 without the written consent of the Indemnitee or the Corporation, respectively, which consent shall not be unreasonably withheld. 7.4 THIRD PARTY CLAIMS. If any Claim covered by the foregoing indemnities is asserted against any Indemnified Party, it shall be a condition to the obligations under this Section 7 that the Indemnified Party shall promptly give the Indemnifying Party notice thereof in accordance -22- with Section 7.2. The Indemnifying Party shall be entitled to control negotiations toward resolution of such claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to the Indemnified Party, at the Indemnifying Party's expense, and the Indemnified Party shall in such case extend reasonable cooperation in connection with such negotiation and defense. If the Indemnifying Party fails to assume control of the negotiations prior to litigation or to defend such action within a reasonable time, the Indemnified Party shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and the Indemnifying Party shall be liable to the Indemnified Party for its expenses reasonably incurred in connection therewith which the Indemnifying Party shall promptly pay. Neither the Indemnifying Party nor the Indemnified Party shall settle, compromise, or make any other disposition of any Claims, which would or might result in any liability to the Indemnified Party or the Indemnifying Party, respectively, under this Section 7 without the written consent of the Indemnified Party or the Indemnifying Party, respectively, which consent shall not be unreasonably withheld. 7.5 EXCLUSIVITY. The provisions of this Section 7 shall be the exclusive remedy with respect to any Claim for breach by the Corporation of any of its covenants, representations, warranties or agreements under this Agreement or the Ancillary Agreements, or any agreement, certificate or other document delivered pursuant thereto (other than a Claim for specific performance or injunctive relief) and all such Claims against the Corporation shall be subject to the limitations and other provisions contained in this Section 7, other than claims against the Corporation for fraud or fraudulent misrepresentation. 8. [INTENTIONALLY DELETED] 9. EXPENSES, ETC. 9.1 The Corporation shall pay the reasonable costs and expenses (including legal fees, disbursements and related charges) incurred by the Partnership in connection with the transactions contemplated by this Agreement and the Ancillary Agreements. Such expenses shall be paid in cash at the Closing by way of wire transfer of immediately available funds in accordance with the Partnership's instructions. 10. CONFIDENTIALITY 10.1 Neither the Partnership nor the Corporation shall make any public disclosure, except to the extent required by law or the rules and procedures of the Exchanges, of the terms of this Agreement or regarding the transaction contemplated hereby without the prior consent of the other, such consent not to be unreasonably withheld. The wording of any public disclosure to be made in respect of the transactions contemplated by this Agreement must be approved by each of the Corporation and the Partnership. This Section 10 shall survive any termination of this Agreement. 11. GENERAL PROVISIONS 11.1 NOTICES. Any notice, direction or other instrument required or permitted to be given or made hereunder shall be in writing and shall be sufficiently given or made if delivered in person -23- to the address set forth below or if facsimiled or sent by other means of recorded electronic communication and confirmed by delivery as soon as practicable thereafter. Notices to the Corporation shall be addressed as follows: Moore Corporation Limited c/o Moore Executive Office One Canterbury Green Stamford, CT 06901 Attention: Chief Financial Officer Fax: 203-406-3855 with copies to: Moore Corporation Limited c/o Moore Executive Office One Canterbury Green Stamford, CT 06901 Attention: General Counsel Fax: 203-406-3856 Notices to the Partnership shall be addressed as follows: Chancery Lane/GSC Investors, L.P. c/o MIC Investors, Inc. c/o Mark Angelson 876 Park Avenue New York, NY 10021 with copies to: Sullivan & Cromwell 125 Broad Street New York, NY 10004 Attention: Robert Downes Fax: 212-558-3588 and to: Squadron Ellenoff Plesent & Sheinfeld LLP 551 Fifth Avenue New York, NY 10176 -24- Attention: Mitchell S. Ames Fax: 212-697-6686 Any notice, direction or other communication so given or made shall be deemed to have been given or made and to have been received on the day of delivery, if delivered, or on the day of sending if sent by facsimile or other means of recorded electronic communication (provided such day of delivery or sending is a Business Day and, if not, then on the first Business Day thereafter). Any party hereto may change its address for notice to the other parties by notice given in the manner aforesaid. 11.2 ASSIGNMENT. No party hereto may assign this Agreement or its rights or obligations hereunder without the prior written consent of the other parties, except that the Partnership may assign its rights and obligations hereunder to any limited partner of the Partnership; provided, that (i) any such assignee agrees to be bound by the terms and conditions of this Agreement relating to the assigned portion of the Agreement and (ii) Moore is released from its obligations to the Partnership under Sections 2.1(b), 2.2 and 3.2(b) if and to the extent that the Partnership assigns such obligations pursuant to this Section 11.2. 11.3 ENUREMENT. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 11.4 FURTHER ASSURANCES. Each of the parties agrees to take all such reasonable actions as may be requested by any other party hereto to implement and give full effect to the provisions of this Agreement. 11.5 TIME OF THE ESSENCE. Time shall be of the essence of this Agreement. 11.6 ENTIRE AGREEMENT. This Agreement and the Ancillary Agreements constitute the entire agreement between the parties hereto pertaining to the effectuation of the conversion of the Debentures by the Partnership as described herein and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no other agreements between the parties in connection with such subject matter. No supplement, modification or termination of this Agreement and the Ancillary Agreements shall be binding unless executed in writing by both of the parties hereto. 11.7 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which when taken together shall constitute this Agreement. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] -25- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above stated. MOORE CORPORATION LIMITED By: _________________________________________________ Name: Title: CHANCERY LANE/GSC INVESTORS, L.P. By: MIC Investors, Inc., its General Partner By: _________________________________________________ Name: Title: -26- EXHIBIT 1 --------- FORM OF REGISTRATION RIGHTS AGREEMENT ------------------------------------- -27- EXHIBIT 2 --------- OPINIONS TO BE DELIVERED BY THE CORPORATION ------------------------------------------- (a) Favorable written opinions from nationally-recognized counsel (in the appropriate jurisdiction) (reasonably satisfactory to the Partnership) to the Corporation (who may rely on certificates from the Corporation with respect to factual matters), dated the Closing Date and satisfactory in scope and substance to the Partnership and its counsel, acting reasonably, with respect to the following substantive matters: (i) the Corporation is a corporation incorporated under the laws of the Province of Ontario and has all necessary corporate power and authority to own its property and to execute and deliver this Agreement and the Ancillary Agreements and to perform all its respective obligations hereunder and thereunder; (ii) all necessary corporate action has been taken by the Corporation to authorize the issuance of the Initial Shares and the execution and delivery of this Agreement and the Ancillary Agreements and, upon issuance the Initial Shares will have been validly issued, as fully paid and non-assessable Common Shares; (iii) no action of the shareholders of the Corporation is required to authorize the issuance of the Initial Shares and the execution and delivery of this Agreement and the Ancillary Agreements; (iv) each of this Agreement and the Ancillary Agreements has been duly executed and delivered by the Corporation; and (v) the authorization, execution, delivery and performance by the Corporation of this Agreement and the Ancillary Agreements and the issuance of the Initial Shares do not conflict with, and do not result in a breach of, the articles or by-laws of the Corporation. (b) Favorable written opinion from in-house counsel or any reputable outside counsel to the Corporation (at the Corporation's election), dated the Closing Date and satisfactory in scope and substance to the Partnership and its counsel, acting reasonably, with respect to the following substantive matters: (i) the Corporation is duly qualified to carry on business in all jurisdictions in which it currently carries on business, and has all necessary corporate power and authority to carry on its business as aforesaid; and (ii) none of: (A) the authorization, execution, delivery or performance by the Corporation of this Agreement or the Ancillary Agreements, -28- including, without limitation, or (B) the allotment and issuance of the Initial Shares as provided herein, will contravene, result in any breach of or is in conflict with and does not and will not result in a breach of and does not and will not create a state of facts which after notice or lapse of time or both will result in a breach of any of the terms or provisions of the articles or by-laws of the Corporation, the resolutions of the directors or shareholders of the Corporation or any Material Contract to which the Corporation is a party or by which the Corporation or the Properties or assets of the Corporation are bound or results in the creation or imposition of any Lien upon any of the Material Properties or assets of the Corporation pursuant to the terms of any Material Contract. (c) Favorable written opinions from nationally-recognized counsel (in the appropriate jurisdiction) (reasonably satisfactory to the Partnership) to Subco (who may rely on certificates from Subco with respect to factual matters), dated the Closing Date and satisfactory in scope and substance to the Partnership and its counsel, acting reasonably, with respect to the following substantive matters: (i) Subco is a corporation incorporated under the laws of the State of Delaware and has all necessary corporate power and authority to own its property and to execute and deliver this Agreement and to perform all its obligations hereunder; (ii) all necessary corporate action has been taken by Subco to authorize the issuance of the Subco Preferred Shares and the execution and delivery of this Agreement and, upon issuance the Subco Preferred Shares will have been validly issued, as fully paid and non-assessable shares; (iii) all necessary action of the shareholders of Subco has been taken to authorize the creation of the Subco Preferred Shares and the execution and delivery of this Agreement; (iv) the authorization, execution, delivery and performance by Subco of this Agreement and the issuance of the Subco Preferred Shares do not conflict with, and do not result in a breach of, the articles or by-laws of Subco; (v) the issuance of the Subco Preferred Shares to the Partnership pursuant to this Agreement are exempt from the registration and prospectus requirements of the Ontario Securities Act; and (vi) the issuance of the Subco Preferred Shares to the Partnership pursuant to this Agreement are not in violation of United States federal securities laws. -29- (d) A favorable written opinion from in-house counsel or any reputable outside counsel to Subco (at Subco's election), dated the Closing Date and satisfactory in scope and substance to the Partnership and its counsel, acting reasonably, with respect to the following substantive matters: (i) Subco is duly qualified to carry on business in all jurisdictions in which it currently carries on business, and has all necessary corporate power and authority to carry on its business as aforesaid; and (ii) none of: (A) the authorization, execution, delivery or performance by Subco of this Agreement, including, without limitation, the allotment and issuance of the Subco Preferred Shares; or (B) the issuance of the Subco Preferred Shares as provided herein, (x) will violate the provision of any statute or other rule or regulation of any Governmental Authority applicable to Subco or (y) will contravene, result in any breach of or is in conflict with and does not and will not result in a breach of and does not and will not create a state of facts which after notice or lapse of time or both will result in a breach of any of the terms or provisions of the articles or by-laws of Subco. -30- EXHIBIT 3 --------- OPINION TO BE DELIVERED BY THE PARTNERSHIP ------------------------------------------ -31- EX-10.3 4 file003.txt TRANSFER AGREEMENT TRANSFER AGREEMENT TRANSFER AGREEMENT (the "AGREEMENT") dated as of December 28, 2001 among MOORE CORPORATION LIMITED, a corporation incorporated under the laws of the Province of Ontario (the "CORPORATION"), Greenwich Street Capital Partners II, L.P., a Delaware limited partnership ("GREENWICH FUND II"), and the other Persons listed in the Schedule of Investors attached hereto as SCHEDULE A (together with Greenwich Fund II, the "Investors" and individually, an "INVESTOR"). Capitalized terms used herein but not defined when used shall have the meanings ascribed to such terms in Section 1.1. WITNESSETH: WHEREAS, the Corporation and the Partnership entered into that certain Debenture Purchase Agreement dated as of December 12, 2000 (the "DEBENTURE PURCHASE AGREEMENT"); WHEREAS, as contemplated under the Debenture Purchase Agreement, on December 21, 2000, the Partnership purchased, and the Corporation sold and issued to the Partnership, 8.70% Subordinated Convertible Debentures due 2009 in the original aggregate principal amount of $70,500,000 (the "DEBENTURES"); WHEREAS, the Corporation and the Partnership entered into that certain Conversion Inducement Agreement dated as of the date hereof (the "CONVERSION INDUCEMENT AGREEMENT") pursuant to which, among other things, (i) the Corporation agreed to cause Moore Holdings U.S.A. Inc., a corporation incorporated under the laws of the State of Delaware and a wholly-owned subsidiary of the Corporation ("SUBCO"), to issue to the Partnership an aggregate amount of 1,650,000 Preferred Shares (the "SUBCO PREFERRED SHARES") and covenanted to deliver the Contingent Consideration and (ii) the Partnership agreed to cause the Subco Preferred Shares to be transferred to the Corporation in exchange for 1,650,000 Common Shares (the "INITIAL SHARES") upon the terms and conditions therein; WHEREAS, pursuant to that certain Second Amendment to Partnership Agreement and Conversion Agreement dated as of the date hereof, the Partnership distributed the Subco Preferred Shares to the Investors and assigned its rights and obligations with respect to the Initial Shares and the Contingent Consideration to the Investors in accordance with the terms thereof and as permitted under the terms of the Conversion Inducement Agreement; WHEREAS, the parties hereto have agreed to enter into this Agreement to effectuate the exchange of the Subco Preferred Shares upon the terms and conditions herein; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each party), the parties hereto agree as follows: 1. INTERPRETATION 1.1 DEFINITIONS. Capitalized used and not otherwise defined herein shall have the meanings ascribed to them in the Conversion Inducement Agreement. Where used in this Agreement and any Schedule annexed hereto or in any amendments hereto, the following terms shall have the following meanings, respectively: "2002 ADDITIONAL SHARES" has the meaning set out in Section 2.2(b); "2003 ADDITIONAL SHARES" has the meaning set out in Section 2.2(c); "2002 BLACKOUT PERIOD" means the 30-day period immediately prior to December 31, 2002; "2003 BLACKOUT PERIOD" means the 30-day period immediately prior to December 31, 2003; "2002 CONTINGENT CASH PAYMENT" has the meaning set out in Section 2.2(b); "2003 CONTINGENT CASH PAYMENT" has the meaning set out in Section 2.2(c); "2002 PRICE" has the meaning set out in Section 2.2(b); "2003 PRICE" has the meaning set out in Section 2.2(c); "2002 RESTRICTED PERIOD" means the 60-day period immediately prior to the 2002 Blackout Period; "2003 RESTRICTED PERIOD" means the 60-day period immediately prior to the 2003 Blackout Period; "ADDITIONAL SHARES" means the 2002 Additional Shares, if any, and the 2003 Additional Shares, if any; "AFFILIATE" means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. As used in this definition, "CONTROL" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Unless the context otherwise clearly requires, any reference to an "Affiliate" is a reference to an Affiliate of the Corporation; "ANCILLARY AGREEMENTS" means, collectively, the Registration Rights Agreement and any agreements or other documents delivered pursuant to this Agreement or thereto; "BOARD" means the Board of Directors of the Corporation; "BUSINESS DAY" means a day which is not a Saturday, a Sunday or a day observed as a bank holiday in Toronto, Ontario or New York, New York; "CAPITAL LEASE" means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP; "CLAIM" has the meaning set out in Section 7.2; -2- "CLOSING" has the meaning set out in Section 3.1; "CLOSING DATE" has the meaning set out in Section 3.1; "COMMON SHARES" means the common shares in the capital of the Corporation as currently constituted, any shares resulting from the change of the designation of such common shares, and any shares into which such common shares may be changed, converted, exchanged or reclassified; "CONFIDENTIAL INFORMATION" has the meaning set out in Section 10.2(a); "CONTINGENT CASH PAYMENTS" means the 2002 Contingent Cash Payment, if any, and the 2003 Contingent Cash Payment, if any; "CONTINGENT CONSIDERATION" means (i) the 2002 Contingent Cash Payment or, at the option of the Corporation as provided in Section 2.2(b), the 2002 Additional Shares and (ii) the 2003 Contingent Cash Payment or, at the option of the Corporation as provided in Section 2.2(c), the 2003 Additional Shares, as the case may be; "CONVERSION INDUCEMENT AGREEMENT" has the meaning set out in the Recitals; "CORPORATION" has the meaning set out in the Preamble; "DEBENTURE PURCHASE AGREEMENT" has the meaning set out in the Recitals; "DEBENTURES" has the meaning set out in the Recitals; "DOJ" has the meaning set out in Section 5.3; "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended; "EXCHANGES" means The Toronto Stock Exchange and the NYSE; "FTC" has the meaning set out in Section 5.3; "GAAP", in respect of any Person, means generally accepted accounting principles as in effect from time to time in the country of organization of such Person (it being understood that for the Corporation, GAAP means Canadian GAAP); "GENERAL PARTNER" means Greenwich Street Investments II, L.L.C.; "GOVERNMENTAL AUTHORITY" means any national, federal, state, provincial, county, municipal, district or local government or government body, or any public administrative or regulatory agency, political subdivision, commission, court, arbitral body, board or body, or representative of any of the foregoing, foreign or domestic, of, or established by any such government or government body which has authority in respect of a particular matter or any quasi-governmental body having the right to exercise any regulatory authority thereunder; "GREENWICH FUND II" has the meaning set out in the Preamble; -3- "GUARANTEE" means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person (other than Guarantees between members of such Person's consolidated financial reporting group) in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person: (a) to purchase such Indebtedness or obligation or any property constituting security therefor; (b) to advance or supply funds (i) for the purchase or payment of such Indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such Indebtedness or obligation; (c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such Indebtedness or obligation of the ability of any other Person to make payment of the Indebtedness or obligation; or (d) otherwise to assure the owner of such Indebtedness or obligation against loss in respect thereof; "HSR ACT" has the meaning set out in Section 5.3; "INDEBTEDNESS" means, in respect of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of such Person's business), (c) all obligations of such Person evidenced by notes, bonds, debentures (including the Debentures) or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Leases of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party under acceptance, letter of credit or similar facilities, (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any capital stock (other than common shares) of such Person, (h) all Guarantees of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above to the extent quantified as liabilities, contingent obligations or like term in accordance with GAAP on the balance sheet (including notes thereto) of such Person, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, (but only to the extent of the fair market value of such Property), (j) all Swaps of such Person and (k) the liquidation value of any preferred capital stock of such Person or its Subsidiaries held by any Person other than such Person and its Wholly-Owned Subsidiaries; -4- "INDEMNIFIED PARTY" has the meaning set out in Section 7.2; "INDEMNIFYING PARTY" has the meaning set out in Section 7.2; "INITIAL SHARES" has the meaning set out in the Recitals; "INTENT NOTICE" has the meaning set out in Section 6.2; "ITA" means the Income Tax Act (Canada); "OFFER NOTICE" has the meaning set out in Section 6.2; "OBCA" means the Business Corporations Act (Ontario); "PARTNERSHIP" means Chancery Lane/GSC Investors L.P., a Delaware limited partnership in which each of the Investors holds certain partnership interests; "PARTNERSHIP AGREEMENT" means that certain Partnership Agreement of the Partnership dated as of December 12, 2000, as amended, supplemented, changed or modified from time to time; "PERSON" means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization or Governmental Authority; "PREFERRED SHARES" means the exchangeable preferred stock, no par value per share, of Subco; "PROPERTY" or "PROPERTIES" means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate; "PROPOSED SHARES" has the meaning set out in Section 6.2; "PROSPECTIVE SELLER" has the meaning set out in Section 6.2; "PURCHASE OF COMMON SHARES" means the purchase of any Common Shares or entering into of any derivative securities transaction related thereto that results in the purchase of Common Shares, other than purchasing puts or purchases required to meet obligations under employee benefit plans; "REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement to be entered into by the Corporation, the Partnership and certain limited partners of the Partnership on the Closing Date, substantially in the form annexed hereto as EXHIBIT 1, as amended, supplemented, changed or modified from time to time; "REPRESENTATIVES" has the meaning set out in Section 10.2(b); "RESPONSIBLE OFFICERS" means, with respect to any Person, any chief financial officer, treasurer or controller of the Person and any other officer of the Person reasonably expected to have knowledge of the matter as to which such officer's knowledge is required; -5- "SALE OF COMMON SHARES" means the sale of any Common Shares or entering into of any derivative securities transaction related thereto that results in the sale of Common Shares, other than any such sale by the Partnership or its Affiliates to an Affiliate of the Partnership; "SEC" means the United States Securities and Exchange Commission; "SENIOR FINANCIAL OFFICER" means the chief financial officer, treasurer or controller of the Corporation; "SIGNIFICANT SUBSIDIARY" means (i) any Subsidiary that, as of the relevant date of determination, had assets that had a fair market value representing 10% or more of the total consolidated assets of the Corporation and its Subsidiaries or revenues representing 10% or more of the total consolidated revenues of the Corporation and its Subsidiaries and (ii) Subco (for the purposes of this Agreement); "SUBCO" has the meaning set out in the Preamble; "SUBCO PREFERRED SHARES" has the meaning set out in the Recitals; "SUBSIDIARY" means, as to any Person, any corporation, association or other business entity in which such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such entity, and any partnership, limited liability company or joint venture if more than a 50% interest in the profits or capital thereof is owned by such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries (unless such partnership, limited liability company or joint venture can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the Corporation; "SWAPS" means, with respect to any Person, payment obligations with respect to interest rate swaps, currency swaps and similar obligations obligating such Person to make payments, whether periodically or upon the happening of a contingency. For the purposes of this Agreement, the amount of the obligation under any Swap shall be the amount determined in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based on the assumption that such Swap had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such Swap provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined; "TRADING PRICE" means, at the time of determination, the most recent reported per share price at which a transaction in the Common Shares was executed on the NYSE; "U.S. SECURITIES ACT" means the Securities Act of 1933, as amended from time to time; and -6- "WEIGHTED AVERAGE TRADING PRICE PER SHARE" means the weighted average of the reported per share prices at which transactions in the Common Shares are executed on the NYSE during the twenty consecutive NYSE trading days (defined as 9:30 a.m. through 4:00 p.m., Eastern Time) ending on the trading day immediately prior to the date of determination (weighted based on the number of shares of Common Shares traded), as such weighted average price appears on the Bloomberg screen "Volume at Price" page for the Common Shares. 1.2 RULES OF CONSTRUCTION. Unless the context otherwise requires, in this Agreement: (a) "Agreement", "this Agreement", "the Agreement", "hereto", "hereof", "herein", "hereby", "hereunder" and similar expressions mean or refer to this Agreement as amended from time to time, including the Schedules and Exhibits annexed hereto or to any amendment to this Agreement, and any agreement or instrument supplemental hereto and the expressions "Article", "Section", "Schedule" and "Exhibit" followed by a number or letter mean and refer to the specified Article, Section, Schedule or Exhibit of this Agreement; (b) the division of this Agreement into Articles and Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation thereof; (c) words importing the singular number only shall include the plural and vice versa and words importing the use of any gender shall include all genders; (d) reference to any agreement, indenture or other instrument in writing means such agreement, indenture or other instrument in writing as amended, modified, replaced or supplemented from time to time; (e) reference to any statute shall be deemed to be a reference to such statute as amended, re-enacted or replaced from time to time; (f) if there is any conflict or inconsistency between the provisions contained in the body of this Agreement and those of any Schedule or Exhibit (other than the Ancillary Agreements) hereto, the provisions contained in the body of this Agreement shall prevail; (g) time periods within which a payment is to be made or any other action is to be taken hereunder shall be calculated excluding the day on which the period commences and including the day on which the period ends; and (h) whenever any payment to be made or action to be taken hereunder is required to be made or taken on a day other than a Business Day, such payment shall be made or action taken on the next following Business Day. 1.3 SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions hereof, and each provision is hereby declared to be separate, severable and distinct. To the extent that any -7- such provision is found to be invalid, illegal or unenforceable, the parties hereto shall act in good faith to substitute for such provision, to the extent possible, a new provision with content and purpose as close as possible to the provision so determined to be invalid, illegal or unenforceable. 1.4 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the State of New York, without regard to principles governing conflicts of law. Each of the parties hereby submits to the exclusive jurisdiction of the courts of the State of New York and all courts competent to hear appeals therefrom, and waives any objection as to venue in the County of New York, State of New York with respect to any suit, claim or other dispute arising out of or related to this Agreement or the Ancillary Agreements. 1.5 WAIVER OF IMMUNITY. To the extent that any of the parties hereto has or hereafter may be entitled to claim or may acquire, for itself or any of its assets, any immunity from suit, jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations hereunder or under the Ancillary Agreements to which it may be a party to the fullest extent permitted by applicable law and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 1.5 shall be effective to the fullest extent now or hereafter permitted under the Foreign Sovereign Immunities Act of 1976 of the United States of America and are intended to be irrevocable for purposes of such Act. 1.6 WAIVER OF JURY TRIAL. Each party hereto hereby waives, to the fullest extent permitted by applicable laws, any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of, under or in connection with this Agreement or the Ancillary Agreements. Each party hereto (a) certifies that no representative, agent or counsel of the other party has represented expressly or otherwise that the other party would not, in the event of litigation, seek to enforce the foregoing waiver, and (b) acknowledges that it and the other party hereto have been induced to enter into this Agreement and the Ancillary Agreements by, among other things, the mutual waivers and certifications contained in this Section 1.6. 1.7 CURRENCY. All references to currency herein are to lawful money of the United States of America. 1.8 TAX EFFECT. The parties hereto intend, for United States federal income tax purposes, that the transactions contemplated hereby qualify as a reorganization within the meaning of Section 368(a)(1)(E) of the United States Internal Revenue Code of 1986, as amended, and shall file all United States federal income tax returns consistently with such treatment. 1.9 CONFLICT WITH CONVERSION INDUCEMENT AGREEMENT. In the event of any conflict between the provisions of this Agreement and the provisions of the Conversion Inducement Agreement, the provisions of this Agreement shall govern. -8- 2. EXCHANGE OF SUBCO PREFERRED SHARES; CONTINGENT CONSIDERATION 2.1 INITIAL SHARES. Upon the terms and subject to the conditions of this Agreement, the Corporation shall issue the Initial Shares to the Investors in exchange for the Subco Preferred Shares, free and clear of any Liens, other than Liens created under this Agreement. Each Investor shall be entitled to receive the number of Initial Shares that is specified opposite its name on SCHEDULE A attached hereto. At the request of the Corporation, each Investor agrees to make and cause to be filed an election under subsection 85(1) or 85(2) of the ITA, as applicable, in respect of the transfer of Subco Preferred Shares transferred by such Investor, at an elected amount equal to the fair market value of the Subco Preferred Shares transferred by such Investor. 2.2 CONTINGENT CONSIDERATION. (a) Upon the terms and subject to the conditions of this Agreement, the Corporation shall issue or pay the Contingent Consideration to the Investors in accordance with the terms of this Section 2.2. (b) If the Weighted Average Trading Price Per Share determined as of December 31, 2002 (as adjusted pursuant to paragraph (e) of this Section 2.2, the "2002 PRICE") is less than $8.00 per share (as adjusted pursuant to paragraph (e) of this Section 2.2), then the Corporation shall pay to the Investors, on December 31, 2002, an amount in cash (the "2002 CONTINGENT CASH PAYMENT") equal to the lesser of : (i) (A) $14,000,000 minus (B) the value of the Initial Shares on such date, determined by multiplying the number of Initial Shares (as adjusted pursuant to paragraph (e) of this Section 2.2) by the 2002 Price; and (ii) the value of 3,000,000 Common Shares (as adjusted pursuant to paragraph (e) of this Section 2.2), on such date, determined by multiplying 3,000,000 by the 2002 Price. At the option of the Corporation, the Corporation may satisfy the 2002 Contingent Cash Payment obligation by issuing to the Investors, on December 31, 2002, instead of the 2002 Contingent Cash Payment, an additional number of Common Shares, free and clear of any Liens other than Liens created under this Agreement (the "2002 ADDITIONAL SHARES") equal to the number obtained by dividing the 2002 Contingent Cash Payment by the 2002 Price. (c) If the Weighted Average Trading Price Per Share determined as of December 31, 2003 (as adjusted pursuant to paragraph (e) of this Section 2.2, the "2003 PRICE") is less than $10.83 per share (as adjusted pursuant to paragraph (e) of this Section 2.2), then the Corporation shall pay to the Investors, on December 31, 2003, an amount in cash (the "2003 CONTINGENT CASH PAYMENT") equal to the lesser of : (i) $9,000,000 and (B) the value of 6,000,000 Common Shares (as adjusted pursuant to paragraph (e) of this Section 2.2), on such date, determined by multiplying 6,000,000 by the 2003 Price; provided, however, that if, prior to December 31, 2003, the Investors sell any of the Initial Shares or the 2002 Additional Shares issued pursuant to paragraph (b) of this Section 2.2 to any Person (other than another Investor or an Affiliate of an Investor), then the -9- foregoing amount shall be reduced on a dollar-for-dollar basis by the amount, if any, that the aggregate cash proceeds received from any such sale(s) prior to December 31, 2003 of Initial Shares or 2002 Additional Shares exceeds the product of (i) the number of such Initial Shares and 2002 Additional Shares that have been sold prior to December 31, 2003 and (ii) the Weighted Average Trading Price Per Share determined as of the Closing Date. At the option of the Corporation, the Corporation may satisfy the 2003 Contingent Cash Payment obligation by issuing to the Investors, on December 31, 2003, instead of the 2003 Contingent Cash Payment, an additional number of Common Shares, free and clear of any Liens other than Liens created under this Agreement (the "2003 ADDITIONAL SHARES") equal to the number obtained by dividing the 2003 Contingent Cash Payment by the 2003 Price. In order to determine whether any Initial Shares or 2002 Additional Shares have been sold as provided in the proviso of the first sentence of this paragraph (c), all Common Shares received by the Investors upon conversion of the Debentures shall be deemed to have been sold first and shall not be considered in the application of such proviso. In addition, the Initial Shares and any 2002 Additional Shares that were issued pursuant to paragraph (b) of Section 2.1 and paragraph (b) of this Section 2.2 shall be kept in a segregated account separate and apart from any shares issued upon conversion of the Debentures or otherwise acquired by the Investors or their Affiliates. Prior to issuing any of the 2003 Additional Shares, the Investors shall provide a certificate to the Corporation certifying the number and sale price of any Initial Shares and any 2002 Additional Shares that were issued pursuant to paragraph (b) of Section 2.1 and paragraph (b) of this Section 2.2 that were sold by the Investors or their Affiliates prior to December 31, 2003 (other than to another Investor or an Affiliate of an Investor), together with a copy of the broker's account statement for such sales if requested by the Corporation. (d) Any Additional Shares issued in satisfaction of the Contingent Cash Payments may be issued to the Investors on exchange of exchangeable preferred shares of a wholly-owned non-Canadian subsidiary of the Corporation using the structure contemplated in Sections 3.2(a), 3.2(b) and 3.3(c) of the Conversion Inducement Agreement; provided, that, at the time of such issuance, the Corporation makes representations, warranties, covenants and indemnities to the Investors with respect to such exchangeable preferred shares that are substantially the same as those made by the Corporation to the Investors with respect to the Subco Preferred Shares. (e) The number of Common Shares used to determine the 2002 Contingent Cash Payment and the 2003 Contingent Cash Payment pursuant to paragraphs (b) and (c) above and the 2002 Price and the 2003 Price shall be adjusted in the event of a merger, consolidation, recapitalization, stock split, reclassification or other similar event or distribution in which the Common Shares are converted, exchanged or otherwise changed. The Corporation shall forthwith give notice to the Investors in the manner provided in Section 11 specifying the event requiring such adjustment or readjustment and the results thereof, including the number of Common Shares used to determine the 2002 Contingent Cash Payment and the -10- 2003 Contingent Cash Payment pursuant to paragraphs (b) or (c) above and the resulting 2002 Price and 2003 Price. Furthermore, the Corporation shall give notice to the Investors, in the manner provided in Section 11, of its intention to take any action that may give rise to any such adjustment or readjustment at the same time as any public announcement thereof and in any event no later than the time at which holders of Common Shares are notified of any such action, and, in each case, such notice shall specify the particulars of such event and the record date and the effective date for such event; provided, that the Corporation shall only be required to specify in such notice such particulars of such event as shall have been fixed and determined on the date on which such notice is given. Such notice shall be given not less than 7 days in each case prior to such applicable record date or effective date, whichever is earlier. (f) Upon the issuance of any 2002 Additional Shares and 2003 Additional Shares as contemplated by this Section 2.2, the Corporation shall deliver to the Investors a duly executed stock certificate or certificates representing such shares registered in the Investors' names in the amounts that correspond to their original percentage ownership of the Initial Shares as promptly on or after the relevant December 31 delivery date as the Corporation's transfer agent can prepare such certificate or certificates for such delivery. In addition, the Corporation shall enter in an agreement with the Investors containing substantially the same representations, warranties, covenants and indemnities, as applicable, as set forth in this Agreement with respect to the 2002 Additional Shares and the 2003 Additional Shares and also shall issue the opinions of counsel to the Corporation, dated the issuance dates of the 2002 Additional Shares and the 2003 Additional Shares, with respect to the issuance of such Additional Shares, each substantially in the form of the opinions deliverable to the Partnership pursuant to Section 3.2(c)(ii). 3. CLOSING; DELIVERY 3.1 CLOSING. The closing of the transactions contemplated by Section 3 (the "CLOSING") shall occur concurrently with the closing of the transactions contemplated by the Conversion Inducement Agreement. The Closing shall take place at 10:00 a.m. (New York City time) at the offices of Squadron Ellenoff Plesent & Sheinfeld LLP, 551 Fifth Avenue, New York, New York, on December 28, 2001, (such closing day or such other time being hereinafter referred to as the "CLOSING DATE") or at such other time or place as may be agreed by the parties hereto in writing. 3.2 ACTIONS BY THE CORPORATION AT CLOSING. At the Closing, the Corporation shall: (a) against delivery by the Investors of the Subco Preferred Shares as contemplated in Section 3.3(a) below, deliver to Investors a duly executed stock certificate or certificates registering that number of Initial Shares set forth opposite such Investor's name on SCHEDULE A attached hereto; (b) deliver to the Investors the Ancillary Agreements duly executed by the Corporation; and -11- (c) deliver or cause to be delivered to the Investors the following: (i) copies of resolutions of the Board authorizing the transactions contemplated by this Agreement and the Ancillary Agreements, each certified as being true and correct and not having been modified or rescinded since their adoption by the Secretary or Assistant Secretary of the Corporation, together with an incumbency certificate duly executed by the Secretary or Assistant Secretary of the Corporation for those officers of the Corporation executing this Agreement and any of the Ancillary Agreements on its behalf; (ii) the opinions of counsel addressed to the Investors, each dated the Closing Date, covering the matters set forth on EXHIBIT 2; and (iii) such other documents and certificates duly executed as the Investors may reasonably request in order to effect the transactions contemplated hereby. 3.3 ACTIONS BY THE INVESTORS AT CLOSING. At the Closing, the Investors shall: (a) deliver the Subco Preferred Shares to the Corporation in exchange for the Initial Shares contemplated in Section 3.2(a) above; (b) deliver to the Corporation the Ancillary Agreements duly executed by the parties thereto other than the Corporation; and (c) deliver or cause to be delivered to the Corporation the following: (i) an incumbency certificate duly executed by a Member of the General Partner for those officers of the General Partner executing this Agreement and any of the Ancillary Agreements on its behalf; and (ii) such other documents and certificates duly executed as the Corporation may reasonably request in order to effect the transactions contemplated hereby. 4. REPRESENTATIONS AND WARRANTIES 4.1 REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The representations and warranties of the Corporation set forth in Section 4.1 of the Conversion Inducement Agreement are hereby incorporated by reference in their entirety and references therein to the Partnership shall be deemed to be references to the Investors for all purposes of this Agreement and such representations and warranties shall enure to the benefit of the Investors without any qualification or limitation, other than as expressly set forth in such representations and warranties. The Corporation acknowledges that the Investors are relying upon such representations and warranties in connection with their entering into this Agreement. -12- 4.2 REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor severally and not jointly represents and warrants to the Corporation as follows and acknowledges that the Corporation is relying upon such representations and warranties in connection with its entering into this Agreement: (a) ORGANIZATION; POWER AND AUTHORITY. The Investor is a limited partnership duly organized and is validly existing under the laws of its jurisdiction of organization; the General Partner is the sole general partner of the Investor; the General Partner has all necessary limited liability company or partnership power to execute and deliver this Agreement and each of the Ancillary Agreements on behalf of the Investor and the Investor has all necessary partnership power to enter into this Agreement and each of the Ancillary Agreements and to comply with its obligations hereunder and thereunder. (b) AUTHORIZATION, ETC. The General Partner has taken all necessary limited liability company or partnership action to authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements; this Agreement and the Ancillary Agreements have been duly executed and delivered by the General Partner on behalf of the Investor and constitute the legal, valid and binding obligations of the Investor enforceable by the Corporation in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws of general application affecting the enforcement of creditors' rights and subject to the qualification that specific performance and injunction, being equitable remedies, may be granted only in the discretion of a court of competent jurisdiction. (c) COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither: (i) the authorization, execution, delivery or performance by the Investor of this Agreement and the Ancillary Agreements; (ii) the conversion of the Debentures held by the Investor; or (iii) the acquisition of the Initial Shares as provided herein, is in conflict with and does not and will not result in any breach of and does not and will not create a state of facts which after notice or lapse of time or both will result in a breach of any of the terms or provisions of the limited partnership agreement of the Investor, the resolutions of the board of directors of the General Partner, or results or would result in the creation or imposition of any security interest, mortgage, Lien, charge or encumbrance of any nature whatsoever upon any of the Material Properties or assets of the Investor pursuant to the terms of any indenture, instrument, agreement or undertaking. (d) NO ORDERS. To the knowledge of the General Partner, after reasonable inquiry, no order suspending the transfer of the Subco Preferred Shares, the conversion of the Debentures held by the Investor or the acquisition of the Initial Shares by the Investor has been issued by any court, securities commission or regulatory authority in Canada or the United States, and no proceedings for such purpose are pending or threatened. -13- (e) INVESTMENT REPRESENTATION. The Investor is acquiring the Initial Shares as principal for investment purposes only, and not with a view to, or for, resale, distribution or any present intention of distributing or selling the Initial Shares or any part thereof. The Investor is acquiring the Initial Shares as principal for its own account and the Investor is an "accredited investor" as the term is defined in Regulation D under the U.S. Securities Act and OSC Rule 45-501. The Investor is not a resident of Canada. (f) ACKNOWLEDGEMENT RE: SECURITIES LAWS. The Investor understands, recognizes and acknowledges that the Initial Shares have not been qualified for distribution or registered under any applicable securities legislation, including the Ontario Securities Act, the U.S. Securities Act or any other applicable federal, provincial or state securities laws by reason of exemptions from such requirements being available, and that the Initial Shares may not be sold, pledged, assigned or otherwise disposed of in the absence of compliance with such law or unless an exemption from the application of such law is applicable, and certificates issued in respect of the Initial Shares will be legended to reflect such restrictions. 4.3 SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES. All covenants, representations and warranties of each party made herein and in any certificate or other document delivered by it or on its behalf pursuant to the provisions hereof or otherwise with respect to this Agreement and the transactions contemplated hereby, shall survive the Closing and, notwithstanding such closing, nor any investigation made by or on behalf of such party, shall continue in full force and effect, subject as hereinafter provided, for a period of eighteen months from the Closing Date for the benefit of the party to whom the covenants, representations and warranties are made; provided, however, that notwithstanding anything herein contained, the representations and warranties contained in Sections 4.1(b), (c), (d) and (e) of the Conversion Inducement Agreement which have been incorporated herein by reference shall survive the Closing and shall continue in full force and effect for the benefit the Investors without any limitation period and the representation and warranty contained in Section 4.1(k) of the Conversion Inducement Agreement which has been incorporated herein by reference shall survive the Closing and shall continue in full force and effect for the benefit of the Investors until the 60th day after the expiration of the relevant statute of limitations period. 5. COVENANTS OF THE PARTIES 5.1 AFFIRMATIVE COVENANTS OF THE CORPORATION. The Corporation covenants and agrees with the Investors that it will do or cause to be done, and, as applicable, will cause Subco to do or cause to be done, the following: (a) use its reasonable best efforts to comply with, satisfy and fulfill promptly all prerequisites, conditions and requirements imposed by or arising out of legal, regulatory and administrative requirements applicable to the Corporation with respect to the consummation of the transactions contemplated hereby, including, without limiting the generality of the foregoing, (i) filing or causing to be filed all documents, certificates, opinions, forms or undertakings required to be filed by the Corporation in connection with the acquisition by the Investors of the Initial -14- Shares, the issuance of the Initial Shares and the listing and posting for trading of the Initial Shares on the Exchanges, and (ii) subject to Section 5.3, obtaining all necessary legal, regulatory and administrative approvals, consents, authorizations, rulings, orders and permits; (b) maintain its status as a "reporting issuer" in good standing under the Ontario Securities Act and other applicable Canadian securities legislation and as a "registrant" in good standing under the Exchange Act; (c) maintain the listing or posting for trading of the Common Shares (including the Initial Shares) on the NYSE; and (d) pay all stamp or duty or similar taxes, if any, associated with the issuance and/or delivery of the Initial Shares. 5.2 AFFIRMATIVE COVENANTS OF THE INVESTORS. Subject to Section 5.3, the Investors covenants and agrees with the Corporation that it will use its reasonable best efforts to comply with, satisfy and fulfill promptly all prerequisites, conditions and requirements imposed by or arising out of legal, regulatory and administrative requirements applicable to the Investors with respect to the consummation of the transactions contemplated hereby, including, without limiting the generality of the foregoing, (i) filing or causing to be filed all documents, certificates, opinions, forms or undertakings required to be filed by the Investors in connection with the acquisition by the Investors of the Initial Shares and the issuance of the Initial Shares, and (ii) obtaining all necessary legal, regulatory and administrative approvals, consents, authorizations, rulings, orders and permits. 5.3 HSR ACT. The Corporation and Greenwich Fund II have filed or will file concurrently with the execution of this Agreement (a) all Notification and Report Forms and related material required to be filed by it with the Federal Trade Commission ("FTC") and the Antitrust Division of the United States Department of Justice ("DOJ") under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the "HSR ACT") with respect to the transactions contemplated hereby and by the Ancillary Agreements and (b) the necessary filings and notifications with any other jurisdictions with respect to the transactions contemplated hereby and the Ancillary Agreements to the extent required to effect the conversion of the Debentures and, in each case, shall promptly make any further filings pursuant thereto that may be required by law. Each of the Corporation and Greenwich Fund II shall use its commercially reasonable efforts to furnish to the other party such information, cooperation and assistance as the other party reasonably may request in connection with the submissions to, or agency proceedings by, any Governmental Authority under the HSR Act, or any comparable laws of foreign jurisdictions, and each of the parties hereto shall keep the other promptly apprised of any communications with, and inquiries or requests for information from, such Governmental Authorities. 5.4 VCOC. The rights granted to the Investors under Section 8.1 of this Agreement and the existing rights with respect to the nomination of directors are intended to satisfy the requirement of management rights for purposes of qualifying the investment by the Investors in the ownership of Common Shares as a venture capital investment for purposes of the Department of -15- Labor "plan asset" regulations, 9 C.F.R. Section 2510.3-101, and in the event such rights are not satisfactory for such purpose, the Corporation and the Investors shall reasonably cooperate in good faith to agree upon mutually satisfactory access rights which satisfy such regulations. 6. RESTRICTIONS ON TRANSFERS OF THE COMMON SHARES 6.1 RESTRICTIONS ON SALE OF COMMON SHARES. ------------------------------------- (a) 30 DAY BLACKOUT PERIOD. The Investors and their Affiliates shall not engage in any Sale of Common Shares during the 2002 Blackout Period and the 2003 Blackout Period. The Corporation and its Affiliates shall not engage in any Purchase of Common Shares during the 2002 Blackout Period and the 2003 Blackout Period. (b) 60 DAY RESTRICTED PERIOD. (i) During the 2002 Restricted Period, the Investors and their Affiliates shall not engage in any Sale of Common Shares if at the time of the proposed sale the Trading Price is between $7.00 and $9.00. (ii) During the 2003 Restricted Period, each of the Investors and their Affiliates shall not engage in any Sale of Common Shares if at the time of the proposed sale the Trading Price is between $9.00 and $12.50. (iii) Subject to paragraphs (i) and (ii) above, the Investors and their Affiliates may, during each of the 2002 Restricted Period and 2003 Restricted Period, (A) sell Common Shares in one or more registered public offerings; (B) sell up to 3,750,000 Common Shares in open-market transactions; and (C) sell Common Shares in one or more private placements so long as the buyer(s) in such private placement(s) agrees in writing to be bound by the provisions of paragraphs (i) and (ii) above. (c) The per share prices of Common Shares contained in this paragraph (b) above shall be adjusted in the event of a merger, consolidation, recapitalization, stock split, reclassification or other similar event or distribution with respect to, or in exchange for or in replacement of, the Common Shares. 6.2 RIGHT OF FIRST OFFER. If any Investor or an Affiliate of an Investor (the "PROSPECTIVE SELLER") wishes to sell any of its Common Shares prior to December 31, 2003 (other than a sale to another Investor or an Affiliate of an Investor and other than pursuant to the exercise of registration rights or an open-market sale on the NYSE or The Toronto Stock Exchange), the Prospective Seller shall deliver a written notice ("INTENT NOTICE") to the Corporation specifying the number of Common Shares which are proposed to be sold and the desired price for such shares (the "PROPOSED SHARES"). The Corporation shall, upon receipt of an Intent Notice, have ten (10) Business Days to deliver a written notice ("OFFER NOTICE") to the Prospective Seller specifying the name(s) of one or more bona-fide purchasers offering to purchase the Proposed Shares at a cash purchase price equal to or greater than the purchase price specified in the Intent Notice within three (3) Business Days from the date such Offer Notice is delivered to the -16- Prospective Seller. The Prospective Seller shall forthwith accept any Offer Notice delivered in accordance with the requirements of this Section 6.2, and the closing of the purchase and sale of the Proposed Shares shall occur within three (3) Business Days thereafter. If at the end of such ten-day period, the Prospective Seller has not received an Offer Notice or the purchase and sale of the Proposed Shares pursuant to the Offer Notice has not occurred within such 3-day period (and such failure to close has not been caused by the Prospective Seller), the Prospective Seller shall be permitted to sell the Proposed Shares during the 90 day period thereafter at a price which is not less than 90% of the desired price specified in the Intent Notice. 6.3 RESTRICTION ON DISTRIBUTION. Notwithstanding any other provision of this Agreement, the Investors shall not distribute the Initial Shares or the Common Shares received by them upon conversion of the Debentures to their limited partners for a period of one year from the Closing Date. 7. INDEMNIFICATION 7.1 INDEMNIFICATION BY THE CORPORATION. From and after the Closing, the Corporation agrees to indemnify and save harmless the Investors and their Affiliates and the directors, officers, general partners, employees, shareholders, representatives and agents of the Investors and their Affiliates (collectively, the "INDEMNITEES") from all Losses suffered or incurred by any of them as a result of or arising directly or indirectly out of or in connection with: (a) any breach by the Corporation of or any inaccuracy of any representation or warranty of the Corporation contained in this Agreement, the Ancillary Agreements or in any agreement, certificate or other document delivered pursuant hereto and (b) any breach or non-performance by the Corporation of any covenant to be performed by any of them which is contained in this Agreement, the Ancillary Agreements or in any agreement, certificate or other document delivered pursuant hereto. Notwithstanding anything contained herein to the contrary, the indemnification provided above (except with respect to any breach of the representations and warranties set forth in Sections 4.1(b), (c), (d), (e) and (k) of the Conversion Inducement Agreement which have been incorporated herein by reference) shall (i) only apply to the extent that, and not until, the aggregate of all amounts subject to indemnification under clause (a) of this Section 7.1 exceeds $1,000,000 (in which event, the Indemnitees shall be entitled to indemnification as provided herein for all such Losses and not just the excess over $1,000,000) and (ii) not exceed $23,000,000 in the aggregate. The indemnification with respect to any breach of Section 4.1(k) of the Conversion Inducement Agreement shall be increased by an amount such that the Indemnitees will receive cash, after taking into account any Canadian non-resident withholding tax imposed under Part XIII of the ITA, equal to the amount owing pursuant to this Section 7.1 (without regard to this sentence) as a result of the breach of Section 4.1(k). 7.2 NOTICE OF CLAIM; INVESTIGATIONS; DETERMINATION. Subject to Section 7.3, in the event that a party (the "INDEMNIFIED PARTY") shall become aware of any claim, proceeding or other matter (a "CLAIM") in respect of which another party (the "INDEMNIFYING PARTY") agreed to indemnify the Indemnified Party pursuant to this Agreement and, if a claim for breach of representation and warranty of the Indemnifying Party, in respect of which the applicable survival period shall not have lapsed, the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party. Such notice shall specify the factual basis for the Claim and the amount of the Claim, if known. Following receipt of notice from the Indemnified Party of -17- the Claim, the Indemnifying Party shall have 60 days to make such investigation of the Claim as is considered necessary or desirable. For the purpose of such investigation, the Indemnified Party shall make available to the Indemnifying Party the information relied upon by the Indemnified Party to substantiate the Claim, together with all such other information as the Indemnifying Party may reasonably request. If both parties agree at or prior to the expiration of such 60-day period (or any mutually agreed upon extension thereof) to the validity and amount of such Claim, the Indemnifying Party shall immediately pay to the Indemnified Party the full agreed upon amount of the Claim. 7.3 CERTAIN CLAIMS. If any Claim arises directly or indirectly out of or in connection with the Corporation's execution, delivery and performance of this Agreement or the Ancillary Agreements and is asserted against any Indemnitee, such Indemnitee shall promptly give the Corporation notice thereof in accordance with Section 7.2. The Corporation shall have the right to control negotiations toward resolution of such Claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel chosen by the Corporation and reasonably acceptable to the such Indemnitee, at the Corporation's expense with respect to the conduct of such defense, and such Indemnitee shall in such case extend reasonable cooperation in connection with such negotiation and defense and the Corporation shall keep such Indemnitee reasonably informed as to such case. If the Corporation fails to assume control of the negotiations prior to litigation or to defend such action within a reasonable time, such Indemnitee shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and the Corporation shall be liable to such Indemnitee for its expenses reasonably incurred in connection therewith which the Corporation shall promptly pay. Neither party shall settle, compromise, or make any other disposition of any Claims, which would or might result in any liability to the Indemnitee or the Corporation, respectively, under this Section 7 without the written consent of the Indemnitee or the Corporation, respectively, which consent shall not be unreasonably withheld. 7.4 THIRD PARTY CLAIMS. If any Claim covered by the foregoing indemnities is asserted against any Indemnified Party, it shall be a condition to the obligations under this Section 7 that the Indemnified Party shall promptly give the Indemnifying Party notice thereof in accordance with Section 7.2. The Indemnifying Party shall be entitled to control negotiations toward resolution of such claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to the Indemnified Party, at the Indemnifying Party's expense, and the Indemnified Party shall in such case extend reasonable cooperation in connection with such negotiation and defense. If the Indemnifying Party fails to assume control of the negotiations prior to litigation or to defend such action within a reasonable time, the Indemnified Party shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and the Indemnifying Party shall be liable to the Indemnified Party for its expenses reasonably incurred in connection therewith which the Indemnifying Party shall promptly pay. Neither the Indemnifying Party nor the Indemnified Party shall settle, compromise, or make any other disposition of any Claims, which would or might result in any liability to the Indemnified Party or the Indemnifying Party, respectively, under this Section 7 without the written consent of the Indemnified Party or the Indemnifying Party, respectively, which consent shall not be unreasonably withheld. -18- 7.5 EXCLUSIVITY. The provisions of this Section 7 shall be the exclusive remedy with respect to any Claim for breach by the Corporation of any of its covenants, representations, warranties or agreements under this Agreement or the Ancillary Agreements, or any agreement, certificate or other document delivered pursuant thereto (other than a Claim for specific performance or injunctive relief) and all such Claims against the Corporation shall be subject to the limitations and other provisions contained in this Section 7, other than claims against the Corporation for fraud or fraudulent misrepresentation. 8. INFORMATION AS TO THE CORPORATION 8.1 FINANCIAL AND BUSINESS INFORMATION. So long as an Investor together with any of its Affiliates holds at least 2.5% of the issued and outstanding Common Shares, the Corporation shall deliver to the Investor: (a) MONTHLY STATEMENTS - within 20 Business Days after the end of each month upon the written request of the Investor to the Corporation, duplicate copies of financial reports prepared monthly in the normal course of business for the Corporation's management and/or the Board with respect to the Corporation's operations by region and business segment, including an income statement, balance sheet and statement of cash flows; (b) QUARTERLY STATEMENTS - within 45 days after the end of each quarterly fiscal period in each fiscal year of the Corporation (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of: (i) a consolidated balance sheet of the Corporation and its Subsidiaries as at the end of such quarter; and (ii) consolidated statements of income, changes in shareholders' equity and cash flows of the Corporation and its Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter, setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments, provided that delivery within the time period specified above of copies of the Corporation's Quarterly Report on Form 10-Q prepared in compliance with the requirements therefor applicable to the Corporation (or such other quarterly report as is applicable to the Corporation) and filed with the SEC shall be deemed to satisfy the requirements of this Section 8.1(b); (c) ANNUAL STATEMENTS - within 90 days after the end of each fiscal year of the Corporation, duplicate copies of: -19- (i) a consolidated balance sheet of the Corporation and its Subsidiaries, as at the end of such year; and (ii) consolidated statements of income, changes in shareholders' equity and cash flows of the Corporation and its Subsidiaries, for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon of independent certified public accountants of recognized national standing in the Corporation's jurisdiction, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances, provided that the Corporation's Annual Report on Form 10-K for such fiscal year (together with the Corporation's annual report to shareholders, if any, prepared pursuant to Rule 14a-3 under the Exchange Act) prepared in accordance with the requirements therefor applicable to the Corporation (or such other annual report as is applicable to the Corporation) and sent to shareholders with the annual proxy statement and filed with the SEC shall be deemed to satisfy the requirements of this Section 8.1(c); (d) SEC, OSC AND OTHER REPORTS - promptly upon their becoming publicly available and upon request by the Investor to the Corporation, one copy of (i) each financial statement, report, notice or proxy statement sent by the Corporation or any Subsidiary to public securities holders generally, and (ii) each regular or periodic report, each registration statement that shall have become effective (without exhibits except as expressly requested by such holder), and each final prospectus and all amendments thereto filed by the Corporation or any Subsidiary with the SEC, the OSC or any other Canadian securities regulatory authorities; (e) REQUESTED INFORMATION - with reasonable promptness, such other data and information relating to the business, operations, affairs, financial or other condition, prospects, assets or properties of the Corporation or any of its Subsidiaries or relating to the ability of the Corporation to perform its obligations under this Agreement and the Ancillary Agreements prepared by the Corporation in the normal course of business for the Corporation's management prior to such request as from time to time may be reasonably requested by any such holder of Common Shares. 8.2 INSPECTION. The Corporation shall permit an Investor, at the expense of the Investor and upon reasonable prior notice to the Corporation, to visit the principal executive office of the -20- Corporation, to discuss the affairs, finances and accounts of the Corporation and its Subsidiaries with the Corporation's officers, and, with the consent of the Corporation (which consent will not be unreasonably withheld) to visit the other offices and properties of the Corporation and each Significant Subsidiary, all at such reasonable times during normal business hours and as often as may be reasonably requested in writing. 9. EXPENSES, ETC. The Corporation shall pay up to $275,000 of the Investors' reasonable costs and expenses (including legal fees and disbursements) incurred in connection with the transactions contemplated by this Agreement and the Conversion Inducement Agreement (but excluding any reasonable costs and expenses incurred by the Investors in connection with the payment or issuance of the Contingent Consideration). Such expenses shall be paid in cash at the Closing by way of wire transfer of immediately available funds in accordance with the Investors' instructions. 10. CONFIDENTIALITY 10.1 Neither the Investors nor the Corporation shall make any public disclosure, except to the extent required by law or the rules and procedures of the Exchanges, of the terms of this Agreement or regarding the transaction contemplated hereby without the prior consent of the other, such consent not to be unreasonably withheld. The wording of any public disclosure to be made in respect of the transactions contemplated by this Agreement must be approved by each of the Corporation and the General Partner. This Section 10.1 shall survive any termination of this Agreement. 10.2 CONFIDENTIAL INFORMATION. (a) Any information furnished to an Investor (or an Investor's Affiliate) concerning the Corporation under Sections 8.1(a) and (e) and Section 8.2 hereof (including through its director nominees) shall be deemed to be "CONFIDENTIAL INFORMATION." Notwithstanding the generality of the foregoing, information that is publicly available or becomes publicly available other than through disclosure by an Investor (or an Investor's Affiliate) or its Representatives (as defined below) or otherwise was known to an Investor (or an Investor's Affiliate) or its Representatives prior to disclosure to any of them by the Corporation or its Representatives other than as a result of disclosure by a Person under an obligation of confidentiality to the Corporation known to an Investor (or an Investor's Affiliate) or its Representatives shall not be deemed to be Confidential Information. (b) Except as may be otherwise required by law, legal process or the rules of any securities regulatory organization (in which event the Investors shall provide advance notice to the Corporation, to the extent practicable), each Investor shall (and shall use its reasonable best efforts to cause its Affiliates to) keep all Confidential Information confidential, and shall not disclose it to anyone except to another Investor or an Investor's Affiliate and to its and their own employees, directors, attorneys, accountants, financial advisers and other consultants and agents with a need to know (collectively, "REPRESENTATIVES") (and each Investor -21- shall be responsible for any violation of the terms hereof by its Representatives) or to such Persons as required by law. Each Person to whom such Confidential Information is disclosed must be advised of its confidential nature and of the terms of this Section 10.2. The Investors acknowledge that Confidential Information may include material, non-public information and that the United States and Canadian federal, state and provincial securities laws restrict the ability of any Person in possession of such information to acquire or dispose of affected securities, and that such laws impose liability on such Person for doing so. (c) This Section 10.2 shall survive any termination of this Agreement. 11. GENERAL PROVISIONS 11.1 NOTICES. Any notice, direction or other instrument required or permitted to be given or made hereunder shall be in writing and shall be sufficiently given or made if delivered in person to the address set forth below or if facsimiled or sent by other means of recorded electronic communication and confirmed by delivery as soon as practicable thereafter. Notices to the Corporation shall be addressed as follows: Moore Corporation Limited c/o Moore Executive Office One Canterbury Green Stamford, CT 06901 Attention: Chief Financial Officer Fax: 203-406-3855 with copies to: Moore Corporation Limited c/o Moore Executive Office One Canterbury Green Stamford, CT 06901 Attention: General Counsel Fax: 203-406-3856 Notices to the Investors shall be addressed as follows: Greenwich Street Capital Partners II, L.P. GSCP Offshore Fund, L.P. Greenwich Fund, L.P. Greenwich Street Employees Fund, L.P. TRV Executive Fund, L.P. c/o Greenwich Street Investments II, L.L.C., General Partner 12 East 49th Street - Suite 3200 -22- New York, New York, 10017 Attention: Matthew Kaufman Fax: 212-884-6184 with copies to: Squadron Ellenoff Plesent & Sheinfeld LLP 551 Fifth Avenue New York, NY 10176 Attention: Mitchell S. Ames Fax: 212-697-6686 Any notice, direction or other communication so given or made shall be deemed to have been given or made and to have been received on the day of delivery, if delivered, or on the day of sending if sent by facsimile or other means of recorded electronic communication (provided such day of delivery or sending is a Business Day and, if not, then on the first Business Day thereafter). Any party hereto may change its address for notice to the other parties by notice given in the manner aforesaid. 11.2 ASSIGNMENT. No party hereto may assign this Agreement or its rights or obligations hereunder without the prior written consent of the other parties, except that the Investors may assign its rights and obligations hereunder, in whole or in part, to any Affiliate of an Investor; provided, that any such assignee agrees to be bound by the terms and conditions of this Agreement relating to the assigned portion of the Agreement. 11.3 ENUREMENT. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 11.4 FURTHER ASSURANCES. Each of the parties agrees to take all such reasonable actions as may be requested by any other party hereto to implement and give full effect to the provisions of this Agreement. 11.5 TIME OF THE ESSENCE. Time shall be of the essence of this Agreement. 11.6 ENTIRE AGREEMENT. This Agreement, the Ancillary Agreements and the Conversion Inducement Agreement constitute the entire agreement between the parties hereto pertaining to the transfer of the Subco Preferred Shares upon the conditions described herein and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no other agreements between the parties in connection with such subject matter hereof. No supplement, modification or termination of this Agreement and the Ancillary Agreements shall be binding unless executed in writing by both of the parties hereto. 11.7 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which when taken together shall constitute this Agreement. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] -23- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above stated. MOORE CORPORATION LIMITED By: _________________________________________________ Name: Title: GREENWICH STREET CAPITAL PARTNERS II, L.P. GSCP OFFSHORE FUND, L.P. GREENWICH FUND, L.P. GREENWICH STREET EMPLOYEES FUND, L.P. TRV EXECUTIVE FUND, L.P. By: Greenwich Street Investments II, L.L.C., its General Partner By: ________________________________________________ Name: Title: -24- SCHEDULE A ---------- SCHEDULE OF INVESTORS ---------------------
Investor Number of Initial Shares - -------- ------------------------ Greenwich Street Capital Partners II, L.P. 1,474,074 GSCP Offshore Fund, L.P. 30,731 Greenwich Fund, L.P. 49,932 Greenwich Street Employees Fund, L.P. 87,998 TRV Executive Fund, L.P. 7,265 --------- Total: 1,650,000 ---------
-25- EXHIBIT 1 --------- FORM OF REGISTRATION RIGHTS AGREEMENT ------------------------------------- -26- EXHIBIT 2 --------- OPINIONS TO BE DELIVERED BY THE CORPORATION ------------------------------------------- (a) Favorable written opinions from nationally-recognized counsel (in the appropriate jurisdiction) (reasonably satisfactory to the Investors) to the Corporation (who may rely on certificates from the Corporation with respect to factual matters), dated the Closing Date and satisfactory in scope and substance to the Investors and its counsel, acting reasonably, with respect to the following substantive matters: (i) the Corporation is a corporation incorporated under the laws of the Province of Ontario and has all necessary corporate power and authority to own its property and to execute and deliver this Agreement and the Ancillary Agreements and to perform all its respective obligations hereunder and thereunder; (ii) all necessary corporate action has been taken by the Corporation to authorize the issuance of the Initial Shares and the execution and delivery of this Agreement and the Ancillary Agreements and, upon issuance the Initial Shares will have been validly issued, as fully paid and non-assessable Common Shares; (iii) no action of the shareholders of the Corporation is required to authorize the issuance of the Initial Shares and the execution and delivery of this Agreement and the Ancillary Agreements; (iv) each of this Agreement and the Ancillary Agreements has been duly executed and delivered by the Corporation; (v) the authorization, execution, delivery and performance by the Corporation of this Agreement and the Ancillary Agreements and the issuance of the Initial Shares do not conflict with, and do not result in a breach of, the articles or by-laws of the Corporation; (vi) the issuance of the Initial Shares to the Investors pursuant to this Agreement are exempt from the registration and prospectus requirements of the Ontario Securities Act; and (vii) the issuance of the Initial Shares to the Investors pursuant to this Agreement are not in violation of United States federal securities laws. (b) Favorable written opinion from in-house counsel or any reputable outside counsel to the Corporation (at the Corporation's election), dated the Closing Date and satisfactory in scope and substance to the Investors and its counsel, acting reasonably, with respect to the following substantive matters: -27- (i) the Corporation is duly qualified to carry on business in all jurisdictions in which it currently carries on business, and has all necessary corporate power and authority to carry on its business as aforesaid; and (ii) none of: (A) the authorization, execution, delivery or performance by the Corporation of this Agreement or the Ancillary Agreements, including, without limitation, or (B) the allotment and issuance of the Initial Shares as provided herein, will contravene, result in any breach of or is in conflict with and does not and will not result in a breach of and does not and will not create a state of facts which after notice or lapse of time or both will result in a breach of any of the terms or provisions of the articles or by-laws of the Corporation, the resolutions of the directors or shareholders of the Corporation or any Material Contract to which the Corporation is a party or by which the Corporation or the Properties or assets of the Corporation are bound or results in the creation or imposition of any Lien upon any of the Material Properties or assets of the Corporation pursuant to the terms of any Material Contract. (c) Favorable written opinions from nationally-recognized counsel (in the appropriate jurisdiction) (reasonably satisfactory to the Investors) to Subco (who may rely on certificates from Subco with respect to factual matters), dated the Closing Date and satisfactory in scope and substance to the Investors and its counsel, acting reasonably, with respect to the following substantive matters: (i) Subco is a corporation incorporated under the laws of the State of Delaware and has all necessary corporate power and authority to own its property and to execute and deliver this Agreement and to perform all its obligations hereunder; (ii) all necessary corporate action has been taken by Subco to authorize the issuance of the Subco Preferred Shares and the execution and delivery of this Agreement and, upon issuance the Subco Preferred Shares will have been validly issued, as fully paid and non-assessable shares; (iii) all necessary action of the shareholders of Subco has been taken to authorize the creation of the Subco Preferred Shares and the execution and delivery of this Agreement; (iv) this Agreement has been duly executed and delivered by Subco; (v) the authorization, execution, delivery and performance by Subco of this Agreement and the issuance of the Subco Preferred Shares do not conflict with, and do not result in a breach of, the articles or by-laws of Subco; -28- (vi) the issuance of the Subco Preferred Shares to the Partnership pursuant to the Conversion Inducement Agreement and the distribution of the Subco Preferred Shares to the limited partners of the Partnership are exempt from the registration and prospectus requirements of the Ontario Securities Act; (vii) the acquisition of the Corporation of the Subco Preferred Shares from the Investors does not constitute a "take-over bid" or an "issuer bid" for the purposes of Part XX of the Securities Act (Ontario); and (viii) the issuance of the Subco Preferred Shares to the Partnership pursuant to the Conversion Inducement Agreement and the distribution of the Subco Preferred Shares to the limited partners of the Partnership are not in violation of United States federal securities laws. (d) A favorable written opinion from in-house counsel or any reputable outside counsel to Subco (at Subco's election), dated the Closing Date and satisfactory in scope and substance to the Investors and their counsel, acting reasonably, with respect to the following substantive matters: (i) Subco is duly qualified to carry on business in all jurisdictions in which it currently carries on business, and has all necessary corporate power and authority to carry on its business as aforesaid; and (ii) none of: (A) the authorization, execution, delivery or performance by Subco of this Agreement, including, without limitation, the allotment and issuance of the Subco Preferred Shares; or (B) the issuance of the Subco Preferred Shares as provided herein, (x) will violate the provision of any statute or other rule or regulation of any Governmental Authority or (y) will contravene, result in any breach of or is in conflict with and does not and will not result in a breach of and does not and will not create a state of facts which after notice or lapse of time or both will result in a breach of any of the terms or provisions of the articles or by-laws of Subco. -29- EX-23.1 5 file004.txt CONSENT OF INDEPENDENT ACCOUNTANTS Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Amendment No. 1 to Registration Statement on Form S-3 of our reports dated February 22, 2001 relating to the financial statements and financial statement schedule which appear in Moore Corporation Limited's Annual Report on Form 10-K for the year ended December 31, 2001. We also consent to the reference to us under the heading "Experts" in such Registration Statement. PricewaterhouseCoopers LLP Chartered Accountants Toronto, Canada April 9, 2002 EX-23.2 6 file005.txt INDEPENDENT AUDITORS CONSENT Exhibit 23.2 INDEPENDENT AUDITORS CONSENT We consent to the incorporation by reference in this Amendment No. 1 to Registration Statement on Form S-3 of our reports dated February 13, 2002 appearing in the Annual Report on Form 10-K of Moore Corporation Limited for the year ended December 31, 2001 and to the reference to us under the heading "Experts" in the Prospectus, which is part of such Registration Statement. Deloitte & Touche LLP Chartered Accountants Toronto, Canada April 9, 2002 -----END PRIVACY-ENHANCED MESSAGE-----