Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formality: (a) each outstanding Corporation Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled; (b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and (c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.
Appears in 4 contracts
Sources: Amending Agreement (Brookfield Residential Properties Inc.), Amending Agreement (Brookfield Residential Properties Inc.), Arrangement Agreement (Brookfield Residential Properties Inc.)
Arrangement. Commencing The Plan of Arrangement shall, with such other matters as are necessary to give effect to the Arrangement, provide for substantially the following to occur commencing at the Effective TimeTime and in chronological order, the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formality:
(a1) each Buyco shall acquire all issued and outstanding Corporation Share held by a Dissenting Shareholder shall be deemed Subco-RI Shares from Pubco (the “Purchase Shares”) for consideration of the Purchase Price comprised of the Deposit to be transferred paid on execution of the Arrangement Agreement and the Balance to be paid at Closing;
(2) Buyco and Subco-RI shall exchange securities on a 1:1 basis, as follows:
i. each Buyco Share, other than a Buyco Share for which Dissent Rights have been validly exercised by the holder thereof who is a Dissenting Buyco Shareholder and who is ultimately entitled to be paid fair value for his Buyco Shares, will be exchanged by the Corporation holder thereof without any further act or formality and free and clear of all liens, claims and encumbrances, for one (1) fully paid and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereofnon- assessable Subco-RI Share, and the name of such each holder shall will be removed from the central securities register of holders Buyco and added to the central securities register of Corporation Shares, and such Corporation Shares Subco-RI;
ii. the Buyco Shareholder thereof shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholderdeemed, without any further act action on his or formality on its her part, free to have executed and clear delivered any necessary transfer form, power of all liens, claims attorney or assignment required to transfer his or her Buyco Shares to Subco-RI; and
iii. the certificates representing the Buyco Shares held by the former Buyco Shareholders will be deemed to have been cancelled subsequent to their transfer to Subco-RI and encumbrances, to the Purchaser, will be replaced by a single share certificate registered in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall Subco-RI and Subco-RI will be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall will be deemed to be the legal lawful owner and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear transferee of all lienssuch Buyco Shares; thereafter, claims any director of Subco-RI will be authorized to execute any such further documents and encumbrances, assurances as may be required by any transfer agent or depositary to fully give effect to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, transfer and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.cancellations contemplated hereby;
Appears in 3 contracts
Sources: Arrangement Agreement, Arrangement Agreement, Arrangement Agreement
Arrangement. Commencing Subject to receipt of the Final Order, on the Effective Date, commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur sequentially, in the following sequence order, without any further act or formalityformality required on the part of any Person, except as expressly provided herein, notwithstanding that certain of the procedures related thereto are not completed until after such time:
(a) each outstanding Corporation Pubco Dissenting Share held by a Pubco Dissenting Shareholder in respect of which a Pubco Shareholder has validly exercised his, her or its Pubco Dissent Rights shall be deemed to be transferred by the holder thereof such Pubco Dissenting Shareholder to the Corporation Pubco (free and clear of all liens, claims any Liens of any nature whatsoever) in accordance with and encumbrancesfor the consideration set forth in Article 4 hereof, and each such Pubco Dissenting Shareholder shall cease to have any rights as be a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name holder of such holder Pubco Share and his, her or its name shall be removed from the central securities register of holders Pubco as a holder of Corporation Sharesa Pubco Dissenting Share. Such Pubco Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Pubco Dissenting Shares to Pubco in accordance with this Subsection. Pubco shall be the holder of all of the Pubco Dissenting Shares transferred in accordance with this Subsection and such Corporation Pubco Shares will be cancelled and the central securities register of Pubco shall be cancelledrevised accordingly;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder Pubco shall be transferred and deemed to be transferred by complete the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by BrookfieldPubco Share Consolidation, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco)Pubco Share Amendment; and (iii) Corporation Shares acquired by the Purchaser Pubco Name Change which shall take effect on the date and time that the notice of alteration of Pubco’s articles in respect of the Pubco Share Amendment and the Pubco Name Change is filed with the Registrar;
(c) F▇▇▇▇ and Pubco Subco shall amalgamate to form F▇▇▇▇ Amalco in accordance with and under Section 269 of the BCBCA pursuant to Section 3.1(a))the F▇▇▇▇ Amalgamation Agreement and (i) without limiting the generality of the above, the separate legal existence of F▇▇▇▇ and Pubco Subco shall be transferred and deemed to be transferred by the holder thereof, cease without any further act Pubco Subco being liquidated or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Considerationwound up, and F▇▇▇▇ and Pubco Subco shall continue as one company, F▇▇▇▇ Amalco, under the name terms and conditions prescribed in this Plan of such holder Arrangement; (ii) the property, rights and interests of each of F▇▇▇▇ and Pubco Subco shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed continue to be the legal property, rights and beneficial owner thereof, free and clear interests of any liens, claims or encumbrances.F▇▇▇▇ Amalco;
Appears in 3 contracts
Sources: Arrangement Agreement (Verano Holdings Corp.), Arrangement Agreement (Verano Holdings Corp.), Arrangement Agreement (Verano Holdings Corp.)
Arrangement. Commencing at At the Effective Time, unless otherwise specifically provided in this Section 3.02, the following events or transactions shall occur and shall be deemed to occur sequentially in the following sequence order without any further act or formality:
(a) the Purchaser shall subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when (A) the fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00, and for greater certainty for the purposes of determining variable (A) in relation to the quotient under this Section 3.02(a), the fair market value of the Maximum Purchaser Shares and the Maximum Cash Consideration will be no less than the fair market value of the Class A Shares immediately prior to the acquisition of the Class A Shares by Acquireco pursuant to Section 3.02(k), and in connection with such share subscription:
(i) the Purchaser shall be deemed to have directed the Depositary to hold, and the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser to the Depositary in accordance with Section 3.05(a)(i) (such cash and Purchaser Shares, collectively, the “Purchaser Consideration”) for and on behalf of Acquireco, in satisfaction of the subscription price payable by the Purchaser for such Acquireco Common Shares; and
(ii) Acquireco shall be deemed to have issued such fully paid and non-assessable Acquireco Common Shares to the Purchaser, and the stated capital account maintained by Acquireco in respect of the Acquireco Common Shares shall be increased, in respect of the Acquireco Common Shares issued pursuant to this Section 3.02(a), by an amount equal to the fair market value of the Purchaser Consideration;
(b) notwithstanding any vesting or exercise provisions to which a Company Option might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(i) each In-the-Money Option issued and outstanding Corporation immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such In-the-Money Option, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for the Option Consideration, and the holder of such In-the-Money Option shall become the holder of the Company Shares comprising such Option Consideration and the central securities register of the Company shall be revised accordingly, but the holder of such Option Consideration shall not be entitled to receive a share certificate or other document representing the Option Consideration;
(ii) each Out-of-the-Money Option issued and outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such Out-of-the-Money Option, be cancelled without any payment therefor;
(iii) with respect to each Company Option:
(A) the holder thereof shall cease to be the holder of such Company Option, and shall cease to have any rights as a holder in respect of such Company Option under the applicable Company Option Plan,
(B) such holder’s name shall be removed from the register of Company Options, and
(C) all option agreements, Award Agreements, grants and similar instruments relating thereto shall be cancelled;
(c) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(i) each Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such Company RSU, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for the applicable RSU Consideration, and the holder of such Company RSU shall become the holder of the Company Shares comprising such RSU Consideration and the central securities register of the Company shall be revised accordingly, but the holder of such RSU Consideration shall not be entitled to receive a share certificate or other document representing the RSU Consideration;
(ii) with respect to each Company RSU:
(A) the holder thereof shall cease to be the holder of such Company RSU, and shall cease to have any rights as a holder in respect of such Company RSU under the applicable Company Option Plan,
(B) such holder’s name shall be removed from the register of Company RSUs, and
(C) all Award Agreements, grants and similar instruments relating thereto will be cancelled;
(d) the Company Option Plans shall be terminated;
(e) each Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be transferred be, surrendered to the Company by the holder thereof to the Corporation thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all liens, claims and encumbrancesEncumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder holder of such Company Shares other than a claim against the right to be paid the fair value of their Corporation Shares by the Corporation Company in an amount determined and payable in accordance with Article 4 hereof, and the name of such holder Dissenting Shareholder shall be removed from the securities register of holders of Corporation Company Shares;
(f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders pursuant to Section 3.02(e), the stated capital account maintained by the Company in respect of the Company Shares shall be reduced, in respect of the Company Shares cancelled pursuant to Section 3.02(e), by an amount equal to the product obtained when (A) the stated capital of all the issued and outstanding Company Shares immediately prior to the step in Section 3.02(e), is multiplied by (B) a fraction, the numerator of which is the number of Company Shares surrendered and cancelled pursuant to Section 3.02(e), and the denominator of which is the number of issued and outstanding Company Shares immediately prior to the step in Section 3.02(e);
(g) the Company shall transfer all of its entire legal and beneficial right, title and interest in and to the Spinco Property to Spinco in consideration for the issuance by Spinco to the Company of that number of fully paid and non-assessable Spinco Shares (the “Distribution Spinco Shares”) equal to the number of Company Shares issued and outstanding immediately prior to the transfer in this Section 3.02(g) (for the avoidance of doubt, excluding any Company Shares in respect of which Dissenting Shareholders have exercised Dissent Rights), all in accordance with the terms of the Spinco Contribution Agreement;
(h) in the course of a reorganization of the Company’s authorized and issued share capital:
(i) the notice of articles and articles of the Company shall be amended to create a new class of shares without par value, of which an unlimited number may be issued and which shall be designated the “Class A Shares” (the “Class A Shares”), which shall have the special rights and restrictions set forth in Schedule “A” to this Plan of Arrangement;
(ii) each Company Share issued and outstanding immediately before the reorganization of the Company’s share capital pursuant to this Section 3.02(h) (including, without limitation, the Company Shares issued to former holders of In-the-Money Options and Company RSUs pursuant to Section 3.02(b) and Section 3.02(c), respectively, but excluding any Company Shares surrendered and cancelled in accordance with Section 3.02(e)) shall be exchanged with the Company, free and clear of any Encumbrances, for one Class A Share and one Distribution Spinco Share, and upon such exchange:
(A) each such exchanged Company Share shall be cancelled, and the holders of such exchanged Company Shares shall be removed from the Company’s register of holders of Company Shares;
(B) each holder of such exchanged Company Shares shall be entered in the Company’s register of holders of Class A Shares in respect of the Class A Shares issued to such holder;
(C) the Company shall be removed from the Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares; and
(D) each holder of such exchanged Company Shares shall be entered in Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares exchanged with such holder by the Company;
(iii) concurrently with the exchange in Section 3.02(h)(ii), the stated capital account in respect of the Company Shares shall be reduced by an amount equal to the stated capital of the Company Shares immediately prior to the reorganization in Section 3.02(h), and there shall be added to the stated capital account maintained by the Company in respect of the Class A Shares, in respect of the Class A Shares issued pursuant to Section 3.02(h)(ii), the amount by which (A) the amount by which the stated capital account of the Company Shares is reduced pursuant to this Section 3.02(h)(iii), exceeds (B) the fair market value of the Distribution Spinco Shares transferred to the former holders of Company Shares pursuant to Section 3.02(h)(ii);
(i) the Initial Spinco Share held by the Company shall be cancelled without any repayment thereon, and the Company shall be removed from the Spinco register of holders of Spinco Shares;
(j) all of the issued and outstanding Spinco Shares shall be consolidated (the “Spinco Share Consolidation”) on the basis of one post-consolidation Spinco Share for each eight (8) pre-consolidation Spinco Shares held by a holder of Spinco Shares, and any fractional Spinco Shares resulting from such Corporation Spinco Share Consolidation shall be cancelled without payment or compensation therefor, and upon such Spinco Share Consolidation the register of holders of Spinco Shares shall be cancelledamended to reflect the Spinco Share Consolidation;
(bk) each Qualifying Holdco Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who:
(i) duly and validly completes and delivers the applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive the Combination Consideration in respect of all of such Participating Former Securityholder’s Company Shares;
(ii) has not completed and delivered the applicable Election Form(s) by the Election Deadline or who has otherwise failed to make a valid election to receive the Cash Consideration or the Purchaser Share outstanding held by a Qualifying Holdco Shareholder Consideration is respect of all of such Participating Former Securityholder’s Company Shares; or
(iii) exercises Dissent Rights and is ultimately not entitled, for any reason, to be paid fair value for its Company Shares, shall transfer, and shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholderhave transferred, to Acquireco, without any further act or formality on its partby such Participating Former Securityholder, free and clear of all liensEncumbrances, claims and encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the Purchaser, exchange in accordance with the applicable Holdco Agreement, this Section 3.02(k) in exchange for a payment in cash equal to the Holdco Share ConsiderationCombination Consideration Cash and the Combination Consideration Purchaser Shares, and the name of upon such holder exchange:
(iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Qualifying Holdco Class A Shares,
(v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares maintained as the legal and beneficial owner of such Class A Shares, free of all Encumbrances; and
(vi) each such Participating Former Securityholder shall, subject to the provisions of Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect of the Purchaser Shares payable to such Participating Former Securityholder pursuant to this Section 3.02(k);
(l) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers the applicable Qualifying Holdco, Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive either the Cash Consideration or the Purchaser Share Consideration in respect of all of such Participating Former Securityholder’s Company Shares shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred transfer, and shall be deemed to be the legal and beneficial owner thereofhave transferred, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereofAcquireco, without any further act or formality on its partby such Participating Former Securityholder, free and clear of all liensEncumbrances, claims and encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the Applicable Purchaser, exchange in this Section 3.02(l) in exchange for for:
(i) in the case of a payment in cash equal Participating Former Securityholder validly electing to receive the Cash Consideration, the Cash Consideration, subject to the provisions of Section 3.02(m); and
(ii) in the case of a Participating Former Securityholder validly electing to receive the Purchaser Share Consideration, the Purchaser Share Consideration, subject to the provisions of Section 3.02(n), and the name of upon such holder exchange:
(iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Corporation Class A Shares,
(iv) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the sole legal and beneficial owner of such Class A Shares, free of all Encumbrances; and
(v) each such Participating Former Securityholder shall, with respect to Corporation Shares elected to be transferred subject to the provisions of Section 3.02(m) or Section 3.02(n), as applicable, and Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect of the Purchaser Shares, if any, payable to such Participating Former Securityholder;
(m) in the event that (A) the sum of (I) the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Cash, exceeds (B) the Maximum Cash Consideration, each Participating Former Securityholder who validly elects to receive the Cash Consideration in respect of all of such Participating Former Securityholder’s Company Shares shall, notwithstanding Section 3.02(l)(i):
(i) only be entitled to receive the Cash Consideration for that portion of their Class A Shares equal to a fraction, rounded to six decimal places, the numerator of which is the Maximum Cash Consideration minus the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k), and the denominator of which is the Aggregate Elected Cash; and
(ii) be entitled to receive the Purchaser shall be recorded as Share Consideration for the registered holder remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the Corporation Purchaser Share Consideration for any fractional Class A Share included in such remaining portion);
(n) in the event that (A) the sum of (I) the aggregate Combination Consideration Purchaser Shares so transferred payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Share Consideration, each Participating Former Securityholder who validly elects to receive the Purchaser Share Consideration shall, notwithstanding Section 3.02(l)(ii):
(i) only be entitled to receive the Purchaser Share Consideration for that portion of their Class A Shares equal to a fraction, rounded to six decimal places, the numerator of which is the Maximum Purchaser Share Consideration minus the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k), and the denominator of which is the Aggregate Elected Purchaser Shares; and
(ii) be entitled to receive the Cash Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, any fractional Class A Share included in such remaining portion);
(o) the resignations of the Existing Company Directors, and the appointment of the New Company Directors, shall be deemed to be effective immediately following the legal transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and beneficial owner thereofSection 3.02(l);
(p) upon the resignation of the Existing Company Directors becoming effective, free and clear each Company DSU outstanding immediately prior to the Effective Time shall be cancelled in exchange for a cash payment by the Company to the holder of any liens, claims or encumbrances.such Company DSU
Appears in 3 contracts
Sources: Amending Agreement, Amending Agreement (Klondex Mines LTD), Amending Agreement (Hecla Mining Co/De/)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each outstanding Corporation Share held by a Dissenting Shareholder of the rights thereunder shall be deemed to be transferred cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), each outstanding Silvermex Warrant held by a Silvermex Warrantholder who has delivered an Election Notice prior to the date which is at least two business days before the Effective Date will be exchanged by the holder thereof to the Corporation thereof, without any further act or formality and free and clear of all liens, claims and encumbrances, for a warrant (a “Replacement Warrant”) to purchase a number of First Majestic Shares equal to the product of the Exchange Ratio multiplied by the number of Silvermex Shares issuable on exercise of such Silvermex Warrant for an exercise price per First Majestic Share equal to the Adjusted Exercise Price rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Warrant being exercisable for a fraction of a First Majestic Share, then the number of First Majestic Shares subject to such Replacement Warrant shall be rounded down to the next whole number of First Majestic Shares), and such Silvermex Warrants shall thereupon be cancelled. The term of expiry, conditions to and manner of exercise and other terms and conditions of each Dissenting Shareholder of the Replacement Warrants shall be the same as the terms and conditions of the Silvermex Warrant for which they are exchanged and any certificate previously evidencing the Silvermex Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant. The Replacement Warrants will not be exercisable by or on behalf of a U.S. Person unless an exemption from registration under the U.S. Securities Act and applicable state securities law is available;
(c) five minutes after the steps contemplated in Section 2.3(b), notwithstanding any exercise provisions to which a Silvermex Warrant might otherwise be subject (whether by contract, the conditions of a grant, or applicable law):
(i) the outstanding Silvermex Warrants held by a Silvermex Warrantholder who has not delivered an Election Notice at least two business days prior to the Effective Date will, without any further action by or on behalf of such Silvermex Warrantholder, be deemed to be exercised for the Warrant Consideration, if any, and the Silvermex Shares issuable in connection therewith will be deemed to be issued to such Silvermex Warrantholder as fully paid and non-assessable common shares in the authorized share structure of Silvermex provided that no share certificates shall be issued with respect to such shares; and
(ii) with respect to each Silvermex Warrant, the holder thereof will cease to be the holder of such Silvermex Warrant, will cease to have any rights as a Corporation holder in respect of such Silvermex Warrant, such holder’s name will be removed from the register of Silvermex Warrants, and all agreements, grants and other similar instruments relating thereto will be cancelled;
(d) concurrent with the steps contemplated in Section 2.3(c), notwithstanding any vesting or exercise provisions to which a Silvermex Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Silvermex Stock Option Plans):
(i) the outstanding Silvermex Options will, without any further action by or on behalf of any holder of such Silvermex Options, be deemed to be fully vested and exercised in exchange for the Option Consideration, if any, and the Silvermex Shares issuable in connection therewith will be deemed to be issued to such Silvermex Optionholder as fully paid and non-assessable common shares in the authorized share structure of Silvermex provided that no share certificates shall be issued with respect to such shares;
(ii) with respect to each Silvermex Option, the holder thereof will cease to be the holder of such Silvermex Option, will cease to have any rights as a holder in respect of such Silvermex Option, such holder will be removed from the register of Silvermex Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(iii) the Silvermex Stock Option Plans shall be terminated;
(e) five minutes after the steps contemplated in Section 2.3(d), each Silvermex Share held by a Dissenting Shareholder in respect of which the Silvermex Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(f) five minutes after the steps contemplated in Section 2.3(e), each Silvermex Share (other than the right any Silvermex Share held by any Dissenting Shareholder but including, for greater certainty, any Silvermex Shares issued pursuant to Section 2.3(c) or Section 2.3(d)) shall be deemed to be paid transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the fair value of their Corporation Shares by the Corporation Share Consideration; and
(g) with respect to each Silvermex Share transferred and assigned in accordance with Article 4 hereof, Section 2.3(e) or Section 2.3(f):
(i) the registered holder thereof shall cease to be the registered holder of such Silvermex Share and the name of such registered holder shall be removed from the register of holders Silvermex Shareholders as of Corporation Shares, and such Corporation Shares shall be cancelledthe Effective Time;
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and thereof shall be deemed to be the legal have executed and beneficial owner thereofdelivered all consents, free releases, assignments and clear of any lienswaivers, claims statutory or encumbrancesotherwise, required to transfer and assign such Silvermex Share; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall First Majestic will be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims of the outstanding Silvermex Shares and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser Silvermex Shareholders shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesrevised accordingly.
Appears in 3 contracts
Sources: Arrangement Agreement (Silvermex Resources Inc), Arrangement Agreement (Silvermex Resources Inc), Memorandum of Agreement (First Majestic Silver Corp)
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur occur, and shall be deemed to occur in the following sequence as set out below, without any further authorization, act or formality, in each case, effective as at ten second intervals starting at the Effective Time, except as expressly provided herein:
(a) each outstanding Corporation Share of the GTI Shares held by a Dissenting Shareholder Holders in respect of which Dissent Rights have been validly exercised shall be deemed to be have been transferred by the holder thereof without any further act or formality to the Corporation GTI (free and clear of all liens, claims and encumbrancesLiens), and each acquired and cancelled by GTI, in accordance with, and for the consideration contemplated in, Article 3, and:
(i) such Dissenting Shareholder Holders shall cease to be the holders of such GTI Shares and to have any rights as a Corporation Shareholder holders of such GTI Shares other than the right to be paid the fair value of their Corporation for such GTI Shares by the Corporation as set out in accordance with Article 4 hereof, and the name of Section 3.1;
(ii) such holder Dissenting Holders’ names shall be removed as the holders of such GTI Shares from the register registers of holders GTI Shares maintained by or on behalf of Corporation SharesGTI; and
(iii) GTI shall be deemed to be the transferee of such GTI Shares free and clear of all Liens, and such Corporation Shares GTI shall be cancelledentered in the registers of GTI Shares maintained by or on behalf of GTI, as the holder of such GTI Shares;
(b) each Qualifying Holdco Share outstanding of the Yooma Shares held by a Qualifying Holdco Shareholder Dissenting Holders in respect of which Dissent Rights have been validly exercised shall be transferred and deemed to be have been transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, to Yooma (free and clear of all liensLiens), claims and encumbrances, to the Purchaseracquired and cancelled by ▇▇▇▇▇, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Considerationwith, and for the name consideration contemplated in, Article 3, and:
(i) such Dissenting Holders shall cease to be the holders of such holder Yooma Shares and to have any rights as holders of such Yooma Shares other than the right to be paid fair value for such Yooma Shares as set out in Section 3.1;
(ii) such Dissenting Holders’ names shall be removed as the holders of such ▇▇▇▇▇ ▇▇▇▇▇▇ from the register registers of holders ▇▇▇▇▇ ▇▇▇▇▇▇ maintained by or on behalf of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and ▇▇▇▇▇; and
(iii) Yooma shall be deemed to be the legal and beneficial owner thereof, free and clear transferee of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, ▇▇▇▇▇ ▇▇▇▇▇▇ free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the ConsiderationLiens, and ▇▇▇▇▇ shall be entered in the name registers of ▇▇▇▇▇ ▇▇▇▇▇▇ maintained by or on behalf of ▇▇▇▇▇, as the holder of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.▇▇▇▇▇ ▇▇▇▇▇▇;
Appears in 2 contracts
Sources: Arrangement Agreement, Arrangement Agreement
Arrangement. Commencing at the Effective TimeTime on the Effective Date, each of the following events or transactions set out below shall occur and shall be deemed to occur sequentially in the following sequence order without any further authorization, act or formalityformality of or by the Company, the Purchaser or any other person:
(a) each Company RSU that is outstanding Corporation immediately prior to the Effective Time, whether vested or unvested, shall and shall be deemed to unconditionally and immediately vest in accordance with the terms of the Company RSU Plan and shall be settled by the Company at the Effective Time in exchange for one Company Share, less applicable withholdings pursuant to Section 6.04, and each Company RSU Holder shall be entered in the register of the Company Shareholders maintained by or on behalf of Company as the holder of such Company Shares and such Company Shares shall be deemed to be issued to such Company RSU Holder as fully paid and non-assessable shares in the capital of the Company, provided that no certificates or DRS statements shall be issued with respect to such Company Shares, and each such Company RSU shall be immediately cancelled and the holders of such Company RSUs shall cease to be holders thereof and to have any rights as holders of Company RSUs. Each Company RSU Holder's name shall be removed from the register of Company RSUs maintained by or on behalf of the Company and all agreements relating to the Company RSUs shall be terminated and shall be of no further force and effect;
(b) each Company Share held by a Dissenting Shareholder Company Shareholder, who has validly exercised their Dissent Rights and which Dissent Rights remain valid immediately prior to the Effective Time, shall be, and shall be deemed to be be, transferred by the holder thereof to the Corporation thereof, free and clear of all liensLiens, claims to the Company for the amount therefor determined and encumbrancespayable under ARTICLE Four hereof, and: (i) the name of such Dissenting Company Shareholder shall be removed from the register of the Company Shareholders maintained by or on behalf of the Company and each such Company Share shall be cancelled and cease to be outstanding; and (ii) such Dissenting Company Shareholder shall cease to be the holder of each such Company Share and to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value for each such Company Share as set out in ARTICLE Four;
(c) each Company Share (including Company Shares issued pursuant to Section 3.01(a), but excluding any Company Shares held by a Dissenting Company Shareholder or the Purchaser or any subsidiary of their Corporation Shares the Purchaser) shall be, and shall be deemed to be, transferred by the Corporation holder thereof, free and clear of all Liens, to the Purchaser and, in consideration therefor, the Purchaser shall issue the Share Consideration for each Company Share, subject to Section 3.03 and ARTICLE Six, and: (i) the holders of such Company Shares shall cease to be the holders of such Company Shares and to have any rights as holders of such Company Shares, other than the right to be issued the Share Consideration by the Purchaser in accordance with Article 4 hereof, and the name this Plan of Arrangement; (ii) such holder holders' names shall be removed from the register of holders the Company Shareholders maintained by or on behalf of Corporation Sharesthe Company; and (iii) the Purchaser shall be, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by be, the Qualifying Holdco Shareholder, without any further act or formality on its parttransferee of such Company Shares, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share ConsiderationLiens, and the name of such holder shall be removed from entered in the register of holders of Qualifying Holdco Shares the Company Shareholders maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded Company as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancessuch Company Shares; and
(cd) each Corporation Share Company Option outstanding (other than (i) Corporation Shares held by Brookfieldimmediately prior to the Effective Time, the Purchaser whether vested or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a))unvested, shall be transferred to the Purchaser and deemed to be transferred by the holder thereofthereof shall receive in consideration therefor an option (each, without any further act or formality on its part, free and clear a "Replacement Option") to purchase from the Purchaser such number of all liens, claims and encumbrances, Purchaser Shares (rounded down to the Applicable Purchaser, in exchange for a payment in cash nearest whole number) equal to: (A) the Exchange Ratio; multiplied by (B) the number of Company Shares subject to such Company Option immediately prior to the ConsiderationEffective Time, and at an exercise price per Purchaser Share (rounded up to the name nearest whole cent) equal to: (M) the exercise price per Company Share otherwise purchasable pursuant to such Company Option immediately prior to the Effective Time; divided by (N) the Exchange Ratio, exercisable until the original expiry date of such holder shall Company Option. Except as set out above, all other terms and conditions of each Replacement Option, including the vesting terms and conditions to and manner of exercising, will be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded same as the registered holder of the Corporation Shares Company Option so transferred exchanged, and shall be governed by the terms of the Company Option Plan, and any document evidencing a Company Option shall thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing Replacement Options shall be issued. It is intended that the legal provisions of subsection 7(1.4) of the Tax Act (and beneficial owner thereof, free and clear any corresponding provisions of any liensapplicable provincial or territorial law) apply to the exchange of Company Options provided for in this Section 3.01(d). As a result, claims or encumbrancesin the event that the Replacement Option In-The-Money Amount in respect of a Replacement Option exceeds the Company Option In-The-Money Amount in respect of a Company Option, the exercise price per Purchaser Share of such Replacement Option will be increased accordingly with effect at and from the Effective Time by the minimum amount necessary to ensure that the Replacement Option In-The-Money Amount in respect of a Replacement Option does not exceed the Company Option In-The-Money Amount in respect of a Company Option. The exchanges, transfers and cancellations provided for in this Section 3.01 will be deemed to occur on the Effective Date, notwithstanding that certain of the procedures related thereto are not completed until after the Effective Date.
Appears in 2 contracts
Sources: Arrangement Agreement (Integra Resources Corp.), Arrangement Agreement (Integra Resources Corp.)
Arrangement. Commencing at the Effective Time, in five minute increments each of the following events or transactions shall occur and shall be deemed to occur consecutively in the following sequence order, except where noted, without any further authorization, act or formality:
(a) Each Dissent Share shall be deemed to be transferred and assigned by such Dissenting Shareholder, without any further act of formality on its part, to Newmont (free and clear of any Liens) in accordance with, and for the consideration contemplated in, Article 4 and:
(i) such Dissenting Shareholder shall cease to be, and shall be deemed to cease to be, the registered holder of each outstanding Corporation such Dissent Share held by a and the name of such registered holder shall be, and shall be deemed to be, removed from the register of Goldcorp Shareholders in respect of each such Dissent Share, and at such time each Dissenting Shareholder will have only the rights set out in Section 4.1;
(ii) such Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Dissent Share; and
(iii) Newmont shall be transferred by and shall be deemed to be the holder thereof to of all of the Corporation outstanding Dissent Shares (free and clear of all liens, claims Liens) and encumbrancesthe central securities register of Goldcorp shall be, and each Dissenting Shareholder shall be deemed to be, revised accordingly.
(b) Each Goldcorp Option outstanding at the Effective Time (whether vested or unvested), notwithstanding the terms of the Goldcorp Option Plan, shall be, and shall be deemed to be, unconditionally vested and exercisable, and such Goldcorp Option shall, without any further action by or on behalf of the holder of such Goldcorp Option, be deemed to be assigned and transferred by such holder to Goldcorp in exchange for a cash payment from Goldcorp equal to the Black Scholes Amount in respect of such Goldcorp Option, and
(i) the holder thereof shall cease to have any rights as a Corporation Shareholder other than be, and shall be deemed to cease to be, the right to be paid the fair value holder of their Corporation Shares by the Corporation in accordance with Article 4 hereof, such Goldcorp Option and the name of such holder shall be, and shall be deemed to be, removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained Goldcorp Options in respect of such Goldcorp Option; and
(ii) the applicable Qualifying Holdco, Goldcorp Option Plan and all agreements relating to the Purchaser Goldcorp Options shall be recorded as terminated and shall be of no further force and effect.
(c) Each Goldcorp Share outstanding immediately prior to the registered holder Effective Time (other than any Goldcorp Share held by Newmont or any of the Qualifying Holdco Shares so transferred and its affiliates (including all Dissent Shares)) shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred assigned by the holder thereof, without any further act or formality on its part, to Newmont (free and clear of any Liens) in exchange for the Consideration, subject to Sections 3.2 and 5.3, and
(i) the registered holder thereof shall cease to be, and shall be deemed to cease to be, the registered holder of each such Goldcorp Share and the name of such registered holder shall be, and shall be deemed to be, removed from the register of Goldcorp Shareholders;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Goldcorp Share; and
(iii) Newmont shall be and shall be deemed to be the holder of all of the outstanding Goldcorp Shares (free and clear of all liensLiens) and the central securities register of Goldcorp shall be, claims and encumbrancesshall be deemed to be, revised accordingly.
(d) Each Goldcorp Phantom RSU that is outstanding immediately prior to the Applicable PurchaserEffective Time shall remain outstanding on its existing terms, and notwithstanding anything to the contrary in exchange any applicable grant letter, employment agreement or other document governing, or any resolution or determination of the Goldcorp Board (or any committee thereof) in respect of, the Goldcorp Phantom RSU Plan or any Goldcorp Phantom RSUs, pursuant to the determination of the Committee (as defined therein) pursuant to Section 5.6(a)(i) of the Arrangement Agreement, the “Share Value” (as defined in the Goldcorp Phantom RSU Plan) shall mean the product obtained by multiplying (A) the trading price of a Newmont Share on the NYSE at the close of business on the date of expiry of the Restricted Period (as defined in the Goldcorp Phantom RSU Plan), by (B) the Equity Award Exchange Ratio.
(e) Each Goldcorp PSU that is outstanding immediately prior to the Effective Time shall remain outstanding on its existing terms, and notwithstanding anything to the contrary in any applicable PSU Agreement (as defined in the Goldcorp PSU Plan), employment agreement or other document governing, or any resolution or determination of the Goldcorp Board (or any committee thereof) in respect of, the Goldcorp PSU Plan or any Goldcorp PSUs:
(i) the Multiplier (as defined in the Goldcorp PSU Plan) for each Goldcorp PSU shall be deemed to be 100 per cent; and
(ii) pursuant to the determination of the Board (as defined therein) pursuant to Section 5.6(a)(ii) of the Arrangement Agreement, “Fair Market Value” (as defined in the Goldcorp PSU Plan) shall mean, on a particular day, the product obtained by multiplying (A) the volume weighted average price of the Newmont Shares on the NYSE for the 30 trading day period prior to and including the particular day, by (B) the Equity Award Exchange Ratio.
(f) Each Goldcorp RSU that is outstanding immediately prior to the Effective Time shall be deemed to be exchanged by the holder thereof in accordance with subsection 7(1.4) of the Tax Act, without any further act of formality on its part, for a payment Replacement RSU that has the same vesting conditions as the Goldcorp RSU for which it was exchanged and that entitles the holder thereof to receive, upon vesting thereof and in cash accordance with the terms of the Newmont Incentive Plan, a number of Newmont Shares equal to the Considerationproduct obtained by multiplying (A) the applicable number of Goldcorp Shares covered by such Goldcorp RSU immediately prior to the Effective Time by (B) the Equity Award Exchange Ratio; provided that any fraction of a Newmont Share that such holder would be entitled to receive (after aggregating all Newmont Shares issuable to such holder in respect of all such holder’s Replacement RSUs that vest on a particular date date) shall be rounded down to the nearest whole number, and:
(i) the holder thereof shall cease to be, and shall be deemed to cease to be, the holder of each such Goldcorp RSU and the name of such holder shall be, and shall be deemed to be, removed from the register of holders Goldcorp RSUs in respect of Corporation Shares, and, with respect to Corporation Shares elected to be transferred each such Goldcorp RSU;
(ii) the Goldcorp RSU Plan and all agreements relating to the Purchaser, the Purchaser Goldcorp RSUs shall be recorded as the registered holder of the Corporation Shares so transferred terminated and shall be of no further force and effect;
(iii) notwithstanding the foregoing, if required, the number of Newmont Shares to which a former holder of a Goldcorp RSU will be entitled under the Replacement RSU will be reduced such that (i) the excess (if any) of the aggregate fair market value of the Newmont Shares underlying such holder’s Replacement RSU immediately following the exchange over the aggregate exercise price (if any) of such Replacement RSU does not exceed (ii) the excess (if any) of the aggregate fair market value of the Goldcorp Shares underlying the holder’s corresponding Goldcorp RSU immediately before the exchange over the aggregate exercise price (if any) of such Goldcorp RSU; and
(iv) the Committee (as defined in the Newmont Incentive Plan) irrevocably elects to settle all Replacement RSUs solely in consideration for Newmont Shares, the Award Agreement (as defined in the Newmont Incentive Plan) in respect of each such Replacement RSU will, and will be deemed to, provide that the Committee (as defined in the Newmont Incentive Plan) shall not have the discretion to pay cash in settlement of any Replacement RSU (notwithstanding the terms of the Newmont Incentive Plan), and such Replacement RSUs are, and are deemed to be, a right to acquire Newmont Shares (subject to the terms and conditions of the Replacement RSU and the Newmont Incentive Plan). The events provided for in this Section 3.1 will be deemed to occur on the legal and beneficial owner thereofEffective Date, free and clear of any liens, claims or encumbrancesnotwithstanding that certain procedures related thereto may not be completed until after the Effective Date.
Appears in 2 contracts
Sources: Arrangement Agreement (Goldcorp Inc), Arrangement Agreement (Newmont Mining Corp /De/)
Arrangement. Commencing at 3.1 At the Effective Time, each of the following events or transactions set out below shall occur and shall be deemed to occur in the following sequence sequence, without any further act or formality, unless specifically noted:
(a) notwithstanding the terms of the Agrium Shareholder Rights Plan, the Agrium Shareholder Rights Plan shall be terminated and all rights issued pursuant to the Agrium Shareholder Rights Plan, if any, shall be cancelled without any payment in respect thereof;
(b) subject to Section 5.1:
(i) each outstanding Corporation Share of the PCS Shares held by a Dissenting Shareholder PCS Shareholders shall be deemed to be transferred by the holder thereof to the Corporation PCS (free and clear of all liens, claims and encumbrancesany Encumbrances) for cancellation without any further act or formality in exchange for a debt claim against PCS in the amount equal to the fair value for such PCS Shares as set out in Section 5.1, and such Dissenting PCS Shareholders shall cease to be the holders of such PCS Shares and to have any rights as holders of such PCS Shares; and
(ii) concurrently with the transfer in Section 3.1(b)(i), each of the Agrium Shares held by Dissenting Agrium Shareholders shall be deemed to be transferred to Agrium (free and clear of any Encumbrances) for cancellation without any further act or formality in exchange for a debt claim against Agrium in the amount equal to the fair value for such Agrium Shares as set out in Section 5.1, and such Dissenting Agrium Shareholders shall cease to be the holders of such Agrium Shares and to have any rights as holders of such Agrium Shares;
(c) each Elected PCS Share shall be, and shall be deemed to be, transferred to and acquired by New Parent (free and clear of any Encumbrances) solely in exchange for the issuance by New Parent to the holder thereof of such number of fully paid and non-assessable New Parent Shares equal to the PCS Exchange Ratio, and:
(i) such PCS Shareholder shall cease to be the holder of such Elected PCS Share and to have any rights as a Corporation Shareholder holder of such Elected PCS Share other than the right to be paid the fair value of their Corporation New Parent Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;pursuant to this Section 3.1(c); and
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder New Parent shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholderbe, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be be, the legal and beneficial owner thereof, transferee of such PCS Share (free and clear of any liens, claims or encumbrances; andEncumbrances);
(cd) concurrently with the transfer in Section 3.1(c), each Corporation PCS Share outstanding (other than (i) Corporation Elected PCS Shares or PCS Shares held by BrookfieldNew Parent) shall be, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal be, transferred to and beneficial owner thereof, acquired by PCS AcquisitionCo (free and clear of any liensEncumbrances) solely in exchange for the issuance by New Parent to the holder thereof of such number of fully paid and non-assessable New Parent Shares equal to the PCS Exchange Ratio, claims and:
(i) such PCS Shareholder shall cease to be the holder of such PCS Share and to have any rights as a holder of such PCS Share other than the right to the New Parent Shares pursuant to this Section 3.1(d); and
(ii) PCS AcquisitionCo shall be, and shall be deemed to be, the transferee of such PCS Share (free and clear of any Encumbrances);
(e) concurrently with the transfers in Sections 3.1(c) and 3.1(d), each Elected Agrium Share shall be, and shall be deemed to be, transferred to and acquired by New Parent (free and clear of any Encumbrances) solely in exchange for the issuance by New Parent to the holder thereof of such number of fully paid and non-assessable New Parent Shares equal to the Agrium Exchange Ratio, and:
(i) such Agrium Shareholder shall cease to be the holder of such Elected Agrium Share and to have any rights as a holder of such Elected Agrium Share other than the right to the New Parent Shares pursuant to this Section 3.1(e); and
(ii) New Parent shall be, and shall be deemed to be, the transferee of such Elected Agrium Share (free and clear of any Encumbrances);
(f) concurrently with the transfers in Sections 3.1(c), 3.1(d) and 3.1(e), each Agrium Share (other than Elected Agrium Shares or encumbrancesAgrium Shares held by New Parent) shall be, and shall be deemed to be, transferred to and acquired by Agrium AcquisitionCo (free and clear of any Encumbrances) solely in exchange for the issuance by New Parent to the holder thereof of such number of fully paid and non-assessable New Parent Shares equal to the Agrium Exchange Ratio, and:
(i) such Agrium Shareholder shall cease to be the holder of such Agrium Share and to have any rights as a holder of such Agrium Share other than the right to the New Parent Shares pursuant to this Section 3.1(f); and
(ii) Agrium AcquisitionCo shall be, and shall be deemed to be, the transferee of such Agrium Share (free and clear of any Encumbrances);
(g) concurrently with the transfers in Sections 3.1(c), 3.1(d), 3.1(e) and 3.1(f), the New Parent Initial Shares shall be cancelled without any payment in respect thereof;
(h) concurrently with the transfer in Section 3.1(d), PCS AcquisitionCo will issue to New Parent as consideration for the New Parent Shares transferred to PCS Shareholders pursuant to Section 3.1(d) an equal number of PCS AcquisitionCo Shares;
(i) concurrently with the transfer in Section 3.1(f), Agrium AcquisitionCo will issue to New Parent as consideration for the New Parent Shares transferred to Agrium Shareholders pursuant to Section 3.1(f) an equal number of Agrium AcquisitionCo Shares;
(j) each PCS Share held by New Parent shall be, and shall be deemed to be, transferred to and acquired by PCS AcquisitionCo in consideration for such number of PCS AcquisitionCo Shares equal to the number of New Parent Shares issued in exchange for the PCS Share, and as it is intended that such transfer occur on a tax-deferred basis for Canadian Income Tax purposes, New Parent and PCS AcquisitionCo shall execute and file a joint election under section 85 of the Tax Act (and any analogous provision of applicable provincial Income Tax legislation) in respect of such transfer; and
(k) concurrently with the transfer in Section 3.1(j), each Agrium Share held by New Parent shall be, and shall be deemed to be, transferred to and acquired by Agrium AcquisitionCo in consideration for such number of Agrium AcquisitionCo Shares equal to the number of New Parent Shares issued in exchange for the Agrium Share, and, as it is intended that such transfer occur on a tax-deferred basis for Canadian Income Tax purposes, New Parent and Agrium AcquisitionCo shall execute and file a joint election under section 85 of the Tax Act (and any analogous provision of applicable provincial Income Tax legislation) in respect of such transfer.
Appears in 2 contracts
Sources: Arrangement Agreement (Potash Corp of Saskatchewan Inc), Arrangement Agreement (Agrium Inc)
Arrangement. Commencing at the Effective Time, each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case, effective as at two-minute intervals starting at the Effective Time, except as indicated otherwise:
(a) each Company Common Share and Company Proportionate Voting Share outstanding Corporation immediately prior to the Effective Time held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred (free and clear of all Liens), without any further act or formality by or on behalf of any Dissenting Shareholder, to the Company for cancellation, in consideration for a debt claim against the Company (which shall be paid solely with Company funds not directly or indirectly provided by Purchaser or its affiliates) for the amount determined under Article 3, and:
(i) such Dissenting Shareholder shall cease to be the registered holder of such Company Common Share or Company Proportionate Voting Share, as applicable, and to have any rights as a Company Shareholder other than the right to be paid fair value for such Company Common Share or Company Proportionate Voting Share, as applicable, set out in Section 3.1;
(ii) such Dissenting Shareholder’s name shall be removed as the registered holder of Company Common Shares or Company Proportionate Voting Shares, as applicable, from the applicable register of Company Shareholders maintained by or on behalf of the Company;
(b) each Company Proportionate Voting Share outstanding immediately prior to the Effective Time (other than a Company Proportionate Voting Share held by a Dissenting Shareholder shall in respect of which Dissent Rights have been validly exercised under Section 2.3(a)) shall, without any further action by or on behalf of such Company Proportionate Voting Shareholder, be deemed to be converted by the holder thereof for 100 Company Common Shares per Company Proportionate Voting Share in accordance with the terms of the Company Proportionate Voting Shares, and:
(i) the registered holder of such Company Proportionate Voting Share shall cease to be the registered holder thereof;
(ii) the name of each such registered holder shall be removed from the register of the Company Proportionate Voting Shareholders maintained by or on behalf of the Company; and
(iii) the name of each such registered holder shall be added to the register of the Company Common Shareholders maintained by or on behalf of the Company;
(c) each Company Common Share outstanding immediately following the step set forth in Section 2.3(b), including, for greater certainty, the Company Common Shares issued upon conversion of the Company Proportionate Voting Shares pursuant to the step set forth in Section 2.3(b) (other than a Company Common Share held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised under Section 2.3(a) and Company Common Shares held by any Electing Company Shareholder in respect of which such Electing Company Shareholder has validly elected to transfer such Company Common Shares directly to the Purchaser) shall, without any further action by or on behalf of such Company Shareholder, be deemed to be assigned and transferred by the holder thereof to AcquisitionCo solely in exchange for the Corporation free and clear issuance by the Purchaser to the holder thereof of all liensthe Consideration, claims and encumbrances, and and:
(i) each Dissenting Shareholder registered holder of such Company Common Shares shall cease to be the registered holder thereof and to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation Consideration pursuant to this Section 2.3(c) and in accordance with Article 4 hereof, and this Plan of Arrangement;
(ii) the name of each such registered holder shall be removed from the register of holders the Company Shareholders maintained by or on behalf of Corporation Shares, and such Corporation Shares the Company; and
(iii) AcquisitionCo shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, transferee of such Company Common Shares free and clear of all liensLiens and shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company;
(d) concurrently with the transfer in Section 2.3(c), claims AcquisitionCo will issue to the Purchaser as consideration for the Purchaser Subordinate Voting Shares issued to Company Shareholders pursuant to such Section 2.3(c) an equal number of AcquisitionCo Shares;
(e) concurrently with the transfer in Section 2.3(c), each Company Common Share outstanding immediately prior to the Effective Time and encumbranceseach Company Common Share acquired by a Company Shareholder pursuant to the step set forth in Section 2.3(b) that is, in each case, held by an Electing Company Shareholder that has validly elected to transfer such Company Common Shares directly to the Purchaser, shall, without any further action by or on behalf of such Electing Company Shareholder, be deemed to be assigned and transferred by the holder thereof to the Purchaser solely in exchange for the issuance by the Purchaser to the holder thereof of the Consideration, and:
(i) each registered holder of such Company Common Shares shall cease to be the registered holder thereof and to have any rights as a Company Shareholder other than the right to be paid the Consideration pursuant to this Section 2.3(e) and in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and this Plan of Arrangement;
(ii) the name of each such registered holder shall be removed from the register of holders of Qualifying Holdco Shares the Company Shareholders maintained in respect by or on behalf of the applicable Qualifying Holdco, and Company; and
(iii) the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, transferee of such Company Common Shares free and clear of any liens, claims all Liens and shall be entered in the register of the Company Shareholders maintained by or encumbrances; andon behalf of the Company;
(cf) each Corporation Company Common Share held by the Purchaser immediately following the step described in Section 2.3(e) shall be, and shall be deemed to be, transferred to and acquired by AcquisitionCo in consideration for such number of AcquisitionCo Shares equal to the number of Purchaser Subordinate Voting Shares issued in exchange for the Company Common Share, and, as it is intended that such transfer occur on a tax-deferred basis for Canadian income tax purposes, the Purchaser and AcquisitionCo shall execute and file a joint election under Section 85 of the Tax Act (and any analogous provision of applicable provincial income tax legislation) in respect of such transfer;
(g) each Company Option outstanding at the Effective Time (whether vested or unvested) will cease to represent an option or other than right to acquire Company Common Shares and will be exchanged for a Replacement Option to acquire such number of Purchaser Subordinate Voting Shares as is equal to: (A) that number of Company Common Shares that were issuable upon exercise of such Company Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number of Purchaser Subordinate Voting Shares, at an exercise price per Purchaser Subordinate Voting Share equal to the quotient determined by dividing: (X) the exercise price per Company Common Share at which such Company Option was exercisable immediately prior to the Effective Time, by (Y) the Exchange Ratio rounded up to the nearest whole cent. All terms and conditions of a Replacement Option, including the term to expiry, vesting, conditions to and manner of exercising, shall be the same as the Company Option for which it was exchanged, and any certificate or option agreement previously evidencing the Company Option shall thereafter evidence and be deemed to evidence such Replacement Option. Notwithstanding any of the foregoing, in respect only of Company Optionholders, if any, whom are resident in Canada (within the meaning of the Tax Act) or whom received their Company Options in respect of the performance of duties of an office or employment in Canada (for the purposes of the Tax Act), it is intended that the provision of subsection 7(1.4) of the Tax Act apply to the exchange of a Company Option for a Replacement Option, and accordingly, in respect only of such Company Optionholders, in the event that the Replacement Option In-The-Money Amount (for greater certainty, otherwise determined without regard to this sentence of Section 2.3(g)) in respect of a Replacement Option exceeds the Company Option In-The-Money Amount in respect of the Company Option for which it is exchanged, then the exercise price per Purchaser Subordinate Voting Share of such Replacement Option will be increased accordingly with the effect at and from the time of this step set forth in this Section 2.3(g) by the minimum amount necessary to ensure that the Replacement Option In-The-Money Amount (for greater certainty, otherwise determined without regard to this sentence of this Section 2.3(g)) in respect of the Replacement Option does not exceed the Company Option In-The-Money Amount in respect of such Company Option. It is further intended that each Company Option that is held by a holder who is subject to taxation in the United States will be exchanged for a Replacement Option in a manner compliant with Section 409A of the Code and further that if such Company Option is an “incentive stock option” (as defined in Section 422 of the Code) in a manner compliant with Section 424 of the Code, and this Section 2.3(g) will be construed consistently with such intent;
(h) each Company RSU held by Company RSU Holders will be exchanged for a Replacement RSU and upon vesting thereof on or after the Effective Time, each such former Company RSU Holder shall accept the Consideration in lieu of each Company Common Share to which such holder was theretofore entitled upon such vesting, and all other terms and conditions of any Replacement RSU, including term to expiry, vesting and conditions to vesting, shall be the same as the Company RSU so exchanged (as may have been amended from time to time), provided however that notwithstanding anything to the contrary in the Company RSU, the Company RSU Holder shall be permitted as a matter of right (and without requiring Company approval) to satisfy any tax withholding obligations upon settlement of the RSU by reducing the number of shares otherwise deliverable under the Company RSU;
(i) Corporation Shares each Company PSU held by BrookfieldCompany PSU Holders will be exchanged for a Replacement PSU and upon vesting thereof on or after the Effective Time, each such former Company PSU Holder shall accept the Consideration in lieu of each Company Common Share to which such holder was theretofore entitled upon such vesting, and all other terms and conditions of any Replacement PSU, including term to expiry, vesting and conditions to vesting, shall be the same as the Company PSU so exchanged (as may have been amended from time to time), provided however that notwithstanding anything to the contrary in the Company PSU, the Purchaser Company PSU Holder shall be permitted as a matter of right (and without requiring Company approval) to satisfy any tax withholding obligations upon settlement of the PSU by reducing the number of shares otherwise deliverable under the Company PSU;
(j) the Company will reduce its stated capital and paid-up capital to $1, without any payment to its shareholders;
(k) the Company and AcquisitionCo will amalgamate to continue as one corporate entity (as so amalgamated, “Amalco”) with the same effect as if they had amalgamated under Section 276 of the BCBCA (the “Amalgamation”) except that the legal existence of the Company shall not cease and the Company shall survive the Amalgamation as Amalco and the separate legal existence of AcquisitionCo shall cease on the Amalgamation without AcquisitionCo being liquidated or wound up and the Company and AcquisitionCo shall continue as one company. Amalco will be a limited liability company. The Amalgamation is intended to qualify as an amalgamation as defined in subsections 87(1) and 87(11) of the Tax Act. From and after the Amalgamation:
(i) the name of Amalco will be [•], as will be set out in the notice of articles of Amalco;
(ii) the shareholders of Amalco will have the powers and the liability provided in the BCBCA;
(iii) the property, rights and interests of each of the Company and AcquisitionCo will continue to be the property, rights and interests of Amalco, and the Amalgamation will not constitute an assignment by operation of Law, a transfer or any other disposition of the property, rights and interests of either of the Company or AcquisitionCo to Amalco;
(iv) Amalco will continue to be liable for the obligations of each of the Company and AcquisitionCo;
(v) any legal proceedings being prosecuted or pending by or against the Company or AcquisitionCo is unaffected by the Amalgamation and every such legal proceeding may be prosecuted, or their affiliates (which shall not prosecution may be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliatecontinued, as the case may be); , by or against Amalco;
(iivi) Corporation Shares any existing cause of action, claim or liability to prosecution against either the Company or AcquisitionCo will be unaffected;
(vii) a conviction against, or a ruling, order or judgment in favour of or against, either the Company or AcquisitionCo may be enforced by or against Amalco;
(viii) the initial directors of Amalco will be [•], [•] and [•] immediately prior to the Amalgamation, as to be set out in the notice of articles of Amalco;
(ix) the notice of articles and articles of Amalco will be the notice of articles and articles of the Company immediately prior to the Amalgamation, other than to reflect step 2.3(k)(i) above and the registered and records office of Amalco will be the registered and records office of the Company immediately prior to the Amalgamation;
(x) each AcquisitionCo Share held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not a holder thereof will be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, cancelled and the holder’s name of such holder shall will be removed from the register of holders of Corporation AcquisitionCo Shares, and in consideration therefor, the holder thereof will receive a fully-paid and non-assessable Amalco Share on the basis of one Amalco Share for each AcquisitionCo Share, and the registered holder thereof will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to exchange such AcquisitionCo Shares in accordance with this Plan of Arrangement;
(xi) all of the issued and outstanding Company Common Shares will be cancelled without any repayment of capital in respect thereof; and
(xii) the capital of the Amalco Shares will be an amount equal to the paid up capital, with respect as that term is defined in the Tax Act, attributable to Corporation the AcquisitionCo Shares elected immediately prior to the Amalgamation;
(l) each CCLLC Membership Interest held by Amalco shall be, and shall be deemed to be, transferred to and acquired by HoldingCo in consideration for the HoldingCo Consideration, and:
(i) Amalco shall cease to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of CCLLC Membership Interests and to have any rights as a CCLLC Member other than the Corporation Shares so transferred right to the HoldingCo Consideration pursuant to this Section 2.3(l) and in accordance with this Plan of Arrangement;
(ii) the name of Amalco shall be removed from the register of the CCLLC Members maintained by or on behalf of CCLLC;
(iii) HoldingCo shall be deemed to be the legal and beneficial owner thereof, transferee of such CCLLC Membership Interests free and clear of all Liens and shall be entered in the register of the CCLLC Members maintained by or on behalf of CCLLC; and
(iv) in accordance with the terms of the Company Notes and Company Convertible Notes, Amalco shall be released from all obligations under the Company Notes and Company Convertible Notes, and HoldingCo shall assume all such obligations;
(m) the Purchaser and Amalco will adopt a plan of complete liquidation of Amalco under Division 3 of Part 10 of the BCBCA and pursuant to subsection 319(1) of the BCBCA, Amalco will commence to wind-up and dissolve in accordance with subsection 88(1) of the Tax Act, and pursuant thereto, will transfer beneficial ownership in all of its property to the Purchaser as its sole shareholder and the Purchaser will assume all obligations of Amalco; and
(n) each HoldingCo Membership Interest held by the Purchaser shall be, and shall be deemed to be, transferred to and acquired by CUSCo in consideration for a CUSCo Share, and;
(i) the Purchaser shall cease to be the registered holder of HoldingCo Membership Interests and to have any liens, claims or encumbrances.rights as a HoldingCo Member other than the right to the CUSCo Share pursuant to this Section 2.3(n) and
Appears in 2 contracts
Sources: Arrangement Agreement (Cresco Labs Inc.), Arrangement Agreement (Columbia Care Inc.)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence sequence, in each case effective as at one minute intervals starting at the Effective Time, without any further act or formality:
(a) each outstanding Corporation Primero Share held by a Dissenting Shareholder in respect of which the Primero Shareholder has validly exercised his, her or its Dissent Rights shall be deemed to be transferred and assigned by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each such Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, to First Majestic (free and clear of all any liens, claims charges and encumbrancesencumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(b) each Primero Share (other than any Primero Share held by any Dissenting Shareholder) will, without further act or formality and by or on behalf of a holder of Primero Shares, be irrevocably assigned and transferred by the holder thereof to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for such number of First Majestic Shares as is equal to the Purchaser, Exchange Ratio for each Primero Share held;
(c) with respect to each Primero Share transferred and assigned in accordance with Section 2.3(a) or Section 2.3(b):
(i) the applicable Holdco Agreement, in exchange for a payment in cash equal registered holder thereof shall cease to be the Holdco registered holder of such Primero Share Consideration, and the name of such registered holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect Primero Shareholders as of the applicable Qualifying Holdco, and the Purchaser shall be recorded as Effective Time;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Primero Share; and
(iii) First Majestic will be the holder of all of the Qualifying Holdco outstanding Primero Shares so transferred and the register of Primero Shareholders shall be revised accordingly;
(d) each Primero Option which is outstanding and has not been duly exercised prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Primero Option Plan, shall be deemed to be unconditionally vested and exercisable in full, and such Primero Option will be exchanged for an option (each, a “Replacement Option”) to purchase from First Majestic such number of First Majestic Shares as is equal to the legal Exchange Ratio (and beneficial owner thereofwhen aggregated with the other similar Replacement Options of a holder of such options resulting in a fraction of a First Majestic Share, free they shall all be rounded down to the nearest whole number of First Majestic Shares). Each Replacement Option shall provide for an exercise price per First Majestic Share (rounded up to the nearest whole cent) equal to the exercise price per Primero Share that would otherwise be payable pursuant to the Primero Option it replaces, divided by the Exchange Ratio. All other terms and clear conditions of the Replacement Options, including the term to expiry, conditions to and manner of exercising, will remain the same and shall be governed by the terms of the Primero Option Plan and any lienscertificate or option agreement previously evidencing the Primero Option shall thereafter evidence and be deemed to evidence such Replacement Option. It is intended that subsection 7(1.4) of the ITA apply to such exchange of options. Accordingly, claims or encumbrancesand notwithstanding the foregoing, if required, the exercise price of a Replacement Option will be increased such that the In The Money Amount of the Replacement Option immediately after the exchange does not exceed the In The Money Amount of the Primero Option immediately before the exchange;
(e) in accordance with the terms of the Primero Warrant Indenture:
(i) each holder of a Primero Warrant outstanding immediately prior to the Effective Time shall receive (and such holder shall accept), upon the exercise of such holder’s Primero Warrant, in lieu of each Primero Share to which such holder was theretofore entitled, such number of First Majestic Shares as is equal to the Exchange Ratio (and when aggregated with an exercise of other similar Primero Warrants resulting in a fraction of a First Majestic Share, they all shall be rounded down to nearest whole number of First Majestic Shares) provided, however, the exercise price per First Majestic Share shall be equal to the current exercise price per Primero Share divided by the Exchange Ratio; and
(cii) each Corporation Share outstanding Primero Warrant shall continue to be governed by and be subject to the terms of the Primero Warrant Indenture and any applicable supplemental indenture executed thereunder;
(f) notwithstanding any vesting or other than provisions to which a Primero PSU or Primero DSU might otherwise be subject (whether by contract, the conditions of a grant, applicable laws or the terms of the Primero PSU Plan or Primero DSU Plan):
(i) Corporation Shares held by Brookfield, each Primero PSU and Primero DSU that is issued and outstanding at the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereofEffective Time shall, without any further act action by or formality on its part, free and clear behalf of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name any holder of such holder shall be removed from the register of holders of Corporation SharesPrimero PSU or Primero DSU, andas applicable, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be fully vested and will be deemed to be payable in full and Primero shall deliver to the legal holder thereof for each Primero PSU or Primero DSU held by such holder a cash payment in an amount equal to C$0.30, which amount shall in each case be paid pursuant to and beneficial owner thereofin accordance with Article 4;
(ii) each Primero PSU and Primero DSU shall immediately be cancelled and all notices or agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the consideration to which such holder is entitled to pursuant to this Section 2.3(f) in the manner specified in Article 4;
(g) the Primero PSU Plan and Primero DSU Plan shall be terminated (and all rights issued thereunder shall expire) and shall be of no further force or effect; and
(h) the exchanges, free cancellations and clear other steps provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding that certain of any liens, claims or encumbrancesthe procedures related thereto are not completed until after the Effective Date.
Appears in 2 contracts
Sources: Arrangement Agreement (Primero Mining Corp), Arrangement Agreement (First Majestic Silver Corp)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur consecutively in the following sequence order, each occurring five minutes following completion of the previous event without any further authorization, act or formality:
(a) each outstanding Corporation Dissent Share held shall be transferred by a such Dissenting Shareholder to Purchaser (free and clear of any Liens) in accordance with, and for the consideration contemplated in, Article 4;
(b) all Company Options, to the extent not exercised prior to the Effective Time, shall be deemed terminated without any payment in respect thereof;
(c) the Effective Date shall be deemed to be transferred by the vesting date for all of the then issued and outstanding Company RSUs (including, for greater certainty, the Company RSUs issuable as of the Effective Time), and the Company shall allot and issue to each Company RSU Holder such number of Company Shares as are due to such holder thereof under the terms of such RSUs, and thereafter (i) the Company Stock Incentive Plan will terminate and none of the former holders of Company RSUs or Company Options shall have any rights, liabilities or obligations in respect of the Company Stock Incentive Plan, and (ii) the Company RSU Holders will be treated in all respects as Company Shareholders with respect to the Corporation Company Shares issued pursuant to this Section 3.1(c);
(d) each Company Share (other than any Dissent Share but including, for greater certainty, the Company Shares issued pursuant to Section 3.1(c)) shall be transferred to Purchaser (free and clear of all liens, claims and encumbrancesany Liens) in exchange for the Consideration, and the payment and delivery of the CRP portion of the Consideration to the holders of the Company Shares (other than the Dissenting Shareholders) shall be satisfied by the delivery thereof by Purchaser to the Escrow Agent in accordance with the terms of the CRP Agreement;
(e) with respect to each Dissenting Shareholder Company Share transferred in accordance with Section 3.1(a) or Section 3.1(d):
(i) the registered holder thereof shall cease to be the registered holder of such Company Share and shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value in respect of their Corporation Shares by the Corporation in accordance with Article 4 hereof, such Company Share and the name of such registered holder shall be removed from the register of holders Company Shareholders as of Corporation Sharesthe time of transfer prescribed in Section 3.1(a) or Section 3.1(d), and such Corporation Shares shall be cancelledas applicable;
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and thereof shall be deemed to be the legal have executed and beneficial owner thereofdelivered all consents, free releases, assignments and clear of any lienswaivers, claims statutory or encumbrancesotherwise, required to transfer such Company Share; and
(ciii) each Corporation Share Purchaser will be the holder of all of the outstanding (other than (iCompany Shares as of the time of transfer prescribed in Section 3.1(a) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliateSection 3.1(d), as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Considerationapplicable, and the name central securities register of such holder Company shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the revised accordingly and Purchaser shall be recorded as the registered holder entitled to all of the Corporation Shares so transferred rights and shall privileges attached to the Company Shares; and
(f) the transfers, exchanges, issuances and terminations provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain procedures related thereto may not be completed until after the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesEffective Date.
Appears in 2 contracts
Sources: Arrangement Agreement (Interoil Corp), Arrangement Agreement (Interoil Corp)
Arrangement. Commencing at the Effective Time, the The following events or transactions shall occur and shall be deemed to occur sequentially as set out below, and, except as otherwise set forth herein, without any further authorization, act or formality, in each case, unless stated otherwise, effective as at two-minute intervals starting at the following sequence Effective Time:
(a) subject to Section 3.01 of this Plan of Arrangement, each Reunion Gold Share held by a Dissenting Reunion Gold Shareholder in respect of which Dissent Rights have been validly exercised shall, without any further act or formality:
(a) each outstanding Corporation Share held formality by a or on behalf of the Dissenting Shareholder shall Reunion Gold Shareholder, be deemed to be assigned and transferred by the Dissenting Reunion Gold Shareholder to Reunion Gold and thereupon cancelled in consideration for a debt claim against Reunion Gold for the amount determined under Article 3 of this Plan of Arrangement, and:
(i) such Dissenting Reunion Gold Shareholder shall cease to be the holder thereof to the Corporation free of such Reunion Gold Shares and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Reunion Gold Shareholder other than the right to be paid the fair value of their Corporation such Reunion Gold Shares by the Corporation in accordance with Article 4 hereof, and this Plan of Arrangement;
(ii) the name of such holder each Dissenting Reunion Gold Shareholder shall be removed as the holder of such Reunion Gold Shares from the register of holders Reunion Gold Shareholders as of Corporation Shares, and such Corporation Shares the Effective Time; and
(iii) each Dissenting Reunion Gold Shareholder shall be cancelleddeemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to assign and transfer such Reunion Gold Share in accordance with this Section 2.03(a);
(b) subject to Section 3.01 of this Plan of Arrangement and concurrent with Section 2.03(a) of this Plan of Arrangement, each Qualifying Holdco GMIN Share outstanding held by a Qualifying Holdco Dissenting GMIN Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholderin respect of which Dissent Rights have been validly exercised shall, without any further act or formality by or on behalf of the Dissenting GMIN Shareholder, be deemed to be assigned and transferred by the Dissenting GMIN Shareholder to GMIN and thereupon cancelled in consideration for a debt claim against GMIN for the amount determined under Article 3 of this Plan of Arrangement, and:
(i) such Dissenting GMIN Shareholder shall cease to be the holder of such GMIN Shares and shall cease to have any rights as a GMIN Shareholder other than the right to be paid the fair value of such GMIN Shares in accordance with this Plan of Arrangement;
(ii) the name of each Dissenting GMIN Shareholder shall be removed as the holder of such GMIN Shares from the register of GMIN Shareholders as of the Effective Time; and
(iii) each Dissenting GMIN Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to assign and transfer such GMIN Share in accordance with this Section 2.03(b);
(c) the transactions contemplated by the Contribution and Conveyance Agreement shall become effective and pursuant thereto, Reunion Gold shall assign and transfer to Spinco, and Spinco shall accept, the Spinco Assets and the Spinco Liabilities on the terms and conditions set out in the Contribution and Conveyance Agreement in consideration for the issuance by Spinco to Reunion Gold of such number of fully paid and non-assessable Spinco Shares as would result in Reunion Gold holding, after completion of the last step in this Section 2.03, 19.9% of the outstanding Spinco Shares (the “Spinco Consideration Shares”);
(d) Reunion Gold shall undertake a reorganization of capital within the meaning of section 86 of the Tax Act, which shall occur in the following order:
(i) the articles of Reunion Gold shall be amended: (x) to rename and redesignate the Reunion Gold Shares as “Class A Common Shares”; (y) to replace all references to “Common Shares” in the articles of Reunion Gold with a reference to “Class A Common Shares”; and (z) to provide for the following rights, privileges, restrictions and conditions in respect of the Reunion Gold Class A Shares:
(A) entitlement to one vote per Reunion Gold Class A Share at all meetings of shareholders of Reunion Gold, except meetings at which only holders of a specified class of shares are entitled to vote;
(B) entitlement to receive, subject to the rights of the holders of any other class of shares entitled to receive dividends in priority to the Reunion Gold Class A Shares, any dividend declared by Reunion Gold, if, as and when declared by the Reunion Gold board of directors out of the assets of Reunion Gold properly applicable to the payment of dividends in such amounts and payable at such times and at such place or places in Canada as the Reunion Gold board of directors may from time-to-time determine; provided the Reunion Gold board of directors may in its partsole discretion declare dividends on the Reunion Gold Class A Shares to the exclusion of any other class of shares of Reunion Gold; and
(C) entitlement to receive, pari passu with the holders of Reunion Gold Class B Shares and subject to the rights of the holders of any other class of shares of Reunion Gold in priority to the Reunion Gold Class A Shares, the remaining property of Reunion Gold in the event of the liquidation, dissolution or winding up of Reunion Gold or other distribution of assets of Reunion Gold among its shareholders for the purposes of winding-up its affairs, whether voluntary or involuntary;
(ii) concurrent with Section 2.03(d)(i) of this Plan of Arrangement, the articles of Reunion Gold shall be amended to create a new class of shares consisting of an unlimited number of Reunion Gold Class B Shares, having the following rights, privileges, restrictions and conditions attaching thereto:
(A) entitlement to one vote per Reunion Gold Class B Share at all meetings of shareholders of Reunion Gold, except meetings at which only holders of a specified class of shares are entitled to vote;
(B) entitlement to receive, subject to the rights of the holders of any other class of shares entitled to receive dividends in priority to the Reunion Gold Class B Shares, any dividend declared by Reunion Gold, if, as and when declared by the Reunion Gold board of directors out of the assets of Reunion Gold properly applicable to the payment of dividends in such amounts and payable at such times and at such place or places in Canada as the Reunion Gold board of directors may from time-to-time determine; provided the Reunion Gold board of directors may in its sole discretion declare dividends on the Reunion Gold Class B Shares to the exclusion of any other class of shares of Reunion Gold; and
(C) entitlement to receive, pari passu with the holders of Reunion Gold Class A Shares and subject to the rights of the holders of any other class of shares of Reunion Gold in priority to the Reunion Gold Class B Shares, the remaining property of Reunion Gold in the event of the liquidation, dissolution or winding up of Reunion Gold or other distribution of assets of Reunion Gold among its shareholders for the purposes of winding-up its affairs, whether voluntary or involuntary;
(iii) each holder of any Reunion Gold Option that is outstanding immediately prior to the Effective Time will simultaneously, without any further action by or on behalf of a holder of Reunion Gold Options:
(A) be deemed to have disposed of, the Reunion Gold Portion of each such Reunion Gold Option held by such holder immediately prior to the Effective Time to Reunion Gold, free and clear of all liensLiens, claims and encumbrancesas the sole consideration therefor Reunion Gold will grant to such holder an option, pursuant to the Purchaser, and in accordance with the applicable Holdco Agreementterms of the Reunion Gold Share Option Plan, in exchange for to purchase a payment in cash Reunion Gold Class A Share (each, a “Replacement Reunion Gold Option”), which Replacement Reunion Gold Option will (w) have an exercise price (which shall be rounded to the nearest whole cent, with 0.5 being rounded upwards) equal to the Holdco product obtained when the exercise price payable to acquire a Reunion Gold Share Considerationunder the Reunion Gold Option of which the Reunion Gold Portion is disposed of by such holder pursuant to this Section 2.03(d)(iii)(A) is multiplied by the Reunion Gold Portion, (x) have the same expiry date as the expiry date of such Reunion Gold Option, (y) with respect to holders whose compensatory options are subject to tax under the Code, not provide additional benefits to the extent precluded under U.S. Treasury Regulation Section 1.409A-1(b)(5)(v)(f), and (z) may not be exercised prior to the name of such holder shall be removed from day immediately following the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesSpinco Measurement Date; and
(cB) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfieldbe deemed to have disposed of, the Purchaser or any Spinco Portion of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or each such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares Reunion Gold Option held by such Qualifying Holdco); and (iii) Corporation Shares acquired by holder immediately prior to the Purchaser pursuant Effective Time to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its partSpinco, free and clear of all liensLiens, claims and encumbrancesas the sole consideration therefor Spinco will grant to such holder an option to purchase a Fractional Spinco Share (a “Replacement Spinco Option”), which Replacement Spinco Option will (w) have an exercise price (which shall be rounded to the Applicable Purchasernearest whole cent, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.with
Appears in 2 contracts
Sources: Arrangement Agreement, Arrangement Agreement
Arrangement. Commencing Pursuant to the Arrangement, commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur without any further authorization, act or formality in the following sequence without any further act or formalityorder:
(a) each outstanding Corporation Share at the Effective Time, all Company Shares held by a Dissenting Shareholder Holders shall be deemed to be have been transferred by the holder thereof to the Corporation (free and clear of all liens, claims Liens) to the Company and encumbrances, cancelled in consideration for a debt claim against the Company (to be settled by the Company with its own available funds on hand and each not funds directly or indirectly provided by the Purchaser or any affiliate of the Purchaser) for the amount determined under Section 6.1,
(i) such Dissenting Shareholder Holders shall cease to be the holders of such Company Shares and to have any rights as a Corporation Shareholder Company Shareholders other than the right to be paid the fair value of their Corporation for such Company Shares by the Corporation as set out in accordance with Article 4 hereof, and Section 6.1; and
(ii) the name of each such holder Dissenting Holder shall be removed as Company Shareholder, as applicable, from the register registers of holders Company Shareholders, as applicable, maintained by or on behalf of Corporation Shares, Company in respect of such Company Shares and such Corporation Company Shares shall be cancelled;cancelled and cease to be outstanding; and
(b) each Qualifying Holdco Company Share outstanding held by a Qualifying Holdco Company Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, a Dissenting Holder or (ii) the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (iiits Subsidiaries) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereofshall, without any further act action by or formality on its partbehalf of a Company Shareholder, be transferred (free and clear of all liens, claims and encumbrances, Liens) to the Applicable Purchaser, Purchaser in exchange consideration for a payment in cash equal to the Consideration, and ;
(c) notwithstanding the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder terms of the Corporation Shares so transferred Company Incentive Award Plan or the Legacy Option Plan and subject to Section 7.1(g), each Company Option and Legacy Option outstanding at the Effective Time, whether vested or unvested, shall be deemed to be vested to the legal fullest extent, shall be exchanged for an option (a “Replacement Option”) to purchase from the Purchaser the number of Purchaser Shares (rounded down to the nearest whole number) equal to: (A) the Exchange Ratio multiplied by: (B) the number of Company Shares subject to such Company Option or Legacy Option, as applicable, immediately prior to the Effective Time, at an exercise price per Purchaser Share (rounded up to the nearest whole cent) equal to: (C) the exercise price per Company Share otherwise purchasable pursuant to such Company Option or Legacy Option, as applicable, immediately prior to the Effective Time, divided by (D) the Exchange Ratio, exercisable until the original expiry date of such Company Option or Legacy Option, as applicable. Except as set out above, all other terms and beneficial owner thereofconditions of such Replacement Option, free including the conditions to and clear manner of exercising, will be the same as the Company Option or Legacy Option, as applicable, so exchanged, and shall be governed by the terms of the Company Incentive Award Plan or the Legacy Option Plan, as applicable, as assumed by the Purchaser, and any liensdocument evidencing a Company Option or Legacy Option, claims or encumbrances.as applicable, shall thereafter evidence and be deemed to evidence such Replacement Option;
Appears in 2 contracts
Sources: Arrangement Agreement (SNDL Inc.), Arrangement Agreement (Valens Company, Inc.)
Arrangement. Commencing at the Effective Time, each of the following transactions or events or transactions set out below shall occur and shall be deemed to occur in the following sequence sequence, in each case without any further authorization, act or formalityformality on the part of any Person, and in each case, unless otherwise specifically provided in this Section 3.1, effective as at two-minute intervals starting at the Effective Time:
(a) each outstanding Corporation Company Share held by a Dissenting Company Shareholder shall be, and shall be deemed to be be, transferred to the Purchaser by the holder thereof to the Corporation thereof, free and clear of all liens, claims and encumbrancesLiens, and thereupon each Dissenting Company Shareholder shall cease to have any rights as a Corporation Shareholder holder of such Company Shares other than a claim against the right to be paid the fair value of their Corporation Shares by the Corporation Purchaser in an amount determined and payable in accordance with Article 4 hereof, and the name of such holder Dissenting Company Shareholder shall be removed from the central securities register of holders of Corporation for the Company Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Effective Time Company Shareholder shall grant, and shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbranceshave granted, to the Purchaser a Purchaser Call Option in respect of (i) each Company Share held by such Effective Time Company Shareholder at the Effective Time, (ii) all Company Shares into which any Company Share referred to in (i) of this Section 3.1(b) may be converted in accordance with the rights and restrictions attached to such Company Share in the Company’s notice of articles and articles, and (iii) all Company Shares for which any Company Share referred to in (i) of this Section 3.1(b) may be exchanged pursuant to Section 3.1(h)(i) or Section 3.1(h)(iii);
(c) in consideration for the grant of the Purchaser Call Options by the Effective Time Company Shareholders to the Purchaser pursuant to Section 3.1(b), the Purchaser shall, concurrently with the grant of such Purchaser Call Options, pay to each Effective Time Company Shareholder the Per Share Option Premium in respect of each Company Share held by such Effective Time Company Shareholder at the Effective Time;
(d) each Person (other than the Purchaser or any affiliate of the Purchaser) who, at any time after the Effective Time and prior to the earlier of the Acquisition Effective Time and the Acquisition Closing Outside Date, acquires a Company Share from the Company (other than a Company Share in respect of which the Person has already granted to the Purchaser a Purchaser Call Option pursuant to Section 3.1(b)) or from any other Person, shall, concurrently with the acquisition of such Company Share, grant and shall be deemed to have granted to the Purchaser a Purchaser Call Option in respect of (i) such Company Share, (ii) all Company Shares into which such Company Share may be converted in accordance with the rights and restrictions attached to such Company Share in the Company’s Notice of Articles and Articles, and (iii) all Company Shares for which any Company Share referred to in (i) of this Section 3.1(d) may be exchanged pursuant to Section 3.1(h)(i) or Section 3.1(h)(iii); provided, that the Purchaser shall not be required to pay, nor shall such Person be entitled to receive from the Purchaser or from any Effective Time Company Shareholder, any payment on account of, as compensation for, or in relation to, the Option Premium in respect of any Purchaser Call Option granted pursuant to this Section 3.1(d);
(e) the Notice of Articles and Articles of the Company, as applicable, shall be altered to:
(i) alter the rights and restrictions of the existing classes of Company Subordinate Voting Shares, Company Proportionate Voting Shares and Company Multiple Voting Shares and to provide for the special rights and restrictions attaching to the Company Subordinate Voting Shares, Company Proportionate Voting Shares and Company Multiple Voting Shares, respectively, set out in the attached Exhibit A, which special rights and restrictions shall specifically refer to and include the Purchaser Call Option granted pursuant to this Plan of Arrangement; and
(ii) in connection with the foregoing, Articles 26, 27 and 28 of the existing articles of the Company shall be deleted in their entirety and replaced with Articles 26, 27 and 28 as set out in the attached Exhibit A;
(f) upon the Triggering Event Date prior to the Purchaser Call Option Expiry Date, the Purchaser shall, in accordance with the applicable Holdco Agreementterms and conditions of the Purchaser Call Option, exercise, and shall be deemed to have exercised, effective at the end of the Triggering Event Date, the Purchaser Call Option with respect to all (but not less than all) of the Purchaser Call Option Shares;
(g) upon the exercise or deemed exercise of the Purchaser Call Option by the Purchaser prior to the Purchaser Call Option Expiry Date, the Purchaser shall, in accordance with the terms and conditions of the Purchaser Call Option, acquire from each Call Option Grantor, and each Call Option Grantor shall be required to transfer to the Purchaser, all of the Purchaser Call Option Shares that are held by such Call Option Grantor on the Acquisition Date immediately following the exchange referred to in Section 3.1(h)(iii) (which, for a payment the avoidance of doubt, shall include any Company Subordinate Voting Shares received by such Call Option Grantor upon the exchange in cash Section 3.1(h)(i)), which acquisition and transfer shall occur on the Acquisition Date in accordance with Section 3.1(h)(v) or Section 3.1(h)(vii)(F), as applicable;
(h) on the Acquisition Date, each of the transactions or events set out below in this Section 3.1(h) shall occur, and shall be deemed to occur, in the following sequence, in each case without any further authorization, act or formality on the part of any Person, effective as at two minute intervals starting at the Acquisition Effective Time:
(i) each Company Proportionate Voting Share outstanding immediately prior to the Acquisition Effective Time shall be exchanged with the Company for that number of Company Subordinate Voting Shares equal to the Holdco PVS Conversion Ratio in effect immediately prior to the Acquisition Effective Time, and upon such exchange:
(A) each such exchanged Company Proportionate Voting Share Considerationshall be cancelled, and the name holders of such holder exchanged Company Proportionate Voting Shares shall be removed from the Company’s securities register for the Company Proportionate Voting Shares; and
(B) each holder of holders of Qualifying Holdco such exchanged Company Proportionate Voting Shares maintained shall be entered in the Company’s securities register for the Company Subordinate Voting Shares in respect of the applicable Qualifying HoldcoCompany Subordinate Voting Shares issued to such holder pursuant to this Section 3.1(h)(i);
(ii) concurrently with the exchange of Company Proportionate Voting Shares pursuant to Section 3.1(h)(i), the capital of the Company Proportionate Voting Shares shall be reduced to nil, and there shall be added to the capital of the Company Subordinate Voting Shares, in respect of the Company Subordinate Voting Shares issued pursuant to Section 3.1(h)(i), an amount equal to the paid-up capital (within the meaning of the Tax Act) of the Company Proportionate Voting Shares immediately prior to the Acquisition Effective Time;
(iii) each Company Multiple Voting Share outstanding immediately prior to the Acquisition Effective Time shall be exchanged with the Company for one Company Subordinate Voting Share, and upon such exchange:
(A) each such exchanged Company Multiple Voting Share shall be cancelled, and the Purchaser holders of such exchanged Company Multiple Voting Shares shall be recorded as removed from the registered Company’s central securities register for the Company Multiple Voting Shares; and
(B) each holder of such exchanged Company Multiple Voting Shares shall be entered in the Qualifying Holdco Company’s securities register for the Company Subordinate Voting Shares so transferred in respect of the Company Subordinate Voting Shares issued to such holder pursuant to this Section 3.1(h)(iii);
(iv) concurrently with the exchange of Company Multiple Voting Shares pursuant to Section 3.1(h)(iii), the capital of the Company Multiple Voting Shares shall be reduced to nil, and there shall be added to the capital of the Company Subordinate Voting Shares, in respect of the Company Subordinate Voting Shares issued pursuant to Section 3.1(h)(iii), an amount equal to the paid-up capital (within the meaning of the Tax Act) of the Company Multiple Voting Shares immediately prior to the Acquisition Effective Time;
(v) in accordance with the terms of the Purchaser Call Option, each Company Subordinate Voting Share held by a Company Canadian Shareholder immediately following the exchange in Section 3.1(h)(iii) (which, for the avoidance of doubt, shall include any Company Subordinate Voting Shares received by such Call Option Grantor upon the exchange in Section 3.1(h)(i)) shall be transferred, and shall be deemed to be transferred, by the legal and beneficial owner thereofholder thereof to the Purchaser for the Purchaser Share Consideration (or, free and clear in the event a Purchaser Change of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by BrookfieldControl shall have occurred prior to the Acquisition Date, the Per Share Consideration), which Purchaser Share Consideration or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Per Share held by Brookfield, the Purchaser or such affiliateConsideration, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a))applicable, shall be transferred and deemed to be transferred by paid in accordance with the holder thereof, without any further act or formality on its part, free and clear provisions of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the ConsiderationArticle 5, and the name upon such transfer:
(A) each such former holder of such holder transferred Company Subordinate Voting Shares shall be removed from the Company’s securities register of holders of Corporation for the Company Subordinate Voting Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, ;
(B) the Purchaser shall be recorded entered in the Company’s central securities register for the Company Subordinate Voting Shares as the registered legal owner of such transferred Company Subordinate Voting Shares; and
(C) each such former holder of such transferred Company Subordinate Voting Shares shall, subject to Section 5.1, be entered in the Corporation Purchaser’s securities register for the Purchaser Shares in respect of the Consideration Shares issued to such holder pursuant to this Section 3.1(h)(v), or, to the extent applicable, in the securities register of the issuer of any Alternate Consideration that such former holder of Company Subordinate Voting Shares is entitled to receive in lieu of the Consideration Shares;
(vi) each Eligible Company Canadian Shareholder shall be entitled to make a tax election, pursuant to subsection 85(1) or 85(2) of the Tax Act, as applicable (and the analogous provisions of provincial income tax law). The Purchaser shall make available on the Purchaser’s website tax election forms required under the Tax Act within 60 days of the Acquisition Date. Any Eligible Company Canadian Shareholder who wants to make such election and otherwise qualifies to make such election may do so by providing to the Purchaser two signed copies of the necessary election forms within 120 days following the Acquisition Date, duly completed with the details of the number of Company Subordinate Voting Shares transferred and the applicable agreed amount or amounts for the purposes of such election. Thereafter, subject to the election forms complying with the provisions of the Tax Act (or applicable provincial or territorial income tax law), the forms will be signed by the Purchaser and returned to such Eligible Company Canadian Shareholder by ordinary mail within 30 days after the receipt thereof by the Purchaser for filing with the Canada Revenue Agency (or the applicable provincial or territorial taxing authority). The Purchaser will not be responsible for the proper completion of any election form and, except for the obligation of the Purchaser to so sign and return duly completed election forms which are received by the Purchaser within 120 days following the Acquisition Date. The Purchaser will not be responsible for any taxes, interest or penalties resulting from the failure by an Eligible Company Canadian Shareholder to properly complete or file the election forms in the form and manner and within the time prescribed by the Tax Act (or any applicable provincial or territorial legislation). In its sole discretion, the Purchaser may choose to sign and return an election form received by it more than 120 days following the Acquisition Date, but the Purchaser will have no obligation to do so;
(vii) Purchaser Subco shall merge with and into the Company (the “Merger”) and be one corporate entity with the same effect as if they had amalgamated under Section 269 of the BCBCA, except that the legal existence of the Company shall not cease and the Company shall survive the Merger (the Company, as such surviving entity (“Mergeco”), notwithstanding the issue by the Registrar of a certificate of amalgamation and the assignment of a new incorporation number to Mergeco. The Merger, together with the transactions described in this Section 3.1(h)(i) through (h)(x) is intended to qualify as a reorganization within the meaning of sections 368(a)(1)(A) and 368(a)(2)(E) of the U.S. Tax Code for all United States federal income tax purposes, and the Amalgamation is intended to qualify as an amalgamation as defined in subsection 87(9) of the Tax Act, and upon the Merger becoming effective:
(A) without limiting the generality of the foregoing, the Company shall survive the Merger as Mergeco;
(B) the properties, rights and interests and obligations of the Company shall continue to be the properties, rights and interests and obligations of Mergeco, and the Merger shall not constitute an assignment by operation of law, a transfer or any other disposition of the property, rights and interests of the Company to Mergeco;
(C) the separate legal existence of Purchaser Subco shall cease without Purchaser Subco being liquidated or wound up, and the property, rights and interests and obligations of Purchaser Subco shall become the property, rights and interests and obligations of Mergeco;
(D) Mergeco shall continue to be liable for the obligations of each of the Company and Purchaser Subco;
(E) the Notice of Articles and Articles of Mergeco shall be the same as the Notice of Articles and Articles of the Company, as altered in accordance with Section 3.1(e);
(F) each Company Subordinate Voting Share held by a Company Non-Canadian Shareholder immediately following the exchange in Section 3.1(h)(iii) (which, for the avoidance of doubt, shall include any Company Subordinate Voting Shares received by such Call Option Grantor upon the exchange in Section 3.1(h)(i)) shall, in accordance with the Purchaser Call Option, be transferred, and shall be deemed to be transferred, by the legal holder thereof to the Purchaser for the Purchaser Share Consideration (or, in the event a Purchaser Change of Control shall have occurred prior to the Acquisition Date, the Per Share Consideration), which Purchaser Share Consideration or Per Share Consideration, as applicable, shall be paid in accordance with the provisions of Article 5, and beneficial owner thereofeach such former holder shall be deemed to have executed and delivered all consents, free releases, assignments and clear waivers, statutory or otherwise, required to transfer such Company Subordinate Voting Shares in accordance with this Section 3.1(h)(vii)(F), and upon such transfer:
(I) each such former holder of any liens, claims or encumbrances.such transferred Company Subordinate Voting Shares shall be removed from the Company’s central securities register for the Company Subordinate Voting Shares;
Appears in 2 contracts
Sources: Arrangement Agreement (Canopy Growth Corp), Arrangement Agreement (Acreage Holdings, Inc.)
Arrangement. Commencing at the Effective Time, unless otherwise stated, the following events or transactions shall occur and shall be deemed to occur in the following sequence order without any further authorization, act or formality and each transaction or event being deemed to occur immediately after the occurrence of the transaction or event immediately preceding it:
(a) NB Sub shall be continued as a corporation under the CBCA at which time:
(i) NB Sub shall become a corporation to which the CBCA applies as if NB Sub had been incorporated under the CBCA;
(ii) the NB Sub Articles shall be deemed to be the articles of incorporation of NB Sub under the CBCA, except that:
(A) all references to the NBBCA and to section numbers in the NBBCA shall be deemed to be references to the CBCA and the corresponding section numbers in the CBCA, respectively; and
(B) all references to the “Director” shall be deemed to be references to the “Director” under the CBCA; and
(iii) the certificate of continuance issued by the Director pursuant to section 262 of the CBCA shall be deemed to be the certificate of incorporation of NB Sub;
(b) the Company shall pay to the Holders of Company Shares, on each issued and outstanding Company Share (including, for greater certainty, each such share held by Dissenting Shareholders), the Special Dividend;
(c) each Qualifying Holdco shall pay to its sole shareholder, on the Holdco Shares held by such shareholder, a dividend in the amount of the dividend paid by the Company to such Qualifying Holdco pursuant to Section 2.2(b)
(d) all property of the Company of any kind whatever (other than the U.S. Subsidiary Indebtedness and shares of the Amalgamating Subsidiaries, Nova Tube Inc., Argo Steel Ltd. and Integrated Steel Industries Inc.) shall be transferred by the Company without any further act or formality:formality to Nova Steel Ltd. as a contribution of capital;
(ae) simultaneously with the transfer of the Holdco Shares described in Section 2.2(f), each Company Share issued and outstanding Corporation Share held by a Company Shareholder (other than a Dissenting Shareholder or a Qualifying Holdco) immediately prior to the Effective Time shall be deemed to be transferred by the holder thereof to the Corporation (free and clear of all liensEncumbrances), claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, Holder thereof without any further act or formality on its partpart to Acquisitionco in exchange for the Purchase Price Per Share;
(f) simultaneously with the transfer of the Company Shares described in Section 2.2(e), all of the Holdco Shares outstanding immediately prior to the Effective Time of each Qualifying Holdco in respect of which the Holdco Alternative has been validly elected shall be transferred (free and clear of all liensEncumbrances), claims and encumbrances, by the holders thereof without any further act or formality to the Purchaser, Acquisitionco in accordance with the applicable Holdco Agreement, in exchange consideration for a payment in cash an amount equal to the Holdco product of the Purchase Price Per Share Consideration, and the name total number of Company Shares beneficially owned by such holder Qualifying Holdco;
(g) each Company Share issued and outstanding held by a Dissenting Shareholder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, (free and clear of any liens, claims or encumbrances; and
(call Encumbrances) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, Holder thereof without any further act or formality on its partpart to Acquisitionco, free and clear of all liens, claims and encumbrances, to the Applicable Purchaserand, in exchange therefor, Acquisitionco shall be deemed to have issued to such Holder as consideration for a payment in cash equal Acquisitionco’s acquisition of such Company Shares an obligation to pay to the ConsiderationHolder fair value for such Company Share in accordance with Article 4;
(h) all of the Holdco Shares of each Qualifying Holdco held by Acquisitionco and all of the Company Shares held by Acquisitionco shall be transferred without further act or formality by Acquisitionco to NB Sub in repayment of the debt owed by Acquisitionco to NB Sub;
(i) each Qualifying Holdco shall be liquidated and dissolved, and the name all of such holder its property shall be removed from distributed to NB Sub;
(j) the register stated capital account maintained by the Company in respect of holders the Company Shares shall be reduced to C$1.00;
(k) NB Sub and the Company shall be amalgamated to form Amalco 1 and will continue as one corporation under the CBCA and the following provisions will apply:
(i) each issued and outstanding common share of Corporation Shares, NB Sub shall continue upon the amalgamation as one Amalco 1 common share; and, with
(ii) all Company Shares shall be cancelled without any repayment of capital in respect to Corporation Shares elected to thereof;
(l) the common shares of Integrated Steel Industries Inc. and the U.S. Subsidiary Indebtedness held by Amalco 1 shall be transferred by Amalco 1 to U.S. Holdco in repayment of the debt owed by Amalco 1 to U.S. Holdco;
(m) the stated capital account maintained by Nova Tube Inc. in respect of its shares shall be reduced to C$1.00 and the stated capital account maintained by Argo Steel Ltd. in respect of its shares shall be reduced to C$1.00;
(n) the stated capital account maintained by each of the Amalgamating Subsidiaries in respect of its shares shall be reduced to C$1.00;
(o) simultaneously with the transactions described in Section 2.2(p) and Section 2.2(q), Nova Tube Inc. shall be liquidated and dissolved, and all of its property shall be distributed to Amalco 2;
(p) simultaneously with the transactions described in Section 2.2(o) and Section 2.2(q), Argo Steel Ltd. shall be liquidated and dissolved, and all of its property shall be distributed to Amalco 2;
(q) simultaneously with the transactions described in Section 2.2(o) and Section 2.2(p), Amalco 1 and each of Nova Steel Ltd., ▇▇▇▇▇▇▇▇▇ Industries Inc., Nova Steel Processing Centre Ltd. and Nova Tube Ontario Inc. (collectively, the “Amalgamating Subsidiaries”) shall be amalgamated to form Amalco 2 and will continue as one corporation under the CBCA and the following provisions will apply:
(i) each issued and outstanding common share of Amalco 1 shall continue upon the amalgamation as one common share of Amalco 2; and
(ii) all issued and outstanding shares of each of the Amalgamating Subsidiaries shall be cancelled without any repayment of capital in respect thereof;
(r) the LaSalle Purchased Property shall be transferred by Amalco 2 to Jonesco pursuant to the Purchaser, terms and conditions set out in Schedule 1.1E to the Purchaser shall be recorded as the registered holder Arrangement Agreement; and
(s) each of the Corporation Shares so transferred LaSalle Lease Agreement and the Logistics Services Agreement shall be deemed to be the legal entered into and beneficial owner thereof, free and clear of any liens, claims or encumbrancesbecome effective.
Appears in 2 contracts
Sources: Arrangement Agreement (Symmetry Holdings Inc), Arrangement Agreement (Symmetry Holdings Inc)
Arrangement. 3.1 Commencing at the Arrangement Effective Time, the following events transactions will occur and will be deemed to occur at the times and in the order set out below without any further authorization, act or transactions formality required on the part of any Person, except as otherwise expressly provided herein:
(a) at the Arrangement Effective Time, notwithstanding the terms of the Company Shareholders Agreement, the Company Shareholders Agreement will be terminated and the parties to the Company Shareholders Agreements will cease to have any rights or obligations under the Company Shareholders Agreement;
(b) at the Arrangement Effective Time, notwithstanding the terms of any side letter, management rights, covenant agreement or similar agreement entered into between the Company and any of the Company Preferred Shareholders on or about the time each such Company Preferred Shareholder purchased Company Preferred Shares or warrants, options, convertible securities or other rights exercisable for, or convertible into, Company Preferred Shares (collectively, the “Investor Letter Agreements”, but excluding, for greater certainty, the Shareholders Agreements), the Investor Letter Agreements will be terminated and the parties to the Investor Letter Agreements will cease to have any rights or obligations under the Investor Letter Agreements;
(c) at the Arrangement Effective Time, the Company shall occur amend and restate the Company articles by adopting the Company A&R Articles to, among other things, create and authorize the issuance of the Company Convertible PIPE Preferred Shares;
(d) one minute after the step in Section 3.1(b), subject to Section 6.1, each of the Company Shares held by Dissenting Shareholders shall be, and shall be deemed to occur in the following sequence without any further act or formality:
(a) each outstanding Corporation Share held by a Dissenting Shareholder shall be deemed to be be, transferred by the holder thereof to the Corporation Company (free and clear of all liensany Encumbrances) and cancelled in consideration for a debt claim against the Company for the amount determined in accordance with Section 6.1 (subject to any amounts required to be deducted and withheld in accordance with Section 5.2), claims and encumbrances, and each and:
(i) such Dissenting Shareholder Shareholders shall cease to be the holders of such Company Shares and to have any rights as a Corporation Shareholder holders of such Company Shares (including for the purposes of any matter concerning the Company Shares or the Company Shareholders in the remainder of this Section 3.1), other than the right to be paid the fair value of their Corporation for such Company Shares by the Corporation as set out in accordance with Article 4 hereof, and the name of Section 6.1;
(ii) such holder Dissenting Shareholders’ names shall be removed as the holders of such Company Shares from the register registers of holders such Company Shares maintained by or on behalf of Corporation Shares, and such Corporation Shares shall be cancelled;the Company; and
(biii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and Company shall be deemed to be the legal transferee of such Company Shares and beneficial owner thereof, free and clear shall be entered in the registers of any liens, claims such Company Shares maintained by or encumbrances; andon behalf of the Company in respect of the Company Shares.
(ce) one minute after the step in Section 3.1(d):
(i) each Corporation Company Preferred Share outstanding held by a Company Preferred Shareholder (other than (ia Dissenting Shareholder) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under immediately prior to the Arrangement Effective Time will be converted into and shall remain outstanding as a Corporation exchanged for one Company Voting Common Share held by Brookfield, (the Purchaser or such affiliate, as the case may be“Company Preferred Conversion”); ;
(ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant such Company Preferred Shareholder will cease to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without have any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded rights as the registered holder of Company Preferred Shares (other than the Corporation right to receive the consideration contemplated by Section 3.1(j)); and
(iii) the name of such Company Preferred Shareholder will be removed as the registered holder of such Company Preferred Shares so transferred from the applicable securities register of the Company maintained by or on behalf of the Company and shall added as a registered holder of Company Voting Common Shares on the applicable securities register of the Company maintained by or on behalf of the Company, and such Company Preferred Shares will be deemed to be cancelled;
(f) one minute after the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.step in Section 3.1(e):
Appears in 2 contracts
Sources: Business Combination Agreement (Spring Valley Acquisition Corp. III), Business Combination Agreement (Spring Valley Acquisition Corp. III)
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order and without any further act or formality:
(a) each outstanding Corporation Share held by a Dissenting Shareholder Parent shall issue, and be deemed to be transferred by have issued, to Parent SubCo that number of duly authorized, fully paid and non-assessable shares of Parent Common Stock (and associated Parent Rights) that is the holder thereof product of
(i) the Exchange Ratio, multiplied by
(ii) the number of Company Common Shares outstanding immediately prior to the Corporation free and clear Effective Time after deducting
A. the number of all liens, claims and encumbrances, and each Company Common Shares held by any Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right who is ultimately entitled to be paid the fair value of their Corporation the Company Common Shares held by such Dissenting Shareholder, and
B. the Corporation in accordance with Article 4 hereofnumber of Company Common Shares held by Parent or any Subsidiary of Parent, the exact number of which is to be confirmed by way of a certificate of a director or officer of Parent, and filed with the name corporate records of Parent, at such holder shall be removed from time that the register number of holders shares of Corporation SharesParent Common Stock (and associated Parent Rights) issuable under the Arrangement is finally determinable, and such Corporation Shares Parent SubCo shall issue, and be cancelled;deemed to have issued, to Parent, in exchange therefor, 1,000,000 common shares in the capital of Parent SubCo.
(b) The outstanding Company Common Shares held by each Qualifying Holdco Share outstanding Company Common Shareholder other than,
(i) Company Common Shares held by a Qualifying Holdco Dissenting Shareholder who is ultimately entitled to be paid the fair value of the Company Common Shares held by such Dissenting Shareholder, or
(ii) Company Common Shares held by Parent or any Subsidiary of Parent (which shall not be exchanged under the Arrangement and shall be transferred cancelled at the Effective Time and deemed cease to exist), will be transferred by the Qualifying Holdco Shareholderholder thereof to, and acquired by, Parent SubCo without any further act or formality on its partthe part of the holders of such Company Common Shares or Parent SubCo, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash that number of duly authorized, fully-paid and non-assessable shares of Parent Common Stock (and associated Parent Rights) equal to the Holdco Share Considerationproduct of the total number of such Company Common Shares held by that Company Common Shareholder multiplied by the Exchange Ratio, and the name of each such holder shall of Company Common Shares will be removed from the register of holders of Qualifying Holdco Company Common Shares maintained in respect and added to the register of holders of Parent Common Stock.
(c) Each Company Option that has not been duly exercised prior to the applicable Qualifying Holdco, and the Purchaser Effective Time shall be recorded as exchanged for or converted into an option (a “Replacement Option”) to purchase that number of shares of Parent Common Stock equal to the registered holder number of Company Common Shares subject to such Company Option multiplied by the Qualifying Holdco Shares so transferred Exchange Ratio. For a Company Option
(i) with an exercise price denominated in Canadian dollars, such Replacement Option shall provide for an exercise price per share of Parent Common Stock in United States dollars equal to (x) the exercise price per Company Common Share of such Company Option immediately prior to the Effective Time divided by the Exchange Ratio, divided by (y) the Currency Exchange Rate for United States dollars on the Effective Date, or
(ii) with an exercise price denominated in United States dollars, such Replacement Option shall provide for an exercise price per share of Parent Common Stock in United States dollars equal to the exercise price per Company Common Share of such Company Option immediately prior to the Effective Time divided by the Exchange Ratio; provided that in no circumstance shall the exercise price per share of Parent Common Stock be less than $.01 and if the calculation results in an exercise price less than $.01, the exercise price shall be deemed to be $.01 per share of Parent Common Stock. If the legal and beneficial owner thereofforegoing calculation results in a Replacement Option (A) being exercisable for a fraction of a share of Parent Common Stock, free and clear then the number of shares of Parent Common Stock subject to such Replacement Option shall be rounded down to the next whole number of shares of Parent Common Stock or (B) having an exercise price per share of Parent Common Stock that is a fraction of a cent, then the exercise price per share of Parent Common Stock under such Replacement Option shall be rounded up to the next whole cent; provided, however, that with respect to any liensCompany Option which is an “incentive stock option”, claims within the meaning of Section 422 of the Code, or encumbrances; and
(cwhich is held by a person who is a resident of Canada within the meaning of the ITA, the provisions provided in this paragraph 2(c) each Corporation Share outstanding (other than shall, if applicable, be modified in a manner so that (i) Corporation the excess of the aggregate fair market value of the shares of Parent Common Stock subject to the Replacement Option immediately after the issuance of the Replacement Option over the aggregate option exercise price of such shares does not exceed the excess of the aggregate fair market value of all Company Common Shares held subject to the Company Option immediately before the issuance of the Replacement Option over the aggregate option exercise price of such shares, and, with respect only to a Company Option that is an “incentive stock option” within the meaning of Section 422 of the Code, (ii) on a share by Brookfieldshare comparison, the Purchaser or any ratio of their affiliates (which shall the option exercise price to the fair market value of the shares of Parent Common Stock subject to the Replacement Option immediately after the issuance of the Replacement Option will not be acquired more favorable to the option holder than the ratio of the option exercise price to the fair market value of the Company Common Shares subject to the Company Option immediately before the issuance of the Replacement Option. The term to expiry, conditions to and manner of exercising, vesting schedule and all other terms and conditions of such Replacement Option will be the same as the terms and conditions of such Company Option. Any document or agreement previously evidencing such Company Option shall thereafter evidence and be deemed to evidence such Replacement Options.
(d) Each Company RSU outstanding under the Arrangement and Company Stock Plans as of the Effective Time, shall remain outstanding as be deemed to be exchanged for or converted into a Corporation Share held by Brookfield, the Purchaser right (a “Replacement RSU”) to acquire or such affiliate, receive (as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares that number of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear shares of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash Parent Common Stock equal to the Considerationnumber of Company Common Shares subject to such Company RSU multiplied by the Exchange Ratio; provided that for the purposes of this paragraph (d) only, and in the name case of such a holder or participant under the relevant Company Stock Plan who is a resident of Canada for purposes of the ITA, the Exchange Ratio shall be removed from modified in a manner such that the register aggregate fair market value of holders the shares of Corporation Shares, and, with respect to Corporation Shares elected Parent Common Stock to be transferred acquired or received under the Replacement RSU immediately after the issuance of the Replacement RSU will not exceed the aggregate fair market value of the Company Common Shares immediately before the issuance of the Replacement RSU that would have been acquired or received under the Company RSU under the relevant Company Stock Plan. If the foregoing calculation results in a Replacement RSU being exercisable for a fraction of a share of Parent Common Stock, then the number of shares of Parent Common Stock subject to such Replacement RSU shall be rounded down to the Purchaser, next whole number of shares of Parent Common Stock. Such Replacement RSUs shall otherwise be subject to the Purchaser same terms and conditions applicable to the Company RSUs under the relevant Company Stock Plan. Any document or agreement previously evidencing such Company RSUs shall be recorded as the registered holder of the Corporation Shares so transferred thereafter evidence and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesreference Replacement RSUs.
Appears in 2 contracts
Sources: Combination Agreement (Donnelley R R & Sons Co), Combination Agreement (Moore Wallace Inc)
Arrangement. Commencing at At the Effective Time, each of the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formality:
(a) all “Rights” (as such term is defined in the Northgate Rights Plan) under the Northgate Rights Plan will terminate and expire without any payment in respect thereof and the Northgate Rights Plan shall be terminated and shall be of no further force and effect;
(b) each outstanding Corporation Northgate Share held by a Dissenting Shareholder shall be transferred and deemed to be have been transferred by the holder thereof to the Corporation thereof, free and clear of all liensLiens, claims and encumbrances, and each to AuRico and:
(i) such Dissenting Shareholder shall cease to have any rights as be a Corporation Shareholder other than the right to be paid the fair value registered or beneficial holder of their Corporation Northgate Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the securities register maintained by or on behalf of holders Northgate in respect of Corporation the Northgate Shares, and such Corporation Shares shall be cancelled;
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco such Dissenting Shareholder shall cease to be transferred the holder of such Northgate Shares and to have any rights as holder of such Northgate Shares other than the right to be paid the fair value for such Northgate Shares by AuRico in accordance with the Dissent Procedures;
(iii) the Dissenting Shareholder that was the registered holder thereof immediately prior to such assignment and transfer shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Northgate Shares to AuRico; and
(iv) AuRico shall be transferred added to the securities register maintained by or on behalf of Northgate in respect of such Northgate Shares showing AuRico as the Qualifying Holdco Shareholder, without any further act or formality on its part, sole legal and beneficial owner of such Northgate Shares free and clear of all liens, claims Liens;
(c) each Northgate Share held by a Northgate Shareholder (other than a Northgate Shareholder who has validly exercised its Dissent Rights and encumbrances, other than Northgate Shares beneficially owned by AuRico immediately prior to the Purchaser, in accordance with the applicable Holdco Agreement, Effective Time) shall be transferred and assigned to AuRico free and clear of all Liens in exchange for 0.365 AuRico Shares (the “Exchange Share Ratio”), subject to Article 6 hereof, and:
(i) such holder shall cease to be a payment in cash equal to the Holdco Share Consideration, registered or beneficial holder of Northgate Shares and the name of such holder shall be removed from the securities register maintained by or on behalf of holders of Qualifying Holdco Shares maintained Northgate in respect of the applicable Qualifying Holdco, Northgate Shares and shall cease to have any rights as holders of such Northgate Shares other than the Purchaser shall be recorded as right to receive the AuRico Shares in accordance with this Plan of Arrangement;
(ii) the Northgate Shareholder that was the registered holder of the Qualifying Holdco Shares so transferred thereof immediately prior to such assignment and transfer shall be deemed to be the legal have executed and beneficial owner thereofdelivered all consents, free releases, assignments and clear of any lienswaivers, claims statutory or encumbrances; andotherwise, required to transfer and assign such Northgate Shares to AuRico;
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), AuRico shall be transferred issue and deemed cause to be transferred by delivered to such holder the AuRico Shares to which such holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, is entitled as aforesaid and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred added to the Purchaser, securities register maintained by or on behalf of AuRico in respect of the Purchaser shall be recorded AuRico Shares showing such holder as the registered holder of the Corporation AuRico Shares so transferred and issued; and
(iv) AuRico shall be deemed added to be the securities register maintained by or on behalf of Northgate in respect of the Northgate Shares showing AuRico as the sole legal and beneficial owner thereof, of Northgate Shares free and clear of all Liens; no fractional AuRico Shares shall be issued by AuRico to any liensNorthgate Shareholder on the exchange contemplated herein and the number of AuRico Shares issued to a Northgate Shareholder shall be rounded down to the next whole number of AuRico Shares with no compensation for any fractional interest;
(d) each Northgate Option outstanding immediately prior to the Effective Time (which shall have become vested in accordance with its terms as a result of the actions taken pursuant to subsections 3.1(b) and 3.1(c) above) shall be exchanged for an option (a “Replacement AuRico Option”) to acquire, claims on the same terms and conditions as were applicable to such Northgate Option immediately before the Effective Time under the Northgate Share Option Plan and relevant agreement evidencing the grant thereof or encumbrancesrelevant agreement under which it was issued, the number of AuRico Shares equal to the product of: (1) the number of Northgate Shares subject to such Northgate Option immediately before the Effective Time multiplied by (2) the Exchange Share Ratio. The exercise price per AuRico Share subject to any such Replacement AuRico Option shall be an amount (rounded up to the nearest cent) equal to the quotient obtained by dividing (1) the exercise price per Northgate Share subject to such Northgate Option immediately before the Effective Time by (2) the Exchange Share Ratio, provided that the exercise price otherwise determined shall be adjusted to the extent, if any, required to ensure that the Replacement AuRico Option In-the-Money Amount immediately after the exchange is equal to the Northgate Option In-the-Money Amount of the exchanged Northgate Option immediately before the Effective Time. No fractional AuRico Shares will be issued by AuRico to any holder of Replacement AuRico Northgate Options on any exercise thereof, and the number of AuRico Shares issued at any time shall be rounded down to the next whole number of AuRico Shares with no compensation for any fractional interest; and
(e) AuRico shall assume all of the rights, powers and obligations of Northgate with respect to the Northgate Convertible Notes, on the same terms and conditions applicable to the Northgate Convertible Notes immediately before the Effective Time pursuant to the Northgate Indenture. Subject to and in accordance with the terms of the Northgate Indenture, each Northgate Convertible Note shall be convertible at any time after the Effective Time into AuRico Convertible Note Shares.
Appears in 2 contracts
Sources: Arrangement Agreement (AuRico Gold Inc.), Arrangement Agreement (Northgate Minerals CORP)
Arrangement. Commencing at At the Effective Time, Time each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Effective Time:
(a) the articles of the Company will be amended to: (i) authorize the issuance of an unlimited number of a new class of proportionate voting shares (the “Proportionate Voting Shares”); (ii) authorize the issuance of an unlimited number of a new class of exchangeable shares (the “Exchangeable Shares”); (iii) authorize the issuance of an unlimited number of a new class of preferred shares, issuable in series (the “Preferred Shares”); and (iv) add the rights, privileges, restrictions and conditions attaching to the Proportionate Voting Shares, Common Shares, Exchangeable Shares and Preferred Shares set out in Exhibit A;
(b) each outstanding Corporation Common Share held by a Dissenting Shareholder shall any of the JW Entities shall, without any further action by or on behalf of the JW Entities, be deemed to be assigned and transferred by the holder thereof to the Corporation Company (free and clear of all liensLiens) in exchange for 0.001 of a Proportionate Voting Share, claims and encumbrances, and each Dissenting Shareholder and:
(i) the JW Entities shall cease to be the holders thereof and to have any rights as a Corporation Shareholder holders of such Common Shares other than the right to be paid the fair value of their Corporation receive Proportionate Voting Shares by the Corporation in respect thereof in accordance with Article 4 hereof, and this Plan of Arrangement;
(ii) the name of such holder JW Entities shall be removed from the register of holders the Common Shares maintained by or on behalf of Corporation Shares, the Company and such Corporation added to the register of the Proportionate Voting Shares maintained by or on behalf of the Company; and
(iii) the Common Shares transferred to the Company shall be cancelled;
(bc) each Qualifying Holdco Share outstanding Canopy Warrant held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholdereither Canopy Growth or Canopy Rivers shall, without any further act action by or formality on its partbehalf of Canopy Growth or Canopy Rivers, be deemed to be acquired by the Company (resulting, for the avoidance of doubt, in the cancellation of such Canopy Warrant) in exchange for the issuance by the Company to Canopy Growth or Canopy Rivers, as applicable, of a fraction of a Common Share per Canopy Warrant equal to (i) the Common Share VWAP minus the exercise price of the Canopy Warrant; divided by (ii) the Common Share VWAP;
(d) each Common Share held by either Canopy Growth or Canopy Rivers (including each Common Share issued in accordance with Section 2.3(c)) shall, without any further action by or on behalf of Canopy Growth or Canopy Rivers, be deemed to be assigned and transferred by the holder thereof to the Company (free and clear of all liensLiens) in exchange for one Exchangeable Share, claims and:
(i) Canopy Growth and encumbrances, Canopy Rivers shall cease to be the Purchaser, holders thereof and to have any rights as holders of such Common Shares other than the right to receive Exchangeable Shares in respect thereof in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, this Plan of Arrangement;
(ii) Canopy Growth and the name of such holder Canopy Rivers shall be removed from the register of holders of Qualifying Holdco the Common Shares maintained in respect by or on behalf of the applicable Qualifying Holdco, Company and added to the Purchaser shall be recorded as the registered holder register of the Qualifying Holdco Exchangeable Shares so transferred and shall be deemed to be maintained by or on behalf of the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesCompany; and
(ciii) the Common Shares transferred to the Company shall be cancelled;
(e) the JW Warrants will be amended to reflect that each JW Warrant is exercisable for 0.001 of a Proportionate Voting Share instead of one Common Share; and
(f) each Corporation Share outstanding (other than (iof the Subscription Agreements will be amended to delete Section 6(vv) Corporation Shares held by Brookfield[Canadian Operations] thereof, provided that none of the Purchaser foregoing will occur or any of their affiliates (which shall not will be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to occur unless all of the foregoing occur and, if they occur, all of the foregoing will be transferred by the holder thereof, deemed to occur without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesformality.
Appears in 2 contracts
Sources: Arrangement Agreement (JW Asset Management, LLC), Arrangement Agreement (TerrAscend Corp.)
Arrangement. Commencing at the Effective Time, except as otherwise noted, each of the following events or transactions steps set out below shall occur and shall be deemed to occur in the following sequence order without any further act or formality, with each step occurring two minutes after the completion of the immediately preceding step:
(ai) each outstanding Corporation Share The articles of the Company will be amended to create and authorize the issuance (in addition to the shares that the Company is authorized to issue immediately before such amendment) of the following:
(A) an unlimited number of class A.1 exchangeable shares having the special rights, privileges and restrictions set out in Exhibit I to this Plan of Arrangement;
(B) an unlimited number of class A.2 exchangeable shares having the special rights, privileges and restrictions set out in Exhibit I to this Plan of Arrangement; and
(ii) to alter the special rights, privileges and restrictions of the class B shares to replace the voting rights therein with the voting rights set out in Exhibit II to this Plan of Arrangement.
(b) Each exchangeable share held by a Dissenting Shareholder in respect of which the Dissenting Shareholder has validly exercised his, her or its Dissent Rights and has not withdrawn, or been deemed to have withdrawn, such exercise of Dissent Rights, shall be deemed to be transferred and assigned by the holder thereof such Dissenting Shareholder, without any further act or formality on his, her or its part, to the Corporation Company (free and clear of all liens, claims and encumbrancesany Encumbrances) in accordance with, and for the consideration set forth in, Section 4.1.
(c) With respect to each exchangeable share transferred and assigned in accordance with Section 3.1(b):
(i) the Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than be the right to be paid the fair value registered holder of their Corporation Shares by the Corporation in accordance with Article 4 hereof, such exchangeable share and the name of such holder Dissenting Shareholder shall be removed from the register of holders of exchangeable shares of the Company as of the Effective Time;
(ii) the Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such exchangeable share; and
(iii) such exchangeable share shall be cancelled by the Company for no consideration, other than as set forth in Section 4.1(a).
(d) Each issued and outstanding exchangeable share (other than exchangeable shares held by the Brookfield Group or by Dissenting Shareholders) will be transferred to the New Corporation Sharesin exchange for one (1) New Exchangeable Share. The aggregate amount to be added by the New Corporation to the stated capital of the New Exchangeable Shares so issued will be an amount equal to the aggregate stated capital of the exchangeable shares so transferred immediately prior to the Effective Time.
(e) Concurrently with the transfer of exchangeable shares pursuant to Section 3.1(d), the New Exchangeable Shares will, outside of this Plan of Arrangement, be listed and posted for trading on the TSX and NYSE (subject to standard listing conditions imposed by the TSX and NYSE in similar circumstances).
(f) The New Corporation will transfer each exchangeable share it received pursuant to Section 3.1(d) to the Company in exchange for one (1) class A.1 exchangeable share and such exchangeable shares will be cancelled. The aggregate amount to be added by the Company to the stated capital of the class A.1 exchangeable shares so issued will be an amount equal to the aggregate stated capital of the exchangeable shares so transferred immediately prior to the Effective Time and such amount will be deducted from the stated capital of the exchangeable shares.
(g) Each exchangeable share held by the Brookfield Group will be transferred to the Company in exchange for one (1) class A.2 exchangeable share of the Company, and such Corporation Shares shall exchangeable shares will be cancelled;. The aggregate amount to be added by the Company to the stated capital of the class A.2 exchangeable shares so issued will be an amount equal to the aggregate stated capital of the exchangeable shares so transferred immediately prior to the Effective Time and such amount will be deducted from the stated capital of the exchangeable shares.
(bh) each Qualifying NA Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, will transfer fifty-five (55) class B shares to the Purchaser, in accordance with the applicable Holdco Agreement, New Corporation in exchange for a payment in cash fifty-five (55) New Class B Shares. The aggregate amount to be added by the New Corporation to the stated capital of the New Class B Shares so issued will be an amount equal to the stated capital of the class B shares so transferred immediately prior to the Effective Time.
(i) The Specified Number of New Class B Shares will be issued to NA Holdco Share Consideration, and in exchange for $1,000,000. The aggregate amount to be added by the name New Corporation to the stated capital of such holder shall be removed from the register of holders of Qualifying Holdco New Class B Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall New Class B Shares so issued will be recorded as the registered holder $1,000,000.
(j) The articles of the Qualifying Holdco Shares so transferred Company will be amended to (i) change the name of the Company to “Brookfield Renewable Holdings Corporation” and shall (ii) remove the exchangeable shares from the authorized share structure of the Company.
(k) The articles of the New Corporation will be amended to change the name of the New Corporation to “Brookfield Renewable Corporation”.
(l) Any Notice of Exchange (as defined in the articles of the Company) in respect of exchangeable shares exchanged pursuant to Section 3.1(d) that is received by the Transfer Agent prior to the Effective Time and for which the Transfer Agent has not yet delivered the “Exchange Consideration” (as defined in the articles of the Company) will be deemed to be a Notice of Exchange (as defined in the legal and beneficial owner thereof, free and clear articles of any liens, claims or encumbrances; and
(cNew Corporation) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation corresponding number of New Exchangeable Shares so transferred and shall will be deemed to be have been received by the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesTransfer Agent on the Effective Date.
Appears in 2 contracts
Sources: Arrangement Agreement (Brookfield Renewable Corp), Arrangement Agreement
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formalityformality by the Company, the Purchaser or Digital River or any other person:
(a) At the Effective Time:
(i) each Option granted and outstanding Corporation Share held by a Dissenting Shareholder shall immediately prior to the Effective Time will be and be deemed to be transferred by the holder thereof to the Corporation Company in exchange for a cash payment from the Company equal to the Option Consideration (if any) in respect of such Option;
(ii) with respect to each Option, the holder thereof will cease to be the holder thereof or to have any rights as a holder in respect of such Option or under the Company Stock Option Plan and the name of the holder thereof will be removed from the applicable securities register of the Company with respect to such Option; and
(iii) the Company Stock Option Plan and each of the Options transferred to the Company pursuant to the step contemplated in Section 3.1(a) will be cancelled;
(b) At the Effective Time:
(i) each Warrant issued and outstanding immediately prior to the Effective Time will be and be deemed to be transferred by the holder thereof to the Company in exchange for a cash payment from the Company equal to the Warrant Consideration (if any) in respect of such Warrant;
(ii) with respect to each Warrant, the holder thereof will cease to be the holder thereof or to have any rights as a holder in respect of such Warrant and the name of the holder thereof will be removed from the applicable securities register of the Company with respect to such Warrant; and
(iii) each of the Warrants transferred to the Company pursuant to the step contemplated in Section 3.1(b) will be cancelled;
(c) each of the outstanding Shares held by Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of the Shares in respect of which they have exercised their Dissent Rights will be and be deemed to be irrevocably transferred to the Purchaser (free and clear of all liens, claims any Liens) and encumbrances, and each such Dissenting Shareholder Shareholders shall cease to have any rights as a Corporation Shareholder shareholders of the Company other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof4;
(d) at the same time as the step contemplated by Section 3.1(c), with respect to each Share transferred to the Purchaser:
(i) the Dissenting Shareholder who was the registered holder of such Share immediately prior to the Effective Time will cease to be the holder of such Share and the name of such holder shall Dissenting Shareholder will be removed from the securities register of holders of Corporation Shares, and the Company with respect to such Corporation Shares shall be cancelled;Share; and
(bii) each Qualifying Holdco legal and beneficial title to such Share outstanding held by a Qualifying Holdco Shareholder shall will vest in the Purchaser and the Purchaser will be transferred and be deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, transferee and the legal and beneficial owner (free and clear of all liensany Liens) of such Share and will be entered in the securities register of the Company as the sole holder of such Share;
(e) each of the outstanding Shares (excluding the Shares held by Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of the Shares in respect of which they have exercised their Dissent Rights and any Shares held, claims and encumbrancesdirectly or indirectly, by the Purchaser immediately prior to the Purchaser, in accordance with Effective Time) will be and be deemed to be irrevocably transferred to the applicable Holdco Agreement, Purchaser in exchange for a cash payment from or on behalf of the Purchaser in cash an amount equal to the Holdco Share Consideration;
(f) at the same time as the step contemplated by Section 3.1(e), with respect to each Share transferred to the Purchaser:
(i) the Shareholder who was the registered holder of such Share immediately prior to the Effective Time will cease to be the holder of such Share and the name of such holder shall Shareholder will be removed from the securities register of holders of Qualifying Holdco Shares maintained the Company with respect to such Share; and
(ii) legal and beneficial title to such Share will vest in respect of the applicable Qualifying Holdco, Purchaser and the Purchaser be and be deemed to be the transferee and the legal and beneficial owner (free and clear of any Liens) of such Share and will be entered in the securities register of the Company as the sole holder of such Share.
(g) The Purchaser and the Company shall amalgamate to form Amalco and shall continue as one corporation under the BCBCA and unless and until otherwise determined in the manner permitted or required by the BCBCA or otherwise by law, by Amalco or by its directors or shareholders with the following effects:
(i) the outstanding Shares of the Company shall be recorded cancelled without any repayment of capital in respect thereof;
(ii) the articles of amalgamation of Amalco shall be the same as the registered holder articles of incorporation of the Qualifying Holdco Shares so transferred Purchaser;
(iii) the outstanding share capital and the stated capital of Amalco shall be the same as the outstanding share capital and stated capital of the Purchaser;
(iv) the name of Amalco shall be “LML Payment Systems Inc.”;
(v) the property of the Company and the Purchaser will continue to be the property of Amalco;
(h) Amalco will continue to be liable for the obligations of the Company and the Purchaser including, but not limited to:
(i) any change of control obligations;
(ii) all costs and expenses associated with the cessation of business by the Company;
(iii) any brokerage fees payable by the Company; and
(iv) any expenses associated with the transactions contemplated herein.
(i) an existing cause of action, claim or liability to prosecution relating to the Company and the Purchaser will be unaffected;
(j) a civil, criminal or administrative action or proceeding pending by or against the Company or the Purchaser may be continued or prosecuted by or against Amalco;
(k) the articles of arrangement shall be deemed to be the legal articles of amalgamation of Amalco and beneficial owner thereof, free and clear the certificate of any liens, claims or encumbrancesarrangement is deemed to be the certificate of incorporation of Amalco; and
(cl) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the bylaws for Amalco shall be in the form of the bylaws of the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, immediately prior to the Applicable Purchaseramalgamation becoming effective, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims until repealed or encumbrancesamended.
Appears in 2 contracts
Sources: Arrangement Agreement (LML Payment Systems Inc), Arrangement Agreement (Digital River Inc /De)
Arrangement. Commencing at 3.1.1 At the Effective Time, Time each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at one minute intervals starting at the Effective Time:
(a) each outstanding Corporation Share held by a Dissenting Shareholder Company RSU, whether vested or unvested, shall be deemed to be vested to the fullest extent, and such Company RSU shall be, and shall be deemed to be, surrendered to the Company by the holder of Company RSUs at a ratio of one RSU for one Company Subordinate Voting Share, less any amounts required to be withheld pursuant to Article 7 and the Company Subordinate Voting Shares issuable in connection therewith shall be deemed to be issued to such holder of Company RSUs as fully paid and non-assessable shares in the capital of the Company, provided that no share certificates shall be issued with respect to such shares;
(b) each Company Share outstanding immediately prior to the Effective Time held by a Company Shareholder in respect of which Dissent Rights have been validly exercised will be deemed to have been transferred without any further act or formality to the Purchaser by the holder thereof to the Corporation for cancellation, free and clear of all liens, claims and encumbrancesany Liens, and each such Company Shareholder will cease to be the registered holder of such Dissenting Shareholder shall Shares and will cease to have any rights as a Corporation Shareholder registered holder of such Company Shares other than the right to be paid the fair value of their Corporation for such Dissenting Shares by the Corporation as set out in accordance with Article 4 hereofSection 4.1.2, and such Company Shareholder’s name will be removed as the name registered holder of such holder shall be removed Dissenting Shares from the register of holders of Corporation SharesCompany Shares maintained by or on behalf of the Company, and such Corporation the Dissenting Shares shall be cancelled;
(bc) each Qualifying Holdco Mayde Exchangeable Share outstanding held by a Qualifying Holdco Shareholder immediately prior to the Effective Time shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, Purchaser in exchange for a payment in cash equal to the Holdco Share Consideration1,500.5 Purchaser Shares, and upon such transfer:
(i) the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall Mayde Exchangeable Shares will cease to be recorded as the registered holder of such Mayde Exchangeable Shares on the Qualifying Holdco Shares so transferred register of Spartan Partners Corporation and shall be deemed will cease to be the legal and beneficial owner thereof, free and clear of have any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding rights as a Corporation Share held by Brookfield, the Purchaser or holder of such affiliate, as the case may be); Mayde Exchangeable Shares;
(ii) Corporation such holder of the Mayde Exchangeable Shares held by Qualifying Holdcos, shall be entered into the Qualifying Holdco Shares securities register of which are acquired by the Purchaser as the holder of such Purchaser Shares;
(d) concurrently with the transfer of Mayde Exchangeable Shares pursuant to Section 3.1(b3.1.1(c), there shall be added to the stated capital of the Purchaser Shares, an amount equal to the cost (within the meaning of the Tax Act, including, if applicable, as determined under Section 85 of the Tax Act) (which shall not be acquired under of the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Mayde Exchangeable Shares acquired by the Purchaser pursuant to Section 3.1(a3.1.1(c)), ;
(e) each Company Super Voting Share outstanding immediately prior to the Effective Time shall be transferred for no payment, and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrancesformality, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name holder of such holder transferred Company Super Voting Share shall be removed from the Company’s securities register for the Company Super Voting Shares;
(f) concurrently with the transfer of holders Company Super Voting Shares pursuant to Section 3.1.1(e), the stated capital of Corporation the Company Super Voting Shares shall be reduced to nil, and there shall be added to the stated capital of the Company Subordinate Voting Shares, and, with respect to Corporation Shares elected to be transferred an amount equal to the Purchaser, paid-up capital (within the Purchaser shall be recorded as the registered holder meaning of the Corporation Tax Act) of the Company Super Voting Shares so transferred immediately prior to the Effective Time;
(g) immediately following the preceding steps, Purchaser Subco shall amalgamate and shall merge with and into the Company (the “Merger”) under Section 181 of the CBCA and be deemed to be one corporate entity (“Mergerco”) and upon the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.Merger being effective:
Appears in 2 contracts
Sources: Amending Agreement (TerrAscend Corp.), Amending Agreement
Arrangement. Commencing at the Effective Time, each of the following events or transactions set out below shall occur and shall be deemed to occur in the following sequence or as otherwise provided below or herein, without any further act or formalityformality on the part of any Person, in each case, unless specifically provided otherwise in this Section 2.2 effective as at two-minute intervals starting at the Effective Time:
(a) each outstanding Corporation Each FSD Pharma Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrancesEncumbrances, to FSD Pharma for cancellation and shall be cancelled;
(b) such Dissenting Shareholder shall cease to be the Applicable Purchaser, holder of such FSD Pharma Shares and to have any rights as a FSD Pharma Shareholder other than the right to be paid fair value for such FSD Pharma Shareholder by FSD Pharma in exchange for a payment in cash equal to the Consideration, and accordance with Article 3;
(c) the name of such Dissenting Shareholder shall be removed from FSD Pharma's register of FSD Pharma Shares as a holder of FSD Pharma Shares;
(d) The articles of FSD Pharma shall be amended to provide that the authorized share structure of FSD Pharma shall be reorganized and altered by:
i. changing the identifying name of the issued and unissued Class A Shares from “Class A Multiple Voting Shares” to “Multiple Voting Shares” and amending the rights, privileges, restrictions and conditions attaching to those shares to require FSD Pharma to provide a notice of time and place of any meeting of shareholders to be sent at least 22 days and not more than 60 days to shareholders thereof;
ii. changing the identifying name of the issued and unissued Class B Shares from “Class B Subordinate Voting Shares” to “Subordinate Voting Shares” and amending the rights, privileges, restrictions and conditions attaching to those shares to require FSD Pharma to provide a notice of time and place of any meeting of shareholders to be sent at least 22 days and not more than 60 days to shareholders thereof;
iii. creating a new class of shares without par value, with no maximum number of shares and with the identifying name “Reorganization Multiple Voting Shares” having the rights, privileges, restrictions, and conditions identical to the Class A Shares, as more particularly described in the articles of FSD Pharma, prior to the amendments described in paragraph (d)(i) above (the “FSD Pharma New Class A Shares”); and
iv. creating a new class of shares without par value, with no maximum number and with and with the identifying name “Reorganization Subordinate Voting Shares” having the rights, privileges, restrictions and conditions identical to the Class B Shares, as more particularly described in the articles of FSD Pharma, prior to the amendments described in paragraph (d)(ii) above (the “FSD Pharma New Class B Shares”).
(e) FSD Pharma shall reorganize its capital within the meaning of Section 86 of the Tax Act such that each FSD Pharma Shareholder (for the avoidance of doubt, excluding any FSD Pharma Shares surrendered and cancelled in accordance with Section 2.2(a) shall dispose of all of the FSD Pharma Shareholder's securities to FSD Pharma and in consideration and exchange therefor (“Consideration”),FSD Pharma shall:
i. with respect to the holders of Class B Shares:
a) issue that number of FSD Pharma New Class B Shares as is equal to the number of Class B Shares previously held by each such holder;
b) distribute a number of Celly Nu Shares equal to the number of FSD Pharma New Class B Shares held, in accordance with the provisions of Article 4 of the Plan of Arrangement as of the Effective Date
ii. with respect to the holders of Class A Shares:
a) issue (i) to any holder of a Class A Share that is a Permitted Holder at the Effective Time, that number of FSD Pharma New Class A Shares as is equal to the number of Class A Shares previously held by each such holder; or (ii) to any holder of a Class A Share that is not a Permitted Holder at the Effective Time, at the discretion of the Board of Directors of FSD Pharma, either (x) that number of FSD Pharma New Class A Shares as is equal to the number of Class A Shares previously held by each such holder; or (y) that number of FSD Pharma New Class B Shares as is equal to the number of Class A Shares previously held by each such holder; and
b) distribute a number of Celly Nu Shares equal to the number of FSD Pharma New Class A Shares held, in accordance with the provisions of Article 4 of the Plan of Arrangement as of the Effective Date; (collectively, the “Share Exchange”), and, in connection with the Share Exchange:
i. the name of each FSD Pharma Shareholder shall be removed from the shareholder register and added to the shareholder register for the FSD Pharma New Class B Shares and FSD Pharma New Class A Shares, respectively, and Celly Nu Shares as the holder of the number of FSD Pharma New Class B Shares, FSD Pharma New Class A Shares and Celly Nu Shares, respectively, received pursuant to the Share Exchange;
ii. all issued and outstanding Class B Shares and Class A Shares shall be cancelled and the capital in respect of such securities shall be reduced to nil;
iii. the number of Celly Nu Shares previously held by FSD Pharma and distributed pursuant to the Share Exchange shall be removed from Celly Nu's register of holders of Corporation Celly Nu Shares, ; and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser
(f) The authorized share structure of FSD Pharma shall be recorded as reorganized and altered by:
i. eliminating the registered holder Class B Shares from the authorized share structure of FSD Pharma;
ii. eliminating the Class A Shares from the authorized share structure of FSD Pharma;
iii. changing the identifying name of the Corporation issued and unissued FSD Pharma New Class B Shares so transferred from “Reorganization Subordinate Voting Shares” to “Class B Subordinate Voting Shares”; and
iv. changing the identifying name of the issued and shall unissued FSD Pharma New Class A Shares from “Reorganization Multiple Voting Shares” to “Class A Multiple Voting Shares”.
(g) Each FSD Pharma Option outstanding before the Effective Time will be deemed to be exchanged for:
i. one FSD Pharma New Option, with each FSD Pharma New Option having an exercise price equal to the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesoriginal exercise price for the FSD Pharma Option being exchanged.
(h) Each FSD Pharma Distribution Warrant outstanding before the Effective Time will be deemed to be exchanged for:
i. one FSD Pharma New Distribution Warrant with each FSD Pharma New Distribution Warrant having an exercise price equal to the original exercise price for the FSD Pharma Distribution Warrant being exchanged; and
Appears in 2 contracts
Sources: Arrangement Agreement (FSD Pharma Inc.), Arrangement Agreement (FSD Pharma Inc.)
Arrangement. Commencing at 3.1 On the Effective TimeDate, the following shall occur and be deemed to occur in the following chronological order without further act or formality, notwithstanding anything contained in the provisions attaching to any of the Parties, but subject to the provisions of Article 6:
(a) NRG will distribute 100% of the Spinco Shares it receives to the NRG Shareholders on a pro rata basis. The NRG Shareholders will be entitled to receive one Spinco Share in exchange for every four NRG Shares held as at the Record Date, November 25, 2016. There will be no change in shareholders’ holdings in NRG as a result of the Arrangement;
(b) NRG will pay $150,000 in cash to Spinco as well as transfer certain accounts payable associated with the Gold and Graphite Assets;
(c) NRG will transfer the Gold and Graphite Assets to Spinco;
(d) Spinco will become a reporting issuer in the Provinces of British Columbia and Alberta; and
(e) The Company will retain its working capital for its new Lithium Assets, and remain listed on the Exchange and continue to trade under the trading symbol, “NGZ”, as a junior exploration company.
3.2 Notwithstanding §3.1
(a) no fractional Spinco Shares shall be distributed to the NRG Shareholders, as a result all fractional share amounts arising under such sections shall be rounded down to the nearest whole number. Any Spinco Shares not distributed as a result of this rounding down shall be dealt with as determined by the NRG Board in its absolute discretion.
3.3 All Spinco Shares issued pursuant to this Plan of Arrangement shall be deemed to be validly issued and outstanding as fully paid and non-assessable shares for all purposes of the BCBCA.
3.4 The Arrangement shall become final and conclusively binding on the NRG Shareholders and Spinco Shareholders and the Parties on the Effective Date.
3.5 Notwithstanding that the transactions and events or transactions set out in §3.1 shall occur and shall be deemed to occur in the following sequence chronological order therein set out without any further act or formality:
(a) , each outstanding Corporation Share held by a Dissenting Shareholder of the Parties shall be deemed required to make, do and execute or cause and procure to be transferred by made, done and executed all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may be required to give effect to, or further document or evidence, any of the holder thereof to transactions or events set out in §3.1 including, without limitation, any resolutions of directors authorizing the Corporation free issue, transfer or redemption of shares, any share transfer powers evidencing the transfer of shares and clear of all liens, claims and encumbrancesany receipt therefore, and each Dissenting Shareholder shall cease any necessary additions to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed or deletions from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesshare registers.
Appears in 2 contracts
Sources: Arrangement Agreement, Arrangement Agreement
Arrangement. Commencing Pursuant to the Arrangement, at the Effective Time, the following events or transactions shall occur and shall be deemed to occur consecutively in the following sequence order and without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Effective Time:
(a) each outstanding Corporation Share all Company Common Shares held by a Dissenting Shareholder Shareholders shall be deemed to be have been assigned and transferred by the holder thereof to the Corporation (free and clear of all liensEncumbrances) to Triple Flag in exchange for a debt claim against Triple Flag in an amount determined in accordance with Section 5.1 hereof, claims and encumbrances, and each and:
(i) such Dissenting Shareholder Shareholders shall cease to be the holders of such Company Common Shares and to have any rights as a Corporation Shareholder Company Shareholders other than the right to be paid the fair value for such Company Common Shares as set out in Section 5.1;
(ii) the name of their Corporation Shares each such holder will be removed as a Company Shareholder from the registers of Company Shareholders maintained by or on behalf of the Corporation Company in respect of the Company Common Shares; and
(iii) the holder of each such Company Common Share immediately prior to such transfer shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to so assign and transfer such Company Common Share;
(b) each Company Shareholder shall transfer to Triple Flag each whole Company Common Share held (other than any Company Common Share acquired by Triple Flag from a Dissenting Shareholder under Section 3.1(a)) in exchange for:
(i) in the case of a Company Common Share for which the Cash Election was made under Section 3.2(a)(i) the All Cash Consideration,
(ii) in the case of a Company Common Share for which the Share Election was made under Section 3.2(a)(ii) or deemed to have been made under Sections 3.2(b), the All Share Consideration, in each case subject to proration in accordance with Article 4 hereofSection 3.3 and Section 3.4, and in respect of the Company Common Shares so transferred (i) the Company Shareholder shall cease to be the holder thereof, (ii) the name of such holder the Company Shareholder shall be removed from the register maintained by or on behalf of holders the Company in respect of Corporation the Company Common Shares; (iii) the Company Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof; and (iv) the name of Triple Flag shall be added to the register maintained by or on behalf of the Company in respect of the Company Common Shares as the holder thereof.
(c) simultaneously:
(i) each Company In-The-Money-Option outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Company Option Plan, will be deemed to be unconditionally vested and exercisable, and such Corporation Shares shall Company Option will,
(a) in the case of a Company In-The-Money-Option for which the Cash Option Election was made under Section 3.5(a)(i), without any further action by or on behalf of a holder of Company Options, be cancelled;assigned, transferred, and disposed of by the Company In-The-Money-Optionholder to the Company in consideration for a cash payment from the Company equaling the Cash-out Amount for such Company Option, in each case, less applicable withholdings, and such Company Option will be immediately canceled; or
(b) each Qualifying Holdco in the case of a Company In-The-Money-Option for which the Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco ShareholderOption Election was made under Section 3.5(a)(ii), without any further act action by or formality on its partbehalf of a holder of Company Options, free be exchanged for a vested Replacement Option to acquire, on the same terms and clear of all liens, claims and encumbrances, conditions as were applicable under such Company Option immediately prior to the PurchaserEffective Time, in accordance with such number of Triple Flag Common Shares equal to (1) that number of Company Common Shares that were issuable upon exercise of such Company Option immediately prior to the applicable Holdco AgreementEffective Time, in exchange for a payment in cash multiplied by (2) the Exchange Ratio, rounded down to the nearest whole number of Triple Flag Common Shares, at an exercise price per Triple Flag Common Share equal to the Holdco quotient determined by dividing (X) the exercise price per Company Common Share Considerationat which such Company Option was exercisable immediately prior to the Effective Time, and by (Y) the name Exchange Ratio, rounded up to the nearest whole cent; provided that the exercise price of such holder Replacement Option shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdcobe, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be, adjusted by the amount, and only to the extent, necessary to ensure that the In the Money Amount of such Replacement Option does not exceed the In the Money Amount (if any) of such Company Option before the exchange. Notwithstanding the foregoing, the requirement in section 8.1 of the Company Option Plan for any vested Replacement Options to be exercised within 90 days after the legal Effective Time shall not apply and beneficial owner thereofthe termination of affiliation provisions in sections 4.3(a), free 4.3(b) and clear 4.3(c) of the Company Option Plan shall not apply such that any liens, claims cessation of employment or encumbrancesengagement of a holder of Replacement Options that would be subject to such sections shall be disregarded and the applicable holder’s Replacement Options shall otherwise continue to remain outstanding in accordance with the Company Option Plan until the applicable Expiry Date (as defined in the Company Option Plan); and
(cii) each Corporation Share Company Out-Of-The-Money-Option outstanding immediately prior to the Effective Time (other than (i) Corporation Shares held by Brookfield, the Purchaser whether vested or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)unvested), shall notwithstanding the terms of the Company Option Plan, will be transferred and deemed to be transferred by the holder thereofunconditionally vested and exercisable, and such Company Option will without any further act action by or formality on its partbehalf of a holder of Company Options, free be exchanged for a vested Replacement Option to acquire, on the same terms and clear of all liens, claims and encumbrances, conditions as were applicable under such Company Option immediately prior to the Applicable PurchaserEffective Time, in exchange for a payment in cash such number of Triple Flag Common Shares equal to (1) that number of Company Common Shares that were issuable upon exercise of such Company Option immediately prior to the Effective Time, multiplied by (2) the Exchange Ratio, rounded down to the nearest whole number of Triple Flag Common Shares, at an exercise price per Triple Flag Common Share equal to the Considerationquotient determined by dividing (X) the exercise price per Company Common Share at which such Company Option was exercisable immediately prior to the Effective Time, and by (Y) the name Exchange Ratio, rounded up to the nearest whole cent; provided that the exercise price of such holder Replacement Option shall be removed from the register of holders of Corporation Sharesbe, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be, adjusted by the amount, and only to the extent, necessary to ensure that the In the Money Amount (if any) of such Replacement Option does not exceed the In the Money Amount (if any) of such Company Option before the exchange. Notwithstanding the foregoing, the requirement in section 8.1 of the Company Option Plan for any vested Replacement Options to be exercised within 90 days after the legal Effective Time shall not apply and beneficial owner the termination of affiliation provisions in sections 4.3(a), 4.3(b) and 4.3(c) of the Company Option Plan shall not apply such that any cessation of employment or engagement of a holder of Replacement Options that would be subject to such sections shall be disregarded and the applicable holder’s Replacement Options shall otherwise continue to remain outstanding in accordance with the Company Option Plan until the applicable Expiry Date (as defined in the Company Option Plan); and
(iii) each Company RSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Company RSU Plan or any applicable grant letter, employment agreement (or similar agreement) or any resolution or determination of the Company Board (or any committee thereof), shall, without any further action by or on behalf of the holder thereof, free be deemed to be assigned and clear of any lienstransferred by such holder to the Company in exchange for a cash payment from the Company in an amount equal to the Payout Value, claims or encumbrancessubject to Section 6.3, and each such Company RSU shall immediately be cancelled.
Appears in 2 contracts
Sources: Arrangement Agreement (Maverix Metals Inc.), Arrangement Agreement (Triple Flag Precious Metals Corp.)
Arrangement. Commencing at the Effective Time, except as otherwise noted herein, the following events or transactions shall occur and shall be deemed to occur in one minute intervals, in the following sequence order, without any further act or formalityformality required on the part of any person:
(a) all Minefinders Shares to be issued to Minefinders Optionholders who have tendered Conditional Exercise Notices, together with the applicable exercise price, for any Minefinders Options that are vested at or prior to the Effective Time (including any unvested Minefinders Options whose vesting was accelerated pursuant to section 3.4(f) of the Minefinders 2003 Option Plan or section 6 of the Minefinders 2011 Option Plan), will be deemed to be issued to such Minefinders Optionholders, as fully paid and non- assessable common shares in the capital of Minefinders, such Minefinders Optionholders will be entered in the share register of Minefinders as the registered holder thereof and no share certificates in respect of such Minefinders Shares shall be issued;
(b) each outstanding Corporation Dissenting Share held by a Dissenting Shareholder shall be deemed to be have been transferred by to Pan American, and
(i) the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to be the registered holder of such Dissenting Shares and shall cease to have any rights as a Corporation Minefinders Shareholder in respect of such Dissenting Shares other than the right to be paid the fair value by Pan American for such Dissenting Shares as set out in Article 4 of their Corporation this Plan of Arrangement;
(ii) the Dissenting Shareholder’s name shall be removed as the holder of such Dissenting Shares from the register of Minefinders Shareholders; and
(iii) Pan American will be the holder of all of the Dissenting Shareholder’s Dissenting Shares and the register of Minefinders Shareholders shall be revised accordingly;
(c) subject to Sections 3.2, 3.3 and 3.5 of this Plan of Arrangement, each Minefinders Share held by a Minefinders Shareholder (other than Minefinders Shares held by Pan American and its Affiliates and (without duplication) Dissenting Shares but, for greater certainty, including Minefinders Shares acquired by former Minefinders Optionholders pursuant to Subsection 3.1(a) of this Plan of Arrangement) shall be transferred by the Corporation holder thereof to Pan American in exchange for (as elected or deemed to be elected by the holder in accordance with Article 4 hereofthe Minefinders Shareholder’s Letter of Transmittal or (in respect of Minefinders Shares issued to former Minefinders Optionholders in accordance with subsection 3.1(a) of this Plan of Arrangement) Conditional Exercise Notice:
(i) the Cash Option;
(ii) the Pan American Share Option; or
(iii) the Full Proration Option, and (1) the Former Minefinders Shareholder shall cease to be the registered holder of each Minefinders Share so transferred and shall be the holder of the Pan American Shares received by it pursuant to Subsection 3.1(c) of this Plan of Arrangement (if any), and the name of such holder Former Minefinders Shareholder shall be removed from the register of holders of Corporation Shares, Minefinders Shareholders and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from entered into the register of holders of Qualifying Holdco Pan American Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Pan American Shares so transferred and received by it pursuant to Subsection 3.1(c) (if any); (2) the Former Minefinders Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Minefinders Share hereunder; (3) Pan American will be the legal holder of all of the outstanding Minefinders Shares and beneficial owner thereofthe register of Minefinders Shareholders shall be revised accordingly; and (4) unless the Minefinders Shareholder receives only cash for Minefinders Shares owned by such Minefinders Shareholder, free a pro rata portion of the total amount of cash and clear the total number of Pan American Shares received by such Minefinders Shareholder pursuant to this Subsection 3.1(c) as adjusted by Sections 3.2 and 3.5 of this Plan of Arrangement, if applicable, will be allocated to every Minefinders Share transferred by such Minefinders Shareholder hereunder, so that such Minefinders Shareholder will receive for each such Minefinders Share the same combination of Pan American Shares and cash as it receives for each other Minefinders Share held by it and neither Pan American Shares nor cash will be considered to have been received for any liens, claims specific portion or encumbrances; andfraction of such Minefinders Share;
(cd) each Corporation Share outstanding Minefinders Option in respect of which Minefinders Shares are not issued in accordance with Subsection 3.1(a) of this Plan of Arrangement shall be exchanged for an option (other than each, a “Replacement Option”) to purchase from Pan American the number of Pan American Shares equal to: (i) Corporation Shares held the Option Exchange Ratio multiplied by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation the number of Minefinders Shares held by Qualifying Holdcos, subject to such Minefinders Option immediately prior to the Qualifying Holdco Shares of which are acquired by Effective Time. Such Replacement Option shall provide for an exercise price per Pan American Share (rounded up to the Purchaser nearest whole cent) equal to: (x) the exercise price per Minefinders Share otherwise purchasable pursuant to Section 3.1(b) such Minefinders Option; divided by (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdcoy); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.
Appears in 2 contracts
Sources: Amendment Agreement (Minefinders Corp Ltd.), Second Amendment Agreement (Minefinders Corp Ltd.)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence sequence, in each case effective as at one minute intervals starting at the Effective Time, without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each outstanding Corporation of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) each SilverCrest Share held by a Dissenting Shareholder in respect of which the SilverCrest Shareholder has validly exercised his, her or its Dissent Rights shall be deemed to be transferred and assigned by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each such Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, to First Majestic (free and clear of all any liens, claims charges and encumbrancesencumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(c) pursuant to and on the terms and conditions set out in the SilverCrest Conveyance Agreement, SilverCrest will subscribe for and SpinCo will issue to SilverCrest such number of fully paid and non-assessable SpinCo Shares as is equal to the Purchasertotal number of SilverCrest Shares issued and outstanding at the Effective Time (other than SilverCrest Shares held by Dissenting Shareholders) multiplied by the SpinCo Exchange Ratio for an aggregate purchase price of $5,291,635 and, in satisfaction of such purchase price, SilverCrest will (i) pay to SpinCo cash in the amount of $5,250,000, (ii) transfer to SpinCo all right, title and interest which it holds in and to (or, in the case of (B), at the discretion of First Majestic, arrange for a sublease of) (A) the SilverCrest name and logo, (B) the office lease of SilverCrest relating to SilverCrest’s existing offices located at Suites 501 and 503 - 570 Granville Street, Vancouver, British Columbia, and (C) all office furniture, office equipment or office supplies located at such office location and all associated computer software licenses; (iii) endorse over to SpinCo the non-interest bearing demand promissory note (the “Nusantara Note”) issued to SilverCrest by its subsidiary, Nusantara de Mexico S.A. de C.V., in the amount of $24,235, which note will be immediately assigned by SpinCo to SpinCo Sub; and (iv) assume all of the SilverCrest Transferred Liabilities (other than SilverCrest Transferred Liabilities relating solely to the SilverCrest Transferred Properties);
(d) pursuant to and on the terms and conditions set out in the SilverCrest Conveyance Agreement, SilverCrest shall cause its subsidiaries to assign and transfer to SpinCo Sub and SpinCo shall cause SpinCo Sub to accept all right, title and interest in and to the SilverCrest Transferred Properties for an aggregate purchase price of $24,235 and, in satisfaction of such purchase price, SpinCo Sub will (i) set-off the Nusantara Note against the cash portion of such purchase price and will surrender the Nusantara Note for cancellation; and (ii) assume all of the SilverCrest Transferred Liabilities relating solely to the SilverCrest Transferred Properties;
(e) pursuant to and on the terms and conditions set out in the First Majestic Conveyance Agreement, First Majestic will subscribe for and SpinCo will issue to First Majestic such number of fully-paid and non-assessable SpinCo Shares as is equal to the number of SpinCo Shares referred to in Section 2.3(c) multiplied by 0.1099 for an aggregate purchase price equal to the aggregate purchase price referred to in Section 2.3(c) multiplied by 0.1099, such purchase price to be satisfied in the manner set out in Section 2.3(f);
(f) pursuant to and on the terms and conditions set out in the First Majestic Conveyance Agreement, First Majestic shall cause First Majestic Sub to assign and transfer to SpinCo Sub and SpinCo shall cause SpinCoSub to accept all right, title and interest in and to the First Majestic Transferred Property for an aggregate purchase price equal to the amount referred to in Section 2.3(e), such purchase price to be satisfied by set-off against the amount referred to in Section 2.3(e);
(g) each SilverCrest Option which is outstanding and has not been duly exercised prior to the Effective Time will be exchanged for an option (each, a “SilverCrest Replacement Option”) to purchase from SilverCrest a SilverCrest Share and an option (each, a “SpinCo Option”) to purchase from SpinCo such number of SpinCo Shares as is equal to the SpinCo Exchange Ratio (and when aggregated with the other similar SpinCo Options of a holder of such options resulting in a fraction of a SpinCo Share, they shall all be rounded down to the nearest whole number of SpinCo Shares). Each SilverCrest Replacement Option shall provide for an exercise price per SilverCrest Share (rounded up to the nearest whole cent) equal to the exercise price per SilverCrest Share that would otherwise be payable to acquire a SilverCrest Share pursuant to the SilverCrest Option it replaces. Each SpinCo Option shall provide for an exercise price per SpinCo Share (rounded up to the nearest whole cent) equal to the exercise price per SilverCrest Share that would otherwise be payable pursuant to the SilverCrest Option it replaces, divided by the SpinCo Exchange Ratio. All terms and conditions of a SilverCrest Replacement Option or a SpinCo Option, including the term to expiry, conditions to and manner of exercising, will be the same as the SilverCrest Option for which it was exchanged and shall be governed by the terms of the SilverCrest Option Plan (in the case of SilverCrest Replacement Options) or the SpinCo Option Plan (in the case of SpinCo Options) and any document previously evidencing the SilverCrest Replacement Option shall thereafter evidence and be deemed to evidence such SilverCrest Replacement Option and SpinCo Option. It is intended that subsection 7(1.4) of the ITA apply to such exchange of options. Accordingly, and notwithstanding the foregoing, if required, the exercise price of the SilverCrest Replacement Options and SpinCo Options issued to any particular former holder of SilverCrest Options will be increased on a pro rata basis such that the aggregate In-the-Money Amount of the SilverCrest Replacement Options and the In-the-Money Amount of the SpinCo Options held by such holder immediately after the exchange does not exceed the In-the-Money Amount of the SilverCrest Options held by such holder immediately before the exchange;
(h) the SpinCo Shares referred to in Section 2.3(c) shall be distributed by SilverCrest to the SilverCrest Shareholders (other than SilverCrest Shareholders who have validly exercised Dissent Rights) such that each such holder will receive such number of SpinCo Shares in respect of each SilverCrest Share held as is equal to the SpinCo Exchange Ratio, such SpinCo Shares to be distributed as a return of share capital pursuant to a reorganization of SilverCrest’s business and a distribution of proceeds from a disposition of SilverCrest’s property outside the ordinary course of SilverCrest’s business, with the result that the paid up capital in respect of the SilverCrest Shares shall be reduced by an amount equal to the fair market value thereof;
(i) each SilverCrest Share (other than any SilverCrest Share held by any Dissenting Shareholder) will, without further act or formality and by or on behalf of a holder of SilverCrest Shares, be irrevocably assigned and transferred by the holder thereof to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for such number of First Majestic Shares as is equal to the First Majestic Exchange Ratio and $0.0001 in cash for each SilverCrest Share held;
(j) each SilverCrest Replacement Option which is outstanding and has not been duly exercised prior to the Effective Time will be exchanged for an option (each, a “First Majestic Replacement Option”) to purchase from First Majestic such number of First Majestic Shares as is equal to the First Majestic Exchange Ratio (and when aggregated with the other similar First Majestic Replacement Options of a holder of such options resulting in a fraction of a First Majestic Share, they shall all be rounded down to the nearest whole number of First Majestic Shares). Each First Majestic Replacement Option shall provide for an exercise price per First Majestic Share (rounded up to the nearest whole cent) equal to the exercise price per SilverCrest Share that would otherwise be payable pursuant to the SilverCrest Replacement Option it replaces, divided by the First Majestic Exchange Ratio. All terms and conditions of a First Majestic Replacement Option, including the term to expiry, conditions to and manner of exercising, will be the same as the SilverCrest Replacement Option for which it was exchanged, and shall be governed by the terms of the First Majestic Option Plan and any document previously evidencing the SilverCrest Replacement Option shall thereafter evidence and be deemed to evidence such First Majestic Replacement Option. Notwithstanding the forgoing, the terms and conditions of the First Majestic Option Plan relating to accelerated expiry of First Majestic Options on account of early termination after ceasing to hold office or ceasing to be an employee or consultant shall not apply to the First Majestic Replacement Options, such that there will be no accelerated expiry of First Majestic Replacement Options on account of early termination after ceasing to hold office or ceasing to be an employee or consultant;
(k) with respect to each SilverCrest Share transferred and assigned in accordance with Section 2.3(b) or Section 2.3(i):
(i) the applicable Holdco Agreement, in exchange for a payment in cash equal registered holder thereof shall cease to be the Holdco registered holder of such SilverCrest Share Consideration, and the name of such registered holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect SilverCrest Shareholders as of the applicable Qualifying Holdco, and the Purchaser shall be recorded as Effective Time;
(ii) the registered holder of the Qualifying Holdco Shares so transferred and thereof shall be deemed to be the legal have executed and beneficial owner thereofdelivered all consents, free releases, assignments and clear of any lienswaivers, claims statutory or encumbrancesotherwise, required to transfer and assign such SilverCrest Share; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall First Majestic will be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims of the outstanding SilverCrest Shares and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser SilverCrest Shareholders shall be recorded as revised accordingly; and
(l) the registered holder of the Corporation Shares so transferred exchanges, cancellations and shall other steps provided for in this Section 2.3 will be deemed to be occur on the legal and beneficial owner thereofEffective Date, free and clear notwithstanding that certain of any liens, claims or encumbrancesthe procedures related thereto are not completed until after the Effective Date.
Appears in 2 contracts
Sources: Arrangement Agreement (Silvercrest Mines Inc), Arrangement Agreement (First Majestic Silver Corp)
Arrangement. Commencing at the Effective Time, each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case, effective as at two-minute intervals starting at the Effective Time, except as indicated otherwise:
(a) each Company Share outstanding Corporation immediately prior to the Effective Time held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred (free and clear of all Liens), without any further act or formality by or on behalf of any Dissenting Shareholder, to the Company for cancellation, in consideration for a debt claim against the Company for the amount determined under Article 3, and:
(i) such Dissenting Shareholder shall cease to be the registered holder of such Company Share and to have any rights as a Company Shareholder other than the right to be paid fair value for such Company Share, set out in Section 3.1;
(ii) such Dissenting Shareholder’s name shall be removed as the registered holder of Company Shares from the applicable register of Company Shareholders maintained by or on behalf of the Company;
(b) each Company Share outstanding immediately prior to the Effective Time (other than a Company Share held by a Dissenting Shareholder shall in respect of which Dissent Rights have been validly exercised under Section 3.1) shall, without any further action by or on behalf of such Company Shareholder, be deemed to be assigned and transferred by the holder thereof to the Corporation free and clear Purchaser solely in exchange for the issuance by the Purchaser to the holder thereof of all liensthe Consideration, claims and encumbrances, and and:
(i) each Dissenting Shareholder registered holder of such Company Shares shall cease to be the registered holder thereof and to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation Consideration pursuant to this Section 2.3(b) and in accordance with Article 4 hereof, and this Plan of Arrangement;
(ii) the name of each such registered holder shall be removed from the register of holders the Company Shareholders maintained by or on behalf of Corporation Shares, and such Corporation Shares shall be cancelled;the Company; and
(biii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear transferee of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation such Company Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims Liens and encumbrances, shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company.
(c) notwithstanding the terms of the Company Option Plan or any agreements or other arrangements relating to the Applicable PurchaserCompany Employee Options, each Company Employee Option outstanding immediately prior to the Effective Time, whether vested or unvested, shall be transferred to the Purchaser in exchange for a payment in cash Replacement Employee Option to purchase from the Purchaser such number of Purchaser Shares (rounded down to the nearest whole number) equal to: (i) the Exchange Ratio, multiplied by (ii) the number of Company Shares subject to such Company Employee Option immediately prior to the Effective Time, at an exercise price per Purchaser Share (rounded up to the nearest whole cent) equal to (A) the Consideration, and the name of exercise price per Company Share otherwise purchasable pursuant to such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred Company Employee Option immediately prior to the PurchaserEffective Time, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.divided by
Appears in 2 contracts
Sources: Amending Agreement, Arrangement Agreement
Arrangement. Commencing at the Effective Time, the following events or transactions set out in this Section 2.3 shall occur and shall be deemed to occur consecutively in the following sequence order set out in this Section 2.3 without any further authorization, act or formality:
(a) each Each E&C Preferred Share outstanding Corporation Share held by a Dissenting Shareholder immediately prior to the Effective Time shall be deemed to be transferred by the holder thereof E&C Preferred Shareholders to the Corporation Acquisitionco (free and clear of all liensany Liens) in exchange for a payment equal to the applicable Per Share Consideration payable in respect of E&C Preferred Shares, claims and encumbrances, and each Dissenting Shareholder which amount shall cease to have any rights as a Corporation Shareholder other than the right to be paid from the fair value of their Corporation Shares by funds deposited with the Corporation in accordance with Article 4 hereof, Depositary under Section 4.2(a) and the name names of the holders of such holder E&C Preferred Shares transferred to Acquisitionco shall be removed from the register applicable registers of holders of Corporation SharesE&C Preferred Shareholders, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser Acquisitionco shall be recorded as the registered holder of the Qualifying Holdco E&C Preferred Shares so transferred acquired and shall be deemed to be the legal and beneficial owner thereof, thereof subject to the right of Dissenting Holders in accordance with Article 3.
(b) Each E&C Common Share outstanding immediately prior to the Effective Time shall be transferred by the E&C Common Shareholders to Acquisitionco (free and clear of any liens, claims or encumbrances; and
(cLiens) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment the applicable Per Share Consideration payable in cash equal to respect of E&C Common Shares, which amount shall be paid from the Consideration, funds deposited with the Depositary under Section 4.2(a) and the name names of the holders of such holder E&C Common Shares transferred to Acquisitionco shall be removed from the register applicable registers of holders of Corporation SharesE&C Common Shareholders, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser and Acquisitionco shall be recorded as the registered holder of the Corporation E&C Common Shares so transferred acquired and shall be deemed to be the legal and beneficial owner thereof, thereof subject to the right of Dissenting Holders in accordance with Article 3.
(c) Each E&C Warrant outstanding immediately prior to the Effective Time shall be transferred by the E&C Warrantholders to Acquisitionco (free and clear of any liensLiens) in exchange for a payment equal to the amount, claims if any, by which the applicable Per Share Consideration exceeds the E&C Warrant Exercise Price of such E&C Warrant, which amount shall be paid from the funds deposited with the Depositary under Section 4.2(a) and the former E&C Warrantholders shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Section 2.3(c) at the time and in the manner specified in Article 4.
(d) Each E&C Option that has not been exercised and remains outstanding immediately prior to the Effective Time shall be terminated.
(e) Acquisitionco (or encumbrancesan affiliate thereof) will provide one or more loans to E&C in an aggregate amount equal to the aggregate of all principal amounts owing, together with all interest accrued thereon, to the E&C Creditors holding E&C Notes and E&C shall immediately repay in full all amounts owing to the E&C Creditors holding E&C Notes and discharge the E&C Notes.
Appears in 2 contracts
Sources: Arrangement Agreement (Elephant & Castle Group Inc), Arrangement Agreement (Sexton Roger)
Arrangement. Commencing at the Effective Time, each of the following transactions or events or transactions set out below shall occur and shall be deemed to occur in the following sequence sequence, in each case without any further authorization, act or formalityformality on the part of any Person, and in each case, unless otherwise specifically provided in this Section 3.1, effective as at two-minute intervals starting at the Effective Time:
(a) each outstanding Corporation Company Share held by a Dissenting Company Shareholder shall be, and shall be deemed to be be, transferred to the Purchaser by the holder thereof to the Corporation thereof, free and clear of all liens, claims and encumbrancesLiens, and thereupon each Dissenting Company Shareholder shall cease to have any rights as a Corporation Shareholder holder of such Company Shares other than a claim against the right to be paid the fair value of their Corporation Shares by the Corporation Purchaser in an amount determined and payable in accordance with Article 4 hereof, and the name of such holder Dissenting Company Shareholder shall be removed from the securities register of holders of Corporation for the Company Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Company Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a))) shall be, and shall be transferred and deemed to be transferred by be, surrendered to the holder thereof, without any further act or formality on its partCompany, free and clear of all liensLiens, claims and encumbrances, each such Company Share so surrendered shall be cancelled for no consideration and thereupon the Purchaser shall cease to the Applicable Purchaser, in exchange for have any rights as a payment in cash equal to the Consideration, holder of such Company Shares and the name of such holder the Purchaser shall be removed from the securities register for the Company Shares;
(c) each Effective Time Company Shareholder shall grant, and shall be deemed to have granted, to the Purchaser a Purchaser Call Option in respect of holders (i) each Company Share held by such Effective Time Company Shareholder at the Effective Time, (ii) all Company Shares into which any Company Share referred to in (i) of Corporation this Section 3.1(c) may be converted in accordance with the rights and restrictions attached to such Company Share in the Company’s Notice of Articles and Articles, and (iii) all Company Shares for which any Company Share referred to in (i) of this Section 3.1(c) may be exchanged pursuant to Section 3.1(i)(i) or Section 3.1(i)(iii);
(d) in consideration for the grant of the Purchaser Call Options by the Effective Time Company Shareholders to the Purchaser pursuant to Section 3.1(c), the Purchaser shall, concurrently with the grant of such Purchaser Call Options, pay to each Effective Time Company Shareholder the Per Share Option Premium in respect of each Company Share held by such Effective Time Company Shareholder at the Effective Time;
(e) each Person (other than the Purchaser or any affiliate of the Purchaser) who, at any time after the Effective Time and prior to the earlier of the Acquisition Effective Time and the Acquisition Closing Outside Date, acquires a Company Share from the Company (other than a Company Share in respect of which such Person has already granted to the Purchaser a Purchaser Call Option pursuant to Section 3.1(c)), or from any other Person, shall, concurrently with the acquisition of such Company Share, grant and shall be deemed to have granted to the Purchaser a Purchaser Call Option in respect of (i) such Company Share, (ii) all Company Shares into which such Company Share may be converted in accordance with the rights and restrictions attached to such Company Share in the Company’s Notice of Articles and Articles, and (iii) all Company Shares for which any Company Share referred to in (i) of this Section 3.1(e) may be exchanged pursuant to Section 3.1(i)(i) or Section 3.1(i)(iii); provided, that the Purchaser shall not be required to pay, nor shall such Person be entitled to receive from the Purchaser or from any Effective Time Company Shareholder, any payment on account of, as compensation for, or in relation to, the Option Premium in respect of any Purchaser Call Option granted pursuant to this Section 3.1(e);
(f) the Notice of Articles and Articles of the Company, as applicable, shall be altered to:
(i) alter the rights and restrictions of the existing classes of Company Subordinate Voting Shares, Company Proportionate Voting Shares and Company Multiple Voting Shares and to provide for the special rights and restrictions attaching to the Company Subordinate Voting Shares, Company Proportionate Voting Shares and Company Multiple Voting Shares, respectively, set out in the attached Exhibit A, which special rights and restrictions shall specifically refer to and include the Purchaser Call Option granted pursuant to this Plan of Arrangement; and
(ii) in connection with the foregoing, Articles 26, 27 and 28 of the existing articles of the Company shall be deleted in their entirety and replaced with Articles 26, 27 and 28 as set out in the attached Exhibit A;
(g) upon the Triggering Event Date occurring prior to the Purchaser Call Option Expiry Date, the Purchaser shall, in accordance with the terms and conditions of the Purchaser Call Option, exercise, and shall be deemed to have exercised, effective at the end of the Triggering Event Date, the Purchaser Call Option with respect to Corporation Shares elected all (but not less than all) of the Purchaser Call Option Shares;
(h) upon the exercise or deemed exercise of the Purchaser Call Option by the Purchaser prior to the Purchaser Call Option Expiry Date, the Purchaser shall, in accordance with the terms and conditions of the Purchaser Call Option, acquire from each Call Option Grantor, and each Call Option Grantor shall be transferred required to transfer to the Purchaser, all of the Purchaser Call Option Shares that are held by such Call Option Grantor on the Acquisition Date immediately following the exchange referred to in Section 3.1(i)(iii) (which, for the avoidance of doubt, shall include any Company Subordinate Voting Shares received by such Call Option Grantor upon the exchange in Section 3.1(i)(i)), which acquisition and transfer shall occur on the Acquisition Date in accordance with Section 3.1(i)(v) or Section 3.1(i)(vii)(F), as applicable;
(i) on the Acquisition Date, each of the transactions or events set out below in this Section 3.1(i) shall occur, and shall be recorded deemed to occur, in the following sequence, in each case without any further authorization, act or formality on the part of any Person, effective as at two minute intervals starting at the Acquisition Effective Time:
(i) each Company Proportionate Voting Share outstanding immediately prior to the Acquisition Effective Time shall be exchanged with the Company for that number of Company Subordinate Voting Shares equal to the PVS Conversion Ratio in effect immediately prior to the Acquisition Effective Time, and upon such exchange:
(A) each such exchanged Company Proportionate Voting Share shall be cancelled, and the holders of such exchanged Company Proportionate Voting Shares shall be removed from the Company’s securities register for the Company Proportionate Voting Shares; and
(B) each holder of such exchanged Company Proportionate Voting Shares shall be entered in the Company’s securities register as the registered holder of the Corporation Company Subordinate Voting Shares so transferred issued to such holder pursuant to this Section 3.1(i)(i);
(ii) concurrently with the exchange of Company Proportionate Voting Shares pursuant to Section 3.1(i)(i), the capital of the Company Proportionate Voting Shares shall be reduced to nil, and there shall be added to the capital of the Company Subordinate Voting Shares, in respect of the Company Subordinate Voting Shares issued pursuant to Section 3.1(i)(i), an amount equal to the paid-up capital (within the meaning of the Tax Act) of the Company Proportionate Voting Shares immediately prior to the Acquisition Effective Time;
(iii) each Company Multiple Voting Share outstanding immediately prior to the Acquisition Effective Time shall be exchanged with the Company for one Company Subordinate Voting Share, and upon such exchange:
(A) each such exchanged Company Multiple Voting Share shall be cancelled, and the holders of such exchanged Company Multiple Voting Shares shall be removed from the Company’s securities register for the Company Multiple Voting Shares; and
(B) each holder of such exchanged Company Multiple Voting Shares shall be entered in the Company’s securities register as the holder of the Subordinate Voting Shares issued to such holder pursuant to this Section 3.1(i)(iii);
(iv) concurrently with the exchange of Company Multiple Voting Shares pursuant to Section 3.1(i)(iii), the capital of the Company Multiple Voting Shares shall be reduced to nil, and there shall be added to the capital of the Company Subordinate Voting Shares, in respect of the Company Subordinate Voting Shares issued pursuant to Section 3.1(i)(iii), an amount equal to the paid-up capital (within the meaning of the Tax Act) of the Company Multiple Voting Shares immediately prior to the Acquisition Effective Time;
(v) in accordance with the terms of the Purchaser Call Option, each Company Subordinate Voting Share held by a Company Non-U.S. Shareholder immediately following the exchange in Section 3.1(i)(iii) (which, for the avoidance of doubt, shall include any Company Subordinate Voting Shares received by such Call Option Grantor upon the exchange in Section 3.1(i)(i)) shall be transferred, and shall be deemed to be transferred, by the holder thereof to the Purchaser for the Purchaser Share Consideration (or, in the event a Purchaser Change of Control shall have occurred prior to the Acquisition Date, the Per Share Consideration), which Purchaser Share Consideration or Per Share Consideration, as applicable, shall be paid in accordance with the provisions of Article 5, and upon such transfer:
(A) each such former holder of such transferred Company Subordinate Voting Shares shall be removed from the Company’s securities register for the Company Subordinate Voting Shares;
(B) the Purchaser shall be entered in the Company’s securities register for the Company Subordinate Voting Shares as the legal and beneficial owner thereofof such transferred Company Subordinate Voting Shares; and
(C) each such former holder of such transferred Company Subordinate Voting Shares shall, free and clear subject to Section 5.1, be entered in the Purchaser’s securities register for the Purchaser Shares in respect of the Consideration Shares issued to such holder pursuant to this Section 3.1(i)(v), or, to the extent applicable, in the securities register of the issuer of any liensAlternate Consideration that such former holder of Company Subordinate Voting Shares is entitled to receive in lieu of the Consideration Shares;
(vi) each Eligible Company Canadian Shareholder shall be entitled to make a tax election, claims pursuant to subsection 85(1) or encumbrances.85(2) of the Tax Act, as applicable (and the analogous provisions of provincial income tax law). The Purchaser shall make available on the Purchaser’s website tax election forms required under the Tax Act within 60 days of the Acquisition Date. Any Eligible Company Canadian Shareholder who wants to make such election and otherwise qualifies to make such election may do so by providing to the Purchaser two signed copies of the necessary election forms within 120 days following the Acquisition Date, duly completed with the details of the number of Company Subordinate Voting Shares transferred and the applicable agreed amount or amounts for the purposes of such election. Thereafter, subject to the election forms complying with the provisions of the Tax Act (or applicable provincial or territorial income tax law), the forms will be signed by the Purchaser and returned to such Eligible Company Canadian Shareholder by ordinary mail within 30 days after the receipt thereof by the Purchaser for filing with the Canada Revenue Agency (or the applicable provincial or territorial taxing authority). The Purchaser will not be responsible for the proper completion of any election form and, except for the obligation of the Purchaser to so sign and return duly completed election forms which are received by the Purchaser within 120 days following the Acquisition Date. The Purchaser will not be responsible for any taxes, interest or penalties resulting from the failure by an Eligible Company Canadian Shareholder to properly complete or file the election forms in the form and manner and within the time prescribed by the Tax Act (or any applicable provincial or territorial legislation). In its sole discretion, the Purchaser may choose to sign and return an election form received by it more than 120 days following the Acquisition Date, but the Purchaser will have no obligation to do so;
(vii) Purchaser Subco shall merge with and into the Company (the “Merger”) and be one corporate entity with the same effect as if they had amalgamated under Section 269 of the BCBCA, except that the legal existence of the Company shall not cease and the Company shall survive the Merger (the Company, as such surviving entity (“Mergeco”), notwithstanding the issue by the Registrar of a certificate of amalgamation and the assignment of a new incorporation number to Mergeco. The Merger, together with the transactions described in this Section 3.1(i)(i) through (i)(xi) is intended to qualify as a reorganization within the meaning of sections 368(a)(1)(A) and 368(a)(2)(E) of the U.S. Tax Code for all United States federal income tax purposes, and the Amalgamation is intended to qualify as an amalgamation as defined in subsection 87(9) of the Tax Act. As part of the Merger, and upon the Merger becoming effective:
(A) without limiting the generality of the foregoing, the Company shall survive the Merger as Mergeco;
(B) the properties, rights and interests and obligations of the Company shall continue to be the properties, rights and interests and obligations of Mergeco, and the Merger shall not constitute an assignment by operation of law, a transfer or any other disposition of the property, rights and interests of the Company to Mergeco;
(C) the separate legal existence of Purchaser Subco shall cease without Purchaser Subco being liquidated or wound up, and the property, rights and interests and obligations of Purchaser Subco shall become the property, rights and interests and obligations of Mergeco;
(D) Mergeco shall continue to be liable for the obligations of each of the Company and Purchaser Subco;
(E) the Notice of Articles and Articles of Mergeco shall be the same as the Notice of Articles and Articles of the Company, as altered in accordance with Section 3.1(f);
(F) each Company Subordinate Voting Share held by a Company U.S. Shareholder immediately following the exchange in Section 3.1(i)(iii) (which, for the avoidance of doubt, shall include any Company Subordinate Voting Shares received by such Call Option Grantor upon the exchange in Section 3.1(i)(i)) shall, in accordance with the Purchaser Call Option, be transferred, and shall be deemed to be transferred, by the holder thereof to the Purchaser for the Purchaser Share Consideration (or, in the event a Purchaser Change of Control shall have occurred prior to the Acquisition Date, the Per Share Consideration), which Purchaser Share Consideration or Per Share Consideration, as applicable, shall be paid in accordance with the provisions of Article 5, and each such former holder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Company Subordinate Voting Shares in accordance with this Section 3.1(i)(vii)(F), and upon such transfer:
(I) each such former holder of such transferred Company Subordinate Voting Shares shall be removed from the Company’s securities register for the Company Subordinate Voting Shares;
(II) the Purchaser shall be entered in Mergeco’s securities register for the Mergeco Subordinate Voting Shares as the legal owner of such transferred Company Subordinate Voting Shares; and
(III) each such former holder of such transferred Company Subordinate Voting Shares shall, subject to Section 5.1, be entered in the Purchaser’s securities register for the Purchaser Shares in respect of the Consideration Shares issued to such holder pursuant to this Section 3.1(i)(vii)(F), or, to the extent applicable, in the securities register of the issuer of any Alternate Consideration that such former holder of Company Subordinate Voting Shares is entitled to receive in lieu of the Consideration Shares;
(G) each Purchaser Subco Share outstanding immediately prior to the Merger shall be exchanged for Mergeco Subordinate Voting Shares on the basis of one
Appears in 2 contracts
Sources: Arrangement Agreement (Acreage Holdings, Inc.), Arrangement Agreement (Canopy Growth Corp)
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order without any further authorization, act or formalityformality on the part of any person:
(a) each outstanding Corporation Share the Longhi LTIP Shares held in the Executive Long Term Incentive Plan Trust shall revert to the Company for no consideration and be cancelled and Gerdau shall deposit to the Executive Long Term Incentive Plan Trust that number of ADSs equal to the number of Longhi LTIP Shares held in the Executive Long Term Incentive Plan Trust multiplied by the Exchange Ratio in substitution therefore and shall, in the future, deposit additional ADSs to the Executive Long Term Incentive Plan Trust based on the number of Common Shares that are required to be delivered to the Executive Long Term Incentive Plan Trust multiplied by the Exchange Ratio;
(b) the Common Shares held by a each Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation (free and clear of all liensany Liens) to the Acquiror, claims and encumbrances, and each and:
(i) the Acquiror shall be obligated to pay such Dissenting Shareholder the amount determined in accordance with Section 4.1 for such Common Shares;
(ii) such Dissenting Shareholder shall cease to be the holder of such Common Shares and shall cease to have any rights as a Corporation Shareholder holder of such Common Shares, other than the right to be paid the fair value of their Corporation Shares by the Corporation amount determined in accordance with Article 4 hereof, and the Section 4.1 for such Common Shares;
(iii) such Dissenting Shareholder’s name of such holder shall be removed as the holder of such Common Shares from the register of holders Common Shares maintained by or on behalf of Corporation the Company; and
(iv) the Acquiror shall be deemed to be the holder of such Common Shares (free and clear of any Liens) and shall be entered as the holder of such Common Shares in the register of Common Shares maintained by or on behalf of the Company;
(c) each Common Share (other than Common Shares held by (i) Dissenting Shareholders and (ii) Gerdau and its subsidiaries) shall be transferred (free and clear of all Liens) by the holder thereof to the Acquiror and:
(i) the Acquiror shall, subject to Article 5, be obligated to pay such holder an amount of cash equal to the Acquisition Price in exchange for each Common Share transferred;
(ii) such holder shall cease to be the holder of such Common Shares and shall cease to have any rights as a holder of such Common Shares, other than the right, subject to Article 5, to receive the amount of cash that such holder is entitled to receive in exchange for such Common Shares in accordance with Section 3.1(c)(i), in each case less any amounts required to be withheld, in accordance with Section 5.4;
(iii) such holder’s name shall be removed as the holder of such Common Shares from the register of Common Shares maintained by or on behalf of the Company; and
(iv) the Acquiror shall be deemed to be the holder of such Common Shares (free and clear of any Liens) and shall be entered as the holder of such Corporation Common Shares in the register of Common Shares maintained by or on behalf of the Company;
(d) new equity based compensation plans shall be adopted by Gerdau with terms in all respects the same as the Company Equity Plans;
(e) the LTIP shall be amended with respect to SARs and Phantom Shares held by Canadian Awardholders and the SAR Plan and the SIS Plan shall be amended with respect to SARs held by Canadian Awardholders to provide that such Phantom Shares and SARs will be based on ADSs;
(f) each outstanding Phantom Share granted under the LTIP and held by a Canadian Awardholder shall be amended to provide that such Phantom Shares will be in respect of ADSs with the number of Phantom Shares adjusted using the Exchange Ratio;
(g) each outstanding SAR granted under the SAR Plan, the SIS Plan and the LTIP and held by a Canadian Awardholder shall be amended to provide that such SARs will be in respect of ADSs with both the number and base price of SARs adjusted using the Exchange Ratio;
(h) each outstanding PSU and RSU, and each Phantom Share held by a U.S. Awardholder shall be cancelled and Gerdau shall grant, in exchange for each such award, a new restricted share unit, performance share unit, or phantom share, as applicable, on the same terms and conditions, mutatis mutandis, as the cancelled PSUs, RSUs, and Phantom Shares but in respect of ADSs, with the number of such PSUs, RSUs and Phantom Shares adjusted using the Exchange Ratio;
(i) each outstanding Option and SAR (other than the SARs held by Canadian Awardholders under the SAR Plan, the SIS Plan and the LTIP) shall be cancelled and Gerdau shall grant, in exchange for each such award, a new option or share appreciation right, as applicable, having the same vesting date, expiry date and other terms and conditions, mutatis mutandis, as the cancelled Options and SARs but in respect of ADSs, with both the number of Options and SARs and the exercise price or base price of the Options and SARs adjusted using the Exchange Ratio;
(j) the Co-Steel Share Loan Plan and the Company Equity Plans (other than the LTIP, the SAR Plan and the SIS Plan) shall be cancelled;
(bk) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder the Directors Plan shall be transferred cancelled and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange Company shall redeem each outstanding DSU for a payment in cash consideration equal to the Holdco Share ConsiderationAcquisition Price;
(l) the Longhi Employment Agreement shall be amended such that (a) Gerdau will assume the obligation under the Longhi Employment Agreement to provide ADSs, and (b) all references to Common Shares contained therein are amended to refer to ADSs with the name number of such holder Common Shares adjusted using the Exchange Ratio;
(m) each participant in the Co-Steel Share Loan Plan shall be removed from have his or her employee loan under the register of holders of Qualifying Holdco Shares maintained in respect of Co-Steel Share Loan Plan become immediately due and payable; and
(n) the applicable Qualifying Holdcoexchanges, payments and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and cancellations contemplated by this Section 3.1 shall be deemed to be occur on the legal and beneficial owner thereofEffective Date, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder notwithstanding that certain of the Corporation Shares so transferred and shall be deemed to be procedures related thereto are not completed until after the legal and beneficial owner thereof, free and clear of any liens, claims Effective Time or encumbrancesafter the Effective Date.
Appears in 2 contracts
Sources: Amending Agreement (Gerdau S.A.), Amending Agreement (Gerdau Ameristeel Corp)
Arrangement. 3.1 Commencing at the Effective Time, each of the following events or transactions set out below shall occur and shall be deemed to occur sequentially in the following sequence order without any further act or formalityformality except as otherwise expressly provided herein:
(a) each outstanding Corporation Share the Company Shares held by a Dissenting Shareholder shall Shareholders who have exercised Dissent Rights which remain valid immediately before the Effective Time shall, as of the Effective Time, be deemed to be have been transferred by the holder thereof to the Corporation Newmarket (free and clear of all any liens, claims charges or encumbrances of any nature whatsoever) and encumbrancesNewmarket shall thereupon be obligated to pay the amount therefor determined and payable in accordance with Article 5 hereof and, and each as of the Effective Time, such Dissenting Shareholder Shareholders shall cease to have any rights as a Corporation Shareholder Company Shareholders, other than the right to be paid the fair value of their Corporation Company Shares by the Corporation Newmarket in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelledDissent Rights;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder from and after the Effective Date, Subco and the Company shall be transferred amalgamated under the CBCA and deemed continue as one corporation (“Amalco”) on the terms prescribed in this Plan of Arrangement (the “Amalgamation”) as follows:
a. the name of Amalco shall be “ •”;
b. Amalco shall be authorized to issue an unlimited number of common shares without par value;
c. The registered office of Amalco will be transferred by the Qualifying Holdco Shareholderregistered office of Subco
d. There shall be no restrictions on the business Amalco may carry on or on the powers it may exercise;
e. The directors of Amalco shall, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, until otherwise changed in accordance with the applicable Holdco AgreementCBCA, in exchange for consist of a payment in cash equal minimum number of one and a maximum number of ten;
f. the first directors of Amalco following the Amalgamation shall be the directors of Subco; and
g. the provisions of subsections 186(a), (b), (c), (d), (e) and (f) of the CBCA will apply to the Holdco Share Consideration, Amalgamation with the result that:
i. The Amalgamation of the Subco and the name Company and their continuance as one corporation shall become effective;
ii. The property of such holder each of Subco and the Company shall continue to be the property of Amalco;
iii. Amalco shall continue to be liable for the obligations of each of Subco and the Company;
iv. Any existing cause of action, claim or liability to prosecution shall be removed from unaffected;
v. Any civil, criminal or administrative action or proceeding pending by or against Subco or the register Company may continue to be prosecuted by or against Amalco; and
vi. Any conviction against, or ruling, or order or judgment in favour of holders or against Subco or the Company may be enforced by or against Amalco;
h. The Articles of Qualifying Holdco Shares maintained in respect of Arrangement filed to give effect to the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and Arrangement shall be deemed to be the legal articles of amalgamation of Amalco and beneficial owner thereof, free and clear the Certificate of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held Arrangement issued in respect of such Articles of Arrangement by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired Director under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and CBCA shall be deemed to be the legal certificate of amalgamation of Amalco; and
i. The by-laws of Amalco shall be the same as those of Subco, mutatis mutandis;
(c) Pursuant to such Amalgamation:
(i) each Company Share (other than Company Shares held by Newmarket) shall be cancelled in exchange for the Consideration;
(ii) each Company Share held by Newmarket and beneficial owner thereofeach Subco common share shall be converted into one common share of Amalco;
(iii) as consideration for the issuance of the Consideration by Newmarket in connection with the Amalgamation, free Amalco shall issue to Newmarket one common share of Amalco for each Newmarket share issued pursuant to Section 3.1(c)(i);
(iv) The stated capital of the common shares of Amalco will be equal to the total of (a) the aggregate paid-up capital (as such term is defined in the Tax Act) of the Company Shares described in Section 3.1(c)(i), (b) the aggregate paid-up capital (as such term is defined in the Tax Act) of the Company Shares described in Section 3.1(c)(ii), and clear (c) the aggregate paid-up capital (as such term is defined in the Tax Act) of the Subco common shares described in Section 3.1(c)(ii);
(v) there shall be added to the stated capital of the Newmarket Shares an amount equal to the paid-up capital (as such term is defined in the Tax Act) of the Company Shares described in Section3.1(c)(i);
(d) each Company Option outstanding immediately prior to the Effective Time, whether vested or not, will be exchanged for a Newmarket Replacement Option to acquire from Newmarket the number of Newmarket Shares equal to the product of (A) the number of Company Shares subject to the Company Option immediately before the Effective Time, and (B) the Option Exchange Ratio, provided that if the foregoing would result in the issuance of a fraction of a Newmarket Share on any liensparticular exercise of Newmarket Replacement Options, claims then the number of Newmarket Shares otherwise issued shall be rounded down to the nearest whole number of Newmarket Shares. The exercise price per Newmarket Share subject to any such Newmarket Replacement Option shall be an amount equal to the quotient of (A) the exercise price per Company Share under the exchanged Company Option immediately prior to the Effective Time divided by (B) the Option Exchange Ratio (provided that the aggregate exercise price payable on any particular exercise of Newmarket Replacement Options shall be rounded up to the nearest whole cent). Except as set out above, the terms of each Newmarket Replacement Option shall be the same as the terms of the Company Option exchanged therefor pursuant to the Company Equity Compensation Plan and any agreement evidencing the grant thereof prior to the Effective Time. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such exchange and that the exchange with respect to Company Options held by U.S. Persons shall be effected in a manner consistent with Section 409A of the Code. Therefore, in the event that the Newmarket Replacement Option In-The-Money Amount in respect of a Company Option would otherwise exceed the Company Option In-The-Money Amount in respect of the Newmarket Replacement Option, the number of Newmarket Shares which may be acquired on exercise of the Newmarket Replacement Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Newmarket Replacement Option In-The-Money Amount in respect of the Newmarket Replacement Option does not exceed the Company Option In-The-Money Amount in respect of the Company Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged; and
(e) each SAS Option outstanding immediately prior to the Effective Time, whether vested or encumbrancesnot, will be exchanged for a Newmarket Replacement SAS Option to acquire from Newmarket the number of Newmarket Shares equal to the product of (A) the number of Company Shares subject to the SAS Option immediately before the Effective Time, and (B) the Option Exchange Ratio, provided that if the foregoing would result in the issuance of a fraction of a Newmarket Share on any particular exercise of Newmarket Replacement SAS Options, then the number of Newmarket Shares otherwise issued shall be rounded down to the nearest whole number of Newmarket Shares. The exercise price per Newmarket Share subject to any such Newmarket Replacement SAS Option shall be an amount equal to the quotient of (A) the exercise price per Company Share under the exchanged SAS Option immediately prior to the Effective Time divided by (B) the Option Exchange Ratio (provided that the aggregate exercise price payable on any particular exercise of Newmarket Replacement SAS Options shall be rounded up to the nearest whole cent). Except as set out above, the terms of each Newmarket Replacement SAS Option shall be the same as the terms of the SAS Option exchanged therefor pursuant to the SAS Option Plan and any agreement evidencing the grant thereof prior to the Effective Time. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such exchange and that the exchange with respect to the SAS Options held by U.S. Persons shall be effected in a manner consistent with Section 409A of the code. Therefore, in the event that the Newmarket Replacement SAS Option In- The-Money Amount in respect of a SAS Option would otherwise exceed the SAS Option In-The-Money Amount in respect of the Newmarket Replacement SAS Option, the number of Newmarket Shares which may be acquired on exercise of the Newmarket Replacement SAS Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Newmarket Replacement SAS Option In-The-Money Amount in respect of the Newmarket Replacement SAS Option does not exceed the SAS Option In-The-Money Amount in respect of the SAS Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order without any further act or formality:
(a) each outstanding Corporation Share the Fairmont Shares held by a Dissenting Shareholder shall holders who have exercised rights of dissent with respect to such shares pursuant to and in the manner set forth in Section 190 of the CBCA (“Dissent Rights”) which remain valid immediately before the Effective Date will be deemed to be have been transferred by the holder thereof to the Corporation free Purchaser and clear of all liens, claims be cancelled and encumbrances, cease to be outstanding and each Dissenting Shareholder shall such holders will cease to have any rights as a Corporation Shareholder shareholders other than the right to be paid the fair value of their Corporation Fairmont Shares as set out in Section 4.1;
(b) all Fairmont Shares outstanding immediately prior to the Effective Time held by holders of Fairmont Shares other than (i) Fairmont Shares held by a holder who has exercised its Dissent Rights and is entitled to be paid the Corporation fair value of its Fairmont Shares (as determined in accordance with Article 4 hereofSection 4.1), and (ii) Fairmont Shares held by Kingdom, shall be transferred by the name holder to Purchaser (free and clear of any Liens), for US$45.00 per Fairmont Share;
(c) with respect to each Fairmont Share transferred to Purchaser pursuant to Section 3.1(a) and 3.1(b):
(i) the holder of each such Fairmont Share shall cease to be the holder of such holder Fairmont Share and such holder's name shall be removed from the register of Fairmont Shares with respect to such Fairmont Shares as of the Effective Time; and
(ii) Purchaser shall be deemed to be the transferee of such Fairmont Share (free and clear of any Liens) and shall be entered in the register of Fairmont Shares as the holder thereof as at the Effective Time;
(d) all of the Fairmont Options granted and outstanding immediately prior to the Effective Time shall, without any further action on behalf of any holder of Fairmont Options, be transferred by the holders thereof to Fairmont without any act or formality on its or their part in exchange for a cash amount equal to the excess, if any, of Corporation Shares(i) the product of the number of Fairmont Shares underlying Fairmont Options held by such holder and US$45.00 over (ii) the aggregate exercise price payable under such Fairmont Options by the holder to acquire the Fairmont Shares underlying such Fairmont Options;
(e) with respect to each Fairmont Option, the holder of such Fairmont Option shall cease to be the holder of such Fairmont Option and such Corporation Shares holder’s name shall be removed from the registers of Fairmont Options with respect to such Fairmont Options as the holder thereof as at the Effective Time;
(f) the Fairmont Stock Option Plans shall be cancelled;
(bg) each Qualifying Holdco Share all outstanding Fairmont Shares held by a Qualifying Holdco Shareholder Kingdom shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholderholder thereof, without any further act directly or formality on its partindirectly, to Purchaser (free and clear of all liens, claims and encumbrances, any Liens);
(h) with respect to each Fairmont Share transferred to Purchaser pursuant to Section 3.1(g):
(i) the Purchaser, in accordance with holder of each such Fairmont Share shall cease to be the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name holder of such holder Fairmont Share and such holder's name shall be removed from the register of holders of Qualifying Holdco Fairmont Shares maintained in with respect to such Fairmont Shares as of the applicable Qualifying Holdco, and the Effective Time; and
(ii) Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, transferee of such Fairmont Share (free and clear of any liens, claims or encumbrances; andLiens) and shall be entered in the register of Fairmont Shares as the holder thereof as at the Effective Time;
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), Shareholder Rights Plan shall be transferred cancelled;
(j) notwithstanding the terms of the DSU Plan, all DSUs shall be cancelled and deemed terminated by Fairmont and each holder thereof shall be entitled to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaserreceive from Fairmont, in exchange for a payment in cash equal therefor, US$45.00 per DSU;
(k) with respect to each DSU, the Consideration, and the name holder of such DSU shall cease to be the holder of such DSU and such holder’s name shall be removed from the register of holders of Corporation Shares, and, DSUs with respect to Corporation Shares elected to be transferred to such DSUs as the Purchaser, holder thereof as at the Purchaser Effective Time; and
(l) the DSU Plan shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancescancelled.
Appears in 1 contract
Sources: Acquisition Agreement (Fairmont Hotels & Resorts Inc)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order without any further act or formality:
(a) 2.2.1 each outstanding Corporation Share held by a Dissenting Shareholder Boomerang Option which has not been exercised at the Effective Date shall be deemed to be transferred by cancelled and the holder thereof shall be entitled to receive in respect of any vested Boomerang Option only an amount equal to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation Option Consideration payable in accordance with Article 4 hereof4, and the name of such holder shall all holders of Boomerang Options will be removed from the register of holders of Corporation Shares, Boomerang Options and such Corporation Shares all Boomerang Options shall be cancelled;
(b) 2.2.2 with respect to each Qualifying Holding Company, each Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to will be transferred by the holder thereof, without any further act or formality on its part, and free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, LoJack Exchangeco in exchange for a payment in cash equal the consideration that would have been received by such Holding Company pursuant to sections 2.2.3, 2.2.4 and 2.2.5 if such Holding Company had deposited with the Depositary prior to the ConsiderationElection Deadline a duly completed Letter of Transmittal and Election Form specifying the same elections as set out in the Holdco Letter of Transmittal and Election Form deposited by such Holding Company’s Holdco Shareholders, and the name names of such holder shall its Holdco Shareholders will be removed from the register of holders of Corporation such Holding Company and, subject to Article 4, added to the register of holders of the securities, if any, comprising all or part of the consideration received by such Holdco Shareholders for such transfer and LoJack Exchangeco will be recorded as the registered holder of such Holdco Shares so transferred and will be deemed to be the legal and beneficial owner of such Holdco Shares. Subject to the limitations set out in 2.2.3, the consideration received for the shares of each Holding Company shall be allocated between the shareholders of such Holding Company and between the different classes of stock of such Holding Company, in the manner designated by the Holdco Shareholders;
2.2.3 subject to the pro-ration adjustments set out in section 2.2.5, each Boomerang Common Share (other than an Excluded Boomerang Common Share) will be transferred by the holder thereof without any further act or formality, and free and clear of all liens, claims and encumbrances, to LoJack Exchangeco, in exchange for, at the election (or deemed election) of the holder of Boomerang Common Shares, and, with respect either:
2.2.3.1 Cdn.$2.95 in cash;
2.2.3.2 such number of fully paid and non-assessable Exchangeable Shares as is equal to Corporation the Exchange Ratio (provided that a holder of Boomerang Common Shares elected who is not a Canadian Resident will not be entitled to elect to receive Exchangeable Shares as provided in section 2.3.1);
2.2.3.3 such number of LoJack Exchangeco Interim Notes as is equal to the Exchange Ratio (each such note to be transferred to LoJack Callco in exchange for one fully paid and non assessable LoJack Common Share as provided in section 2.2.8); or
2.2.3.4 a combination of the Purchaserforegoing (a “Mixed Consideration”); payable, in each case, in accordance with Article 4, and the Purchaser shall name of each such holder of Boomerang Common Shares will be removed from the register of holders of Boomerang Common Shares and added to the register of holders of the securities, if any, comprising all or part of the consideration to be received by such holder for such transfer, and LoJack Exchangeco will be recorded as the registered holder of the Corporation Boomerang Common Shares so transferred and will be deemed to be the legal and beneficial owner of such Boomerang Common Shares. For greater certainty, the consideration components of each Mixed Consideration (if any) received by any holder of Boomerang Common Shares or any Holdco Shareholder, after taking into account the pro-rations pursuant to section 2.2.5, shall be allocated as consideration for each Boomerang Common Share or Holdco Shares on a pro rata basis, unless such holder of Boomerang Common Shares or Holdco Shares notifies LoJack Exchangeco in writing (at the time such holder deposits its Letter of Transmittal and Election Form or its Holdco Letter of Transmittal and Election Form, as the case may be, with the Depositary) that it wishes to segregate the components of the Mixed Consideration to different Boomerang Common Shares or Holdco Shares in the manner set out in such notice in which case, the manner set out in the notice shall govern such allocation (however, in no event shall any rights arising under the Voting and Exchange Trust Agreement or the Support Agreement be allocated to anything other than to the Exchangeable Shares and the property in consideration for which such Exchangeable Shares were issued);
2.2.4 each Boomerang Common Share (other than Excluded Boomerang Common Shares) in respect of which a duly completed Letter of Transmittal and Election Form has not been deposited with the Depositary on or prior to the Election Deadline or for which an incomplete or invalid election has been made will be transferred by the holder thereof, without any act or formality on its part, to LoJack Exchangeco in exchange for Cdn.$2.95 in cash, and the name of each such holder will be removed from the register of holders of Boomerang Common Shares; LoJack Exchangeco will be recorded as the registered holder of such Boomerang Common Shares so exchanged and will be deemed to be the legal and beneficial owner thereof;
2.2.5 if the Aggregate Number of Securities Elected exceeds the Maximum Number of Securities, free then the aggregate number of LoJack Exchangeco Interim Notes and clear Exchangeable Shares issuable pursuant to section 2.2.2 and 2.2.3 to each holder of Boomerang Common Shares and each Holdco Shareholder who has elected to receive in exchange for its Boomerang Common Shares or Holdco Shares shall be determined in accordance with the following:
2.2.5.1 each holder of Boomerang Common Shares or Holdco Shares, as the case may be, that has elected to receive in exchange for such Person’s ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shares or Holdco Shares, as the case may be, 30% or less of such holder’s Total Holder Consideration, in LoJack Exchangeco Interim Notes and/or Exchangeable Shares shall be entitled to receive the number of LoJack Exchangeco Interim Notes and/or Exchangeable Shares it has elected to receive.
2.2.5.2 each holder of Boomerang Common Shares or Holdco Shares that has elected to receive in exchange for its Boomerang Common Shares or Holdco Shares more than 30% of such holder’s Total Holder Consideration, in LoJack Exchangeco Interim Notes and/or Exchangeable Shares, shall be entitled to receive the aggregate of: (i) the aggregate number of LoJack Exchangeco Interim Notes and/or Exchangeable Shares equal to 30% of such holder’s Total Holder Consideration, and (ii) such number of LoJack Exchangeco Interim Notes and/or Exchangeable Shares obtained by multiplying (A) the Maximum Number of Securities less the aggregate number of LoJack Exchangeco Interim Notes and Exchangeable Shares to be issued pursuant to sections 2.2.5.1 and 2.2.5.2(i) with (B) a fraction, the numerator of which is the number of LoJack Exchangeco Interim Notes and/or Exchangeable Shares that such holder of Boomerang Common Shares or Holdco Shares has elected to receive in exchange for its Boomerang Common Shares or Holdco Shares less the number of LoJack Exchangeco Interim Notes and/or Exchangeable Shares such holder is entitled to receive pursuant to section 2.2.5.2(i), and the denominator of which is the Aggregate Number of Securities Elected less the aggregate number of LoJack Exchangeco Interim Notes and Exchangeable Shares to be issued pursuant to sections 2.2.5.1 and 2.2.5.2(i); so that the aggregate number of LoJack Exchangeco Interim Notes and Exchangeable Shares issuable to all such holders shall be equal to the Maximum Number of Securities, and each such holder shall be entitled to receive an aggregate number of LoJack Exchangeco Interim Notes and Exchangeable Shares equal to the aggregate number of LoJack Exchangeco Interim Notes and Exchangeable Shares issuable to such holder after giving effect to the pro-ration provisions of this section rounded down to the nearest whole securities, and to the extent the aggregate number of LoJack Exchangeco Interim Notes and Exchangeable Shares which such holder has elected to receive was not available, such holder shall be deemed to have elected to receive Cdn.$2.95 per Boomerang Common Share in respect of which no LoJack Exchangeco Interim Note or Exchangeable Share is issued and a cash payment equal to the product of any liensfractional interest in an Exchangeable Share or a fractional interest in a LoJack Exchangeco Interim Note and the Current Market Price. For the purposes of determining Total Holder Consideration and the components thereof to a holder of Holdco Shares (the “First Holder”), claims the consideration to which another holder is entitled shall be included if such other holder is a company that is either controlled by or encumbrances.controls the First Holder;
2.2.6 LoJack shall issue to and deposit with the Trustee the Special Voting Share, in consideration of the payment to LoJack of U.S.$1, to be thereafter held of record by the Trustee as trustee for and on behalf of, and for the use and benefit of, the holders of the Exchangeable Shares in accordance with the Voting and Exchange Trust Agreement;
2.2.7 if there is one or more Holding Companies, LoJack Exchangeco and all of the Holding Companies shall amalgamate and continue as one corporation under the CBCA, Amalco, with the effect described below unless and until otherwise determined in the manner required by law or by Amalco, its directors or shareholders, and the following provisions shall apply:
2.2.7.1 Name: The name of Amalco shall be LoJack Exchangeco;
Appears in 1 contract
Sources: Combination Agreement (Lojack Corp)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formality:3.1 The Arrangement
(a) At the Effective Time:
(i) each outstanding Corporation Correvio Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrancesLiens, to Correvio and Correvio shall thereupon be obliged to pay the Applicable Purchaser, amount therefor determined and payable in exchange for a payment in cash equal to the Considerationaccordance with Article 5 hereof, and the name of such holder shall be removed from the central securities register of holders Correvio as a holder of Corporation Shares, and, with respect to Corporation Correvio Shares elected to be transferred to the Purchaser, the Purchaser and Correvio shall be recorded as the registered holder of the Corporation Correvio Shares so transferred and shall be deemed to be the legal owner of such Correvio Shares;
(ii) each outstanding Correvio Share (other than Correvio Shares held by a Dissenting Shareholder who has validly exercised and beneficial owner thereofnot withdrawn such holder’s Dissent Rights (which Correvio Shares will have been transferred pursuant to Section 3.1(a)(i) above)) will, without further act or formality by or on behalf of a holder of Correvio Shares, be irrevocably assigned and transferred by the holder thereof to Purchaser (free and clear of all Liens) in exchange for a cash payment equal to the Consideration in accordance with Section 5.1 less any liensamounts withheld in accordance with Section 5.4, claims and
A. the holder of such Correvio Share shall cease to be the holder thereof and to have any rights as a holder of such Correvio Share other than the right to receive payment in accordance with this Plan of Arrangement;
B. such holder’s name shall be removed from the register of the Correvio Shares maintained by or encumbranceson behalf of Correvio; and
C. Purchaser shall be deemed to be the transferee and the legal and beneficial holder of such Correvio Share (free and clear of all Liens) and shall be entered as the registered holder of such Correvio Share in the register of the Correvio Shares maintained by or on behalf of Correvio.
(iii) Each In-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder of such In-The-Money Option and without any payment except as provided in this Plan of Arrangement, be acquired for cancellation by Correvio in consideration for a cash payment from Correvio equal to the product obtained by multiplying the amount by which the Consideration exceeds the exercise price per Correvio Share of such In-The-Money Option by the number of Correvio Shares underlying such In-The-Money Option (the “Option Consideration”), subject to (for greater certainty) applicable withholdings in accordance with Section 5.4. All In-The-Money Options issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and the holder thereof shall thereafter have only the right to receive the Option Consideration to which such holder is entitled pursuant to this Section 3.1(a)(iii).
(iv) Each Out-Of-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder of such Out-Of-The-Money Option, be cancelled without payment to any holder thereof and all option agreements related thereto shall be terminated and neither Correvio nor Purchaser shall have any Liability with respect to such option agreements or Out-Of-The-Money Options.
(v) Notwithstanding the terms of the Stock Option Plan and any stock option agreement pursuant to which Options were granted, the Stock Option Plan and all stock option agreements shall be terminated, and neither Correvio nor Purchaser shall have any Liability with respect to such plans and agreements other than the payment of the Option Consideration in accordance with this Plan of Arrangement.
(vi) Each RSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the RSU Plan, shall be deemed to be unconditionally vested, and such RSU shall, without any further action by or on behalf of a holder of RSUs, be deemed to be assigned and transferred by such holder to Correvio in exchange for a cash payment from Correvio of $0.42 (being an amount equal to the Consideration), subject to applicable withholdings, and each such RSU shall immediately be cancelled. Following the Effective Time, neither Correvio nor Purchaser shall have any further Liability with respect to any Correvio RSUs (or any Liability to any holder or former holder thereof).
(vii) Each PSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the PSU Plan, shall be deemed to be unconditionally vested, and such PSU shall, without any further action by or on behalf of a holder of PSUs, be deemed to be assigned and transferred by such holder to Correvio in exchange for a cash payment from Correvio $0.42 (being an amount equal to the Consideration), subject to applicable withholdings, and each such PSU shall immediately be cancelled. Following the Effective Time, neither Correvio nor Purchaser shall have any further Liability with respect to any Correvio PSUs (or any Liability to any holder or former holder thereof).
(b) the transfers and exchanges provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain of the procedures related thereto are not completed until after the Effective Date.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formality:
(a) each outstanding Corporation Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality simultaneously:
(a) the Amalgamating Corporations shall be amalgamated under Division 5 of Part 9 of the BCBCA and continue as one company on the following terms and otherwise on the terms set out in this Plan of Arrangement and:
(i) the Corporation has, as its partnotice of articles, free and clear the notice of all liensarticles contained in the Amalgamation Application, claims and encumbranceswhich shall be in the form set out as Appendix “A” to this Plan of Arrangement;
(ii) the Corporation has, as its articles, the articles attached to this Plan of Arrangement as Appendix “B”, which shall be signed by one of the Purchaser, directors of the Corporation identified in accordance with section 4.05;
(iii) the applicable Holdco Agreement, in exchange for a payment in cash equal to Corporation becomes capable immediately of exercising the Holdco Share Consideration, functions of an incorporated company;
(iv) the shareholders of the Corporation have the powers and the name liability provided in the BCBCA;
(v) the property, rights and interests of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed each Amalgamating Corporation continue to be the legal property, rights and beneficial owner thereof, free and clear interests of any liens, claims the Corporation (except amounts receivable from the other Amalgamating Corporation or encumbrances; andshares of the capital stock of the other Amalgamating Corporation);
(cvi) the Corporation continues to be liable for the liabilities and obligations of each Amalgamating Corporation;
(vii) an existing cause of action, claim or liability to prosecution is unaffected;
(viii) a legal proceeding being prosecuted or pending by or against an Amalgamating Corporation Share outstanding (other than (i) Corporation Shares held by Brookfieldmay be prosecuted, the Purchaser or any of their affiliates (which shall not its prosecution may be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliatecontinued, as the case may be), by or against the Corporation; and
(ix) a conviction against, or a ruling, order or judgement in favour of or against, an Amalgamating Corporation may be enforced by or against the Corporation;
(b) pursuant to the Amalgamation: (i) all Glamis Common Shares held by Goldcorp or Goldcorp Subco shall be cancelled without any repayment of capital in respect thereof and (ii) Corporation Shares each Glamis Common Share held by Qualifying Holdcosa Former Glamis Shareholder (other than a Dissenting Shareholder or Goldcorp or Goldcorp Subco) shall be exchanged for Goldcorp Common Shares on the basis of 1.69 Goldcorp Common Shares for each Glamis Common Share (the “Share Exchange Ratio”), the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant subject to Section 3.1(b) (which shall not be acquired under the Arrangement section 3.03 and Article 5 hereof, and shall remain be cancelled without any repayment of capital in respect thereof;
(c) immediately upon the Amalgamation as set forth in subsection 3.01(b) hereof, each Glamis Option outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by immediately prior to the Purchaser pursuant to Section 3.1(a))Effective Time, whether or not vested, shall be transferred exchanged for an option exercisable (a “Converted Goldcorp Option”) to acquire (on the same terms and conditions as were applicable to such Glamis Option pursuant to the relevant Glamis Option Plan under which it was issued and the agreement evidencing the grant thereof prior to the Effective Time and, in particular, but without limitation, any options that are deemed to vest at the Effective Time in accordance with the Glamis Option Plan or such agreement shall be transferred by converted into a fully vested Converted Goldcorp Option) the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, number (rounded down to the Applicable Purchaser, in exchange for nearest whole number) of Goldcorp Common Shares determined by multiplying: (A) the number of Glamis Common Shares subject to such Glamis Option immediately prior to the Effective Time and (B) the Share Exchange Ratio. The exercise price per Goldcorp Common Share subject to any such Converted Goldcorp Option will be an amount (rounded up to the nearest one-hundredth of a payment in cash cent) equal to the Considerationquotient of (A) the exercise price per Glamis Common Share subject to such Glamis Option immediately prior to the Effective Time divided by (B) the Share Exchange Ratio, and provided that the name of such holder exercise price otherwise determined shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred increased to the Purchaserextent, if any, required to ensure that the Purchaser In the Money Amount of the Converted Goldcorp Option immediately after the exchange is equal to the In the Money Amount of the exchanged Glamis Option immediately before the exchange; and
(d) immediately upon the Amalgamation as set forth in subsection 3.01(b) hereof, each common share of Goldcorp Subco shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesexchanged for one Common Share.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following events or transactions set out below shall occur and shall be deemed to occur in the following sequence sequence, in each case without any further authorization, act or formalityformality of or by Novamind, Numinus or any other person:
(a) each Novamind RSU outstanding Corporation immediately prior to the Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the Novamind RSU Plan and shall, without any further action by or on behalf of the Novamind RSU Holder thereof, be deemed to be surrendered, assigned and transferred by such Novamind RSU Holder to Novamind (free and clear of all Encumbrances) in exchange for the number of Novamind Shares equal to: (i) the number of Novamind Shares a holder is entitled to under each Novamind RSU; minus (ii) the number of Novamind Shares that has a value equal to the aggregate of the amount required under applicable law to be withheld in respect of such surrender, and, for certainty, where such amount is negative, no Novamind Shares shall be issued. The Novamind Shares will be issued to such Novamind RSU Holder as fully paid and non-assessable shares in the capital of Novamind; provided that no share certificates shall be issued with respect to such shares;
(b) (i) each Novamind RSU Holder shall cease to be a holder of such Novamind RSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Novamind, (iii) the RSU Plan and all agreements relating to the Novamind RSUs shall be terminated and shall be of no further force and effect and (iv) each Novamind RSU Holder will thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 3.1(a) at the time and in the manner specified in Section 3.1(a);
(c) each Novamind Share held by a Dissenting Novamind Shareholder shall be deemed to be transferred acquired by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed Novamind from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Dissenting Novamind Shareholder, without any further act or formality on its part, free and clear of all liensEncumbrances, claims in consideration for a debt claim against Novamind for an amount determined and encumbrancespayable in accordance with Article 4 hereof, and:
(i) such Dissenting Novamind Shareholders shall cease to be the Purchaserholders of such Novamind Shares and to have any rights as holders of such Novamind Shares, other than the right to be paid fair value for such Novamind Shares (with Novamind funds not directly or indirectly provided by Numinus or any affiliate of Numinus), as set out in Article 4 hereof;
(ii) such Dissenting Novamind Shareholders’ names shall be removed as the holders of such Novamind Shares from the register of Novamind Shares maintained by or on behalf of Novamind; and
(iii) such Novamind Shares shall be cancelled and returned to treasury;
(d) each Novamind Share outstanding (other than Novamind Shares held by a Dissenting Novamind Shareholder, Numinus or any Subsidiary of Numinus) shall be transferred to Numinus in exchange for the Share Consideration, and:
(i) the holders of such Novamind Shares shall cease to be the holders thereof and to have any rights as holders of such Novamind Shares, other than the right to receive the Share Consideration in respect of such Novamind Shares in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name Plan of Arrangement;
(ii) such holder holders’ names shall be removed as the holders of such Novamind Shares from the register of holders of Qualifying Holdco Novamind Shares maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and Novamind; and
(iii) Numinus shall be deemed to be the legal and beneficial owner thereof, free and clear transferee of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its partNovamind Shares, free and clear of all liensEncumbrances, claims and encumbrances, shall be entered in the register of Novamind Shares maintained by or on behalf of Novamind as the holder of such Novamind Shares;
(e) each Novamind Option outstanding immediately prior to the Applicable Purchaser, in exchange Effective Time (whether vested or unvested) will cease to represent an option or other right to acquire Novamind Shares and will be exchanged for a payment in cash fully vested option (a “Replacement Option”) to purchase from Numinus such number of Numinus Shares equal to (A) that number of Novamind Shares that were issuable upon exercise of such Novamind Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded to the nearest whole number of Numinus Shares, at an exercise price per Numinus Share equal to the Considerationquotient determined by dividing: (X) the exercise price per Novamind Share at which such Novamind Option was exercisable immediately prior to the Effective Time, by (Y) the Exchange Ratio, rounded to the nearest whole cent. All other terms and conditions of such Replacement Option, including the term to expiry, conditions to and manner of exercising, shall be the same as the Novamind Option for which it was exchanged, and any certificate or option agreement previously evidencing the name of such holder Novamind Option shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred thereafter evidence and shall be deemed to evidence such Replacement Option. The term of any such Replacement Option, when issued, shall be the legal earlier of (i) the expiry date of the original Novamind Option granted and beneficial owner thereof(ii) four months following the time the holder ceased to be a valid participant under the terms of the Replacement Option. Notwithstanding any of the foregoing, free it is intended that the provisions of subsection 7(1.4) of the Tax Act apply to the exchange of a Novamind Option for a Replacement Option, and clear accordingly, in the event that the Replacement Option In-The- Money Amount (for greater certainty, otherwise determined without regard to this last sentence of any liensSection (e)) in respect of a Replacement Option exceeds the Novamind Option In-The-Money Amount in respect of the Novamind Option for which it is exchanged, claims or encumbrancesthen the exercise price per Numinus Share under such Replacement Option will be increased accordingly with effect at and from the Effective Time by the minimum amount necessary to ensure that the Replacement Option In-The-Money Amount (for greater certainty, after taking into account this last sentence of Section (e)) in respect of the Replacement Option does not exceed the Novamind Option In-The-Money Amount in respect of such Novamind Option. It is further intended that each Novamind Option that is held by a holder who is subject to taxation in the United States will be exchanged for a Replacement Option in a manner compliant with Section 409A of the U.S. Internal Revenue Code of 1986, as amended, and this Section (e) will be construed consistently with such intent;
(f) the Stock Option Plan and the Novamind RSU Plan shall be terminated; and
(g) the exchanges and cancellations provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain of the procedures related thereto are not completed until after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective TimeUnless otherwise indicated, the following events or transactions shall occur and shall be deemed to occur occur, as at the Effective Time, sequentially in the following sequence order without any further act or formality:
(a) each outstanding Corporation Share Subject to section 5.1, immediately prior to the Effective Time, the JDS Silver Shares held by a Dissenting Shareholder Shareholders shall be, and shall be deemed to be transferred by the holder thereof have been, surrendered to the Corporation JDS Silver for cancellation (free and clear of all liens, claims any Liens) without any further act or formality and encumbrances, shall be cancelled and each such Dissenting Shareholder Shareholders shall cease to be the holders of such JDS Silver Shares and to have any rights as a Corporation Shareholder holders of such JDS Silver Shares other than the right to be paid the fair value of their Corporation for such JDS Silver Shares by the Corporation as set out in accordance with Article 4 hereofsection 5.1, and such Dissenting Shareholders’ names shall be removed as the holders of such JDS Silver Shares from the central securities register of JDS Silver Shares.
(b) At the Effective Time, all securities of JDS Silver other than the JDS Silver Shares (including, for greater certainty, any securities convertible into, exerciseable or exchangeable for, or any rights of whatever description to purchase or acquire, any securities of JDS Silver), shall be, and shall be deemed to have been, surrendered to JDS Silver and terminated or cancelled by JDS Silver on a basis that does not entitle the holders thereof to any consideration, and thereafter, neither the holders of any such security nor JDS Silver will have any rights, liabilities or other obligations in respect of such securities.
(c) Each JDS Silver Share issued and outstanding at the Effective Time shall be, and shall be deemed to have been, transferred to and acquired by Purchaser (without any action on the part of the holders of the JDS Silver Shares and free and clear of any Liens) for the consideration described in section 4.1 and each Former JDS Silver Shareholder shall be deemed to have:
(i) executed and delivered all share certificates, acknowledgements, instruments of transfer, consents, releases, assignments and waivers, statutory or otherwise, required to transfer and exchange such shares,
(ii) ceased to be the holder of the JDS Silver Shares so transferred,
(iii) ceased to have any rights with respect to such JDS Silver Shares, and will be entitled to receive only such JDS Silver Shareholder’s Pro Rata Portion of:
(A) the Participating Shareholder Upfront Purchase Price;
(B) if applicable, the Mines Act Permit Payment, and
(C) if applicable, the Resource Payment, for each JDS Silver Share held immediately prior to the Effective Time.
(d) The name of such holder shall each Former JDS Silver Shareholder will be removed from the register of holders JDS Silver Shareholders and Purchaser will be added to the JDS Silver Register such that Purchaser is the sole shareholder of Corporation Shares, JDS Silver.
(e) Any and such Corporation Shares all notices required pursuant to the JDS Silver Shareholders Agreement shall be cancelleddeemed to have been given or waived and the JDS Silver Shareholders Agreement shall be and be deemed to have been terminated in its entirety and, thereafter, none of the parties to the JDS Silver Shareholders Agreement shall have any rights, liabilities or obligations thereunder.
(f) Each Escrow Participating Shareholder shall be and be deemed to have become a party to and bound by the relevant provisions of the Escrow Agreement as if such Escrow Participating Shareholder was an original signatory thereto.
(g) Each Escrow Participating Shareholder shall be deemed to irrevocably authorize and direct Purchaser and its representatives and agents, to segregate and deduct such Escrow Participating Shareholder’s proportionate share of the Escrow Amount from the amount payable to such Escrow Participating Shareholder and deposit such amount with the Escrow Agent to be held on the terms and conditions set out in the Escrow Agreement;
(bh) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Each Participating Shareholder shall be transferred and be deemed to be transferred have become a party to and bound by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear provisions of all liens, claims and encumbrances, the Arrangement Agreement to the Purchasersame extent as if the Arrangement Agreement had been signed and sealed by each Participating Shareholder and contained covenants on the part of each Participating Shareholder and each Participating Shareholder’s successors and personal or other legal representatives to observe the Arrangement Agreement and, in accordance with the applicable Holdco Agreementspecifically, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and each Participating Shareholder shall be deemed to be bound by such Participating Shareholder’s liability and obligations under Article 9 of the legal Arrangement Agreement and beneficial owner thereofbe bound by the appointment of the Vendors’ Representative to serve as the agent, free representative and clear attorney-in-fact of any liens, claims or encumbrances; andthe Vendor Parties in accordance with section 12.2 of the Arrangement Agreement and such Participating Shareholder’s liability and obligations under section 12.2 of the Arrangement Agreement.
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by BrookfieldIn accordance with the Escrow Agreement, each Escrow Participating Shareholder shall be (i) deemed to have irrevocably appointed and authorized the Purchaser or any Vendors’ Representative, as agent of their affiliates (which shall not be acquired such Escrow Participating Shareholder, to enter into and act under the Arrangement and shall remain outstanding as a Corporation Share held by BrookfieldEscrow Agreement on his, her or its behalf in the Purchaser or such affiliatemanner contemplated in the Escrow Agreement, as the case may be); (ii) Corporation Shares held by Qualifying Holdcosdeemed to have irrevocably authorized the Vendors’ Representative to deal with Purchaser, the Qualifying Holdco Shares of which are acquired by Escrow Agent, the Purchaser Depositary and the escrow account to be established pursuant to Section 3.1(b) (which shall not be acquired under and in accordance with the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); terms of the Escrow Agreement, and (iii) Corporation Shares acquired bound by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by provisions of the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, Escrow Agreement with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder Escrow Amount. None of the Corporation Shares so transferred and foregoing shall occur or be deemed to be occur unless all of the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesforegoing occurs.
Appears in 1 contract
Arrangement. Commencing Subject to receipt of the Final Order, on the Effective Date, commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur sequentially, in the following sequence order, without any further act or formalityformality required on the part of any Person, except as expressly provided herein, notwithstanding that certain of the procedures related thereto are not completed until after such time:
(a) each outstanding Corporation Pubco Dissenting Share held by a Pubco Dissenting Shareholder in respect of which a Pubco Shareholder has validly exercised his, her or its Pubco Dissent Rights shall be deemed to be transferred by the holder thereof such Pubco Dissenting Shareholder to the Corporation Pubco (free and clear of all liens, claims any Liens of any nature whatsoever) in accordance with and encumbrancesfor the consideration set forth in Article 4 hereof, and each such Pubco Dissenting Shareholder shall cease to have any rights be a holder of such Pubco Share and his, her or its name shall be removed from the central securities register of Pubco as a Corporation holder of a Pubco Dissenting Share. Such Pubco Dissenting Shareholder other than the right shall be deemed to be paid the fair value of their Corporation have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Pubco Dissenting Shares by the Corporation to Pubco in accordance with Article 4 hereofthis Subsection. Pubco shall be the holder of all of the Pubco Dissenting Shares transferred in accordance with this Subsection and such Pubco Shares will be cancelled and the central securities register of Pubco shall be revised accordingly;
(b) Pubco shall complete the (i) Pubco Share Consolidation, (ii) the Pubco Share Amendment; and (iii) the Pubco Name Change which shall take effect on the date and time that the notice of alteration of Pubco’s articles in respect of the Pubco Share Amendment and the Pubco Name Change is filed with the Registrar;
(c) F▇▇▇▇ and Pubco Subco shall amalgamate to form F▇▇▇▇ Amalco in accordance with and under Section 269 of the BCBCA pursuant to the F▇▇▇▇ Amalgamation Agreement and (i) without limiting the generality of the above, the separate legal existence of F▇▇▇▇ and Pubco Subco shall cease without Pubco Subco being liquidated or wound up, and F▇▇▇▇ and Pubco Subco shall continue as one company, F▇▇▇▇ Amalco, under the terms and conditions prescribed in this Plan of Arrangement; (ii) the property, rights and interests of each of F▇▇▇▇ and Pubco Subco shall continue to be the property, rights and interests of F▇▇▇▇ Amalco; (iii) F▇▇▇▇ Amalco shall continue to be liable for the obligations of each of F▇▇▇▇ and Pubco Subco; (iv) F▇▇▇▇ Amalco shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil action commenced by or against either F▇▇▇▇ or Pubco Subco before the amalgamation has become effective; (v) a conviction against, or a ruling, order or judgment in favour of or against, either F▇▇▇▇ or Pubco Subco may be enforced by or against F▇▇▇▇ Amalco; (vi) the notice of articles and articles of F▇▇▇▇ Amalco shall be substantially identical to the notice of articles and articles of F▇▇▇▇; (vii) each F▇▇▇▇ Share held by a holder thereof will be cancelled and the holder’s name shall be removed from the central securities register of F▇▇▇▇, and in consideration therefor, the holder thereof shall receive a fully paid and non-assessable Pubco Subordinate Voting Share on the basis of one Pubco Subordinate Voting Share for each F▇▇▇▇ Share and the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to exchange such F▇▇▇▇ Share in accordance herewith; (viii) each share of Pubco Subco held by Pubco will be cancelled and the holder’s name shall be removed from the central securities register of Pubco Subco, and in consideration therefor, the holder thereof shall receive a fully paid and non-assessable shares of F▇▇▇▇ Amalco on the basis of one share of F▇▇▇▇ Amalco for each share of Pubco Subco and the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to exchange such share of Pubco Subco in accordance herewith; (ix) in consideration for Pubco’s issuance of Pubco Subordinate Voting Shares, F▇▇▇▇ Amalco shall issue to Pubco one F▇▇▇▇ Amalco Share for each Pubco Subordinate Voting Share; (x) the registered office of F▇▇▇▇ Amalco shall be the registered office of F▇▇▇▇; and (xi) the amount added to the capital of the Pubco Subordinate Voting Shares shall be the amount of the paid-up capital (as that term is used for purposes of the Tax Act) of the F▇▇▇▇ Shares immediately prior to the F▇▇▇▇ Amalgamation;
(d) the F▇▇▇▇ Amalco Windup shall occur pursuant to the terms of the Conveyance Agreement;
(e) the Board Nominees shall be appointed as directors of Pubco;
(f) Pubco shall acquire from each Verano Blockerco Member that has entered into a Verano Blockerco Exchange Agreement the securities of the Verano Blockerco held by such Verano Blockerco Member in consideration for Pubco Subordinate Voting Shares in accordance with the Arrangement Agreement and applicable Verano Blockerco Exchange Agreement, and the name of such Verano Blockerco Member shall be added to the central securities register maintained by or on behalf of Pubco showing such holder as the registered holder of Pubco Subordinate Voting Shares so issued;
(g) Upon the merger of LLC1 with and into Verano in accordance with and under the Delaware Limited Liability Company Act and the Verano Agreement and Plan of Merger, with Verano continuing as the surviving company under the laws of the State of Delaware and in the manner set out in the Verano Agreement and Plan of Merger, each of the following will occur:
(i) Pubco shall issue to each Other Verano Unitholder in consideration for the Verano Units held by such Other Verano Unitholder, Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares in accordance with the Verano Agreement and Plan of Merger and the Arrangement Agreement and each such Other Verano Unitholder shall be added to the central securities register maintained by or on behalf of Pubco showing such Other Verano Unitholder as the registered holder of the Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares so issued;
(ii) each unit of LLC1, issued and outstanding immediately prior to the Effective Time, shall be converted into and become one validly issued, fully paid and non-assessable Verano Unit after the Verano Merger; and
(iii) in consideration of the issuance of the Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares pursuant to Subsection 3.2(g)(i) above, Verano (as the surviving company in connection with the Verano Merger) will issue one Verano Unit to Pubco for each Pubco Subordinate Voting Share issued and 100 Verano Units for each Pubco Proportionate Voting Share issued and, other than the one Verano Unit issued pursuant to Subsection 3.2(g)(ii) above, such Verano Units shall constitute the only outstanding Verano Units after the Verano Merger;
(h) Pubco shall acquire from each Other Verano Subsidiary Owner the securities of the Partially-Owned Verano Subsidiary held by such Other Verano Subsidiary Owner in consideration for Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares in accordance with the applicable Verano Subsidiary Exchange Agreement and the name of such Other Verano Subsidiary Owner shall be added to the central securities register maintained by or on behalf of Pubco showing such Other Verano Subsidiary Owner as the registered holder of the Pubco Subordinate Voting Shares and/or Pubco Proportionate Voting Shares so issued;
(i) Pubco shall assume the rights and obligations of Verano under the AME Agreement and Plan of Merger in accordance with the Pubco Assumption Agreement;
(j) Pubco shall acquire from POR Holdings all of the POR Units held thereby in consideration for Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares in accordance with the POR Holdings Exchange Agreement and POR Holdings shall be added to the central securities register maintained by or on behalf of Pubco showing POR Holdings as the registered holder of the Pubco Subordinate Voting Shares and/or Pubco Proportionate Voting Shares so issued;
(k) The AME Units held by each Canadian AME Member shall be contributed to Pubco pursuant to its AME Exchange Agreement and Pubco shall issue Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares in accordance with the applicable AME Exchange Agreement and the name of such Canadian AME Member shall be added to the central securities register maintained by or on behalf of Pubco showing such Canadian AME Member as the registered holder of the Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares so issued;
(l) Upon the merger of LLC2 with and into AME in accordance with and under the Delaware Limited Liability Company Act and the AME Agreement and Plan of Merger, with AME continuing as the surviving company in the manner set out in the AME Agreement and Plan of Merger, each of the following will occur:
(i) Pubco shall issue or pay to each AME Member that is not a Canadian AME Member in consideration for each issued and outstanding AME Unit held by each such AME Member Pubco Subordinate Voting Shares, Pubco Proportionate Voting Shares, the Cash Consideration payable on the Effective Date and Pubco Convertible Notes, as applicable, in accordance with AME Agreement and Plan of Merger and the Arrangement Agreement and such AME Member shall be added to the central securities register maintained by or on behalf of Pubco showing such AME Member as the registered holder of the Pubco Subordinate Voting Shares and/or Pubco Proportionate Voting Shares so issued;
(ii) each unit of LLC2, issued and outstanding immediately prior to the Effective Time, shall be converted into and become one validly issued, fully paid and non-assessable AME Unit after the AME Merger; and
(iii) in consideration of the issuance of the Pubco Subordinate Voting Shares, Pubco Proportionate Voting Shares and the Pubco Convertible Notes and the assumption of the obligation to pay the Cash Consideration pursuant to Subsection 3.2(l)(i) above, respectively, AME (as the surviving company in connection with the merger) will issue one AME Unit to Pubco for each Pubco Subordinate Voting Share issued and 100 AME Units for each Pubco Proportionate Voting Share issued and, other than the one AME Unit issued pursuant to Subsection 3.2(l)(ii) above, such AME Units shall constitute the only outstanding AME Units after the AME Merger;
(m) Upon the merger of LLC3 with and into POR, in accordance with and under the Delaware Limited Liability Company Act and the AME Agreement and Plan of Merger, with POR continuing as the surviving company in the manner set out in the AME Agreement and Plan of Merger, each of the following will occur:
(i) Pubco shall issue to each Other POR Owner in consideration for each POR Unit held by each Other POR Owner Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares in accordance with AME Agreement and Plan of Merger and the Arrangement Agreement and the Other POR Owner shall be added to the central securities register maintained by or on behalf of Pubco showing such Other POR Owner as the registered holder of Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares so issued;
(ii) each unit of LLC3, issued and outstanding immediately prior to the Effective Time, shall be converted into and become one validly issued, fully paid and non-assessable POR Unit after the POR Merger; and
(iii) in consideration of the issuance of the Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares issued pursuant to Subsection 3.2(m)(i) above, POR (as the surviving company in connection with the POR Merger) will issue one POR Unit to Pubco for each Pubco Subordinate Voting Share issued and 100 POR Units for each Pubco Proportionate Voting Share issued and, other than the one POR Unit issued pursuant to Subsection 3.2(m)(ii) above, such POR Units shall constitute the only outstanding POR Units after the POR Merger;
(n) Upon the merger of LLC4 with and into RVC, in accordance with and under the Delaware Limited Liability Company Act and the AME Agreement and Plan of Merger, with RVC continuing as the surviving company in the manner set out in the AME Agreement and Plan of Merger, and each of the following will occur:
(i) Pubco shall issue to each Other RVC Member in consideration for each RVC Unit held by each Other RVC Member Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares in accordance with the AME Agreement and Plan of Merger and the Arrangement Agreement and each Other RVC Member shall be added to the central securities register maintained by or on behalf of Pubco showing such Other RVC Member as the registered holder of Pubco Subordinate Voting Shares and Pubco Proportionate Voting Shares so issued;
(ii) each unit of LLC4, issued and outstanding immediately prior to the Effective Time, shall be converted into and become one validly issued, fully paid and non-assessable RVC Unit after the RVC Merger; and
(iii) in consideration of the issuance of the Pubco Subordinate Voting Shares, Pubco Proportionate Voting Shares issued pursuant to Subsection 3.2(n)(i) above, RVC (as the surviving company in connection with the merger) will issue one RVC Unit to Pubco for each Pubco Subordinate Voting Share issued and 100 RVC Units for each Pubco Proportionate Voting Share issued and, other than the one RVC Unit issued pursuant to Subsection 3.2(n)(ii) above, such RVC Units shall constitute the only outstanding RVC Units after the RVC Merger;
(o) BC Newco and Pubco shall amalgamate to form one corporate entity, with the same effect as if they had amalgamated under Section 269 of the BCBCA except the separate legal existence of Pubco will not cease and Pubco will survive the amalgamation (Pubco, as such surviving entity, may be referred to herein as the “Resulting Issuer”). The BC Amalgamation is intended to qualify as an amalgamation as defined in subsection 87(1) of the Tax Act. Upon the BC Amalgamation:
(i) without limiting the generality of the foregoing, BC Newco and Pubco shall amalgamate, the separate legal existence of BC Newco will cease without BC Newco being liquidated or wound-up, and BC Newco and Pubco shall continue as the Resulting Issuer, under the terms and conditions prescribed in this Plan of Arrangement;
(ii) the Resulting Issuer shall become capable immediately of exercising the functions of an incorporated company;
(iii) the Resulting Issuer shall have the name of Pubco;
(iv) the shareholders of the Resulting Issuer shall have the powers and the liability provided in the BCBCA;
(v) the property, rights and interests of each of BC Newco and Pubco shall continue to be the property, rights and interests of the Resulting Issuer, and such amalgamation shall not constitute an assignment by operation of law, an transfer or any other disposition of the property, rights and interests of Pubco to the Resulting Issuer;
(vi) the Resulting Issuer shall continue to be liable for the obligations of BC Newco and Pubco;
(vii) any legal proceedings being prosecuted or pending by or against BC Newco or Pubco may be prosecuted, or their prosecution may be continued as the case may be, by or against the Resulting Issuer;
(viii) a conviction against, or a ruling, order or judgment in favour of or against, either BC Newco and Pubco may be enforced by or against the Resulting Issuer;
(ix) the initial directors of the Resulting Issuer will be the Board Nominees;
(x) the notice of articles and articles of the Resulting Issuer shall be substantially identical to the notice of articles and articles of Pubco immediately prior to the BC Amalgamation, and the registered office of the Resulting Issuer shall be the registered office of Pubco following the Continuance;
(xi) each BC Newco Share held by a holder thereof will be cancelled and the holder’s name shall be removed from the register of holders of Corporation BC Newco Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfieldconsideration therefor, the Purchaser or any holder thereof shall receive a fully paid and non-assessable Resulting Issuer Subordinate Voting Share on the basis of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case effective as at two minute intervals starting at the Effective Time:
(a) each of the Company Shares outstanding Corporation Share immediately prior to the Effective Time held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred, without any further act or formality by or on behalf of any Dissenting Shareholder, to the Company in consideration for a debt claim against the Company (which shall be paid solely with Company funds not directly or indirectly provided by Purchaser or its affiliates) for the amount determined under Article 3, and:
(i) such Dissenting Shareholder shall cease to be the registered holder of such Company Shares and to have any rights as a Company Shareholder other than the right to be paid fair value for such Company Shares set out in Section 3.1;
(ii) such Dissenting Shareholder's name shall be removed as the registered holder of Company Shares from the Company's central securities register maintained by or on behalf of the Company; and
(iii) the Company shall be deemed to be the transferee of such Company Shares free and clear of all Liens (other than the right to be paid fair value for such Company Shares as set out in Section 3.1), and shall be entered in the Company's central securities register maintained by or on behalf of the Company; and
(b) each Company RSU held by a Consenting RSU Holder will remain outstanding in accordance with its terms and upon vesting thereof after the Effective Time in accordance with the terms of such Company RSU, such Consenting RSU Holder shall accept the Consideration in lieu of each Company Share to which such holder was theretofore entitled upon such vesting, and all other terms and conditions of such Company RSU, including the term to expiry, vesting and other conditions, shall remain the same, and shall continue to be governed by and be subject to the Company RSU Plan and the applicable Award Agreement;
(c) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company RSU Plan or applicable Law), each Company RSU issued and outstanding immediately prior to the Effective Time (other than Company RSUs held by Consenting RSU Holders) shall, without any further act or formality by or on behalf of any Company RSU Holder, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to the Company (free and clear of all Liens) and cancelled in exchange for the applicable RSU Consideration, and
(i) each holder of such Company RSU shall cease to be the holder thereof and to have any rights as a Company RSU Holder;
(ii) the name of each such holder shall be removed from the register of the Company RSU Holders maintained by or on behalf of the Company;
(iii) each such former holder of such Company RSU shall be deemed to be the holder of the Company Shares comprising such RSU Consideration and shall be entered in the Company's central securities register maintained by or on behalf of the Company;
(iv) all Award Agreements, grants and similar instruments relating thereto will be cancelled; and
(v) other than with respect to Company RSUs held by Consenting RSU Holders, the Company RSU Plan shall be cancelled; and
(d) each Company Share outstanding immediately prior to the Effective Time (other than Company Shares held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised under Section 2.3(a) and any Company Shares held by the Purchaser or any affiliates thereof) and each Company Share issued to former Company RSU Holders under Section 2.3(b) shall, without any further action by or on behalf of any Company Shareholder, be deemed to be assigned and transferred by the holder thereof to the Corporation free and clear Purchaser in exchange for the Consideration, and
(i) each registered holder of all liens, claims and encumbrances, and each Dissenting Shareholder such Company Shares shall cease to be the registered holder thereof and to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation Consideration per Company Share in accordance with Article 4 hereof, and this Plan of Arrangement;
(ii) the name of each such registered holder shall be removed from the Company's central securities register maintained by or on behalf of holders of Corporation Shares, and such Corporation Shares shall be cancelled;the Company; and
(biii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear transferee of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation such Company Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred Liens and shall be deemed to be entered in the legal and beneficial owner thereof, free and clear Company's central securities register maintained by or on behalf of any liens, claims or encumbrancesthe Company.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, Time each of the following events or transactions shall occur and shall be deemed to occur sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the following sequence Effective Time:
(a) each of the Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formality, by or on behalf of the Dissenting Holders, to the Purchaser in consideration for a claim against the Purchaser for the amount determined under Article 3, and:
(ai) each outstanding Corporation Share held such Dissenting Holders shall cease to be the holders of such Shares and to have any rights as holders of such Shares other than the right to be paid fair value by a the Purchaser for such Shares as set out in Section 3.1;
(ii) such Dissenting Shareholder Holders’ names shall be removed as the holders of such Shares from the registers of Class A Shares or Class B Shares, as applicable, maintained by or on behalf of the Corporation; and
(iii) the Purchaser shall be deemed to be transferred by the holder thereof to the Corporation transferee of such Shares (free and clear of all liens, claims and encumbrancesLiens), and shall be entered in the register of Class A Shares or Class B Shares, as applicable, maintained by or on behalf of the Corporation;
(b) each Share outstanding immediately prior to the Effective Time, other than Shares held by a Dissenting Shareholder Holder in respect of which Dissent Rights have been validly exercised and Shares held by the Purchaser shall, without any further action by or on behalf of a Shareholder, be purchased by the Purchaser in exchange for the Consideration, and:
(i) the holders of such Shares shall cease to be the holders of such Shares and to have any rights as a Corporation Shareholder holders of such Shares other than the right to be paid the fair value of their Corporation Shares Consideration by the Corporation Purchaser in accordance with Article 4 hereof, and the name this Plan of Arrangement; and
(ii) such holder holders’ names shall be removed from the register of holders of Corporation the Class A Shares or Class B Shares, and such Corporation Shares shall be cancelled;as applicable, maintained by or on behalf of the Corporation.
(bc) notwithstanding the terms of the Share Option Plan or any applicable award agreements in relation thereto, each Qualifying Holdco Share outstanding held Option whether vested or unvested, that has not, prior to the Effective Time, been exercised or surrendered in accordance with its terms shall, without any further action or formality on behalf of the holder thereof and the Corporation and without any payment by a Qualifying Holdco Shareholder shall such Optionholder, be transferred and deemed to be transferred to the Corporation as follows:
(i) in respect of each Option outstanding at the Effective Time whether vested or unvested, that has an exercise price that is less than the Consideration, the applicable Option shall be deemed to be surrendered to the Corporation in exchange for an amount, subject to Section 4.3, equal to the amount by which the Consideration exceeds the exercise price thereof, payable in cash to the Optionholder in full satisfaction of the Corporation’s obligations under such surrendered Option; and
(ii) in respect of each Option outstanding at the Effective Time whether vested or unvested, that has an exercise price that is equal to or greater than the Consideration, the applicable Option shall be deemed to be surrendered to the Corporation for no consideration, and none of the Corporation or the Purchaser shall be obligated to pay any amount in respect of such Option, whereupon all Options shall be, and shall be deemed to be, cancelled by the Qualifying Holdco ShareholderCorporation, all obligations in respect of the Options shall be deemed to be fully satisfied, and the holders thereof shall cease to have any rights in respect thereof other than the right to receive the consideration contemplated under this Plan of Arrangement;
(d) each DSU outstanding immediately prior to the Effective Time, notwithstanding the terms of the DSU Plans, shall, without any further act action by or formality on its partbehalf of a DSU Holder, free be deemed to be assigned and clear of all liens, claims and encumbrances, transferred by such holder to the Purchaser, in accordance with the applicable Holdco Agreement, Corporation in exchange for a cash payment in cash from the Corporation equal to the Holdco Share Consideration, subject to Section 4.3, and each such DSU shall immediately be cancelled and (i) the name DSU Holders shall cease to be the holders thereof, and to have any rights as DSU Holders other than the right to receive the consideration to which they are entitled under Section 2.3(d) of this Plan of Arrangement; (ii) such holder holders’ names shall be removed from the register of holders of Qualifying Holdco Shares the DSUs maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco)Corporation; and (iii) Corporation Shares acquired by the Purchaser pursuant DSU Plans and all agreements relating to Section 3.1(a)), the DSUs shall be transferred terminated and deemed shall be of no further force and effect; and
(e) each RSU outstanding immediately prior to be transferred by the holder thereofEffective Time, notwithstanding the terms of the RSU Plan, shall, without any further act action by or formality on its partbehalf of a of RSU Holder, free be deemed to be assigned and clear of all liens, claims and encumbrances, transferred by such holder to the Applicable Purchaser, Corporation in exchange for a cash payment in cash from the Corporation equal to the Consideration, subject to Section 4.3, and each such RSU shall immediately be cancelled and (i) the name RSU Holders shall cease to be the holders thereof, and to have any rights as RSU Holders other than the right to receive the consideration to which they are entitled under Section 2.3(e) of this Plan of Arrangement; (ii) such holder holders’ names shall be removed from the register of holders the RSUs maintained by or on behalf of Corporation Shares, and, with respect to Corporation Shares elected to be transferred the Corporation; and (iii) the RSU Plan and all agreements relating to the Purchaser, the Purchaser RSUs shall be recorded as the registered holder of the Corporation Shares so transferred terminated and shall be deemed to be the legal of no further force and beneficial owner thereof, free and clear of any liens, claims or encumbranceseffect.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order set out below without any further authorizations, act or formality, in each case effective as at two minute intervals starting at the Effective Time:
(a) each outstanding Corporation Share of the Company Shares held by a Dissenting Shareholder Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have transferred, without further act or formality by or on behalf of any Dissenting Holder, to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3 , and:
(i) such Dissenting Holder shall cease to be transferred by the holder thereof to the Corporation free of such Company Shares and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value for such Company Shares, as set out in Section 3.1;
(ii) such Dissenting Holder’s name shall be removed as the holder of their Corporation Company Shares from the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares, free and clear of all Liens (other than the right to be paid fair value for such Company Shares as set out in Section 3.1), and shall be entered into the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(b) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company Legacy Equity Incentive Plan or Company PRSU Plan or applicable Law), each Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further act or formality by or on behalf of any Company RSU Holder, be deemed to be fully vested and shall be surrendered by the Corporation holder thereof to the Company (free and clear of all Liens) and cancelled in accordance with Article 4 hereofexchange for the applicable Company RSU Consideration; and
(i) the relevant holder of such Company RSU will be issued Company Shares equal to the Company RSU Net Payment, having a fair market value equal to the Company RSU Consideration, net of applicable source deductions, and the Company RSU Net Payment issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non-assessable Company Shares;
(ii) the Company RSU Balance Shares will be issued in trust for the relevant holder of such Company RSU to a securities dealer designated by the Purchaser, who is authorized on behalf of the relevant holder of such Company RSU, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such Company RSU Balance Shares pursuant to Section (h) to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such Company RSUs, and the Company RSU Balance Shares issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non-assessable Company Shares;
(iii) each holder of such Company RSU shall cease to be the holder thereof and to have any rights as a Company RSU Holder;
(iv) the name of each such holder shall be removed from the register of holders the Company RSU Holders maintained by or on behalf of Corporation the Company;
(v) each such former holder of such Company RSU shall be deemed to be the holder of the Company Shares comprising the Company RSU Consideration and shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company and such Company Shares shall be issued to such former holder of such Company RSUs as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares; and
(vi) all Award Agreements in respect of Company RSUs, grants and such Corporation Shares similar instruments relating thereto shall be cancelled;
(bc) notwithstanding any vesting provisions to which a Company PSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company Legacy Equity Incentive Plan or Company PRSU Plan or applicable Law), each Qualifying Holdco Share Company PSU issued and outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed immediately prior to be transferred by the Qualifying Holdco ShareholderEffective Time shall, without any further act or formality by or on its partbehalf of any Company PSU Holder, be deemed to be fully vested and shall be surrendered by the holder thereof to the Company (free and clear of all liensLiens) and cancelled in exchange for the applicable Company PSU Consideration; and
(i) the relevant holder of such Company PSU will be issued Company Shares equal to the Company PSU Net Payment, claims having a fair market value equal to the Company PSU Consideration, net of applicable source deductions, and encumbrances, the Company PSU Net Payment issuable in connection therewith will be deemed to be issued to such holder of such Company PSUs as fully-paid and non-assessable Company Shares;
(ii) the Company PSU Balance Shares will be issued in trust for the relevant holder of such Company PSU to a securities dealer designated by the Purchaser, who is authorized on behalf of the relevant holder of such Company PSU, to sell in accordance with the applicable Holdco Agreement, capital markets or otherwise the Purchaser Shares received in exchange for a payment such Company PSU Balance Shares pursuant to Section 2.3(h) to realize cash proceeds to satisfy the applicable source deductions in cash equal to respect of the Holdco Share Considerationsurrender of such Company PSUs, and the Company PSU Balance Shares issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non-assessable Company Shares;
(iii) each holder of such Company PSU shall cease to be the holder thereof and to have any rights as a Company PSU Holder;
(iv) the name of each such holder shall be removed from the register of holders of Qualifying Holdco Shares the Company PSU Holders maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered Company;
(v) each such former holder of the Qualifying Holdco Shares so transferred and such Company PSU shall be deemed to be the legal holder of the Company Shares comprising the Company PSU Consideration and beneficial owner thereofshall be entered in the register of the Company Shareholders maintained by or on behalf of the Company, free and clear such Company Shares shall be issued to such former holder of any lienssuch Company PSUs as fully paid and non-assessable Company Shares, claims or encumbrancesprovided that no share certificates shall be issued with respect to such Company Shares;
(vi) all Award Agreements in respect of Company PSUs, grants and similar instruments relating thereto shall be cancelled; and
(cvii) the Company PRSU Plan shall be terminated, and none of the Company nor the Purchaser shall have any further liabilities or obligations thereunder;
(d) each Corporation Share outstanding Company Out-Of-The-Money Option will be cancelled without any payment in respect thereof and the holder thereof will cease to be the holder of such Company Option, will cease to have any rights as a holder in respect of such Company Option, will be removed from the register of the Company Options, and all option agreements, grants and similar instruments relating thereto will be cancelled, and none of the Company nor the Purchaser shall have any further liabilities or obligations with respect thereto;
(other than e) notwithstanding any vesting provisions to which a TJAC Option might otherwise be subject (i) Corporation Shares held whether by Brookfieldcontract, the Purchaser terms and conditions of any Award Agreement or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfieldgrant, the Purchaser terms and conditions of the TJAC Option Plan or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)applicable Law), shall be transferred each TJAC Option issued and deemed outstanding immediately prior to be transferred by the holder thereofEffective Time shall, without any further act or formality by or on its partbehalf of any TJAC Optionholder, be deemed to be fully vested and shall be surrendered by the holder thereof to TJAC (free and clear of all liens, claims Liens) and encumbrances, to the Applicable Purchaser, cancelled in exchange for a payment in cash Company In-The-Money Option as described below pursuant to Subsection 7(1.4) of the Tax Act; and
(i) TJAC will issue such number of TJAC common shares to the Company that is equal to the Considerationaggregate number of Company Shares required to be delivered by the Company pursuant to Sections 2.3(f)(i) and 2.3(f)(ii) in respect of Company In-The- Money Options granted pursuant to Section 2.3(e)(ii);
(ii) the Company will grant a Company In-The-Money Option under the Company Option Plan for each TJAC Option with the Company In-The Money Option issued in exchange for a particular TJAC Option being exercisable for a number of Company Shares equal to the product of the TJAC Option Ratio and the number of TJAC common shares for which the particular TJAC Option was exercisable immediately prior to the exchange, and such Company In-The-Money Option having an exercise price equal to the exercise price of the particular TJAC Option;
(iii) each holder of such TJAC Option shall cease to be the holder thereof and to have any rights as a TJAC Optionholder;
(iv) the name of each such holder shall be removed from the register of holders the TJAC Optionholders maintained by or on behalf of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered TJAC;
(v) each such former holder of the Corporation Shares so transferred and such TJAC Option shall be deemed to be the legal holder of Company In-The-Money Options; and
(vi) all Award Agreements in respect of TJAC Options, grants and beneficial owner thereofsimilar instruments relating thereto shall be cancelled; and
(f) each Company In-The-Money Option will be surrendered and cancelled in exchange for:
(i) the relevant In-The-Money Amount and the relevant Company Optionholder will be issued the Company Option Shares, having a fair market value equal to the relevant aggregate In-The-Money Amount, net of applicable source deductions, and the Company Option Shares will be deemed to be issued to such Company Optionholder as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares;
(ii) the Company Option Balance Shares, which will be issued in trust for the relevant Company Optionholder to a securities dealer designated by the Purchaser, who will be authorized on behalf of the relevant holder of such Company Optionholder, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such Company Option Balance Shares pursuant to Section 2.3(h) to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such Company Options and the Company Option Balance Shares will be deemed to be issued to such Company Optionholder as fully paid and non-assessable Company Shares; and
(iii) the holder of such Company Option will cease to be the holder of such Company Option, will cease to have any rights as a holder in respect of such Company Option, will be removed from the applicable register of the Company Options, and all Award Agreements relating thereto will be cancelled, and neither the Company nor the Purchaser shall have any further liabilities or obligations with respect thereto (g) the Company Option Plan, the Company Legacy Equity Incentive Plan and the TJAC Option Plan shall each be terminated, and none of the Company nor the Purchaser shall have any further liabilities or obligations thereunder.
(h) each Company Share outstanding immediately prior to the Effective Time (other than Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised under Section 2.3(a) shall be deemed to be assigned and transferred by the holder thereof to the Purchaser in exchange for the Consideration; and
(i) each holder of such Company Shares shall cease to be the holder thereof and to have any rights as a Company Shareholder, other than the right to be paid the Consideration per Company Share in accordance with this Plan of Arrangement;
(ii) the name of the each such holder of Company Shares shall be removed from the register of the Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares, free and clear of any liensall Liens, claims and shall be entered in the register of the Company Shareholders maintained by or encumbranceson behalf of the Company.
Appears in 1 contract
Sources: Second Amending Agreement
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formality:
(a) each outstanding Corporation Company Share held by a Dissenting Shareholder Shareholders shall be deemed to be have been transferred by the holder thereof to the Corporation Buyer free and clear of all liens, claims and encumbrances, Liens and each Dissenting Shareholder shall cease to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value of their Corporation Company Shares by the Corporation Buyer in accordance with Article 4 hereof, ARTICLE III and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Company Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser Buyer shall be recorded as the registered holder of the Qualifying Holdco Company Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; andLiens;
(cb) each Corporation Share outstanding the Company and Subco will be amalgamated under Division 5 of Part 9 of the BCBCA and continue as one company (other than “Amalco”) as if they were amalgamated under section 276 of the BCBCA on the following terms and otherwise on the terms set out in this Plan of Arrangement and the Final Order implementing it:
(i) Corporation Shares held by Brookfieldthe name of the Amalco will be “Quadron Cannatech Corporation”;
(ii) Amalco will have, as its notice of articles, the Purchaser or any notice of their affiliates articles of the Company in effect immediately before the Effective Date;
(which shall not be acquired under the Arrangement and shall remain outstanding iii) Amalco will have as a Corporation Share held by Brookfieldits articles, the Purchaser articles of the Company in effect immediately before the Effective Date;
(iv) Amalco will become capable immediately of exercising the functions of an incorporated company;
(v) Amalco will have the powers and obligations of a business corporation provided in the BCBCA;
(vi) the number of directors of the Amalco will be set at one;
(vii) the first director of the Amalco will be ▇▇▇▇ ▇▇▇▇▇▇;
(viii) the property, rights and interests of each of Subco and the Company will continue to be the property, rights and interests of the Amalco;
(ix) the registered office of the Amalco will be the registered office of the Buyer;
(x) Amalco will continue to be liable for the obligations of each of Subco and the Company;
(xi) an existing cause of action or claim by or against, or liability of, or legal proceeding being prosecuted by or against, either of Subco or the Company is unaffected by the amalgamation, and every such affiliateaction, claim, liability or legal proceeding will continue and may be pursued by or against the Amalco as the case may be); ;
(iixii) Corporation every conviction against, or ruling, order or judgment in favour of or against either of the Subco and the Company may be enforced by or against the Amalco as the case may be;
(xiii) the issued and outstanding Company Shares held by Qualifying Holdcos, the Qualifying Holdco and Subco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, exchanged (free and clear of any liensLiens) for Buyer Shares or converted into issued and outstanding Amalco Shares as follows:
(A) each Company Share held by a Company Shareholder, claims other than a Dissenting Shareholder, shall be cancelled and the holder’s name shall be removed from Amalco’s central securities register, and in consideration therefor the holder thereof shall receive two Consideration Shares for each Company Share previously-held by such Company Shareholder, provided that no fractional Consideration Share shall be issued to a Company Shareholder pursuant to the exchange set out herein;
(B) any Company Share held by a Dissenting Shareholder that is acquired by the Buyer pursuant to Section 3.01 hereof shall be converted, on a share for share basis, into Amalco Shares;
(C) the Buyer shall receive one fully paid and non-assessable share in the capital of Amalco for each common share of Subco held by the Buyer immediately before the Effective Time, and all such common shares of Subco will be cancelled;
(D) Amalco shall issue to the Buyer one common share in the capital of Amalco for each Consideration Share issued; and
(E) the amount added to the capital of the Buyer shall be the paid-up capital (as that term is used for the purposes of the Tax Act) of the Company Shares (other than the Company Shares held by Dissenting Shareholders or encumbrancesthe Buyer) immediately prior to the Effective Time.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order set out below without any further authorizations, act or formality, in each case effective as at two minute intervals starting at the Effective Time:
(a) each outstanding Corporation Share of the Company Shares held by a Dissenting Shareholder Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have transferred, without further act or formality by or on behalf of any Dissenting Holder, to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3 , and:
(i) such Dissenting Holder shall cease to be transferred by the holder thereof to the Corporation free of such Company Shares and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value for such Company Shares, as set out in Section 3.1;
(ii) such Dissenting Holder’s name shall be removed as the holder of their Corporation Company Shares from the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares, free and clear of all Liens (other than the right to be paid fair value for such Company Shares as set out in Section 3.1), and shall be entered into the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(b) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company Legacy Equity Incentive Plan or Company PRSU Plan or applicable Law), each Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further act or formality by or on behalf of any Company RSU Holder, be deemed to be fully vested and shall be surrendered by the Corporation holder thereof to the Company (free and clear of all Liens) and cancelled in accordance with Article 4 hereofexchange for the applicable Company RSU Consideration; and
(i) the relevant holder of such Company RSU will be issued Company Shares equal to the Company RSU Net Payment, having a fair market value equal to the Company RSU Consideration, net of applicable source deductions, and the Company RSU Net Payment issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non-assessable Company Shares;
(ii) the Company RSU Balance Shares will be issued in trust for the relevant holder of such Company RSU to a securities dealer designated by the Purchaser, who is authorized on behalf of the relevant holder of such Company RSU, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such Company RSU Balance Shares pursuant to Section 2.3(i) to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such Company RSUs, and the Company RSU Balance Shares issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non- assessable Company Shares;
(iii) each holder of such Company RSU shall cease to be the holder thereof and to have any rights as a Company RSU Holder;
(iv) the name of each such holder shall be removed from the register of holders the Company RSU Holders maintained by or on behalf of Corporation the Company;
(v) each such former holder of such Company RSU shall be deemed to be the holder of the Company Shares comprising the Company RSU Consideration and shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company and such Company Shares shall be issued to such former holder of such Company RSUs as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares; and
(vi) all Award Agreements in respect of Company RSUs, grants and such Corporation Shares similar instruments relating thereto shall be cancelled;
(bc) notwithstanding any vesting provisions to which a Company PSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company Legacy Equity Incentive Plan or Company PRSU Plan or applicable Law), each Qualifying Holdco Share Company PSU issued and outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed immediately prior to be transferred by the Qualifying Holdco ShareholderEffective Time shall, without any further act or formality by or on its partbehalf of any Company PSU Holder, be deemed to be fully vested and shall be surrendered by the holder thereof to the Company (free and clear of all liensLiens) and cancelled in exchange for the applicable Company PSU Consideration; and
(i) the relevant holder of such Company PSU will be issued Company Shares equal to the Company PSU Net Payment, claims having a fair market value equal to the Company PSU Consideration, net of applicable source deductions, and encumbrances, the Company PSU Net Payment issuable in connection therewith will be deemed to be issued to such holder of such Company PSUs as fully-paid and non-assessable Company Shares;
(ii) the Company PSU Balance Shares will be issued in trust for the relevant holder of such Company PSU to a securities dealer designated by the Purchaser, who is authorized on behalf of the relevant holder of such Company PSU, to sell in accordance with the applicable Holdco Agreement, capital markets or otherwise the Purchaser Shares received in exchange for a payment such Company PSU Balance Shares pursuant to Section 2.3(i) to realize cash proceeds to satisfy the applicable source deductions in cash equal to respect of the Holdco Share Considerationsurrender of such Company PSUs, and the Company PSU Balance Shares issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non- assessable Company Shares;
(iii) each holder of such Company PSU shall cease to be the holder thereof and to have any rights as a Company PSU Holder;
(iv) the name of each such holder shall be removed from the register of holders of Qualifying Holdco Shares the Company PSU Holders maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered Company;
(v) each such former holder of the Qualifying Holdco Shares so transferred and such Company PSU shall be deemed to be the legal holder of the Company Shares comprising the Company PSU Consideration and beneficial owner thereofshall be entered in the register of the Company Shareholders maintained by or on behalf of the Company, free and clear such Company Shares shall be issued to such former holder of any lienssuch Company PSUs as fully paid and non-assessable Company Shares, claims or encumbrancesprovided that no share certificates shall be issued with respect to such Company Shares;
(vi) all Award Agreements in respect of Company PSUs, grants and similar instruments relating thereto shall be cancelled; and
(cvii) the Company PRSU Plan shall be terminated, and none of the Company nor the Purchaser shall have any further liabilities or obligations thereunder;
(d) each Corporation Share outstanding Company Out-Of-The-Money Option will be cancelled without any payment in respect thereof and the holder thereof will cease to be the holder of such Company Option, will cease to have any rights as a holder in respect of such Company Option, will be removed from the register of the Company Options, and all option agreements, grants and similar instruments relating thereto will be cancelled, and none of the Company nor the Purchaser shall have any further liabilities or obligations with respect thereto;
(other than e) each Company In-The-Money Option will be surrendered and cancelled in exchange for:
(i) Corporation the relevant In-The-Money Amount and the relevant Company Optionholder will be issued the Company Option Shares, having a fair market value equal to the relevant aggregate In-The-Money Amount, net of applicable source deductions, and the Company Option Shares held by Brookfieldwill be deemed to be issued to such Company Optionholder as fully paid and non-assessable Company Shares, the Purchaser or any of their affiliates (which provided that no share certificates shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or issued with respect to such affiliate, as the case may be); Company Shares;
(ii) Corporation the Company Option Balance Shares held by Qualifying Holdcos, will be issued in trust for the Qualifying Holdco Shares of which are acquired relevant Company Optionholder to a securities dealer designated by the Purchaser is issued in trust the Company Option Balance Shares, who will be authorized on behalf of the relevant holder of such Company Optionholder, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such Company Option Balance Shares pursuant to Section 3.1(b2.3(i) (which shall not to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such Company Options and the Company Option Balance Shares will be acquired under the Arrangement deemed to be issued to such Company Optionholder as fully paid and shall remain outstanding as Corporation Shares held by such Qualifying Holdco)non-assessable Company Shares; and and
(iii) Corporation Shares acquired by the holder of such Company Option will cease to be the holder of such Company Option, will cease to have any rights as a holder in respect of such Company Option, will be removed from the applicable register of the Company Options, and all Award Agreements relating thereto will be cancelled, and neither the Company nor the Purchaser pursuant shall have any further liabilities or obligations with respect thereto
(f) the Company Option Plan and the Company Legacy Equity Incentive Plan shall each be terminated, and none of the Company nor the Purchaser shall have any further liabilities or obligations thereunder.
(g) notwithstanding any vesting provisions to Section 3.1(a)which a TJAC Option might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the TJAC Option Plan or applicable Law), shall be transferred each TJAC Option issued and deemed outstanding immediately prior to be transferred by the holder thereofEffective Time shall, without any further act or formality by or on its partbehalf of any TJAC Optionholder, be deemed to be fully vested and shall be surrendered by the holder thereof to TJAC (free and clear of all liens, claims Liens) and encumbrances, to the Applicable Purchaser, cancelled in exchange for a payment in cash the TJAC Option Consideration; and
(i) TJAC will issue such number of TJAC common shares to the Company that is equal to the aggregate number of Company Shares required to be delivered by the Company pursuant to Section 2.3(g)(ii) in consideration of the Company issuing the aggregate TJAC Option Consideration in respect of all TJAC Options;
(ii) the Company will deliver to the relevant holder of such TJAC Option Company Shares equal to the TJAC Option Net Payment, having a fair market value equal to the TJAC Option Consideration, net of applicable source deductions, and the TJAC Net Option Payment issuable in connection therewith will be deemed to be issued to such holder of such TJAC Options as fully-paid and non-assessable;
(iii) the Company will issue in trust for the relevant holder of such TJAC Options to a securities dealer designated by the Purchaser the TJAC Option Balance Shares, who is authorized on behalf of the relevant holder of such TJAC Options, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such TJAC Option Balance Shares pursuant to Section 2.3(i) to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such TJAC Options and the TJAC Option Balance Shares will be deemed to be issued to such TJAC Optionholder as fully paid and non- assessable Company Shares
(iv) each holder of such TJAC Option shall cease to be the holder thereof and to have any rights as a TJAC Optionholder;
(v) the name of each such holder shall be removed from the register of holders the TJAC Optionholders maintained by or on behalf of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered TJAC;
(vi) each such former holder of the Corporation Shares so transferred and such TJAC Option shall be deemed to be the legal holder of the Company Shares comprising the TJAC Option Net Payment and beneficial owner thereofshall be entered in the register of the Company Shareholders maintained by or on behalf of the Company, free and clear such Company Shares shall be issued to such former holder of such TJAC Options as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares;
(vii) all Award Agreements in respect of TJAC Options, grants and similar instruments relating thereto shall be cancelled; and
(viii) the TJAC Option Plan shall be terminated, and none of the Company, TJAC nor the Purchaser shall have any liensfurther liabilities or obligations thereunder;
(h) each Convertible Debenture Certificate shall be deemed to be amended (and, claims or encumbrances.for greater certainty, no replacement Convertible Debenture Certificates will be issued) such that the definition of “Acceleration Right” therein is deleted in its entirety and replaced with the following:
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formality:3.1 The Arrangement
(a) At the Effective Time:
(i) each outstanding Corporation Correvio Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrancesLiens, to Correvio and Correvio shall thereupon be obliged to pay the Applicable Purchaser, amount therefor determined and payable in exchange for a payment in cash equal to the Considerationaccordance with Article 5 hereof, and the name of such holder shall be removed from the central securities register of holders Correvio as a holder of Corporation Shares, and, with respect to Corporation Correvio Shares elected to be transferred to the Purchaser, the Purchaser and Correvio shall be recorded as the registered holder of the Corporation Correvio Shares so transferred and shall be deemed to be the legal owner of such Correvio Shares;
(ii) each outstanding Correvio Share (other than Correvio Shares held by a Dissenting Shareholder who has validly exercised and beneficial owner thereofnot withdrawn such holder’s Dissent Rights (which Correvio Shares will have been transferred pursuant to Section 3.1(a)(i) above)) will, without further act or formality by or on behalf of a holder of Correvio Shares, be irrevocably assigned and transferred by the holder thereof to Purchaser (free and clear of all Liens) in exchange for a cash payment equal to the Consideration in accordance with Section 5.1 less any liensamounts withheld in accordance with Section 5.4, claims and
A. the holder of such Correvio Share shall cease to be the holder thereof and to have any rights as a holder of such Correvio Share other than the right to receive payment in accordance with this Plan of Arrangement;
B. such holder’s name shall be removed from the register of the Correvio Shares maintained by or encumbranceson behalf of ▇▇▇▇▇▇▇▇; and
C. Purchaser shall be deemed to be the transferee and the legal and beneficial holder of such Correvio Share (free and clear of all Liens) and shall be entered as the registered holder of such Correvio Share in the register of the Correvio Shares maintained by or on behalf of Correvio.
(iii) Each In-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder of such In-The-Money Option and without any payment except as provided in this Plan of Arrangement, be acquired for cancellation by Correvio in consideration for a cash payment from Correvio equal to the product obtained by multiplying the amount by which the Consideration exceeds the exercise price per Correvio Share of such In-The- Money Option by the number of Correvio Shares underlying such In-The-Money Option (the “Option Consideration”), subject to (for greater certainty) applicable withholdings in accordance with Section 5.4. All In-The-Money Options issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and the holder thereof shall thereafter have only the right to receive the Option Consideration to which such holder is entitled pursuant to this Section 3.1(a)(iii).
(iv) Each Out-Of-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder of such Out-Of-The-Money Option, be cancelled without payment to any holder thereof and all option agreements related thereto shall be terminated and neither Correvio nor Purchaser shall have any Liability with respect to such option agreements or Out-Of- The-Money Options.
(v) Notwithstanding the terms of the Stock Option Plan and any stock option agreement pursuant to which Options were granted, the Stock Option Plan and all stock option agreements shall be terminated, and neither Correvio nor Purchaser shall have any Liability with respect to such plans and agreements other than the payment of the Option Consideration in accordance with this Plan of Arrangement.
(vi) Each RSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the RSU Plan, shall be deemed to be unconditionally vested, and such RSU shall, without any further action by or on behalf of a holder of RSUs, be deemed to be assigned and transferred by such holder to Correvio in exchange for a cash payment from Correvio of $0.42 (being an amount equal to the Consideration), subject to applicable withholdings, and each such RSU shall immediately be cancelled. Following the Effective Time, neither Correvio nor Purchaser shall have any further Liability with respect to any Correvio RSUs (or any Liability to any holder or former holder thereof).
(vii) Each PSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the PSU Plan, shall be deemed to be unconditionally vested, and such PSU shall, without any further action by or on behalf of a holder of PSUs, be deemed to be assigned and transferred by such holder to Correvio in exchange for a cash payment from Correvio $0.42 (being an amount equal to the Consideration), subject to applicable withholdings, and each such PSU shall immediately be cancelled. Following the Effective Time, neither Correvio nor Purchaser shall have any further Liability with respect to any Correvio PSUs (or any Liability to any holder or former holder thereof).
(b) the transfers and exchanges provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain of the procedures related thereto are not completed until after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing 3.1 On the Effective Date at the Effective Time, each of the following events or transactions shall occur and shall below will, except as otherwise expressly provided, be deemed to occur in the following sequence sequentially without any further act or formality:
(a) each outstanding Corporation Share CI Shares held by a Dissenting Shareholder shall Shareholders who have exercised Dissent Rights which remain valid immediately before the Effective Date will be deemed repurchased by CI Financial for cash consideration equal to fair market value of the CI Shares determined as of the close of business on the day preceding the Effective Date and be cancelled and cease to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrancesoutstanding, and each such Dissenting Shareholder shall Shareholders will cease to have any rights as a Corporation Shareholder Shareholders other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation CI Shares, and such Corporation Shares shall be cancelled;
(b) Shareholders, other than Shareholders who properly make the election described in subparagraph (d), will transfer their CI Shares or Holdco Shares to the Fund in exchange for Units on a one-for-one basis;
(c) the Fund will transfer the CI Shares and Holdco Shares held by it, and the Units and Special Voting Units to be distributed in subparagraph (d), to CI Public Partnership in exchange for additional Class A LP Units on the basis of one Class A LP Unit for each Qualifying CI Share, Holdco Share and Unit transferred;
(d) Shareholders, other than Excluded Shareholders, who properly elect with respect to the transfer (the “Electing Shareholders”), will transfer their CI Shares or Holdco Shares to CI Public Partnership in exchange for a combination of Exchangeable LP Units and related Ancillary Rights and (possibly) Units, where the aggregate number of Exchangeable LP Units and Units received will be equal to the number of CI Shares and Holdco Shares transferred. Electing Shareholders who receive Units will also be entitled to designate that a portion of their CI Shares or Holdco Shares will be transferred only for Exchangeable LP Units (and related Ancillary Rights), and the remainder of their CI Shares or Holdco Shares will be transferred only for Units (in the order set out in such designation);
(e) each outstanding CI Option (which has not been exercised) will be exchanged for one Fund Option. Each Fund Option will have the same exercise price and vesting dates as the CI Option which it replaces;
(f) CI Public Partnership will transfer all of the issued and outstanding CI Shares and Holdco Shares to CI Acquisitionco in consideration for (i) the CI Note, having a principal amount equal to or less than the aggregate adjusted cost base to CI Public Partnership of the CI Shares and Holdco Shares; and (ii) common shares of CI Acquisitionco;
(g) CI Financial may file an election with CRA on the Effective Date, to be effective prior to the amalgamation described in subsection (i) below, to cease to be a public corporation for the purposes of the Tax Act;
(h) immediately prior to the amalgamation described in subsection (i) below, the paid-up capital of the CI Shares, the shares of CI Investments, the shares of Skylon (if it has not been previously amalgamated) and the Holdco Shares will be reduced to $1.00, without a distribution thereon;
(i) CI Financial, CI Investments, Skylon (if it has not been previously amalgamated with CI Investments prior to the Effective Date), each of the Holdcos and CI Acquisitionco will amalgamate to form CI Amalco. Upon the amalgamation:
(i) all of the property (except shares of the capital stock of any predecessor corporation) of the predecessor corporations immediately before the amalgamation will become the property of CI Amalco by virtue of the amalgamation;
(ii) all of the liabilities (including, for greater certainty, the CI Note but excluding amounts payable to any predecessor corporation) of the predecessor corporations immediately before the amalgamation will become liabilities of CI Amalco by virtue of the amalgamation; and
(iii) all of the shareholders (except any predecessor corporation) who own shares of the capital stock of any predecessor corporation immediately before the amalgamation, being CI Public Partnership, will continue to own shares of the capital stock of CI Amalco by virtue of the amalgamation. All shares in the capital stock of a predecessor corporation held by another predecessor corporation will be cancelled without payment therefor; and
(j) CI Amalco will transfer all of the issued and outstanding shares of Assante to Assante Acquisitionco in consideration for (i) the Assante Note, having a Qualifying Holdco Shareholder shall be transferred principal amount equal to or less than the adjusted cost base to CI Amalco of the Assante shares; and deemed (ii) common shares of Assante Acquisitionco.
(a) The maximum number of Exchangeable LP Units to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of given to all liens, claims and encumbrances, Electing Shareholders will be limited to the PurchaserMaximum Number of Exchangeable LP Units. If the total number of Exchangeable LP Units elected is greater than the Maximum Number of Exchangeable LP Units, Exchangeable LP Units will be allocated, except as hereinafter described, as follows: (i) first, Sun Life will be entitled to that number of Exchangeable LP Units which it has elected to receive; and (ii) the remaining available Exchangeable LP Units will be allocated pro rata to each other Electing Shareholder in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name following formula: total number of such holder shall be removed from the register remaining Exchangeable LP Units available divided by total number of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding Exchangeable LP Units elected by all Electing Shareholders (other than Sun Life) multiplied by number of Exchangeable LP Units elected by the particular Electing Shareholder. The balance of the consideration received by Electing Shareholders will be Units. Prior to the pro rata allocation in (ii) above, the board of directors of CI Financial will have the discretion to require Electing Shareholders (other than Sun Life) to receive Units having a value equal to or less than the adjusted cost base of their CI Shares or Holdco Shares, as set out in the Letter of Transmittal and Election Form.
(b) Each Electing Shareholder will receive Exchangeable LP Units and related Ancillary Rights and (possibly) Units as follows: (i) Corporation Shares held by Brookfield, the Purchaser number of Exchangeable LP Units requested or any of their affiliates a lesser number as determined in paragraph (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be)a) above; (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following events or transactions shall occur and shall be deemed to occur sequentially, in the following sequence order, without any further act or formalityformality required on the part of any Person, in each case effective as at the Effective Time:
(a) the Sunward Resources Ltd. Deferred Share Unit Plan shall be terminated with respect to all plan participants, and in full payment of the obligations thereunder in a manner compliant with U.S. Treasury Regulation section 1.409A-3(j)(4)(ix)(B), each Sunward DSU which is outstanding Corporation and has not vested will fully-vest automatically and be exchanged for the number of DSU Shares (rounded down to the nearest whole share) equal to (i) the Exchange Ratio multiplied by (ii) the number of Sunward Shares subject to such Sunward DSU at the time of vesting;
(b) each Sunward Share (other than any Sunward Shares held by a Dissenting NovaCopper and any Sunward Shares in respect of which any Sunward Shareholder has validly exercised his, her or its Dissent Right) shall be deemed to be transferred by the holder thereof to the Corporation NovaCopper (free and clear of all liensany Liens) in exchange for the Consideration, claims subject to Article 4 hereof;
(c) each Sunward Share in respect of which any Sunward Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and encumbrances, and each assigned by such Dissenting Shareholder shall cease to have Sunward (free and clear of any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation Liens) in accordance with Article 4 hereof, ;
(d) with respect to each Sunward Share transferred and assigned in accordance with Section 3.1(b) hereto:
(i) the registered holder thereof shall cease to be the registered holder of such Sunward Share and the name of such registered holder shall be removed from the register of holders Sunward Shareholders as of Corporation Shares, and such Corporation Shares shall be cancelledthe Effective Time;
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and thereof shall be deemed to be the legal have executed and beneficial owner thereofdelivered all consents, free releases, assignments and clear of any lienswaivers, claims statutory or encumbrancesotherwise, required to transfer and assign such Sunward Shares in accordance with Section 3.1(b) hereto; and
(ciii) NovaCopper will be the holder of all of the outstanding Sunward Shares and the register of Sunward Shareholders shall be revised accordingly;
(e) each Corporation Share Sunward Option which is outstanding and has not been duly exercised prior to the Effective Date, shall be exchanged for a fully-vested option (other than each, a “Arrangement Option”) to purchase from NovaCopper the number of Option Shares (rounded down to the nearest whole share) equal to: (i) Corporation Shares held the Exchange Ratio multiplied by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation the number of Sunward Shares held subject to such Sunward Option immediately prior to the Effective Date. Such Arrangement Option shall provide for an exercise price per Option Share (rounded up to the nearest whole cent) equal to: (x) the exercise price per Sunward Share otherwise purchasable pursuant to such Arrangement Option; divided by Qualifying Holdcos(y) the Exchange Ratio. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Sunward Options. Accordingly, and notwithstanding the foregoing, if required, the Qualifying Holdco Shares exercise price of which are acquired by an Arrangement Option will be increased such that the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under In-the-Money Amount of the Arrangement Option immediately after the exchange does not exceed the In-the-Money Amount of the Sunward Option immediately before the exchange. All such Arrangement Options shall expire 90 days following the Effective Date. All terms and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); conditions of an Arrangement Option, including the conditions to and (iii) Corporation Shares acquired by manner of exercising, will be the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded same as the registered holder of the Corporation Shares so transferred Sunward Option for which it was exchanged, and shall be governed by the terms of the applicable Sunward Stock Option Plan and any certificate or option agreement previously evidencing the Sunward Option shall thereafter evidence and be deemed to evidence such Arrangement Option. Taxes shall be deducted and withheld in connection with the legal exercise of Arrangement Options to the extent required under applicable Law and
(f) the exchanges and beneficial owner thereofcancellations provided for in this Section 3.1 will be deemed to occur on the Effective Date, free and clear of any liens, claims or encumbrancesnotwithstanding certain procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following transactions or events or transactions shall occur and shall be deemed to occur sequentially in the following sequence order without any further authorization, act or formalityformality on the part of any Person, in each case, unless specifically provided otherwise in this Section 2.4, effective as at two minute intervals starting at the Effective Time:
(a) each outstanding Corporation Premier Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrancesEncumbrances, to Premier for cancellation and shall be cancelled and:
(i) such Dissenting Shareholder shall cease to be the Applicable Purchaser, holder of such Premier Shares and to have any rights as a Premier Shareholder other than the right to be paid fair value for such Premier Shares by Premier in exchange for a payment in cash equal to the Consideration, and accordance with Article 3 (out of Premier funds not directly or indirectly provided by Equinox Gold or its affiliates); and
(ii) the name of such Dissenting Shareholder shall be removed from Premier’s register of Premier Shares as a holder of Premier Shares;
(b) concurrently with the surrender and cancellation of the Premier Shares held by Dissenting Shareholders pursuant to Section 2.4(a), the amount of the stated capital account maintained by Premier in respect of the Premier Shares shall be reduced by an amount equal to the product obtained when (A) the amount of the stated capital account maintained by Premier in respect of the Premier Shares immediately prior to the Effective Time, is multiplied by (B) a fraction, the numerator of which is the number of Premier Shares surrendered and cancelled pursuant to Section 2.4(a), and the denominator of which is the number of Premier Shares outstanding immediately prior to the Effective Time;
(c) Premier shall transfer, and shall be deemed to have transferred, the Premier USA Ownership Interests to SpinCo, free and clear of all Encumbrances, in consideration for the issuance by SpinCo to Premier of the SpinCo Consideration Shares, all as more particularly provided for in the Premier Contribution Agreement, and upon such transfer and issuance:
(i) Premier shall be entered in SpinCo's register of holders of SpinCo Shares in respect of the SpinCo Consideration Shares; and
(ii) SpinCo shall be entered in Premier USA's register of holders of Premier USA Shares in respect of the Premier USA Shares transferred by Premier to SpinCo in accordance with the Premier Contribution Agreement and this Section 2.4(c);
(d) the Premier Change of Control Resolution shall become effective;
(e) each Premier RSU held by a Premier RSU Holder immediately prior to the Effective Time shall immediately vest, and upon such vesting each such vested Premier RSU shall immediately be redeemed, and be deemed to be redeemed, by Premier and cancelled in consideration for the issue by Premier from treasury to the holder of such Premier RSU of one fully paid and non-assessable Premier Share for each Premier RSU so redeemed, and upon such redemption:
(i) such Premier RSU Holder shall cease to be the holder of such Premier RSUs and to have any rights as a Premier RSU Holder other than the right to receive the Premier Shares to which they are entitled under this Section 2.4(e);
(ii) the name of such Premier RSU Holder shall be removed from the register of RSUs maintained by or on behalf of Premier; and
(iii) the holder of such redeemed Premier RSUs shall be entered in Premier's register of holders of Corporation Premier Shares in respect of the Premier Shares which such holder is entitled to receive in accordance with this Section 2.4(e);
(f) the Premier Restricted Share Unit Plan and all agreements relating to the Premier RSUs shall be terminated and shall be of no further force and effect;
(g) each Premier DSU Holder shall resign from, and shall be deemed to have immediately resigned from, the Premier Board and the board of directors of any affiliate of Premier;
(h) following the resignation of the Premier DSU Holders in accordance with Section 2.4(g), each Premier DSU held by a Premier DSU Holder immediately prior to the Effective Time shall immediately be redeemed, and be deemed to be redeemed, by Premier and cancelled in consideration for the issue by Premier from treasury to the holder of such Premier DSU of one fully paid and non-assessable Premier Share for each Premier DSU so redeemed, pursuant to Section 3.04(e)(i) of the Premier Deferred Share Unit Plan, and upon such redemption:
(i) such Premier DSU Holder shall cease to be the holder of such Premier DSUs and to have any rights as a Premier DSU Holder other than the right to receive the Premier Shares to which they are entitled under this Section 2.4(h);
(ii) the name of such Premier DSU Holder shall be removed from the register of DSUs maintained by or on behalf of Premier; and
(iii) the holder of such redeemed Premier DSUs shall be entered in Premier's register of holders of Premier Shares in respect of the Premier Shares which such holder is entitled to receive in accordance with this Section 2.4(h);
(i) the Premier Deferred Share Unit Plan and all agreements relating to the Premier DSUs shall be terminated and shall be of no further force and effect;
(j) as part of the reorganization of Premier’s share capital contemplated by this Section 2.4, the articles of Premier shall be amended:
(i) to re-name and re-designate the Premier Shares as “Class A Common Shares”,
(ii) to change the number of votes attached to each Class A Common Share to two (2) votes per Class A Common Share,
(iii) to replace all references to “Common Shares” in the articles of Premier with a reference to “Class A Common Shares”, and
(iv) to create a new class of shares, of which an unlimited number of shares may be issued, to be designated as “Class B Common Shares” (the “New Premier Shares”) and having the rights, privileges, restrictions and conditions set out in Appendix “A” to this Plan of Arrangement;
(k) SpinCo shall adopt, and shall be deemed to have adopted, the SpinCo Omnibus Share Incentive Plan;
(l) the Premier Share Incentive Plan Amendments shall become effective;
(m) concurrently with the Premier Share Incentive Plan Amendments becoming effective, each holder of a Premier Option that is outstanding immediately prior to the Effective Time will simultaneously:
(i) dispose of, and be deemed to have disposed of, the Premier Portion of each such Premier Option held by such holder immediately prior to the Effective Time to Premier, free and clear of all Encumbrances, and as the sole consideration therefor Premier will grant to such holder an option, pursuant to the Premier Share Incentive Plan, to purchase a New Premier Share (a "Replacement Premier Option"), which Replacement Premier Option will (A) have an exercise price (which shall be rounded to the nearest whole cent, with 0.5 being rounded upwards) equal to the product obtained when the exercise price payable to acquire a Premier Share under the Premier Option of which the Premier Portion is disposed of by such holder pursuant to this Section 2.4(m)(i) is multiplied by the Premier Portion, (B) have the same expiry date as the expiry date of such Premier Option, (C) with respect to holders whose compensatory options are subject to tax under the U.S. Tax Code, will not provide additional benefits to the extent precluded under U.S. Treasury Regulation Section 1.409A-1(b)(5)(v)(F), and (D) may not be exercised prior to the day immediately following the SpinCo Measurement Date; and
(ii) dispose of, and be deemed to have disposed of, the SpinCo Portion of each such Premier Option held by such holder immediately prior to the Effective Time to SpinCo, free and clear of all Encumbrances, and as the sole consideration therefor SpinCo will grant to such holder an option, pursuant to the SpinCo Omnibus Share Incentive Plan, to purchase a Fractional SpinCo Share (a "Replacement SpinCo Option"), which Replacement SpinCo Option will (A) have an exercise price (which shall be rounded up to the nearest whole cent, with 0.5 being rounded upwards) for such Fractional SpinCo Share equal to the product obtained when the exercise price payable to acquire a Premier Share under the Premier Option of which the SpinCo Portion is disposed of by such holder pursuant to this Section 2.4(m)(ii) is multiplied by the SpinCo Portion, (B) have the same expiry date as the expiry date of such Premier Option, (C) with respect to holders whose compensatory options are subject to tax under the U.S. Tax Code, will not provide additional benefits to the extent precluded under U.S. Treasury Regulation Section 1.409A-1(b)(5)(v)(F), and (D) may not be exercised prior to the day immediately following the SpinCo Measurement Date, such that, for each Premier Share that a holder would have been entitled to acquire pursuant to a Premier Option, the holder will instead be entitled to acquire one New Premier Share pursuant to the corresponding Replacement Premier Option and a Fractional SpinCo Share pursuant to the corresponding Replacement SpinCo Option, and upon such disposition and exchange each Premier Option will be cancelled and terminated. For greater certainty, the exchange of the Premier Options for Replacement Premier Options and Replacement SpinCo Options pursuant to this Section 2.4(m) is intended to be governed by subsection 7(1.4) of the Tax Act such that the exercise price of the Replacement Premier Options, or the Replacement SpinCo Options, as the case may be, will be increased such that the aggregate In The Money Amount of the Replacement Premier Options and Replacement SpinCo Options immediately after the exchange does not exceed the In The Money Amount of the Premier Options immediately before the exchange and, with respect to Corporation holders whose compensatory Premier Options are subject to tax under the U.S. Tax Code, in a manner that complies with U.S. Treasury Regulation Section 1.409A-1(b)(5)(v)(D), and this Section 2.4(m) shall be applied and construed in accordance with such intention;
(n) Premier's share capital shall be reorganized such that each Premier Share issued and outstanding immediately before the reorganization of Premier's share capital pursuant to this Section 2.4(n) (including, for the avoidance of doubt, any Premier Shares elected issued to former holders of Premier RSUs or Premier DSUs under Section 2.4(e) or Section 2.4(h), but excluding any Premier Shares surrendered and cancelled in accordance with Section 2.4(a)) shall be simultaneously transferred by the holders thereof to Premier, free and clear of all Encumbrances, in exchange for the Premier Share Per Share Consideration, and upon such exchange:
(i) each such exchanged Premier Share shall be cancelled, and the holders of such exchanged Premier Shares shall be removed from Premier's register of holders of Premier Shares;
(ii) each holder of such exchanged Premier Shares shall be entered in Premier's register of holders of New Premier Shares in respect of the New Premier Shares which such holder is entitled to receive in accordance with this Section 2.4(n);
(iii) Premier shall be removed from SpinCo's register of holders of SpinCo Shares in respect of the SpinCo Distribution Shares; and
(iv) each holder of such exchanged Premier Shares shall be entered in SpinCo's register of holders of SpinCo Shares in respect of the SpinCo Distribution Shares which such holder is entitled to receive in accordance with this Section 2.4(n);
(o) concurrently with the exchange in Section 2.4(n):
(i) the amount of the stated capital account maintained by Premier in respect of the Premier Shares shall be reduced to nil, and
(ii) there shall be added to the stated capital account maintained by Premier in respect of the New Premier Shares, in respect of the New Premier Shares issued pursuant to Section 2.4(n), the amount by which (A) the reduction in the "paid-up capital" (within the meaning of the Tax Act) of the Premier Shares pursuant to Section 2.4(o)(i), exceeds (B) the fair market value of the SpinCo Distribution Shares issued to Participating Premier Shareholders pursuant to Section 2.4(n);
(p) each New Premier Share issued to a Participating Premier Shareholder pursuant to Section 2.4(n) shall be, and shall be deemed to be, transferred by the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances, to Equinox Gold in exchange for the New Premier Share Per Share Consideration, and upon such exchange:
(i) each holder of such New Premier Shares shall cease to be transferred the holder thereof and to have any rights as a Premier Shareholder other than the Purchaser, right to be paid the Purchaser New Premier Share Per Share Consideration for their New Premier Shares in accordance with this Plan of Arrangement;
(ii) each such exchanged New Premier Share shall be recorded as cancelled, and the registered holder holders of the Corporation such exchanged New Premier Shares so transferred and shall be removed from Premier's register of holders of New Premier Shares;
(iii) Equinox Gold shall be deemed to be the legal transferee of such New Premier Shares free and beneficial owner clear of all Encumbrances, and shall be entered in the register of the New Premier Shares maintained by or on behalf of Premier; and
(iv) each holder of such exchanged New Premier Shares shall be entered in Equinox's central securities register in respect of the Equinox Gold Shares which such holder is entitled to receive in accordance with this Section 2.4(p);
(q) each Replacement Premier Option issued to a Premier Optionholder pursuant to Section 2.4(m)(i) shall be, and shall be deemed to be, transferred by the holder thereof, without any further act or formality on its part, free and clear of any liensall Encumbrances, claims and as the sole consideration therefor Equinox Gold will grant to such holder an option, pursuant to the Equinox Gold Stock Option Plan, to purchase a Fractional Equinox Gold Share (a "Replacement Equinox Gold Option"), which Replacement Equinox Gold Option will (A) have an exercise price (which shall be rounded up to the nearest whole cent) for such Fractional Equinox Gold Share equal to the exercise price payable to acquire one New Premier Share under the Replacement Premier Option which is disposed of by such holder pursuant to this Section 2.4(q), (B) notwithstanding sections 7.7 or encumbrances.9.1(c) of the Equinox Gold Stock Option Plan, have the same expiry date as the expiry date of such Replacement Premier Option, (C) with respect to holders whose compensatory options are subject to tax under the U.S. Tax Code, will not provide additional benefits to the extent precluded under U.S. Treasury Regulation Section 1.409A-1(b)(5)(v)(F), and (D) may not be exercised prior to the day immediately following the SpinCo Measurement Date, such that, for each New Premier Share that a holder would have been entitled to acquire pursuant to a Replacement Premier Option, the holder will instead be entitled to acquire a Fractional Equinox Gold Share pursuant to the corresponding Replacement Equinox Gold Option, and upon such disposition and exchange each Replacement Premier Option will be cancelled and terminated. For greater certainty, the exchange of the Replacement Premier Options for Replacement Equinox Gold Options pursuant to this Section 2.4(q) is intended to be governed by subsection 7(1.4) of the Tax Act such that the In The Money Amount of the Replacement Equinox Gold Options immediately after the exchange does not exceed the In The Money Amount of the Class A Premier Options immediately before the exchange and, with respect to holders whose compensatory Replacement Premier Options are subject to tax under the U.S. Tax Code, in a manner that complies with U.S. Treasury Regulation Section 1.409A-1(b)(5)(v)(D), and this Section 2.4(q) shall be applied and construed in accordance with such intention;
(r) the Premier Share Incentive Plan and all agreements relating to the Premier Options and Replacement Premier Options shall be terminated and shall be of no further force and effect;
(s) each Premier Warrant outstanding prior to the Effective Date shall be adjusted in accordance with its terms such that the holder of such Premier Warrant shall be entitled to receive, upon due exercise of such Premier Warrant and payment to Equinox of the original exercise price as set forth in such Premier Warrant:
(i) a Fractional Equinox Gold Share for each Prem
Appears in 1 contract
Arrangement. 3.1 The Arrangement Commencing at the Effective Time, each of the following events or transactions set out below shall occur and shall be deemed to occur in the following sequence sequence, in each case without any further authorization, act or formalityformality of or by the Company, the Buyer or any other person:
(a) each outstanding Corporation Company Share held by a Dissenting Shareholder shall be deemed to be transferred acquired by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed Buyer from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Dissenting Shareholder, without any further act or formality on its part, free and clear of all liensEncumbrances, claims in consideration for a debt claim against the Buyer for an amount determined and encumbrances, to the Purchaser, payable in accordance with Article 4 hereof, and:
(i) such Dissenting Shareholders shall cease to be the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name holders of such holder Company Shares and to have any rights as holders of such Company Shares, other than the right to be paid fair value for such Company Shares (with Buyer funds), as set out in Article 4 hereof;
(ii) such Dissenting Shareholders’ names shall be removed as the holders of such Company Shares from the register of holders of Qualifying Holdco Common Shares or Tracking Shares, as applicable, maintained in respect by or on behalf of the applicable Qualifying Holdco, and Company; and
(iii) the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and Buyer shall be deemed to be the legal and beneficial owner thereof, free and clear transferee of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its partCompany Shares, free and clear of all liensEncumbrances, claims and encumbrancesshall be entered in the register of Company Shares or Tracking Shares, as applicable, maintained by or on behalf of the Company as the holder of such Company Shares;
(b) each Common Share outstanding immediately prior to the Applicable Purchaser, Effective Time (other than Common Shares held by the Buyer or a Dissenting Shareholder) shall be transferred to the Buyer in exchange for a payment in cash equal to the Consideration, and and:
(i) the name holders of such holder Common Shares shall cease to be the holders thereof and to have any rights as holders of such Common Shares, other than the right to receive the Consideration in respect of such Common Shares in accordance with this Plan of Arrangement;
(ii) such holders’ names shall be removed as the holders of such Common Shares from the register of holders of Corporation Shares, and, with respect to Corporation Common Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder maintained by or on behalf of the Corporation Shares so transferred and Company;
(iii) the Buyer shall be deemed to be the legal and beneficial owner thereoftransferee of such Common Shares, free and clear of all Encumbrances, and shall be entered in the register of Common Shares maintained by or on behalf of the Company as the holder of such Common Shares; and
(iv) all Buyer Shares issuable in accordance with this Section 3.1(b) shall be subject to a restriction on transfer, which restriction shall be released in accordance with Section 3.2(c) herein;
(c) each holder of Company Shares outstanding immediately prior to the Effective Time, other than the Buyer, with respect to each step set out above applicable to such holder, shall be deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to convert, surrender or transfer the Company Shares, as applicable, held by such holder in accordance with such step;
(d) each Tracking Share outstanding immediately prior to the Effective Time (other than Tracking Shares held by a Dissenting Shareholder) shall, from and following the Effective Time, be exchangeable for Buyer Shares upon the occurrence of a Tracking Share Conversion Event in accordance with the terms and procedures set out under Part 24 of the Company’s articles at the Effective Time, as amended by the Article Amendment, and the holders of such Tracking Shares shall not have any liensother right to otherwise participate in, claims or encumbrancesreceive Share Consideration under, this Plan of Arrangement. For the avoidance of doubt, from and following the Effective Time, all special rights and restrictions applicable to the Tracking Shares set out in Part 24 of the Company’s articles shall continue to govern the Tracking Shares, including, without limitation, the right of Tracking Shareholders to elect to receive cash consideration upon a Tracking Share Conversion Event pursuant to Article 24.5 of the Company’s articles, provided, however, that at the Effective Time, Article 24.19 of the Company’s articles shall be amended and replaced in its entirety (the “Article Amendment”) with the requirement that any Buyer Shares issuable upon a Tracking Share Conversion Event prior to the third anniversary of the Effective Date will be subject to transfer restrictions pursuant to the release schedule set out below, which release schedule may be amended by resolution of the Buyer Board from and after the Effective Time to the extent necessary to comply with applicable laws or stock exchange listing policies, which restriction shall be evidenced by a restrictive legend on the certificates and/or direct registration statement (“DRS”) advices evidencing such Buyer Shares, when issued:
(i) six (6) months following the Effective Date, 5% of Buyer Shares issued in connection with a Tracking Share Conversion Event, if any, will be released from transfer restrictions;
(ii) on the first anniversary of the Effective Date, an additional 5% of Buyer Shares issued in connection with a Tracking Share Conversion Event, if any, will be released from transfer restrictions;
(iii) eighteen (18) months following the Effective Date, an additional 5% of Buyer Shares issued in connection with a Tracking Share Conversion Event, if any, will be released from transfer restrictions;
(iv) on the second anniversary of the Effective Date, an additional 5% of Buyer Shares issued in connection with a Tracking Share Conversion Event, if any, will be released from transfer restrictions;
(v) twenty-seven (27) months following the Effective Date, an additional 20% of Buyer Shares issued in connection with a Tracking Share Conversion Event, if any, will be released from transfer restrictions;
(vi) thirty (30) months following the Effective Date, an additional 20% of Buyer Shares issued in connection with a Tracking Share Conversion Event, if any, will be released from transfer restrictions;
(vii) thirty-three (33) months following the Effective Date, an additional 20% of Buyer Shares issued in connection with a Tracking Share Conversion Event, if any, will be released from transfer restrictions; and
(viii) on the third anniversary of the Effective Date, an additional 20% of Buyer Shares issued in connection with a Tracking Share Conversion Event, if any, shall be released from transfer restrictions; and
(e) the exchanges, adjustments and cancellations provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain of the procedures related thereto are not completed until after the Effective Date.
3.2 Post Effective Time Procedures
(a) Following the receipt of the Final Order and at least two (2) Business Days prior to the Effective Date, the Buyer shall deliver or arrange to be delivered to the Depositary the Consideration, including certificates and/or DRS advices representing Buyer Shares, and certificates representing the Contingent Value Rights, in each case, as required to be issued to former holders of Common Shares, in accordance with the provisions of Section 3.1(b), which certificates and/or DRS advices, as applicable, shall be held by the Depositary as agent and nominee for such former holders of Common Shares for distribution to such former holders of Common Shares in accordance with the provisions of Article 5 hereof.
(b) Subject to the provisions of Section 3.3 and Article 5 hereof, and upon return of a properly completed Letter of Transmittal by a former registered holder of Common Shares, together with certificates representing such Common Shares and such other documents as the Depositary and the Buyer may reasonably require, former holders of Common Shares shall be entitled to receive delivery of the certificates and/or DRS advices, as applicable, representing Buyer Shares and Contingent Value Rights to which they are entitled pursuant to Section 3.1(b) hereof.
(c) From and after the Effective Time, all Buyer Shares issued in accordance with Section 3.1(b) hereof, and all Buyer Shares issued under the Rights Indenture upon settlement of the Contingent Value Rights issued in accordance with Section 3.1(b) hereof, shall be subject to a restriction on transfer in accordance with the following release schedule, which restrictions shall be evidenced by a restrictive legend on the certificate and/or DRS advice evidencing such Buyer Shares, and which release schedule may be amended by resolution of the Buyer Board from and after the Effective Time to the extent necessary to comply with applicable laws or stock exchange listing policies:
(i) six (6) months following the Effective Date, 5% of such Buyer Shares will be released from transfer restrictions;
(ii) on the first anniversary of the Effective Date, an additional 5% of such Buyer Shares will be released from transfer restrictions;
(iii) eighteen (18) months following the Effective Date, an additional 5% of such Buyer Shares will be released from transfer restrictions;
(iv) on the second anniversary of the Effective Date, an additional 5% of such Buyer Shares will be released from transfer restrictions;
(v) twenty-seven (27) months following the Effective Date, an additional 20% of such Buyer Shares will be released from transfer restrictions;
(vi) thirty (30) months following the Effective Date, an additional 20% of such Buyer Shares will be released from transfer restrictions;
(vii) thirty-three (33) months following the Effective Date, an additional 20% of such Buyer Shares will be released from transfer restrictions; and
(viii) on the third anniversary of the Effective Date, all remaining Buyer Shares shall be released from transfer restrictions.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence sequence, except where noted, without any further act or formality:formality of or by the Company, Acquiror Subco, the Acquiror or any other person: \
(a) each outstanding Corporation Common Share held by a Dissenting Shareholder shall be deemed to be irrevocably transferred by the holder thereof to the Corporation Acquiror (free and clear of all liens, claims and encumbrances, and each Encumbrances) without any further act or formality and:
(i) such Dissenting Shareholder shall cease to be the holder of such Common Shares so transferred and will cease to have any rights as a Corporation Shareholder holder of such Common Shares other than the right to be paid the fair value of their Corporation for such Common Shares by the Corporation Acquiror as set out in accordance with Article 4 hereof, Section 3.1;
(ii) such Dissenting Shareholder's name shall be removed as the holder of such Common Shares from the central securities register of holders of Common Shares maintained by or on behalf of the Company; and
(iii) the Acquiror shall become the sole legal and beneficial holder of such Common Shares so transferred (free and clear of all Encumbrances) and shall be entered in the central securities register of holders of Common Shares maintained by or on behalf of the Company; and
(b) the Company and Acquiror Subco will be amalgamated under Division 5 of Part 9 of the BCBCA and continue as one company as if they were amalgamated under section 276 of the BCBCA on the following terms and otherwise on the terms set out in this Plan of Arrangement and the Court Order implementing it:
(i) the name of the Amalgamated Company will be “MGL Subco Ltd.”;
(ii) the Amalgamated Company will have, as its notice of articles, the notice of articles of the Company in effect immediately before the Effective Date;
(iii) the Amalgamated Company will have as its articles, the articles of the Company in effect immediately before the Effective Date;
(iv) the Amalgamated Company will become capable immediately of exercising the functions of an incorporated company;
(v) the Amalgamated Company will have the powers and obligations of a business corporation provided in the BCBCA;
(vi) the number of directors of the Amalgamated Company will be set at one;
(vii) the first director of the Amalgamated Company will be ▇▇▇▇▇▇ ▇▇▇▇▇▇;
(viii) the property, rights and interests of each of the Amalgamating Companies will continue to be the property, rights and interests of the Amalgamated Company;
(ix) the registered office of the Amalgamated Company will be the registered office of the Acquiror;
(x) the Amalgamated Company will continue to be liable for the obligations of each of the Amalgamating Companies;
(xi) an existing cause of action or claim by or against, or liability of, or legal proceeding being prosecuted by or against, either of the Amalgamating Companies is unaffected by the Amalgamation, and every such holder action, claim, liability or legal proceeding will continue and may be pursued by or against the Amalgamated Company as the case may be;
(xii) every conviction against, or ruling, order or judgment in favour of or against either of the Amalgamating Companies may be enforced by or against the Amalgamated Company as the case may be;
(xiii) in consequence of the Amalgamation,
(A) each Common Share held by a Shareholder, other than a Dissenting Shareholder, shall be cancelled and the holder’s name shall be removed from the register of holders of Corporation SharesAmalgamated Company’s central securities register, and in consideration therefor the holder thereof shall receive the number of fully paid and non-assessable Acquiror Shares determined by multiplying the number of the Common Shares held by the Shareholder in the Company immediately before the Effective Time by the Exchange Ratio, provided that no fractional Acquiror Share shall be issued to a Shareholder pursuant to the exchange set out herein; and
(B) the outstanding Warrants shall without any further action on the part of any Warrantholder, be exchanged for warrants (the “Replacement Warrants”) to purchase Acquiror Shares on the basis of one Replacement Warrant for each whole Common Share which the Warrants are exercisable to acquire immediately prior to the Effective Time. Such Replacement Warrants shall provide for an exercise price per Acquiror Share (rounded up to the nearest whole cent) equal to the exercise price per Common Share otherwise applicable pursuant to the Warrants when such Corporation Warrants were exercisable to acquire Common Shares multiplied by 110%. Except as provided in this Section 2.3(b)(xiii) in connection with the price and security into which the Warrants are exercisable, the term, exercisability and all other terms and conditions of the Warrants in effect immediately prior to the Effective Time shall govern the Replacement Warrants for which the Warrants are so exchanged;
(xiv) the Acquiror shall receive one fully paid and non-assessable share in the capital of the Amalgamated Company for each Acquiror Subco Share held by the Acquiror immediately before the Effective Time, and all such Acquiror Subco Shares will be cancelled;
(bxv) in consideration of the issuance of Acquiror Shares pursuant to this Section 2.3, the Amalgamated Company shall issue to the Acquiror one common share in the capital of the Amalgamated Company for each Qualifying Holdco Acquiror Share outstanding held by a Qualifying Holdco Shareholder shall issued but no securities will be transferred and deemed to be transferred issued by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, Amalgamating Company to the Purchaser, Acquiror in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect consideration of the applicable Qualifying Holdco, and issuance of Replacement Warrants by the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesAcquiror; and
(cxvi) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not Amalgamated Company will thereupon be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder wholly-owned subsidiary of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesAcquiror.
Appears in 1 contract
Sources: Arrangement Agreement (Northern Dynasty Minerals LTD)
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur sequentially, in two-minute intervals in the following sequence order and without any further authorization, act or formality, in each case, unless stated otherwise:
(a) each outstanding Corporation Common Share held by a Dissenting Shareholder Holders in respect of which Dissent Rights have been validly exercised shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be been transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrancesLiens, to the Applicable PurchaserCompany for cancellation in consideration for a claim against the Company for the amount determined under Article 3, and:
(i) such Dissenting Holders shall cease to be the holders of such Common Shares and to have any rights as holders of such Common Shares other than the right to be paid fair value for such Common Shares as set out in Section 3.1; and
(ii) such Dissenting Holders’ names shall be removed as the holders of such Common Shares from the registers of Common Shares maintained by or on behalf of the Company and such Common Shares shall be cancelled and cease to be outstanding;
(b) the stated capital of the issued and outstanding shares issued by Liberty Canadian Subco shall be reduced to an aggregate of $1.00 without any repayment of capital in respect thereof;
(c) the Company and Liberty Canadian Subco shall merge (the “First Amalgamation”) to form one corporate entity (“Liberty Amalco”) with the same effect as if they had amalgamated under Section 269 of the BCBCA, except that the legal existence of the Company shall not cease and the Company shall survive the merger as Liberty Amalco and, for the avoidance of doubt, this transaction is intended to qualify as an amalgamation as defined in subsection 87(1) of the Tax Act, and without limiting the generality of the foregoing, upon and as a consequence of the First Amalgamation:
(i) the separate legal existence of Liberty Canadian Subco shall cease without Liberty Canadian Subco being liquidated or wound up and the Company and Liberty Canadian Subco shall continue as one company and the property of Liberty Canadian Subco shall become the property of Liberty Amalco;
(ii) Liberty Amalco will own and hold the property of the Company and Liberty Canadian Subco and, without limiting the provisions hereof, all rights of creditors or others of the Company and Liberty Canadian Subco will be unimpaired by the First Amalgamation, and all liabilities and obligations of the Company and Liberty Canadian Subco, whether arising by contract or otherwise, may be enforced against Liberty Amalco to the same extent as if such obligations had been incurred or contracted by Liberty Amalco;
(iii) Liberty Amalco will continue to be liable for all of the liabilities and obligations of the Company and Liberty Canadian Subco;
(iv) all rights, contracts, permits and interests of the Company and Liberty Canadian Subco will continue as rights, contracts, permits and interests of Liberty Amalco as if the Company and Liberty Canadian Subco continued and, for greater certainty, the First Amalgamation will not constitute a transfer or assignment of the rights or obligations of either the Company or Liberty Canadian Subco under any such rights, contracts, permits and interests;
(v) any existing cause of action, claim or liability to prosecution will be unaffected;
(vi) a civil, criminal or administrative action or proceeding pending by or against either the Company or Liberty Canadian Subco may be continued by or against Liberty Amalco;
(vii) a conviction against, or ruling, order or judgment in favour of or against either the Company or Liberty Canadian Subco may be enforced by or against Liberty Amalco;
(viii) each issued and outstanding Common Share shall become one common share of Liberty Amalco having the same terms and conditions as the Common Shares immediately prior to the First Amalgamation and all of the issued and outstanding shares of Liberty Canadian Subco will be cancelled without repayment of capital in respect thereof;
(ix) the name of Liberty Amalco shall be Liberty Health Sciences Inc.;
(x) Liberty Amalco shall be authorized to issue an unlimited number of common shares without par value;
(xi) the articles and notice of articles of Liberty Amalco shall be substantially in the form of the articles and notice of articles of the Company;
(xii) the first annual general meeting of Liberty Amalco or resolutions in lieu thereof shall be held within 18 months from the Effective Date;
(xiii) the first directors of Liberty Amalco following the amalgamation shall be the then current Company directors; and
(xiv) the stated capital of the common shares of Liberty Amalco will be an amount equal to the stated capital attributable to the Common Shares immediately prior to the First Amalgamation;
(d) each Common Share outstanding, other than Common Shares held by a Dissenting Holder who has validly exercised such holder’s Dissent Right, shall, without any further action by or on behalf of a holder of Common Shares, be deemed to be assigned and transferred by the holders thereof to the Purchaser (free and clear of all Liens) in exchange for a payment in cash equal to the ConsiderationConsideration for each Common Share held, and and:
(i) the name holders of such holder Common Shares shall cease to be the holders of such Common Shares and to have any rights as holders of such Common Shares other than the right to be paid the Consideration per Common Share in accordance with this Plan of Arrangement;
(ii) such holders’ names shall be removed as the holders of such Common Shares from the register registers of holders Common Shares maintained by or on behalf of Corporation Shares, the Company; and, with respect to Corporation Shares elected to be transferred to the Purchaser,
(iii) the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, transferee of such Common Shares (free and clear of all Liens) and shall be entered in the registers of Common Shares maintained by or on behalf of the Company.
(e) the stated capital of the issued and outstanding shares issued by the Company shall be reduced to an aggregate of $1.00 without any liensrepayment of capital in respect thereof;
(f) the Purchaser and the Company shall merge (the “Second Amalgamation”) to form one corporate entity (“Purchaser Amalco”) with the same effect as if they had amalgamated under Section 269 of the BCBCA, claims except that the legal existence of the Purchaser shall not cease and the Purchaser shall survive the merger as Purchaser Amalco and, for the avoidance of doubt, this transaction is intended to qualify as an amalgamation as defined in subsection 87(1) of the Tax Act, and without limiting the generality of the foregoing, upon and as a consequence of the Second Amalgamation:
(i) the separate legal existence of the Company shall cease without the Company being liquidated or encumbranceswound up and the Purchaser and the Company shall continue as one company and the property of the Company shall become the property of Purchaser Amalco;
(ii) Purchaser Amalco will own and hold the property of the Purchaser and the Company and, without limiting the provisions hereof, all rights of creditors or others of the Purchaser and the Company will be unimpaired by the Second Amalgamation, and all liabilities and obligations of the Purchaser and the Company, whether arising by contract or otherwise, may be enforced against Purchaser Amalco to the same extent as if such obligations had been incurred or contracted by Purchaser Amalco;
(iii) Purchaser Amalco will continue to be liable for all of the liabilities and obligations of the Purchaser and the Company;
(iv) all rights, contracts, permits and interests of the Purchaser and the Company will continue as rights, contracts, permits and interests of Purchaser Amalco as if the Purchaser and the Company continued and, for greater certainty, the Second Amalgamation will not constitute a transfer or assignment of the rights or obligations of either the Purchaser or the Company under any such rights, contracts, permits and interests;
(v) any existing cause of action, claim or liability to prosecution will be unaffected;
(vi) a civil, criminal or administrative action or proceeding pending by or against either the Purchaser or the Company may be continued by or against Purchaser Amalco;
(vii) a conviction against, or ruling, order or judgment in favour of or against either the Purchaser or the Company may be enforced by or against Purchaser Amalco;
(viii) each issued and outstanding share of each class of Purchaser Shares shall become a share of the same class of shares of Purchaser Amalco having the same terms and conditions as such Purchaser Shares had immediately prior to the Second Amalgamation and all of the issued and outstanding shares of the Company will be cancelled without repayment of capital in respect thereof;
(ix) the name of Purchaser Amalco shall be Ayr Strategies Inc.;
(x) Purchaser Amalco shall be authorized to issue an unlimited number of multiple voting shares, subordinated voting shares, restricted voting shares and limited voting shares, each without par value;
(xi) the articles and notice of articles of Purchaser Amalco shall be in the form of the articles and notice of articles of the Purchaser;
(xii) the first annual general meeting of Purchaser Amalco or resolutions in lieu thereof shall be held within 18 months from the Effective Date;
(xiii) the first directors of Purchaser Amalco following the amalgamation shall be the then current Purchaser directors; and
(xiv) the stated capital of each class of shares of Purchaser Amalco will be an amount equal to the stated capital attributable to the corresponding class of Purchaser Shares immediately prior to the Second Amalgamation; and
(g) Upon and simultaneously with the immediately preceding step, each Company Option that is outstanding immediately prior to the Effective Time will cease to represent an option or other right to acquire Common Shares and will be exchanged for an option (a “Replacement Option”) to purchase from the Purchaser such number of Subordinate Voting Shares (in the case of a Company Optionholder that is not a US Person) or such number of Restricted Voting Shares (in the case of a Company Optionholder that is a US Person), in each case equal to (A) that number of Common Shares that were issuable upon exercise of such Company Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number of Subordinate Voting Shares or Restricted Voting Shares, as applicable, at an exercise price per Subordinate Voting Share or Restricted Voting Share, as applicable, equal to the quotient determined by dividing: (X) the exercise price per Common Share at which such Company Option was exercisable immediately prior to the Effective Time, by (Y) the Exchange Ratio, rounded up to the nearest whole cent. All other terms and conditions of such Replacement Option, including conditions to and manner of exercising, will be the same as the Company Option for which it was exchanged, except (i) that the original expiry date of each such Company Option shall continue to apply without giving effect to this Arrangement and without regard to any termination of service following the Effective Time, and (ii) that a Company Option may be Net Exercised, and any document evidencing a Company Option shall thereafter evidence and be deemed to evidence such Replacement Option; further, notwithstanding the foregoing, in the case of Company Optionholders who are United States persons under Section 7701(a)(30) of the Code, such Replacement Options must comply with the requirements for substitution under section 409A of the Code and Treasury Regulations at 1.409A-1(b)(5)(v)(D). Notwithstanding the foregoing, if it is determined in good faith that: (I) the excess of the aggregate fair market value of the Purchaser Shares subject to a Replacement Option, determined immediately after the effective time of this Section 2.3(g), over the aggregate option exercise price for such Purchaser Shares pursuant to such Replacement Option (such excess referred to as the “In the Money Amount” of the Replacement Option) would otherwise exceed (II) the excess of the aggregate fair market value of the Common Shares subject to the Company Option in exchange for which the Replacement Option was granted, determined immediately prior to the effective time of this Section 2.3(g), over the aggregate option exercise price for the Common Shares pursuant to such Company Option (such excess referred to as the “In the Money Amount” of the Company Option), the previous provisions shall be modified so that the In the Money Amount of the Replacement Option does not exceed the In the Money Amount of the Company Option in accordance with subsection 7(1.4) of the Tax Act, but only to the extent necessary and in a manner that does not otherwise (except to the extent necessary to comply with subsection 7(1.4) of the Tax Act) adversely affect the holder of the Replacement Option.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing Beginning at the Effective Time, each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Effective Time:
(a) the In-the-money Natura Warrant shall be deemed to be exercised by the holder thereof for the number of Natura Shares subject to such In-the-money Natura Warrant, and the holder of the In-the-money Natura Warrant shall cease to be the holder of such In-the-money Natura Warrant and shall be deemed to have executed and delivered all consents, releases, assignment and waivers, statutory or otherwise, required for such exercise, such In-the-money Natura Warrant shall be deemed to have been cancelled after such exercise, thereafter, the holder of the In-the-Money Natura Warrant shall not have any rights, liabilities or obligations in respect of such In-the-Money Natura Warrant and the register of Natura Shareholders shall be revised accordingly to reflect such exercise;
(b) each outstanding Corporation Natura Share in respect of which any Natura Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to the Company in accordance with Article 4 hereof;
(c) each Natura Share (other than any Natura Share held by a Dissenting Tilray or its affiliates or any Natura Share in respect of which any Natura Shareholder has validly exercised his, her or its Dissent Right) shall be deemed to be transferred by to Tilray Subco in exchange for the Closing Consideration Per Share less the applicable Pro Rata Portion of 50% of the Broker Fees, without any act or formality on the part of the holder of such Natura Share;
(d) with respect to each Natura Share transferred and assigned in accordance with Section 2.3(b) or Section 2.3(c) hereof:
(i) the registered holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than be the right to be paid the fair value registered holder of their Corporation Shares by the Corporation in accordance with Article 4 hereof, such Natura Share and the name of such registered holder shall be removed from the register of holders the Natura Shares as of Corporation Shares, and such Corporation Shares shall be cancelledthe Effective Time;
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder the registered holder thereof shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholderhave executed and delivered all consents, without any further act releases, assignments and waivers, statutory or formality on its partotherwise, free required to transfer and clear of all liens, claims and encumbrances, to the Purchaser, assign such Natura Shares in accordance with Section 2.3(b) or Section 2.3(c) hereof, as applicable;
(iii) Tilray Subco will be the applicable Holdco Agreement, in exchange for a payment in cash equal to holder of all of the Holdco Share Considerationoutstanding Natura Shares (other than Dissenting Shares), and the name register of such holder Natura Shareholders shall be removed from the register of holders of Qualifying Holdco Shares maintained revised accordingly; and
(iv) no Person shall have any rights, liabilities or other obligations in respect of the applicable Qualifying Holdcoshare capital of the Company other than Tilray or Tilray Subco, or, in respect of the share capital of Natura Naturals, other than the Company;
(e) each Out-of-the-money Natura Warrant which is outstanding and has not been duly exercised prior to the Effective Date shall be amended (each, an “Amended Warrant”) such that the Natura Warrant will become exercisable to purchase from Tilray the number of Tilray Shares (rounded down to the nearest whole share) equal to: (i) the Exchange Ratio multiplied by (ii) the number of Natura Shares subject to such Out-of-the-money Natura Warrant immediately prior to the Effective Date. Such Amended Warrant shall provide for an exercise price per Tilray Share (rounded up to the nearest whole cent) equal to: (x) the exercise price per Natura Share otherwise purchasable pursuant to the Out-of-the-money Natura Warrant; divided by (y) the Exchange Ratio. All other terms and conditions, including the terms of expiry and conditions to and manner of exercising will remain the same, and the Purchaser such Amended Warrant shall be recorded as governed by the registered certificate previously evidencing the Out-of-the-money Natura Warrant, and such certificate shall thereafter evidence and be deemed to evidence such Amended Warrant. Each holder of an Out-of-the-money Natura Warrant shall be deemed to have executed and delivered all consents, releases, assignment and waivers, statutory or otherwise, required for such amendment;
(f) any and all notices required pursuant to the Qualifying Holdco Shares so transferred Natura Shareholders’ Agreement shall be deemed to have been given or waived and the Natura Shareholders’ Agreement shall be and be deemed to have been terminated in its entirety and, thereafter, none of the parties to the Natura Shareholders’ Agreement shall have any rights, liabilities or obligations thereunder;
(g) Tilray Subco will subscribe for and purchase from the Company one Natura Share for a subscription price equal to the COC Issue Price multiplied by the number of CoC Payment Shares, such subscription price to be satisfied through the delivery of the CoC Payment Shares;
(h) the CoC Notes will be exchanged for the CoC Payment Shares, which, together with the remittance by the Company of the applicable withholdings to the applicable taxing authority or other authorities shall constitute full and final satisfaction of the CoC Notes; and
(i) each former Natura Shareholder that is not a Dissenting Shareholder shall be and be deemed to have become a party to and bound by the provisions of the Arrangement Agreement to the same extent as if the Arrangement Agreement had been signed and sealed by each such former Natura Shareholder and contained covenants on the part of each former Natura Shareholder that is not a Dissenting Shareholder, and his, her or its successors and personal or other legal representatives, and, specifically, each such former Natura Shareholder shall be deemed to be bound by the legal appointment of the Shareholder Representative to serve as the lawful agent, representative and beneficial owner thereof, free and clear attorney-in-fact of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding the former Natura Shareholders (other than (ithe Natura Shareholders who exercised Dissent Rights) Corporation Shares held by Brookfield, the Purchaser or any in accordance with Section 8.3 of their affiliates (which shall not be acquired under the Arrangement Agreement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as reimbursement obligation and direction with respect to payment of the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares Broker Fees in accordance with Section 2.4.4 of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by Agreement. provided that none of the Purchaser pursuant to Section 3.1(a)), shall foregoing will occur or will be transferred and deemed to occur unless all of the foregoing occur and, if they occur, all of the foregoing will be transferred by the holder thereof, deemed to occur without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesformality.
Appears in 1 contract
Sources: Arrangement Agreement (Tilray, Inc.)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order without any further act or formality:
(a) each of the outstanding Corporation Share shares of Company Common Stock that is not held by a Dissenting Shareholder shall holder who has exercised its Dissent Rights and is ultimately entitled to be deemed to paid the fair value of its shares of Company Common Stock (other than shares of Company Common Stock held by Parent or the Purchaser or any affiliate thereof) will be transferred by the holder thereof to the Corporation free and clear Purchaser in exchange for US $1.17 per share of all liensCompany Common Stock, claims and encumbrancespayable in cash, subject to adjustment in accordance with Section 6.15 of the Arrangement Agreement (the "CASH CONSIDERATION"). Notwithstanding any other provision in this Plan of Arrangement or the Arrangement Agreement, subject to Section 6.10 of the Arrangement Agreement, in no event shall the number of shares of Company Common Stock outstanding at the Effective Time exceed 15,235,903 shares of Company Common Stock, and in no event shall the aggregate Cash Consideration exceed US $17,827,000;
(b) each Dissenting Shareholder share of Company Common Stock in respect of which Dissent Rights have been exercised shall cease to have any rights as a Corporation Shareholder other than the right be and shall be deemed to be paid transferred to the fair value of their Corporation Shares by Purchaser with the Corporation Purchaser and the Parent being jointly and severally obligated to pay therefor the amount determined in accordance with Article 4 hereof, 3 of this Plan of Arrangement;
(c) with respect to each share of Company Common Stock acquired or transferred in accordance with Section 2.2(a) or Section 2.2(b):
(i) the holder thereof shall cease to be the holder of such share of Company Common Stock and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelledCompany Common Stock;
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder the certificate representing such share of Company Common Stock shall be transferred and deemed to have been canceled as of the Effective Time;
(iii) the holder thereof shall be transferred by the Qualifying Holdco Shareholderdeemed to have executed and delivered all consents, without any further act releases, assignments and waivers, statutory or formality on its partotherwise, free and clear of all liens, claims and encumbrances, required to the Purchaser, acquire or transfer such shares in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and Section 2.2(a) or Section 2.2(b); and
(iv) the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the transferee of such share of Company Common Stock if transferred in accordance with Section 2.2(a) or Section 2.2(b) and shall be entered in the register of registered holders of the Company as the legal and beneficial owner thereof, free and clear holder of any liens, claims or encumbrances; andsuch shares of Company Common Stock.
(cd) each Corporation Share outstanding Company 2007 Warrant (other than (i) Corporation Shares Company 2007 Warrants held by Brookfield, ▇▇ ▇▇▇▇▇▇ ▇r the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (iiaffiliate thereof) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to will be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, thereof to the Applicable Purchaser, Company in exchange for a payment the Warrant Consideration;
(e) with respect to each Company 2007 Warrant acquired or transferred in cash equal accordance ▇▇▇▇ ▇▇▇▇▇▇▇ 2.2(d):
(i) the holder thereof shall cease to be the Consideration, holder of such Company 2007 Warrant and the name of such holder shall be removed s▇▇▇▇ ▇▇ ▇▇▇▇ved from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to Company 2007 Warrants;
(ii) the Purchaser, the Purchaser certificate representing such Company 2007 Warrant shall be recorded deemed to have been cancelled as the registered holder of the Corporation Shares so transferred Effective Time;
(iii) the holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to acquire or transfer such Company 2007 Warrant in accordance with Section 2.▇(▇); ▇▇▇
(iv) the Company shall be and shall be deemed to be the transferee of the Company 2007 Warrants transferred in accordance with Section 2.2(d) and shall be entered in the register of holders of the Company 2007 Warrants as the legal and beneficial owner thereof, free and clear holder of any liens, claims or encumbrancessuch Company 2007 Warrants.
Appears in 1 contract
Sources: Arrangement Agreement (L-1 Identity Solutions, Inc.)
Arrangement. Commencing at At the Effective Time, Time each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Effective Time:
(a) each of the following steps shall occur simultaneously:
(i) each Common Share outstanding Corporation immediately prior to the Effective Time (other than any Common Share in respect of which a Company Shareholder has validly exercised, and has not withdrawn or been deemed to have withdrawn, its Dissent Right, and Common Shares held by a Dissenting Shareholder Parent or any Affiliate thereof) shall be deemed to be transferred to, and acquired by Purchaser, without any further act or formality on the part of the holder thereof to the Corporation of such Common Share or Purchaser, free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereofLiens, and the name of each such holder shall Company Shareholder will be removed from the register of holders of Corporation Shares, Common Shares and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed added to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying HoldcoParent Shares, and the Purchaser shall will be recorded as the registered holder of the Qualifying Holdco such Common Shares so transferred exchanged and shall will be deemed to be the legal and beneficial owner thereof;
(ii) in exchange for each Common Share transferred in section 2.3(a)(i), Parent shall issue the Consideration to each Company Shareholder who transferred such Common Share;
(iii) Purchaser shall issue to Parent (or an affiliate of Parent, as directed by Parent) that number of common shares of Purchaser equal in value to the aggregate Consideration; and
(iv) there shall be added to the stated capital account maintained by Purchaser for its common shares an amount equal to the fair market value of the Consideration issued by Parent in section 2.3(a)(ii);
(b) each Common Share outstanding immediately prior to the Effective Time held by a Company Shareholder in respect of which Dissent Rights have been validly exercised and have not been withdrawn or deemed to have been withdrawn shall be deemed to have been transferred without any further act or formality, to Purchaser, free and clear of any liensLiens, claims or encumbrances; in consideration for a debt claim against Purchaser in an amount and payable in accordance with Article 3, and:
(c) each Corporation Share outstanding (other than (i) Corporation such Company Shareholder will cease to be the holder of such Dissenting Shares held by Brookfield, and will cease to have any rights as holder of such Common Shares other than the Purchaser or any of their affiliates (which shall not right to be acquired under the Arrangement and shall remain outstanding paid fair value for such Dissenting Shares as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may beset out in Section 3.1(a); ;
(ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the Company Shareholder’s name of such holder shall will be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of such Dissenting Shares from the Corporation registers of Common Shares so transferred and shall maintained by or on behalf of the Company; and
(iii) Purchaser will be deemed to be the legal and beneficial owner thereoftransferee of such Dissenting Shares, free and clear of any liensLiens.
(c) each Company Option outstanding immediately prior to the Effective Time shall be exchanged for an option (each, claims a “Replacement Option”) to acquire from Parent the number of Parent Shares equal to the product of: (A) the number of Company Common Shares subject to the Company Option immediately before the Effective Time, and (B) 0.08 of a Parent Share, provided that if the foregoing would result in the issuance of a fraction of a Parent Share, then the number of Parent Shares otherwise issued shall be rounded down to the nearest whole number of Parent Shares. The exercise price per Parent Share subject to any such Replacement Option shall be an amount equal to the quotient of (A) the exercise price per Company Common Share subject to such Company Option immediately before the Effective Time divided by (B) 0.08 (provided that the aggregate exercise price payable on any particular exercise of Replacement Options shall be rounded up to the nearest whole cent). Except as set out above, all terms and conditions of each Replacement Option, including the vesting schedule, term to expiry, conditions to and manner of exercising, shall be the same as the terms of the Company Option exchanged therefor pursuant to the Company Stock Option Plan and any agreement evidencing the grant thereof prior to the Effective Time, except notwithstanding the termination provisions in the Company option plan, that such Replacement Option shall provide that a director or encumbrancesofficer of the Company that ceases to be a director or officer of the Company may exercise his or her Replacement Options for 90 days following the date such director or officer ceases to be a director or officer of the Company and that all others including, but not limited to, employees and consultants of the Company, may exercise his, her or its Replacement Options for 30 days following the date such other person ceases to be employed by or provide services to the Company. It is intended that subsection 7(1.4) of Tax Act apply to such exchange of options. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option will be increased, with effect at and from the Effective Time, such that the In-The-Money Amount of the Replacement Option immediately after the exchange does not exceed the In-The-Money Amount of the Company Option immediately before the exchange; and
(d) in accordance with the terms of the Company Warrant Agreements, each holder of a Company Warrant outstanding immediately prior to the Effective Time shall receive upon the subsequent exercise of such holder’s Company Warrant, in accordance with its terms, and shall accept in lieu of each Company Common Share to which such holder was theretofore entitled upon such exercise but for the same aggregate consideration payable therefor, 0.08 of a Parent Share.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following events or transactions shall occur and shall be deemed to occur consecutively in the following sequence order, five minutes apart, except where noted, without any further authorization, act or formality:
(a) each outstanding Corporation Company Share held by a Dissenting Shareholder Shareholders in respect of which Dissent Rights have been validly exercised shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be been transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrancesLiens, to the Applicable Purchaser, Company for cancellation in exchange consideration for a payment claim against the Company for the amount determined under ARTICLE 4, and;
(i) such Dissenting Shareholders shall cease to be the holders of such Company Shares and to have any rights as holders of such Company Shares other than the right to be paid fair value for such Company Shares as set out in cash equal Section 4.1; and
(ii) such Dissenting Shareholders’ names shall be removed as the holders of such Company Shares from the registers of the Company Shares maintained by or on behalf of the Company and such Company Shares shall be cancelled and cease to be outstanding;
(b) each Company Share outstanding immediately prior to the Effective Time, other than Dissent Shares, shall, without any further action by or on behalf of a holder of Company Shares, be deemed to be assigned and transferred by the holder thereof to the Purchaser (free and clear of all Liens) in consideration for the Consideration, and and:
(i) the name holders of such holder Company Shares shall cease to be the holders of such Company Shares and to have any rights as holders of such Company Shares other than the right to be paid the Consideration in accordance with this Plan of Arrangement;
(ii) such holders’ names shall be removed as the holders of such Company Shares from the register registers of holders the Company Shares maintained by or on behalf of Corporation Shares, the Company; and, with respect to Corporation Shares elected to be transferred to the Purchaser,
(iii) the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereofof such Company Shares so transferred, free and clear of all Liens, and shall be entered in the register of the Company Shares maintained by or on behalf of the Company, such that following the transactions contemplated by Section 3.1(a) and this Section 3.1(b), the Purchaser shall be the legal and beneficial owner of 100% of the Company Shares;
(c) each Company Option outstanding immediately prior to the Effective Time, whether vested or unvested, shall be transferred to the Purchaser in exchange for an option (each a “Replacement Option”) to purchase from the Purchaser such number of Purchaser Shares (rounded down to the nearest whole number) equal to: (A) 0.3867, multiplied by (B) the number of Company Shares subject to such Company Option immediately prior to the Effective Time, at an exercise price per Purchaser Share (rounded up to the nearest whole cent) equal to (M) the exercise price per Company Share otherwise purchasable pursuant to such Company Option immediately prior to the Effective Time, divided by (N) 0.3867. The Replacement Options shall be exercisable until the original expiry date of such Company Option. Except as set out above, all other terms and conditions of the Replacement Option, including the vesting terms and conditions to and manner of exercising, will be the same as the Company Option so exchanged, and shall be governed by the terms of the Company Share Compensation Plan, and any liensdocument evidencing a Company Option shall thereafter evidence and be deemed to evidence such Replacement Option. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such exchange. Therefore, claims in the event that the Replacement Option In-The-Money Amount in respect of a Replacement Option exceeds the Company Option In-The-Money Amount in respect of the Company Option, the exercise price per Purchaser Share of such Replacement Option will be increased accordingly with effect at and from the Effective Time by the minimum amount necessary to ensure that the Replacement Option In-The-Money Amount in respect of the Replacement Option does not exceed the Company Option In-The-Money Amount in respect of the Company Option;
(d) each Company RSU and Company DSU outstanding immediately prior to the Effective Time (whether vested or encumbrancesunvested), notwithstanding the terms of the Company Share Compensation Plan or any resolution or determination of the Company Board (or any committee thereof), shall, without any further action by or on behalf of the holder thereof, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company in an amount equal to the Payout Value, subject to Section 5.4, and each such Company RSU and Company DSU shall immediately be cancelled;
(e) the Company and Subco shall amalgamate to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 276 of the BCBCA, such that:
(i) Amalco will own and hold all property of the Company and Subco;
(ii) the notice of articles and articles of Amalco shall be in the form of the notice of articles and articles of the Company;
(iii) the authorized share structure of the Company immediately prior to the amalgamation will be the authorized share structure of Amalco;
(iv) the directors of Subco shall be the directors of Amalco;
(v) the property, rights and interests of each of the Company and Subco shall continue to be the property, rights and interests of Amalco;
(vi) Amalco shall continue to be liable for the obligations of each of the Company and Subco;
(vii) an existing cause of action, claim, or liability to prosecution of either of the Company or Subco shall be unaffected;
(viii) a legal proceeding being prosecuted or pending by or against either of the Company or Subco may be prosecuted, or its prosecution may be continued, as the case may be, against Amalco;
(ix) a conviction against, or a ruling, order or judgment in favour of or against, either of the Company or Subco may be enforced by or against Amalco;
(x) the amalgamation will not constitute an assignment by operation of law, a transfer or any other disposition of the property, rights and interests of either of the Company or Subco to Amalco;
(xi) the registered office and records of Amalco will be the registered office of the Company;
(xii) the Purchaser shall receive on the amalgamation one Amalco common share in exchange for each Subco common share and each Company Share previously held; and
(xiii) the stated capital of the common shares of Amalco will be an amount equal to the aggregate paid-up capital, as that term is defined in the Tax Act, attributable to the common shares of Subco and the Company Shares immediately prior to the amalgamation; and
(f) the transfers, exchanges and cancellations provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement (B2gold Corp)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence sequence, except where noted, without any further act or formalityformality of or by the Company, the Acquiror or any other person:
(a) each outstanding Corporation Common Share held by a Dissenting Shareholder shall be deemed to be irrevocably transferred by the holder thereof to the Corporation Acquiror (free and clear of all liens, claims and encumbrances, and each Encumbrances) without any further act or formality and:
(i) such Dissenting Shareholder shall cease to be the holder of such Common Shares so transferred and to have any rights as holder of such Common Shares other than the right to be paid fair value for such Common Shares by the Acquiror as set out in Section 3.1;
(ii) such Dissenting Shareholder's name shall be removed as the holder of such Common Shares from the central securities register of holders of Common Shares maintained by or on behalf of the Company; and
(iii) the Acquiror shall become the sole legal and beneficial holder of such Common Shares so transferred (free and clear of all Encumbrances) and shall be entered in the central securities register of holders of Common Shares maintained by or on behalf of the Company; and
(b) concurrently with the step described in Section 2.3(a), each Common Share (other than those held by Dissenting Shareholders or the Acquiror) shall be irrevocably transferred to the Acquiror (free and clear of all Encumbrances), and the holder thereof shall be entitled to receive from the Acquiror the Transaction Consideration for such Common Share and upon the transfer of each such Common Share from such holder to the Acquiror pursuant to this Section 2.3(b):
(i) each such holder shall cease to be a holder of the Common Shares so transferred and cease to have any rights as a Corporation Shareholder holder of such Common Shares other than the right to be paid the fair value of their Corporation Transaction Consideration for such Common Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed as the holder of such Common Shares from the central securities register of holders of Corporation Shares, and such Corporation Common Shares shall be cancelled;maintained by or on behalf of the Company; and
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder the Acquiror shall be become the sole legal and beneficial holder of the Common Shares so transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, (free and clear of all liens, claims Encumbrances) and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from entered in the central securities register of holders of Qualifying Holdco Common Shares maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered Company. Each holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, andCommon Share, with respect to Corporation Shares elected each step set out above applicable to be transferred to the Purchasersuch holder, the Purchaser shall be recorded as deemed, at the registered holder of the Corporation Shares so transferred time such step occurs, to have executed and shall be deemed delivered all consents, releases, assignments and waivers, statutory or otherwise, required to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancestransfer such Common Share in accordance with such step.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, Time each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Effective Time:
(a) each outstanding Corporation Share of the Common Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formality to the Purchaser in consideration for a claim against the Purchaser for the amount determined under Article 3, and:
(i) such Dissenting Shareholder Holders shall cease to be the holders of such Common Shares and to have any rights as holders of such Common Shares other than the right to be paid fair value by the Purchaser for such Common Shares as set out in Section 3.1;
(ii) such Dissenting Holders’ names shall be removed as the holders of such Common Shares from the register of Common Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be transferred by the holder thereof to the Corporation transferee of such Common Shares free and clear of all liens, claims and encumbrancesLiens, and shall be entered in the register of Common Shares maintained by or on behalf of the Company;
(b) each Common Share outstanding immediately prior to the Effective Time, other than (i) Common Shares held by a Dissenting Shareholder Holder in respect of which Dissent Rights have been validly exercised, and (ii) Common Shares held by the Purchaser, shall, without any further action by or on behalf of a holder of Common Shares, be purchased by the Purchaser for the Consideration, and:
(i) the holders of such Common Shares shall cease to be the holders of such Common Shares and to have any rights as holders of such Common Shares other than the right to be paid the Consideration by the Purchaser in accordance with this Plan of Arrangement; and
(ii) such holders’ names shall be removed from the register of the Common Shares maintained by or on behalf of the Company;
(c) simultaneously:
(i) each “out of the money” Option outstanding immediately prior to the Effective Time, whether vested or unvested, shall be cancelled for no consideration;
(ii) each “in the money” Option outstanding immediately prior to the Effective Time, whether vested or unvested, shall be continued on the same terms and conditions as were applicable prior to the Effective Time, except that each such Option shall be amended so as to reflect that (A) the value of each Common Share underlying the Option at any particular time shall be equal to the fair market value of a Common Share, as determined by the Board, acting reasonably and in good faith, (B) the exercise of such Option shall be conditional on the holder thereof signing a joinder to the shareholders’ agreement of the Company, as in effect from time to time, (C) the holder thereof shall have a right to surrender to the Company, in whole or in part, a vested right to subscribe for one Common Share pursuant to the related Option and to receive from the Company a cash amount equal to the excess of the fair market value of a Common Share, as determined by the Board, acting reasonably and in good faith, on the date of exercise over the Option exercise price, less applicable withholding taxes and deductions, and (D) the Common Shares are no longer publicly listed or traded on a securities exchange or stock market;
(iii) each RSU and PSU outstanding immediately prior to the Effective Time shall be continued on the same terms and conditions as were applicable prior to the Effective Time (including an entitlement to the issuance of dividend equivalent RSUs and PSUs in accordance with the terms of the Share Incentive Plan), except that each such RSU and PSU shall be amended so as to reflect that (A) the value of each such RSU and PSU at any particular time shall be equal to the fair market value of a Common Share, as determined by the Board, acting reasonably and in good faith, in each case, subject to any performance or other multiplier applicable to the grant of such RSU or PSU, and (B) the Common Shares are no longer publicly listed or traded on a securities exchange or stock market;
(iv) the DSU Plan shall be terminated and each DSU outstanding immediately prior to the Effective Time, whether vested or unvested, shall immediately be cancelled by the Company without any further action by the holder thereof in exchange for, subject to Section 4.3, a cash payment by the Company equal to the Consideration, and, as of the effective time of such cancellation: (A) the holder thereof shall cease to be the holder of such DSU, (B) the holder thereof shall cease to have any rights as a Corporation Shareholder holder in respect of such DSU or under the DSU Plan, as applicable, other than the right to be paid receive the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of consideration to which such holder is entitled pursuant to this Section 2.3(c)(iv), (C) such holder’s name shall be removed from the register of holders of Corporation Sharesapplicable register, and such Corporation Shares (D) all agreements, grants and similar instruments relating thereto shall be cancelled;; and
(bv) each Qualifying Holdco Share EDSU outstanding held by a Qualifying Holdco Shareholder immediately prior to the Effective Time shall be transferred continued on the same terms and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, conditions as were applicable prior to the Purchaser, Effective Time (including an entitlement to the issuance of dividend equivalent EDSUs in accordance with the applicable Holdco Agreementterms of the EDSU Plan), in exchange for a payment in cash except that, the terms of such EDSU shall be amended so as to reflect that (A) the value of each such EDSU at any particular time shall be equal to the Holdco Share Considerationfair market value of a Common Share, as determined by the Board, acting reasonably and in good faith, and (B) the name of such holder shall be removed from the register of holders of Qualifying Holdco Common Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims are no longer publicly listed or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser traded on a securities exchange or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesstock market.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur sequentially in the following sequence order without any further act or formality:
(a) each outstanding Corporation Karora Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to Acquireco and Acquireco shall thereupon be obliged to pay the Applicable Purchaseramount therefor determined and payable in accordance with Article 4 hereof, in exchange for a payment in cash equal to the Consideration, and and: (i) the name of such holder shall be removed from the central securities register as a holder of Karora Shares and such Karora Shares shall be cancelled and cease to be outstanding; and (ii) such Dissenting Shareholders will cease to have any rights as Karora Shareholders other than the right to be paid the fair value for their Karora Shares by ▇▇▇▇▇▇;
(b) the transactions contemplated by (i) the Spinco Contribution Agreement, and (ii) all agreements (if any) required to transfer those Transferred Assets held by any applicable direct or indirect subsidiary of Karora to Spinco at the Effective Time, shall become effective, and pursuant thereto Karora, or its applicable direct or indirect subsidiaries, shall or shall cause to be transferred, assigned and conveyed to Spinco the Transferred Assets and Spinco shall accept and assume the Transferee Liabilities and issue or transfer to Karora and its applicable direct or indirect subsidiaries the Spinco Distribution Shares and such other applicable securities, properties, rights, liabilities or interests described in each applicable agreement, and Karora and each applicable direct or indirect subsidiary of Karora receiving Spinco Distribution Shares shall be entered into the register of Spinco Shares maintained by or on behalf of Spinco as a registered holder of such Spinco Distribution Shares;
(c) the transactions contemplated by those agreements (if any) entered into by Karora, its direct or indirect subsidiaries and Spinco to transfer or issue to Karora all Spinco Distribution Shares not otherwise acquired by Karora pursuant to Section 3.2(b) shall become effective, and pursuant thereto Karora shall be issued or transferred all Spinco Distribution Shares not otherwise acquired by Karora pursuant to Section 3.2(b) for that consideration set out in each applicable agreement, each direct or indirect subsidiary of Karora shall transfer such Spinco Distribution Shares acquired pursuant to Section 3.2(b) (if any) to Karora and, Spinco shall issue to Karora any Spinco Distribution Shares not previously issued to Karora or its applicable direct or indirect subsidiaries pursuant to Section 3.2(b) (if any) and Karora shall be entered into the register of Spinco Shares maintained by or on behalf of Spinco as a registered holder of such Spinco Distribution Shares so transferred or issued and the name of each direct or indirect subsidiary of Karora that acquired Spinco Distribution Shares pursuant to Section 3.2(b) shall be removed from the register of holders of Corporation Spinco Shares maintained by or on behalf of Karora;
(d) the authorized share capital of Karora shall be amended by the creation of an unlimited number of Karora Class A Shares, andof which an unlimited number of shares may be issued, with respect to Corporation Shares elected and the articles of Karora shall be deemed to be amended accordingly;
(e) Karora shall undertake a reorganization of capital within the meaning of section 86 of the Tax Act, pursuant to which each Karora Share held by the Participating Former Karora Shareholders (including, for the avoidance of doubt, any Karora Shares issued to holders of Karora Options, Karora RSUs, Karora PSUs and Karora DSUs pursuant to Section 2.4, but excluding any Karora Shares that are held by Westgold or its affiliates, if any, and any Karora Shares that are cancelled pursuant to Section 3.1(a)) shall be, and shall be deemed to be, transferred to Karora (free and clear of any liens, claims and encumbrances) in exchange for one (1) Karora Class A Share and a Fractional Spinco Share, and such Karora Shares shall thereupon be cancelled, and:
a. the Purchaser, Participating Former Karora Shareholders shall cease to be the Purchaser holders thereof and to have any rights or privileges as holders of such Karora Shares;
b. the Participating Former Karora Shareholders’ names shall be recorded as removed from the registered holder register of the Corporation Shares so transferred and holders of ▇▇▇▇▇▇ ▇▇▇▇▇▇ maintained by or on behalf of Karora;
c. each Participating Former Karora Shareholder shall be deemed to be the legal holder of that number of Karora Class A Shares and beneficial owner thereofthat number of Spinco Shares as rounded down pursuant to Section 3.2(a) (in each case, free and clear of any liens, claims and encumbrances) received in exchange for their Karora Shares and shall be entered in the registers of holders of Karora Class A Shares and Spinco Shares, as the case may be, as the registered holder thereof;
d. Karora shall be removed from the register of holders of Spinco Shares in respect of those Fractional Spinco Shares transferred to the Participating Former Karora Shareholders; and
e. the stated capital account maintained by Karora in respect of the Karora Shares shall be reduced by an amount equivalent to the aggregate paid-up capital (as determined for purposes of the Tax Act) attributable to the Karora Shares exchanged pursuant to this Section 3.1 immediately prior to their exchange, and there shall be added to the stated capital account maintained by Karora in respect of the Karora Class A Shares, the amount by which (A) the aggregate paid-up capital attributable to the Karora Shares exchanged pursuant to this Section 3.1 immediately prior to the exchange exceeds the fair market value of the Spinco Shares distributed by Karora to the Participating Former Karora Shareholders on such exchange;
(f) the Initial Spinco Share held by Karora shall be cancelled without any repayment therefor, and Karora shall be removed from Spinco’s register of holders of Spinco Shares;
(g) each Participating Former Karora Shareholder shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Karora Shareholder, free and clear of all liens, claims and encumbrances, each Karora Class A Share held by such Participating Former Karora Shareholder in exchange for the Consideration, and each of Westgold and Acquireco shall be deemed to have directed the Depositary to issue and to pay to such Participating Former Karora Shareholder the Consideration to which such Participating Former Karora Shareholder is entitled pursuant to this Section 3.1(g), and upon such exchange:
a. Acquireco shall issue to Westgold, as consideration for the issue of the Share Consideration by Westgold, one fully paid and non-assessable Acquireco Common Share for each such Westgold Share, and the capital account maintained by Acquireco in respect of the Acquireco Common Shares shall be increased, in respect of each Acquireco Common Share issued pursuant to this Section 3.1(g)a, by an amount equal to $[⚫]1, and Westgold shall be entered in Acquireco’s central securities register of holders of Acquireco Common Shares;
b. each Participating Former Karora Shareholder shall be removed from Karora’s central securities register of holders of Karora Class A Shares;
c. Acquireco shall be entered in Karora’s central securities register of holders of Karora Class A Shares as the legal and beneficial owner of such Karora Class A Shares, free of all liens, claims and encumbrances; and
d. each Participating Former Karora Shareholder shall be entered in Westgold’s register of holders of Westgold Shares in respect of Westgold Shares payable to such Participating Former Karora Shareholder pursuant to this Section 3.1(g); and
(h) the Karora Plan and all agreements relating thereto shall be terminated and shall be of no further force and effect. At such time following the completion of those transactions described in the foregoing paragraphs of this Section 3.1, as promptly as possible after all conditions therefore have been met, Karora shall file or cause to be filed the prescribed form of election under the Tax Act with the Canada Revenue Agency electing to cease being a public corporation for the purposes of the Tax Act.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, each of the following events or transactions shall occur and shall be deemed to occur sequentially on the Effective Date, in the following sequence order, without any further act or formalityformality required on the part of any person:
(a) each outstanding Corporation Company Share held by a Dissenting Shareholder shall be deemed to be have been transferred by the holder thereof to the Corporation Purchaser free and clear of all liensany Liens of any kind whatsoever, claims and encumbrances, and and:
(i) each such Dissenting Shareholder shall cease to be the holder of such Company Shares and to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value of their Corporation such Company Shares by the Corporation in accordance with Article 4 hereof;
(ii) each such Dissenting Shareholder’s name shall be removed as the holder of such Company Shares from the register of Company Shareholders maintained by or on behalf of Company;
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares free and clear of any Liens of any kind whatsoever (other than the right to be paid fair value for such Company Shares as set out in Section 4.1), and shall be entered in the register of Company Shares maintained by or on behalf of Company; and
(b) each outstanding Company Share (other than any Company Shares held by a Dissenting Shareholder) shall be and be deemed to be assigned and transferred by the holder thereof to Purchaser (free and clear of any Liens of any kind whatsoever) in exchange for the Consideration, and:
(i) each holder of such Company Shares shall cease to be the holder thereof and to have any rights as a Company Shareholder other than the right to be paid the Consideration per Company Share in accordance with this Plan of Arrangement;
(ii) the name of each such holder shall be removed from the register of holders the Company Shares maintained by or on behalf of Corporation Shares, and such Corporation Shares shall be cancelledCompany;
(biii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, transferee of such Company Shares free and clear of all Liens of any liens, claims kind whatsoever and shall be entered in the register of Company Shares maintained by or encumbranceson behalf of Company; and
(iv) Purchaser will be the registered and beneficial holder of all of the outstanding Company Shares.
(c) each Corporation Company Option outstanding at the Effective Time (whether vested or unvested) will be exchanged for the corresponding Replacement Option to acquire such number of Purchaser Shares as is equal to: (A) that number of Company Shares that were issuable upon exercise of such Company Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number of Purchaser Shares, at an exercise price, if applicable, per Purchaser Share outstanding (other than equal to the greater of (i) Corporation Shares held the quotient determined by Brookfielddividing: (X) the exercise price per Company Share at which such Company Option was exercisable immediately prior to the Effective Time, by (Y) the Purchaser or any of their affiliates (which shall not be acquired under Exchange Ratio, rounded up to the Arrangement nearest whole cent, and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcossuch minimum amount that meets the requirements of paragraph 7(1.4)(c) of the Tax Act. All terms and conditions of a Replacement Option, including the Qualifying Holdco Shares term to expiry, vesting, conditions to and manner of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a))exercising, shall be transferred the same as the Company Option for which it was exchanged, and any certificate or option agreement previously evidencing the applicable Company Option shall thereafter evidence and be deemed to evidence such Replacement Option.
(i) each Company DSU outstanding at the Effective Time (whether vested or unvested) will, immediately after the Effective Time at which time all of Company Shares shall be transferred owned and held by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange be exchanged for a payment in cash the corresponding Replacement DSU to acquire such number of Purchaser Shares as is equal to the Considerationproduct of: (A) that number of Company Shares that were subject to such Company DSU immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number of Purchaser Shares and (ii) each Company RSU outstanding at the Effective Time (whether vested or unvested) will, immediately after the Effective Time at which time all of Company Shares shall be owned and held by Purchaser, be exchanged for the corresponding Replacement RSU to acquire such number of Purchaser Shares as is equal to the product of: (A) that number of Company Shares that were subject to such Company RSU immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number of Purchaser Shares. All terms and conditions of a Replacement DSU or Replacement RSU, including the term to expiry, vesting, conditions to and manner of exercising, shall be the same as the Company DSU or Company RSU for which it was exchanged, and any certificate or agreement previously evidencing the name of such holder applicable Company DSU or Company RSU shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred thereafter evidence and shall be deemed to evidence such Replacement DSU or Replacement RSU; or such alternative treatment with respect thereto provided such alternative treatment (i) shall be agreed to in writing by each of Company and Purchaser, and (ii) shall not be, in the legal aggregate and beneficial owner thereofviewed as a whole, free and clear economically prejudicial to the holders of any liens, claims or encumbrancessuch Company DSUs and/or Company RSUs.
Appears in 1 contract
Sources: Arrangement Agreement (HEXO Corp.)
Arrangement. Commencing As soon as practicable following the date hereof, the parties shall proceed to effect an arrangement under section 193 of the ABCA in accordance with and subject to the terms and conditions of this Agreement and the Plan of Arrangement, pursuant to which (among other things), the following transactions shall occur in the order set out in the Plan of Arrangement and with any necessary modification for any exercise of Dissent Rights:
(a) the Lone Pine corporate group and shareholdings shall be reorganized such that: (i) Newco shall become the direct or indirect parent of Lone Pine Delaware, as more particularly provided in the Lone Pine Delaware Agreement; and (ii) Newco shall become the ultimate parent of Lone Pine;
(b) Newco will, directly or indirectly, acquire all of the outstanding Arsenal Shares;
(c) Lone Pine and Arsenal (or an amalgamation successor thereto, as applicable) shall amalgamate to form Amalco, which shall be a direct and indirect wholly-owned subsidiary of Newco;
(d) in connection with the foregoing, and immediately upon completion of the Arrangement:
(i) Lone Pine Shareholders shall receive, in substitution for their Lone Pine Shares (including, for certainty, Lone Pine Shares issued pursuant to the exercise, conversion, exchange, settlement, redemption or surrender of Lone Pine Incentive Awards prior to the Effective Time), Newco Shares in such number as reflects the Lone Pine Proportionate Interest;
(ii) Arsenal Shareholders shall receive, in substitution for their Arsenal Shares (including, for certainty, Arsenal Shares issued pursuant to the exercise, conversion, exchange, settlement, redemption or surrender of Arsenal Share Awards or Arsenal Options prior to the Effective Time), Newco Shares in such number as reflects the Arsenal Proportionate Interest, all on a tax effective basis for the Lone Pine Shareholders and the Arsenal Shareholders;
(e) each Lone Pine Incentive Award that is outstanding at the Effective Time, the following events or transactions shall occur and shall be deemed exchanged for an obligation of Newco (a "Replacement Lone Pine RSU") on substantially the same terms and conditions as are applicable to occur in the following sequence without any further act or formalityLone Pine Incentive Award (including with respect to vesting), except that:
(ai) for each Lone Pine Common Share or each Lone Pine Preferred Share to which the holder would otherwise be entitled to be issued on settlement and redemption of the Lone Pine Incentive Award, the holder shall instead be entitled to be issued (from treasury), on settlement of the Replacement Lone Pine RSU after the Effective Time, Newco Shares according to the same ratios at which Newco Shares are issued at the Effective Time in consideration for then-outstanding Lone Pine Common Shares and Lone Pine Preferred Shares;
(ii) the holder of the Replacement Lone Pine RSU shall not be entitled to receive any shares in the capital stock of Lone Pine Delaware in connection with the settlement and redemption thereof;
(iii) each outstanding Corporation Share held by Replacement Lone Pine RSU issued in respect of a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation Lone Pine Incentive Award that vested in accordance with Article 4 hereofits terms prior to the Effective Time, and the name of such holder shall be removed from the register of holders of Corporation Shares, settled and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholderredeemed, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect action of the applicable Qualifying Holdcoholder, and on the Purchaser shall be recorded as 15th trading day following the registered holder Effective Date through the issuance by Newco of the Qualifying Holdco underlying Newco Shares so transferred and shall be deemed to be based on a fair market value of the legal and beneficial owner thereof, free and clear Newco Shares determined by the volume weighted average trading price of any liens, claims or encumbrancesthe Newco Shares on the TSX for the preceding ten (10) trading days; and
(civ) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, Replacement Lone Pine RSU issued in respect of a Lone Pine Incentive Award that was not vested in accordance with its terms prior to the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a))Effective Time, shall be transferred settled and deemed to be transferred redeemed within 15 days of the vesting date, through the issuance by Newco of the underlying Newco Shares based on a fair market value of the Newco Shares determined by the holder thereof, without any further act or formality volume weighted average trading price of the Newco Shares on its part, free the TSX for the preceding ten (10) trading days; and
(f) each Arsenal Option and clear of all liens, claims and encumbrances, to each Arsenal Share Award that is outstanding at the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder Effective Time shall be removed from the register of holders of Corporation Shares, and, with respect surrendered to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred Arsenal and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesterminated for no consideration.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at At the Effective Time, Time the following events or transactions shall occur and shall be deemed to occur sequentially as set out below without any further authorization, act or formality, in each case effective as at five minute intervals starting at the following sequence Effective Time:
(a) each issued Common Share outstanding immediately prior to the Effective Time held by a Company Shareholder in respect of which Dissent Rights have been validly exercised will be deemed to have been transferred without any further act or formality:
(a) each outstanding Corporation Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof , to the Corporation Purchaser, free and clear of all liensany Liens, claims in consideration for a debt claim against the Purchaser in an amount and encumbrancespayable in accordance with Article 5, and:
(i) such Company Shareholder will cease to be the holder of such Dissenting Shares and each Dissenting Shareholder shall will cease to have any rights as a Corporation Shareholder holder of such Common Shares other than the right to be paid the fair value for such Dissenting Shares as set out in Section 3.1(a);
(ii) such Company Shareholder’s name will be removed as the registered holder of their Corporation such Dissenting Shares from the registers of Common Shares maintained by or on behalf of the Company; and
(iii) the Purchaser will be deemed to be the transferee of such Dissenting Shares, free and clear of any Liens.
(b) immediately thereafter, each issued and outstanding Common Share (other than any Common Share in respect of which a Company Shareholder has validly exercised its Dissent Right) will be transferred to, and acquired by the Corporation Purchaser, without any act or formality on the part of the holder of such Common Share or the Purchaser, free and clear of all Liens, in accordance exchange for such number of Purchaser Shares equal to the Exchange Ratio, provided that the aggregate number of Purchaser Shares payable to any Company Shareholder, if calculated to include a fraction of a Purchaser Share, will be rounded down to the nearest whole Purchaser Share, with Article 4 hereofno consideration being paid for the fractional share, and the name of each such holder shall Company Shareholder will be removed from the register of holders of Corporation Shares, Common Shares and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed added to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying HoldcoPurchaser Shares, and the Purchaser shall will be recorded as the registered holder of the Qualifying Holdco such Common Shares so transferred exchanged and shall will be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and.
(c) each Corporation Share Each Company Option which is outstanding and which has not been duly exercised prior to the Effective Time, shall be exchanged for an equivalent option (other than each, a “Replacement Option”) to purchase from Purchaser the number of Purchaser Shares (rounded down to the nearest whole share) equal to: (i) Corporation the Exchange Ratio multiplied by (ii) the number of Common Shares held subject to such Company Option immediately prior to the Effective Time. Such Replacement Option shall provide for an exercise price per Purchaser Share (rounded up to the nearest whole cent) equal to: (x) the exercise price per Company Share otherwise purchasable pursuant to such Replacement Option; divided by Brookfield(y) the Exchange Ratio. It is agreed that all terms and conditions of a Replacement Option, including the Purchaser or term to expiry, vesting schedule, conditions to and manner of exercising, will be the same as the Company Option for which it was exchanged, and shall be governed by the terms of the Company Option Plan, except that the term to expiry of any of their affiliates (which Replacement Options shall not be acquired under affected by a holder of Replacement Options not becoming, or ceasing to be, an employee, officer or director of the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, Company or the Purchaser or such affiliatePurchaser, as the case may be); .
(iid) Corporation All other rights to be issued Common Shares held by Qualifying Holdcosexisting at the Effective Time and whether or not then vested or otherwise then exercisable, including without limitation arising pursuant to the Qualifying Holdco Shares of which are acquired acquisition by the Purchaser pursuant Company of any option, right, title or interest in or to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a))any real property, mining claims, leases, licenses, mineral or surface rights, shall be transferred and be deemed to be transferred by exchanged solely for the holder thereof, without any further act or formality on its part, free and clear right to be issued such number of all liens, claims and encumbrances, to the Applicable Purchaser, Purchaser Shares per Common Share as included in exchange for a payment in cash equal to the Consideration, and the name of such holder shall .
(e) Notwithstanding any vesting or exercise provisions to which a DSU might otherwise be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchasersubject, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and Effective Date shall be deemed to be the legal Redemption Date (as defined in the DSU Plan) for all of the then issued and beneficial owner thereofoutstanding DSUs, free and clear the Company shall pay to each holder of a DSU such cash amount as is due to such holder under the terms of the DSU Plan (less any liensamounts withheld pursuant to the DSU Plan or the Plan of Arrangement) and thereafter the DSU Plan will terminate and none of the former holders of DSUs, claims the Parties or encumbrancesany of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the DSU Plan.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, except as otherwise provided herein, the following events or transactions shall occur and shall be deemed to occur sequentially, in the following sequence order, without any further act or formalityformality required on the part of any Person, in each case effective as at the Effective Time:
(a) each outstanding Corporation Alpha Share held by in respect of which a Dissenting Shareholder has validly exercised his, her or its Dissent Rights shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be directly transferred and deemed to be transferred assigned by the Qualifying Holdco such Dissenting Shareholder, without any further act or formality on its part, to Crystal (free and clear of all liens, claims and encumbrances, to the Purchaser, any Liens) in accordance with the applicable Holdco AgreementArticle 4 hereof;
(b) each Alpha Share (other than any Alpha Shares in respect of which a Dissenting Shareholder has validly exercised his, her or its Dissent Rights) shall be deemed to be transferred and assigned to Crystal (free and clear of any Liens) in exchange for the Consideration as follows, subject to Article 4 hereof;
(i) for each Alpha Common Share held by an Alpha Shareholder that is not a payment U.S. Restricted Shareholder, Crystal shall issue one Crystal Post-Consolidated Share to such Alpha Shareholder;
(ii) for each Alpha Common Share held by an Alpha Shareholder that is a U.S. Restricted Shareholder, Crystal shall issue one Crystal Post-Consolidated Share or one Crystal Restricted Voting Share, as provided in cash equal the Arrangement Agreement, to such Alpha Shareholder; and
(iii) for each Alpha Class C Share held by an Alpha Shareholder, Crystal shall issue one Crystal Class B Preferred Share to such Alpha Shareholder;
(c) with respect to each Alpha Share transferred and assigned in accordance with Sections 3.1(a) or 3.1(b) hereof:
(i) the Holdco registered holder thereof shall cease to be the registered holder of such Alpha Share Consideration, and the name of such registered holder shall be removed from the central securities register of Alpha Shareholders as of the Effective Time;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Alpha Share in accordance with Sections 3.1(a) or 3.1(b) hereof, as applicable; and
(iii) Crystal will be the holder of all of the outstanding Alpha Shares and the central securities register of Alpha Shareholders shall be revised accordingly;
(d) each Alpha Shareholder will be the holder of the aggregate number of Crystal Post-Consolidated Shares, Crystal Restricted Voting Shares or Crystal Class B Preferred Shares issued to such Alpha Shareholder pursuant to Sections 3.1(b) hereof and the central securities register of Crystal will be revised accordingly;
(e) each Alpha Warrant outstanding shall be deemed to be transferred and assigned to Crystal (free and clear of any Liens) in exchange for one Consideration Warrant, which shall be exercisable to purchase from Crystal the number of Crystal Post-Consolidated Shares (rounded down to the nearest whole number) equal to the Exchange Ratio, multiplied by the number of Alpha Common Shares subject to such Alpha Warrant immediately prior to the Effective Time, at an exercise price per Crystal Post-Consolidated Share (rounded up to the nearest whole ▇▇▇▇▇) equal to (i) the exercise price per Alpha Common Share otherwise purchasable pursuant to such Alpha Warrant immediately prior to the Effective Time, divided by (ii) the Exchange Ratio. The term to expiry and, subject to compliance with listing conditions of the TSX-V, the conditions to and manner of exercising and all other terms and conditions of such Consideration Warrants will be the same as the Alpha Warrants for which it was exchanged, and Crystal shall, thereafter, issue a certificate to each holder of a Consideration Warrant to evidence such Consideration Warrant;
(f) with respect to each Alpha Warrant exchanged in accordance with Section 3.1(e) hereof:
(i) the registered holder of such Alpha Warrant immediately prior to such exchange shall cease to be the registered holder thereof, the name of such registered holder shall be removed from the register maintained by or on behalf of holders Alpha in respect thereof and the Alpha Warrants shall be cancelled;
(ii) the registered holder of Qualifying Holdco Shares such Alpha Warrant immediately prior to such exchange shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to exchange such Alpha Warrant with Crystal for the Consideration Warrant; and
(iii) the name of the registered holder of such Alpha Warrant immediately prior to such exchange shall be added to the register maintained by or on behalf of Crystal in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesConsideration Warrants.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, Time each of the following events or transactions shall occur and shall be deemed to occur sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five-minute intervals starting at the following sequence Effective Time:
(1) each of the Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formalityformality to the Purchaser, and:
(a) each outstanding Corporation Share held by a such Dissenting Shareholder Holders shall be deemed cease to be transferred by the holder thereof to the Corporation free holders of such Shares and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder Shareholders other than the right to be paid the fair value of their Corporation Shares by the Corporation Purchaser for such Shares as set out in accordance with Article 4 hereof, and the name of Section 3.1;
(b) such holder Dissenting Holders’ names shall be removed from the register registers of holders of Corporation Shares, and such Corporation Shares shall be cancelled;maintained by or on behalf of the Company; and
(bc) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as deemed to be the registered holder transferee of such Shares, and shall be entered in the register of Shares maintained by or on behalf of the Qualifying Holdco Shares so transferred Company and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and;
(c2) each Corporation Share outstanding (immediately prior to the Effective Time, other than (i) Corporation Shares held by Brookfield, the Purchaser a Dissenting Holder who has validly exercised such holder’s Dissent Rights or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not Purchaser, shall, without any further action by or on behalf of a Shareholder, be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be assigned and transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, thereof to the Applicable Purchaser, Purchaser in exchange for a payment in cash equal to the applicable Consideration, and in each case in accordance with the name election or deemed election of Shareholders pursuant to Section 2.4(3), and:
(a) the holders of such holder Shares shall cease to be the holders of such Shares and to have any rights as holders of such Shares other than the right to be paid the applicable Consideration in accordance with this Plan of Arrangement;
(b) such holders’ names shall be removed from the register of holders the Shares maintained by or on behalf of Corporation Shares, the Company; and, with respect to Corporation Shares elected to be transferred to the Purchaser,
(c) the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal transferee of such Shares and beneficial owner thereof, free and clear shall be entered in the register of any liens, claims the Shares maintained by or encumbrances.on behalf of the Company;
Appears in 1 contract
Sources: Arrangement Agreement (Telus Corp)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence sequence, except where noted, without any further act or formalityformality of or by the Company, the Acquiror or any other person:
(a) each outstanding Corporation Common Share held by a Dissenting Shareholder shall be deemed to be irrevocably transferred by the holder thereof to the Corporation Acquiror (free and clear of all liens, claims and encumbrances, and each Encumbrances) without any further act or formality and:
(i) such Dissenting Shareholder shall cease to be the holder of such Common Shares so transferred and to have any rights as holder of such Common Shares other than the right to be paid fair value for such Common Shares by the Acquiror as set out in Section 3.1;
(ii) such Dissenting Shareholder's name shall be removed as the holder of such Common Shares from the central securities register of holders of Common Shares maintained by or on behalf of the Company; and
(iii) the Acquiror shall become the sole legal and beneficial holder of such Common Shares so transferred (free and clear of all Encumbrances) and shall be entered in the central securities register of holders of Common Shares maintained by or on behalf of the Company; and
(b) concurrently with the step described in Section 2.3(a), each Common Share (other than those held by Dissenting Shareholders or the Acquiror) shall be irrevocably transferred to the Acquiror (free and clear of all Encumbrances), and the holder thereof shall be entitled to receive from the Acquiror the Transaction Consideration for such Common Share and upon the transfer of each such Common Share from such holder to the Acquiror pursuant to this Section 2.3(b):
(i) each such holder shall cease to be a holder of the Common Shares so transferred and cease to have any rights as a Corporation Shareholder holder of such Common Shares other than the right to be paid the fair value of their Corporation Transaction Consideration for such Common Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed as the holder of such Common Shares from the central securities register of holders of Corporation Shares, and such Corporation Common Shares shall be cancelled;maintained by or on behalf of the Company; and
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder the Acquiror shall be become the sole legal and beneficial holder of the Common Shares so transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, (free and clear of all liens, claims Encumbrances) and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from entered in the central securities register of holders of Qualifying Holdco Common Shares maintained in respect by or on behalf of the Company. Each holder of each Common Share, with respect to each step set out above applicable Qualifying Holdcoto such holder, and the Purchaser shall be recorded as deemed, at the registered holder of the Qualifying Holdco Shares so transferred time such step occurs, to have executed and shall be deemed delivered all consents, releases, assignments and waivers, statutory or otherwise, required to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; andtransfer such Common Share in accordance with such step.
(c) each Corporation holder of an Option which is outstanding and has not been duly exercised prior to the Effective Time, shall receive (and such holder shall accept), upon the exercise of such holder’s Option, in lieu of each Common Share outstanding (other than (i) Corporation Shares held by Brookfieldto which such holder was theretofore entitled upon such exercise and for the same aggregate consideration payable therefore, the Purchaser or any number of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Acquiror Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the ConsiderationExchange Ratio multiplied by the number of Common Shares subject to such Option immediately prior to the Effective Time, provided that if the foregoing would result in the issuance of a fraction of a Acquiror Share on any particular exercise of such Option, then the number of Acquiror Shares otherwise issued shall be rounded down to the nearest whole number of Acquiror Shares if such fraction is 0.5 or less and shall be rounded up to the name nearest whole number if such fraction is greater than 0.5. Such Option shall otherwise continue to be governed by and subject to its terms. The Options granted to charities, ▇▇▇▇▇ and any Optionholders who will be continuing as directors of the Acquiror outstanding on the Effective Date shall continue in effect on the same terms and conditions (subject to adjustments required after giving effect to the Arrangement including, without limitation, that such Options shall be exercisable for Acquiror Shares). All other Options shall continue in effect on the same terms and conditions (subject to adjustments required after giving effect to the Arrangement including, without limitation, that such Options shall be exercisable for Acquiror Shares) but shall expire ninety (90) days after the Effective Date without any other cost or obligation to the Acquiror.
(d) each holder of a Warrant which is outstanding and has not been duly exercised prior to the Effective Time, shall receive (and such holder shall be removed from accept), upon the register exercise of holders such holder’s Warrant, in lieu of Corporation Shareseach Common Share to which such holder was theretofore entitled upon such exercise and for the same aggregate consideration payable therefore, and, with respect to Corporation the number of Acquiror Shares elected to be transferred equal to the PurchaserExchange Ratio multiplied by the number of Common Shares subject to such Warrant immediately prior to the Effective Time, provided that if the Purchaser foregoing would result in the issuance of a fraction of a Acquiror Share on any particular exercise of such Warrant, then the number of Common Shares otherwise issued shall be recorded as rounded down to the registered holder nearest whole number of the Corporation Common Shares so transferred if such fraction is 0.5 or less and shall be deemed rounded up to the nearest whole number if such fraction is greater than 0.5. Such Warrant shall otherwise continue to be governed by and subject to its terms. All Warrants shall continue in effect on the legal same terms and beneficial owner thereofconditions (subject to adjustments required after giving effect to the Arrangement including, free and clear of any lienswithout limitation, claims or encumbrancesthat such Warrants shall be exercisable for Acquiror Shares).
Appears in 1 contract
Sources: Arrangement Agreement (Northern Dynasty Minerals LTD)
Arrangement. Commencing at the Effective Time, Time each of the following events or transactions shall occur and shall be deemed to occur sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five-minute intervals starting at the following sequence Effective Time:
(a) the Common Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formality:
(a) each outstanding Corporation Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof formality to the Corporation Purchaser (free and clear of all liensLiens) in consideration for the right to be paid the fair value of their Common Shares by the Purchaser in accordance with Article 3, claims and encumbrances, and each and:
(i) such Dissenting Shareholder Holders shall cease to be the holders of such Common Shares and to have any rights as a Corporation Shareholder holders of such Common Shares, other than the right to be paid the fair value for such Common Shares as set out in Section 3.1;
(ii) such Dissenting Holders’ names shall be removed as the holders of their Corporation such Common Shares from the registers of Common Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee and legal owner of such Common Shares, free and clear of all Liens, and shall be entered as the registered holder of such Common Shares in the registers of Common Shares maintained by or on behalf of the Company;
(b) each Common Share outstanding immediately prior to the Effective Time, other than Common Shares held by the Corporation Purchaser or any Dissenting Holder who has validly exercised such holder’s Dissent Right shall, without any further action by or on behalf of a holder of Common Shares, be deemed to be assigned and transferred by the holder thereof to the Purchaser (free and clear of all Liens) in exchange for the Consideration for each Common Share, and:
(i) the holders of such Common Shares shall cease to be the holders thereof and to have any rights as holders of such Common Shares, other than the right to be paid the Consideration per Common Share in accordance with Article 4 hereof, and the name this Plan of Arrangement;
(ii) such holder holders’ names shall be removed from the register of holders the Common Shares maintained by or on behalf of Corporation Shares, and such Corporation Shares shall be cancelled;the Company; and
(biii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the transferee and legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
such Common Shares (c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims Liens) and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded entered as the registered holder of such Common Shares in the Corporation register of the Common Shares so transferred and shall be deemed to be maintained by or on behalf of the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesCompany.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following transactions or events or transactions set out below shall occur and shall be deemed to occur in the following sequence sequence, in each case without any further authorization, act or formalityformality on the part of any Person, and in each case, unless otherwise specifically provided in this Section 3.2, effective as at two-second intervals starting at the Effective Time:
(a) each outstanding Corporation Company Floating Share held by a Dissenting Company Floating Shareholder shall be, and shall be deemed to be be, transferred to the Purchaser by the holder thereof to the Corporation thereof, free and clear of all liens, claims and encumbrancesLiens, and thereupon:
(i) each Dissenting Company Floating Shareholder shall cease to have any rights as a Corporation Shareholder holder of such Company Floating Shares other than the right to be paid the fair value of their Corporation Shares by the Corporation a claim against Canopy in an amount determined and payable in accordance with Article 4 hereof, and 4;
(ii) the name of such holder Dissenting Company Floating Shareholder shall be removed from the securities register for the Company Floating Shares; and
(iii) the Purchaser shall be deemed to be the transferee of holders of Corporation such Dissenting Shares, free and such Corporation Shares clear of all Liens, and the Purchaser shall be cancelledentered in the Company’s securities register for the Dissenting Shares as the legal owner of such transferred Dissenting Shares;
(b) each Qualifying Holdco Company Floating Share outstanding held by a Qualifying Holdco Company Floating Shareholder (other than the Purchaser, Canopy or their respective affiliates) shall be transferred transferred, and shall be deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its parttransferred, free and clear of all liensLiens, claims and encumbrances, by the holder thereof to the PurchaserPurchaser for the Canopy Share Consideration (or, in the event a Canopy Change of Control shall have occurred prior to the Effective Date, the Per Share Consideration), which Canopy Share Consideration or Per Share Consideration, as applicable, shall be paid in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Considerationprovisions of Article 5, and the name upon such transfer:
(A) each such former holder of such holder transferred Company Floating Shares shall be removed from the Company’s securities register for the Company Floating Shares;
(B) the Purchaser shall be entered in the Company’s securities register for the Company Floating Shares as the legal owner of holders such transferred Company Floating Shares; and
(C) each such former holder of Qualifying Holdco such transferred Company Floating Shares maintained shall, subject to Section 5.1 of this Plan of Arrangement, be entered in Canopy’s securities register for the Canopy Shares in respect of the applicable Qualifying HoldcoConsideration Shares issued to such holder pursuant to this Section 3.2(b), and or, to the Purchaser shall be recorded as extent applicable, in the registered securities register of the issuer of any Alternate Consideration that such former holder of Company Floating Shares is entitled to receive in lieu of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; andConsideration Shares;
(c) each Corporation Share outstanding Company Floating Option shall be exchanged for a Replacement Option to acquire from Canopy such number of Canopy Shares as is equal to: (other than A) the number of Company Floating Shares that were issuable upon exercise of such Company Floating Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio (provided that if any holder of Replacement Options, following the exchange pursuant to this Section 3.2(c), is holding in aggregate, Replacement Options that would result in the issuance of a fraction of a Canopy Share, then the number of Canopy Shares to be issued pursuant to such Replacement Options shall be rounded down to the nearest whole number). Such Replacement Options shall provide for an exercise price per Replacement Option (rounded up to the nearest whole cent) equal to the quotient obtained when: (i) Corporation Shares held the exercise price per Company Floating Share that would otherwise be payable pursuant to the Company Floating Option it replaces is divided by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcosthe Exchange Ratio, and any document evidencing a Company Floating Option shall thereafter evidence and be deemed to evidence such Replacement Option.
(i) Except as provided herein, all terms and conditions of a Replacement Option, including the Qualifying Holdco Shares term to expiry, conditions to and manner of exercising, will be the same as the Company Floating Option for which are acquired it was exchanged, and shall be governed by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under terms of the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the ConsiderationCanopy Equity Incentive Plan, and the name of such holder exchange shall be removed from the register of holders of Corporation Shares, and, not provide any optionee with respect any additional benefits as compared to Corporation Shares elected to be transferred to the Purchaserthose under his or her original Company Floating Option.
(ii) Notwithstanding clause (i) immediately above, the Purchaser shall be recorded as terms and conditions of those Replacement Options exchanged for Company Floating Options held by the registered holder Company Executives (the “Executive Company Floating Options”) pursuant to this Plan of the Corporation Shares so transferred and Arrangement shall be deemed to provide that such Replacement Options shall continue to vest according to the terms of the Executive Company Floating Options as at the date of the Arrangement Agreement, regardless of the resignation of the Company Executives from their positions or offices with the Company, provided that such Company Executives retain a position of employment with Acreage or an affiliate thereof. It is intended that subsection 7(1.4) of the Tax Act and Sections 1.424-1(a)(5) and 1.409A-1(b)(5)(v)(D) of the U.S. Treasury Regulations, as applicable, apply to the exchange of Company Floating Options provided for in this Section 3.2(c). Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option will be increased such that the Replacement Option In-The-Money Amount immediately after the exchange does not exceed the Company Floating Option In-The-Money Amount of the Company Floating Option (or a fraction thereof) exchanged for such Replacement Option immediately before the exchange and so on a share-by-share basis, the ratio of the exercise price to the fair market value of the Company Floating Options being exchanged shall not be less favourable to the optionee than the ratio of the exercise price to the fair market value of the Replacement Options immediately following the exchange;
(d) each Company Floating Warrant shall be exchanged for a Replacement Warrant to acquire from Canopy such number of Canopy Shares as is equal to: (A) the number of Company Floating Shares that were issuable upon exercise of such Company Floating Warrant immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio (provided that if any holder of Replacement Warrants, following the exchange pursuant to this Section 3.2(d), is holding in aggregate, Replacement Warrants that would result in the issuance of a fraction of a Canopy Share, then the number of Canopy Shares to be issued pursuant to such Replacement Warrants shall be rounded down to the nearest whole number). Such Replacement Warrants shall provide for an exercise price per whole Replacement Warrant (rounded up to the nearest whole cent) equal to the quotient obtained when: (i) the exercise price per Company Floating Share that would otherwise be payable pursuant to the Company Floating Warrant it replaces is divided by (ii) the Exchange Ratio, and any document evidencing a Company Floating Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant. Except as provided herein, all terms and conditions of a Replacement Warrant, including the term to expiry, conditions to and manner of exercising, will be the legal same as the Company Floating Warrant for which it was exchanged, and beneficial owner the exchange shall not provide any optionee with any additional benefits as compared to those under his or her original Company Floating Warrant; and
(e) each Company Floating Share Unit shall be exchanged for a Replacement Share Unit to acquire from Canopy such number of Canopy Shares as is equal to: (A) the number of Company Floating Shares that were issuable upon vesting of such Company Floating Share Unit immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio (provided that if any holder of Replacement Share Units, following the exchange pursuant to this Section 3.2(e), is holding in aggregate, Replacement Share Units that would result in the issuance of a fraction of a Canopy Share, then the number of Canopy Shares to be issued pursuant to such Replacement Share Units shall be rounded down to the nearest whole number). Any document evidencing a Company Floating Share Unit shall thereafter evidence and be deemed to evidence such Replacement Share Unit.
(i) Except as provided herein, all terms and conditions of a Replacement Share Unit, including the term to expiry, conditions to and manner of exercising, will be the same as the Company Floating Share Unit for which it was exchanged, and the exchange shall not provide any holder with any additional benefits as compared to those under his or her original Company Floating Share Unit.
(ii) Notwithstanding clause (i) immediately above, the terms and conditions of those Replacement Share Units exchanged for Company Floating Share Units held by the Company Executives (the “Executive Company Floating Share Units”) pursuant to this Plan of Arrangement shall be deemed to provide that such Replacement Share Units shall continue to vest according to the terms of the Executive Company Floating Options as at the date of the Arrangement Agreement, regardless of the resignation of the Company Executives from their positions or offices with the Company, provided that such Company Executives retain a position of employment with Acreage or an affiliate thereof, free and clear of any liens, claims or encumbrances.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence as set out below without any further authorization, act or formality, in each case effective as at two minute intervals starting at the Effective Time:
(a) each outstanding Corporation Share of the Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formality to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3, and:
(i) such Dissenting Holder shall cease to be the holder of such Common Shares and to have any rights as a Company Common Shareholder than the right to be paid fair value for such Common Shares as set out in Section 3.1;
(ii) such Dissenting Holder's name shall be removed as the holder of such Common Shares from the register of Common Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Common Shares free and clear of all Liens (other than the right to be paid fair value for such Common Shares as set out in Section 3.1), and shall be entered in the register of Common Shares maintained by or on behalf of the Company; and
(b) each Common Share, Company Debenture, Company Warrant and Company $0.50 Option outstanding immediately prior to the Effective Time (other than Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised under Section 2.3(a)) shall, without any further action by or on behalf of any Company Common Shareholder, Company Debentureholders, Company Warrantholder or holder of Company $0.50 Options be deemed to be assigned and transferred by the holder thereof to the Corporation free Purchaser in exchange for the Consideration and, if applicable, the Additional Consideration, and
(i) each holder of such Common Shares, Company Debentures, Company Warrants and clear of all liens, claims and encumbrances, and each Dissenting Shareholder Company $0.50 Options shall cease to be the holder thereof and to have any rights as a Corporation Shareholder Company Common Shareholder, Company Debentureholder, Company Warrantholder or holder of Company $0.50 Options other than the right to be paid the fair value of their Corporation Shares by the Corporation Consideration and Additional Consideration per Common Share, Company Debenture, Company Warrant or Company $0.50 Option, as applicable, in accordance with Article 4 hereof, and this Plan of Arrangement;
(ii) the name of each such holder shall be removed from the register of holders of Corporation the Common Shares, Company Debentures, Company Warrants and such Corporation Shares shall be cancelled;Company $0.50 Options, as applicable, maintained by or on behalf of the Company; and
(biii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal transferee of such Common Shares, Company Debentures, Company Warrants and beneficial owner thereof, Company $0.50 Options free and clear of any liensall Liens and shall be entered in the register of the Common Shares, claims Company Debentures, Company Warrants and Company $0.50 Options maintained by or encumbrances; andon behalf of the Company.
(c) each Corporation Share Company $0.35 Option outstanding at the Effective Time (other than (iwhether vested or unvested) Corporation will be exchanged for a Replacement Option to acquire such number of Purchaser Shares held by Brookfield, the Purchaser or any as is equal to that number of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or Common Shares that were issuable upon exercise of such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, Company $0.35 Option immediately prior to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesEffective Time.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at 3.1 On the Effective TimeDate, subject to the provisions of Article 5 hereof, the following events or transactions shall will occur and shall will be deemed to occur in the following sequence without any further authorization, act or formality:formality:
(a) each issued Mylk Share outstanding Corporation Share immediately prior to the Effective Time held by a Dissenting Mylk Shareholder shall in respect of which Dissent Rights have been validly exercised will be deemed to be have been transferred by the holder thereof without any further act or formality, to the Corporation EATS, free and clear of all any liens, claims and encumbrancesencumbrances in consideration for a debt claim against EATS in an amount and payable in accordance with Article 5, and:
(i) such Mylk Shareholder will cease to be the registered holder of such Dissenting Shares and each Dissenting Shareholder shall will cease to have any rights as a Corporation Shareholder registered holders of such Mylk Shares other than the right to be paid the fair value of their Corporation for such Dissenting Shares by as set out in Section 5.2(a);
(ii) such Mylk Shareholder’s name will be removed as the Corporation in accordance with Article 4 hereof, and the name registered holder of such holder shall be removed Dissenting Shares from the register registers of holders Mylk Shares maintained by or on behalf of Corporation Mylk; and
(iii) EATS will be deemed to be the transferee of such Dissenting Shares, free and such Corporation Shares shall be cancelled;clear of any liens, claims and encumbrances; and
(b) immediately thereafter, each Qualifying Holdco issued and outstanding Mylk Share outstanding held by (other than any Mylk Share in respect of which a Qualifying Holdco registered Mylk Shareholder shall has validly exercised his, her or its Dissent Right) will be transferred to, and deemed to be transferred acquired by the Qualifying Holdco ShareholderEATS, without any further act or formality on its partthe part of the holder of such Mylk Share or EATS, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash such number of EATS Shares equal to the Holdco Share ConsiderationExchange Ratio, provided that the aggregate number of EATS Shares payable to any Mylk Shareholder, if calculated to include a fraction of a EATS Share, will be rounded down to the nearest whole EATS Share, with no consideration being paid for the fractional share, and the name of each such holder shall Mylk Shareholder will be removed from the register of holders of Qualifying Holdco Mylk Shares maintained in respect and added to the register of the applicable Qualifying Holdcoholders of EATS Shares, and the Purchaser shall EATS will be recorded as the registered holder of the Qualifying Holdco such Mylk Shares so transferred exchanged and shall will be deemed to be the legal and beneficial owner thereofthereof.
3.2 From the Effective Time, free and clear of where Mylk is required to issue Mylk Shares to any liensperson or entity pursuant to any Mylk Warrant, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser any convertible securities or any other agreement or arrangement (and such issuance of their affiliates (which shall Mylk Shares is not otherwise addressed in this Plan of Arrangement) such obligation will be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired satisfied by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, delivery to the Applicable Purchaser, in exchange for a payment in cash person or entity entitled to receive such Mylk Shares the number of EATS Shares equal to the ConsiderationExchange Ratio that the person or entity would have been entitled to receive if the Mylk Shares had been issued immediately before the Effective Time, and the name person or entity entitled to receive the Mylk Shares will be bound by the terms of such holder shall be removed from the register this Plan of holders Arrangement and will receive and accept EATS Shares in lieu of Corporation Mylk Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at At the Effective Time, prior to the Merger becoming effective in accordance with the relevant provisions of the DCGL, the following events or transactions shall occur and shall be deemed to occur sequentially in the following sequence without any further authorization, act or formality, in each case, unless stated otherwise:
(a) the Rights Agreement shall be terminated (and all rights thereunder shall expire) and shall be of no further force or effect;
(b) each outstanding Corporation Company Common Share held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised and not withdrawn shall be, and shall be deemed to be be, transferred and assigned by the holder thereof to Amalgamation Sub without any further act or formality by or on behalf of the Corporation free Dissenting Shareholder in consideration for the right to receive an amount determined and clear of all lienspayable in accordance with Article 4, claims and encumbrances, and each and:
(i) such Dissenting Shareholder shall cease to be the holder of such Company Common Shares and to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation receive an amount determined and payable in accordance with Article 4 hereof;
(ii) the name of such Dissenting Shareholder shall be removed from the register of Company Shareholders maintained by or on behalf of the Company; and
(iii) Amalgamation Sub shall be recorded in the register of Company Shareholders maintained by or on behalf of the Company as the registered holder of such Company Common Share and shall be, and be deemed to be, the legal and beneficial owner thereof free and clear of all Liens;
(c) the outstanding Company Common Shares (other than any Company Common Shares held by Dissenting Shareholders or by Amalgamation Sub or any of its Affiliates) shall be, and shall be deemed to be, transferred and assigned by the holders thereof to Amalgamation Sub without any further act or formality by or on behalf of the holders of such Company Common Shares in exchange for the issuance on behalf of Amalgamation Sub by Holdings to the holders thereof of a number of fully paid and non-assessable Holdings Class A Common Shares equal to the Exchange Ratio, which (together with Holdings Equity Awards issued in respect of Company Equity Awards) shall be the equivalent of 43.0% of the Fully Diluted Holdings Common Shares issued and outstanding immediately following the Closing, and in respect of each Company Common Share so transferred and assigned:
(i) the holder thereof shall cease to be the holder of such Company Common Share and to have any rights as a Company Shareholder, other than the right to receive the Holdings Class A Common Shares to be issued pursuant to this Section 3.1(c);
(ii) the name of such holder shall be removed from the register of holders Company Shareholders maintained by or on behalf of Corporation Sharesthe Company; and
(iii) Amalgamation Sub shall be recorded in the register of Company Shareholders maintained by or on behalf of the Company as the registered holder of such Company Common Share, and such Corporation Shares shall be, and be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by be, the Qualifying Holdco Shareholder, without any further act or formality on its part, legal and beneficial owner thereof free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance Liens;
(d) concurrent with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereofpreceding step, without any further act or formality action on its partthe part of any holder thereof, free and clear any of all liensthe Parties, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, each then-outstanding Company Equity Award and the name of such holder Company ESPP shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded treated as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.follows:
Appears in 1 contract
Sources: Arrangement Agreement and Plan of Merger (Primo Water Corp /CN/)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur two minutes apart and in the following sequence order without any further act or formality:
(a) each outstanding Corporation The AuRico 2013 Rights Plan shall not apply to this Arrangement.
(b) Alamos shall subscribe for <@> AuRico Shares for a purchase price of $<@> per AuRico Share.
(c) The Depository shall release to AuRico the Escrowed Subscription Proceeds as payment in full by Alamos of the subscription price for the AuRico Shares referred to in Section 2.3(b).
(d) AuRico shall issue <@> AuRico Shares to Alamos pursuant to the share subscription referred to in Section 2.3(b) above.
(e) AuRico shall sell and transfer to New AuRico all of AuRico’s right, title and interest in the New AuRico Property, New AuRico shall assume, and shall pay, discharge and perform, the New AuRico Liabilities and the Earn-In Covenants shall become effective, all in accordance with the terms of the New AuRico Contribution Agreement.
(f) Each Alamos Share held by a Dissenting Alamos Shareholder shall shall, without any further action by or on behalf of such Dissenting Alamos Shareholder, be deemed to be have been transferred by and assigned to Alamos in consideration for a debt claim against Alamos determined in accordance with Section 3.2.
(g) With respect to each Alamos Share transferred and assigned to Alamos in accordance with Section 2.3(f):
(i) the holder thereof of such Alamos Share immediately prior to the Corporation free such transfer and clear of all liens, claims and encumbrances, and each Dissenting Shareholder assignment shall cease to have any rights as a Corporation Shareholder other than be the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereofholder thereof, and the name of such holder shall be removed from the register maintained by or on behalf of holders Alamos in respect of Corporation the Alamos Shares, and such Corporation Shares Alamos Share shall be cancelled;; and
(bii) each Qualifying Holdco the holder of such Alamos Share outstanding immediately prior to such transfer and assignment shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Alamos Share to Alamos.
(h) Each AuRico Share held by a Qualifying Holdco Dissenting AuRico Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholdershall, without any further act action by or formality on its partbehalf of such Dissenting AuRico Shareholder, free be deemed to have been transferred and clear of all liens, claims and encumbrances, assigned to the Purchaser, AuRico in consideration for a debt claim against AuRico determined in accordance with Section 3.1.
(i) With respect to each AuRico Share transferred and assigned to AuRico in accordance with Section 2.3(h):
(i) the applicable Holdco Agreementholder of such AuRico Share immediately prior to such transfer and assignment shall cease to be the holder thereof, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register maintained by or on behalf of holders of Qualifying Holdco Shares maintained AuRico in respect of the applicable Qualifying HoldcoAuRico Shares, and the Purchaser such AuRico Share shall be recorded as cancelled; and
(ii) the registered holder of the Qualifying Holdco Shares so transferred such AuRico Share immediately prior to such transfer and assignment shall be deemed to be the legal have executed and beneficial owner thereofdelivered all consents, free releases, assignments and clear of any lienswaivers, claims statutory or encumbrances; andotherwise, required to transfer and assign such AuRico Share to AuRico.
(cj) each Corporation Each Alamos Share outstanding (other than (i) Corporation excluding any Alamos Shares held by BrookfieldDissenting Alamos Shareholders) shall, the Purchaser without further action by or any on behalf of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free be transferred and clear of all liens, claims and encumbrances, assigned to the Applicable Purchaser, AuRico in exchange for a payment in cash equal (i) the issuance to the Considerationholder of that number of AuRico Shares determined by the Alamos Exchange Ratio and (ii) subject to Section 4.7, $0.0001.
(k) With respect to each Alamos Share transferred and assigned to AuRico in accordance with Section 2.3(j):
(i) the holder of such Alamos Share immediately prior to such transfer and assignment shall cease to be the holder thereof, the name of such holder shall be removed from the register maintained by or on behalf of holders Alamos in respect of Corporation the Alamos Shares, and, with respect to Corporation Shares elected to and the name of AuRico shall be transferred added to the Purchaser, register maintained by or on behalf of Alamos in respect of the Purchaser Alamos Shares as the holder of such of Alamos Share;
(ii) the holder of such Alamos Share immediately prior to such transfer and assignment shall be recorded deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Alamos Share to AuRico; and
(iii) the holder of such Alamos Share immediately prior to such transfer and assignment shall be added to the register maintained by or on behalf of AuRico in respect of the AuRico Shares as the registered holder of the Corporation AuRico Shares so transferred issued to such holder.
(l) For purposes of the OBCA, the amount added to the stated capital in respect of the AuRico Shares issued to the holders of the Alamos Shares shall be equal to the fair market value of the Alamos Shares in consideration for which such AuRico Shares were issued less the aggregate amount of cash paid by AuRico pursuant to Section 2.3(j).
(m) Each Alamos Option outstanding immediately prior to the Effective Time shall be exchanged for an option (a “Replacement Option”) granted by AuRico to acquire that number of AuRico Shares equal to the product of the Alamos Exchange Ratio multiplied by the number of Alamos Shares subject to such Alamos Option, provided that the number of AuRico Shares issuable pursuant to such Replacement Option shall be rounded down to the nearest whole number of AuRico Shares. Such Replacement Option shall have an exercise price per AuRico Share equal to the exercise price per Alamos Share of such Alamos Option immediately prior to the Effective Time divided by the Alamos Exchange Ratio, provided that the exercise price of such Replacement Option shall be, and shall be deemed to be, adjusted by the amount, and only to the extent, necessary to ensure that the In the Money Amount of such Replacement Option does not exceed the In the Money Amount of such Alamos Option before the exchange. Except, as provided in this Section 2.3(m), the term to expiry, conditions to and manner of exercising, vesting schedule and all other terms and conditions of such Replacement Option will be the legal same as the Alamos Option for which it is exchanged, and beneficial owner any document or agreement previously evidencing such Alamos Option shall thereafter evidence and be deemed to evidence such Replacement Option.
(n) Each Alamos SAR outstanding prior to the Effective Time shall be exchanged for an award (a “Replacement SAR”) granted by AuRico and the value of such Replacement SAR shall be equal to the value of such Alamos SAR immediately prior to the Effective time and shall be determined with reference to AuRico Shares (or any shares for which such AuRico Shares are converted, including Amalco Shares) based on the Alamos Exchange Ratio. Except as provided in this Section 2.3(n), the terms and conditions of the Replacement SARs will be the same as the Alamos SAR for which it is exchanged, any document or agreement previously evidencing an Alamos SAR shall thereafter evidence and be deemed to evidence such Replacement SAR and AuRico shall assume, and shall pay, discharge and perform the liabilities and obligations of Alamos under the Alamos SAR Plan and amended by this Section 2.3(n).
(o) With respect to each Alamos Option and Alamos SAR exchange in accordance with Sections 2.3(m) or 2.3(n), as applicable:
(i) the holder of such Alamos Option or Alamos SAR immediately prior to such exchange shall cease to be the holder thereof, free the name of such holder shall be removed from the register maintained by or on behalf of Alamos in respect thereof, and clear the Alamos Options and Alamos SARs shall be cancelled;
(ii) the holder of such Alamos Option or Alamos SAR immediately prior to such exchange shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to exchange such Alamos Option or Alamos SAR with AuRico for the Replacement Option or Replacement SAR, respectively; and
(iii) the name of the holder of such Alamos Option or Alamos SAR immediately prior to such exchange shall be added to the register maintained by or on behalf of AuRico in respect of the Replacement Options or Replacement SARs, respectively.
(p) Alamos shall make a non-interest bearing loan payable on demand to AuRico an amount equal to the AuRico Loan Proceeds.
(q) The Depository shall release to AuRico the AuRico Loan Proceeds in satisfaction in full of the advance by Alamos of the loan to AuRico referred to in Section 2.3(p).
(r) The aggregate stated capital in respect of the Alamos Shares shall be reduced to C$1.00 without any liens, claims or encumbrancesrepayment of capital in respect thereof.
(s) AuRico and Alamos shall be amalgamated and continued as one corporation under the OBCA in accordance with the following:
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order (except that the issuance of Exchangeable Shares pursuant to Section 2.2(b) and the entering into of the Support Agreement and Voting and Exchange Trust Agreement pursuant to Section 2.2(e) shall occur and be deemed to occur simultaneously at the time of the issuance of Exchangeable Shares pursuant to Section 2.2(b)) without any further act or formality:
(a) the issued and outstanding Common Shares held by each outstanding Corporation Share holder of Common Shares other than:
(i) the Exchangeable Elected Shares;
(ii) Common Shares held by a Dissenting Shareholder holder who has exercised its Dissent Rights and is ultimately entitled to be paid the fair value of its Common Shares (as determined in accordance with Section 3.1); and
(iii) Common Shares held by Parent or any Affiliate thereof, shall be deemed to be transferred by the holder thereof to Purchaser, without any further act or formality on the Corporation part of the holder of such Common Shares and free and clear of all liens, claims and encumbrances, in exchange for a number of fully paid and each Dissenting Shareholder shall cease non-assessable Parent Shares equal to have any rights as a Corporation Shareholder other than the right to be paid product of the fair value total number of their Corporation Common Shares held by that holder multiplied by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;Exchange Ratio.
(b) each Qualifying Holdco Exchangeable Elected Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholderholder thereof to Purchaser, without any further act or formality on its part, part and free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash number of Exchangeable Shares (and certain Ancillary Rights) equal to the Holdco Share Considerationproduct of the total number of Common Shares held by that holder multiplied by the Exchange Ratio, as set forth in the validly completed and delivered Letter of Transmittal and Election Form of the name holder of such holder Exchangeable Elected Share;
(c) the names of the holders of the Common Shares transferred to Purchaser in exchange for Parent Shares pursuant to Section 2.2(a) shall be removed from the applicable register of holders of Qualifying Holdco Common Shares maintained in respect of and added to the applicable Qualifying Holdcoregister of holders of Parent Shares, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Common Shares so transferred exchanged and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.;
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following transactions or events or transactions set out below shall occur and shall be deemed to occur in the following sequence sequence, in each case without any further authorization, act or formalityformality on the part of any Person, and in each case, unless otherwise specifically provided in this Section 0, effective as at two-second intervals starting at the Effective Time:
(a) each outstanding Corporation Company Floating Share held by a Dissenting Company Floating Shareholder shall be, and shall be deemed to be be, transferred to the Purchaser by the holder thereof to the Corporation thereof, free and clear of all liens, claims and encumbrancesLiens, and thereupon:
(i) each Dissenting Company Floating Shareholder shall cease to have any rights as a Corporation Shareholder holder of such Company Floating Shares other than the right to be paid the fair value of their Corporation Shares by the Corporation a claim against Canopy in an amount determined and payable in accordance with Article 4 hereof, and 0;
(ii) the name of such holder Dissenting Company Floating Shareholder shall be removed from the securities register for the Company Floating Shares; and
(iii) the Purchaser shall be deemed to be the transferee of holders of Corporation such Dissenting Shares, free and such Corporation Shares clear of all Liens, and the Purchaser shall be cancelledentered in the Company’s securities register for the Dissenting Shares as the legal owner of such transferred Dissenting Shares;
(b) each Qualifying Holdco Company Floating Share outstanding held by a Qualifying Holdco Company Floating Shareholder (other than the Purchaser, Canopy or their respective affiliates) shall be transferred transferred, and shall be deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its parttransferred, free and clear of all liensLiens, claims and encumbrances, by the holder thereof to the PurchaserPurchaser for the Canopy Share Consideration (or, in the event a Canopy Change of Control shall have occurred prior to the Effective Date, the Per Share Consideration), which Canopy Share Consideration or Per Share Consideration, as applicable, shall be paid in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Considerationprovisions of 0, and the name upon such transfer:
(A) each such former holder of such holder transferred Company Floating Shares shall be removed from the Company’s securities register for the Company Floating Shares;
(B) the Purchaser shall be entered in the Company’s securities register for the Company Floating Shares as the legal owner of holders such transferred Company Floating Shares; and
(C) each such former holder of Qualifying Holdco such transferred Company Floating Shares maintained shall, subject to Section 0 of this Plan of Arrangement, be entered in Canopy’s securities register for the Canopy Shares in respect of the applicable Qualifying HoldcoConsideration Shares issued to such holder pursuant to this Section 0, and or, to the Purchaser shall be recorded as extent applicable, in the registered securities register of the issuer of any Alternate Consideration that such former holder of Company Floating Shares is entitled to receive in lieu of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; andConsideration Shares;
(c) each Corporation Share outstanding Company Floating Option shall be exchanged for a Replacement Option to acquire from Canopy such number of Canopy Shares as is equal to: (other than A) the number of Company Floating Shares that were issuable upon exercise of such Company Floating Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio (provided that if any holder of Replacement Options, following the exchange pursuant to this Section 0, is holding in aggregate, Replacement Options that would result in the issuance of a fraction of a Canopy Share, then the number of Canopy Shares to be issued pursuant to such Replacement Options shall be rounded down to the nearest whole number). Such Replacement Options shall provide for an exercise price per Replacement Option (rounded up to the nearest whole cent) equal to the quotient obtained when: (i) Corporation Shares held the exercise price per Company Floating Share that would otherwise be payable pursuant to the Company Floating Option it replaces is divided by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcosthe Exchange Ratio, and any document evidencing a Company Floating Option shall thereafter evidence and be deemed to evidence such Replacement Option.
(i) Except as provided herein, all terms and conditions of a Replacement Option, including the Qualifying Holdco Shares term to expiry, conditions to and manner of exercising, will be the same as the Company Floating Option for which are acquired it was exchanged, and shall be governed by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under terms of the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the ConsiderationCanopy Equity Incentive Plan, and the name of such holder exchange shall be removed from the register of holders of Corporation Shares, and, not provide any optionee with respect any additional benefits as compared to Corporation Shares elected to be transferred to the Purchaserthose under his or her original Company Floating Option.
(ii) Notwithstanding clause (i) immediately above, the Purchaser shall be recorded as terms and conditions of those Replacement Options exchanged for Company Floating Options held by the registered holder Company Executives (the “Executive Company Floating Options”) pursuant to this Plan of the Corporation Shares so transferred and Arrangement shall be deemed to provide that such Replacement Options shall continue to vest according to the terms of the Executive Company Floating Options as at the date of the Arrangement Agreement, regardless of the resignation of the Company Executives from their positions or offices with the Company, provided that such Company Executives retain a position of employment with Acreage or an affiliate thereof. It is intended that subsection 7(1.4) of the Tax Act and Sections 1.424-1(a)(5) and 1.409A-1(b)(5)(v)(D) of the U.S. Treasury Regulations, as applicable, apply to the exchange of Company Floating Options provided for in this Section 3.2(c). Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option will be increased such that the Replacement Option In-The- Money Amount immediately after the exchange does not exceed the Company Floating Option In-The-Money Amount of the Company Floating Option (or a fraction thereof) exchanged for such Replacement Option immediately before the exchange and so on a share-by-share basis, the ratio of the exercise price to the fair market value of the Company Floating Options being exchanged shall not be less favourable to the optionee than the ratio of the exercise price to the fair market value of the Replacement Options immediately following the exchange;
(d) each Company Floating Warrant shall be exchanged for a Replacement Warrant to acquire from Canopy such number of Canopy Shares as is equal to: (A) the number of Company Floating Shares that were issuable upon exercise of such Company Floating Warrant immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio (provided that if any holder of Replacement Warrants, following the exchange pursuant to this Section 0, is holding in aggregate, Replacement Warrants that would result in the issuance of a fraction of a Canopy Share, then the number of Canopy Shares to be issued pursuant to such Replacement Warrants shall be rounded down to the nearest whole number). Such Replacement Warrants shall provide for an exercise price per whole Replacement Warrant (rounded up to the nearest whole cent) equal to the quotient obtained when: (i) the exercise price per Company Floating Share that would otherwise be payable pursuant to the Company Floating Warrant it replaces is divided by (ii) the Exchange Ratio, and any document evidencing a Company Floating Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant. Except as provided herein, all terms and conditions of a Replacement Warrant, including the term to expiry, conditions to and manner of exercising, will be the legal same as the Company Floating Warrant for which it was exchanged, and beneficial owner thereof, free and clear of the exchange shall not provide any liens, claims optionee with any additional benefits as compared to those under his or encumbrances.her original Company Floating Warrant; and
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order set out below without any further authorizations, act or formality, in each case effective as at two minute intervals starting at the Effective Time:
(a) each outstanding Corporation Share of the Company Shares held by a Dissenting Shareholder Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have transferred, without further act or formality by or on behalf of any Dissenting Holder, to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3 , and:
(i) such Dissenting Holder shall cease to be transferred by the holder thereof to the Corporation free of such Company Shares and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value for such Company Shares, as set out in Section 3.1;
(ii) such Dissenting Holder's name shall be removed as the holder of their Corporation Company Shares from the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares, free and clear of all Liens (other than the right to be paid fair value for such Company Shares as set out in Section 3.1), and shall be entered into the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(b) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company Legacy Equity Incentive Plan or Company PRSU Plan or applicable Law), each Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further act or formality by or on behalf of any Company RSU Holder, be deemed to be fully vested and shall be surrendered by the Corporation holder thereof to the Company (free and clear of all Liens) and cancelled in accordance with Article 4 hereofexchange for the applicable Company RSU Consideration; and
(i) the relevant holder of such Company RSU will be issued Company Shares equal to the Company RSU Net Payment, having a fair market value equal to the Company RSU Consideration, net of applicable source deductions, and the Company RSU Net Payment issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non-assessable Company Shares;
(ii) the Company RSU Balance Shares will be issued in trust for the relevant holder of such Company RSU to a securities dealer designated by the Purchaser, who is authorized on behalf of the relevant holder of such Company RSU, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such Company RSU Balance Shares pursuant to Section (h) to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such Company RSUs, and the Company RSU Balance Shares issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non-assessable Company Shares;
(iii) each holder of such Company RSU shall cease to be the holder thereof and to have any rights as a Company RSU Holder;
(iv) the name of each such holder shall be removed from the register of holders the Company RSU Holders maintained by or on behalf of Corporation the Company;
(v) each such former holder of such Company RSU shall be deemed to be the holder of the Company Shares comprising the Company RSU Consideration and shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company and such Company Shares shall be issued to such former holder of such Company RSUs as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares; and
(vi) all Award Agreements in respect of Company RSUs, grants and such Corporation Shares similar instruments relating thereto shall be cancelled;
(bc) notwithstanding any vesting provisions to which a Company PSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company Legacy Equity Incentive Plan or Company PRSU Plan or applicable Law), each Qualifying Holdco Share Company PSU issued and outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed immediately prior to be transferred by the Qualifying Holdco ShareholderEffective Time shall, without any further act or formality by or on its partbehalf of any Company PSU Holder, be deemed to be fully vested and shall be surrendered by the holder thereof to the Company (free and clear of all liensLiens) and cancelled in exchange for the applicable Company PSU Consideration; and
(i) the relevant holder of such Company PSU will be issued Company Shares equal to the Company PSU Net Payment, claims having a fair market value equal to the Company PSU Consideration, net of applicable source deductions, and encumbrances, the Company PSU Net Payment issuable in connection therewith will be deemed to be issued to such holder of such Company PSUs as fully-paid and non-assessable Company Shares;
(ii) the Company PSU Balance Shares will be issued in trust for the relevant holder of such Company PSU to a securities dealer designated by the Purchaser, who is authorized on behalf of the relevant holder of such Company PSU, to sell in accordance with the applicable Holdco Agreement, capital markets or otherwise the Purchaser Shares received in exchange for a payment such Company PSU Balance Shares pursuant to Section 2.3(h) to realize cash proceeds to satisfy the applicable source deductions in cash equal to respect of the Holdco Share Considerationsurrender of such Company PSUs, and the Company PSU Balance Shares issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non-assessable Company Shares;
(iii) each holder of such Company PSU shall cease to be the holder thereof and to have any rights as a Company PSU Holder;
(iv) the name of each such holder shall be removed from the register of holders of Qualifying Holdco Shares the Company PSU Holders maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered Company;
(v) each such former holder of the Qualifying Holdco Shares so transferred and such Company PSU shall be deemed to be the legal holder of the Company Shares comprising the Company PSU Consideration and beneficial owner thereofshall be entered in the register of the Company Shareholders maintained by or on behalf of the Company, free and clear such Company Shares shall be issued to such former holder of any lienssuch Company PSUs as fully paid and non-assessable Company Shares, claims or encumbrancesprovided that no share certificates shall be issued with respect to such Company Shares;
(vi) all Award Agreements in respect of Company PSUs, grants and similar instruments relating thereto shall be cancelled; and
(cvii) the Company PRSU Plan shall be terminated, and none of the Company nor the Purchaser shall have any further liabilities or obligations thereunder;
(d) each Corporation Share outstanding Company Out-Of-The-Money Option will be cancelled without any payment in respect thereof and the holder thereof will cease to be the holder of such Company Option, will cease to have any rights as a holder in respect of such Company Option, will be removed from the register of the Company Options, and all option agreements, grants and similar instruments relating thereto will be cancelled, and none of the Company nor the Purchaser shall have any further liabilities or obligations with respect thereto;
(other than e) notwithstanding any vesting provisions to which a TJAC Option might otherwise be subject (i) Corporation Shares held whether by Brookfieldcontract, the Purchaser terms and conditions of any Award Agreement or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfieldgrant, the Purchaser terms and conditions of the TJAC Option Plan or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)applicable Law), shall be transferred each TJAC Option issued and deemed outstanding immediately prior to be transferred by the holder thereofEffective Time shall, without any further act or formality by or on its partbehalf of any TJAC Optionholder, be deemed to be fully vested and shall be surrendered by the holder thereof to TJAC (free and clear of all liens, claims Liens) and encumbrances, to the Applicable Purchaser, cancelled in exchange for a payment in cash Company In-The-Money Option as described below pursuant to Subsection 7(1.4) of the Tax Act; and
(i) TJAC will issue such number of TJAC common shares to the Company that is equal to the Considerationaggregate number of Company Shares required to be delivered by the Company pursuant to Sections 2.3(f)(i) and 2.3(f)(ii) in respect of Company In-The-Money Options granted pursuant to Section 2.3(e)(ii);
(ii) the Company will grant a Company In-The-Money Option under the Company Option Plan for each TJAC Option with the Company In-The Money Option issued in exchange for a particular TJAC Option being exercisable for a number of Company Shares equal to the product of the TJAC Option Ratio and the number of TJAC common shares for which the particular TJAC Option was exercisable immediately prior to the exchange, and such Company In-The-Money Option having an exercise price equal to the exercise price of the particular TJAC Option;
(iii) each holder of such TJAC Option shall cease to be the holder thereof and to have any rights as a TJAC Optionholder;
(iv) the name of each such holder shall be removed from the register of holders the TJAC Optionholders maintained by or on behalf of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered TJAC;
(v) each such former holder of the Corporation Shares so transferred and such TJAC Option shall be deemed to be the legal holder of Company In-The-Money Options; and
(vi) all Award Agreements in respect of TJAC Options, grants and beneficial owner thereofsimilar instruments relating thereto shall be cancelled; and
(f) each Company In-The-Money Option will be surrendered and cancelled in exchange for:
(i) the relevant In-The-Money Amount and the relevant Company Optionholder will be issued the Company Option Shares, having a fair market value equal to the relevant aggregate In-The-Money Amount, net of applicable source deductions, and the Company Option Shares will be deemed to be issued to such Company Optionholder as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares;
(ii) the Company Option Balance Shares, which will be issued in trust for the relevant Company Optionholder to a securities dealer designated by the Purchaser, who will be authorized on behalf of the relevant holder of such Company Optionholder, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such Company Option Balance Shares pursuant to Section 2.3(h) to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such Company Options and the Company Option Balance Shares will be deemed to be issued to such Company Optionholder as fully paid and non-assessable Company Shares; and
(iii) the holder of such Company Option will cease to be the holder of such Company Option, will cease to have any rights as a holder in respect of such Company Option, will be removed from the applicable register of the Company Options, and all Award Agreements relating thereto will be cancelled, and neither the Company nor the Purchaser shall have any further liabilities or obligations with respect thereto (g) the Company Option Plan, the Company Legacy Equity Incentive Plan and the TJAC Option Plan shall each be terminated, and none of the Company nor the Purchaser shall have any further liabilities or obligations thereunder.
(h) each Company Share outstanding immediately prior to the Effective Time (other than Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised under Section 2.3(a) shall be deemed to be assigned and transferred by the holder thereof to the Purchaser in exchange for the Consideration; and
(i) each holder of such Company Shares shall cease to be the holder thereof and to have any rights as a Company Shareholder, other than the right to be paid the Consideration per Company Share in accordance with this Plan of Arrangement;
(ii) the name of the each such holder of Company Shares shall be removed from the register of the Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares, free and clear of any liensall Liens, claims and shall be entered in the register of the Company Shareholders maintained by or encumbranceson behalf of the Company.
Appears in 1 contract
Arrangement. Commencing at Pursuant to the Effective TimeArrangement, each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Effective Time:
(a1) each Corporation Option, whether vested or unvested, that is outstanding Corporation Share held by a Dissenting Shareholder immediately prior to the Effective Time, notwithstanding the terms of the Stock Option Plan or any applicable Option Agreement in relation thereto, shall be unconditionally vested and exercisable, and shall be, without any further action by or on behalf of the holder of such Corporation Option, deemed to be surrendered, assigned and transferred by the holder thereof to the Corporation in exchange for, subject to Section 4.4, a cash payment (without interest) by or on behalf of the Corporation equal to the amount (if any) by which the Consideration exceeds the exercise price of such Corporation Option, multiplied by the number of Shares such Corporation Option entitles the holder to purchase, and each such Corporation Option shall immediately be cancelled and terminated and, for certainty where such amount is zero or negative for any such Corporation Option, none of the Corporation, the Purchaser or any other Person shall be obligated to, and the holder shall not be entitled to, any payment in respect of such Corporation Option, and, with respect to each Corporation Option that is surrendered pursuant to this Section 2.3(1), as of the effective time of such surrender: (A) the holder thereof shall cease to be the holder of such Corporation Option, (B) the holder thereof shall cease to have any rights as a holder in respect of such Corporation Option, or under the Stock Option Plan or Option Agreement, other than the right to receive the consideration, if any, to which such holder is entitled pursuant to this Section 2.3(1), (C) such holder's name shall be removed from the applicable register of Corporation Options, and (D) all agreements, grants and similar instruments relating thereto shall be cancelled; and
(2) each outstanding Share held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formality by the holder thereof to the Purchaser (free and clear of all liensLiens), claims and encumbrances, and each and:
(a) such Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation its Shares by the Corporation Purchaser in accordance with Article 4 hereof, and ARTICLE 3;
(b) the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares maintained by or on behalf of the Corporation; and
(c) the Purchaser shall be cancelled;recorded on the register of holders of Shares maintained by or on behalf of the Corporation as the holder of the Shares so transferred and shall be deemed to be the legal and beneficial owner thereof (free and clear of all Liens); and
(b3) each Qualifying Holdco outstanding Share outstanding (other than (i) Shares held by a Qualifying Holdco any Dissenting Shareholder who has validly exercised such holder's Dissent Rights and (ii) Shares held by the Purchaser) shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, by the holder thereof to the Purchaser (free and clear of all liensLiens) in exchange for the Consideration, claims and encumbrances, and
(a) the holder of such Share shall cease to have any rights as a Shareholder other than the Purchaser, right to be paid the Consideration per Share in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and this Plan of Arrangement;
(b) the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect by or on behalf of the applicable Qualifying Holdco, and Corporation; and
(c) the Purchaser shall be recorded on the register of holders of Shares maintained by or on behalf of the Corporation as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, thereof (free and clear of any liens, claims or encumbrancesall Liens); and
(c4) each Corporation Share Warrant, whether vested or unvested, that is outstanding immediately prior to the Effective Time, notwithstanding the terms of any applicable Warrant Certificate and Warrant Indenture in relation thereto, shall be unconditionally vested and exercisable and shall be, without any further action by or on behalf of the holder of such Corporation Warrant, deemed to be surrendered, assigned and transferred by the holder thereof to the Corporation in exchange for, subject to Section 4.4, a cash payment (other than without interest) from the Corporation equal to the amount (iif any) by which the Consideration exceeds the exercise price of such Corporation Warrant, multiplied by the number of Shares held by Brookfieldthat such Corporation Warrant entitles the holder to purchase, and each such Corporation Warrant shall immediately be cancelled and terminated and, for certainty where such amount is zero or negative for any such Corporation Warrant, none of the Corporation, the Purchaser or any of their affiliates (which other Person shall be obligated to, and the holder shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfieldentitled to, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name respect of such holder shall be removed from the register of holders of Corporation SharesWarrant, and, with respect to each Corporation Shares elected Warrant that is surrendered pursuant to this Section 2.3(4), as of the effective time of such surrender: (A) the holder thereof shall cease to be transferred the holder of such Corporation Warrant, (B) the holder thereof shall cease to have any rights as a holder in respect of such Corporation Warrant, or under the Purchaserapplicable Warrant Certificate or Warrant Indenture, other than the right to receive the consideration, if any, to which such holder is entitled pursuant to this Section 2.3(4), (C) such holder's name shall be removed from the applicable register of Corporation Warrants, and (D) all agreements, grants and similar instruments relating thereto shall be cancelled; and
(5) the Purchaser shall cause the Corporation to file an election to cease to be recorded as the registered holder a "public corporation" under subsection 89(1) of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesTax Act.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, Time the following events or transactions shall occur and shall be deemed to occur in the following sequence as set out below without any further authorization, act or formality, in each case effective as at five minute intervals starting at the Effective Time:
(a) each outstanding Corporation Share held by a Dissenting Shareholder notwithstanding the terms of the Brigus Rights Plan, the Brigus Rights Plan shall be terminated and all rights issued pursuant to the Brigus Rights Plan shall be cancelled without any payment in respect thereof;
(b) the Effective Date shall be deemed to be transferred by the vesting date for all of the then issued and outstanding Brigus DSUs, and Brigus shall allot and issue to each holder thereof of a Brigus DSU such number of Brigus Shares as are due to such holder under the terms of the Brigus DSU Plan (less any amounts withheld pursuant to the Corporation Plan of Arrangement) and thereafter the Brigus DSU Plan will terminate and none of the former holders of Brigus DSUs, the Parties or any of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the Brigus DSU Plan;
(c) all Brigus Shares held by Dissenting Holders shall be deemed to have been transferred (free and clear of all liens, claims and encumbrances, and each Liens) to Primero in exchange for a debt claim against Primero for the amount determined under Article 4; and
(i) such Dissenting Shareholder Holders shall cease to be the holders of such Brigus Shares and to have any rights as a Corporation Shareholder Brigus Shareholders other than the right to be paid the fair value for such Brigus Shares as set out in Article 4; and
(ii) the name of their Corporation each such Dissenting Holders shall be removed as a Brigus Shareholder from the registers of Brigus Shareholders maintained on or on behalf of Brigus;
(d) Primero will lend to Brigus an amount equal to the Loan Amount by way of a non- interest bearing demand promissory note;
(e) Brigus will subscribe for such number of additional SpinCo Shares as would result in Brigus holding, after completion of the distribution in Section 2.3(f), 9.9% of the outstanding SpinCo Shares, in consideration for payment to SpinCo of cash subscription proceeds equal to the Loan Amount (with the amount, if any, by which such cash subscription proceeds exceed the Fair Market Value of the SpinCo Shares so issued being a contribution to the capital of SpinCo);
(f) Brigus shall undertake a reorganization of capital within the meaning of section 86 of the Tax Act, and which reorganization shall occur in the following order:
(i) the authorized share capital of Brigus will be amended by the Corporation in accordance with Article 4 hereofcreation of one new class of shares consisting of an unlimited number of Class A Shares, and the name articles of incorporation of Brigus shall be deemed to be amended accordingly;
(ii) each outstanding Brigus Share (including such Brigus Shares acquired by Primero pursuant to Section 2.3(b) above, if any) will be exchanged with Brigus (without any further act or formality on the part of the Brigus Shareholder) free and clear of all Liens for one (1) Class A Share and one-tenth (0.1) of a SpinCo Share, and such Brigus Shares shall thereupon be cancelled, and:
(A) the holders of such holder Brigus Shares shall cease to be the holders thereof and to have any rights or privileges as holders of such Brigus Shares;
(B) such holders’ names shall be removed from the register of holders the Brigus Shares maintained by or on behalf of Corporation Shares, and such Corporation Shares shall be cancelled;Brigus; and
(bC) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Brigus Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its partholder of the Class A Shares and SpinCo Shares (in each case, free and clear of all liensany Liens) exchanged for the Brigus Shares and shall be entered in the register of Brigus or SpinCo, claims and encumbrancesas the case may be, as the registered holder thereof;
(iii) the stated capital of Brigus for the outstanding Class A Shares will be an amount equal to the Purchaserpaid-up capital of Brigus for the Brigus Shares, less the Fair Market Value of the SpinCo Shares distributed on such exchange;
(g) each outstanding Class A Share (other than Class A Shares held by Primero or any affiliate thereof) will, without further act or formality by or on behalf of a holder of Class A Shares, be irrevocably assigned and transferred by the holder thereof to Primero (free and clear of all Liens) in exchange for the Consideration from Primero for each Class A Share held, and
(i) the holders of such Class A Shares shall cease to be the holders thereof and to have any rights as holders of such Class A Shares other than the right to be paid the Consideration per Class A Share in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the this Plan of Arrangement;
(ii) such holders’ name of such holder shall be removed from the register of holders of Qualifying Holdco the Class A Shares maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and Brigus; and
(iii) Primero shall be deemed to be the transferee and the legal and beneficial owner thereof, holder of such Class A Shares (free and clear of any liens, claims all Liens) and shall be entered as the registered holder of such Class A Shares in the register of the Class A Shares maintained by or encumbrances; andon behalf of Brigus;
(ch) each Corporation Share Brigus Option which is outstanding and has not been duly exercised prior to the Effective Time, shall be exchanged for a fully-vested option (other than each, a “Replacement Option”) to purchase from Primero the number of Primero Shares (rounded down to the nearest whole share) equal to: (i) Corporation the Option Exchange Ratio multiplied by (ii) the number of Brigus Shares held subject to such Brigus Option immediately prior to the Effective Time. Such Replacement Option shall provide for an exercise price per Primero Share (rounded up to the nearest whole cent) equal to: (x) the exercise price per Brigus Share otherwise purchasable pursuant to such Replacement Option; divided by Brookfield(y) the Option Exchange Ratio. It is agreed that all terms and conditions of a Replacement Option, including the Purchaser or term to expiry, conditions to and manner of exercising, will be the same as the Brigus Option for which it was exchanged, and shall be governed by the terms of the Brigus Option Plan, except that the term to expiry of any of their affiliates (which Replacement Option shall not be acquired under the Arrangement and shall remain outstanding as affected by a Corporation Share held by Brookfieldholder of Replacement Options not becoming, the Purchaser or such affiliateceasing to be, an employee, officer or director of Brigus or Primero, as the case may be); and
(i) Primero NewCo and Brigus shall amalgamate to form one corporate entity (“Amalco”) under Section 192 of the CBCA, such that:
(i) the name of Amalco shall be “Brigus Gold Corp.”;
(ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares initial directors of which are acquired by Amalco shall be the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and directors of Primero NewCo;
(iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), initial officers of Amalco shall be transferred the officers of Primero NewCo;
(iv) Amalco shall have a minimum of 1 director and deemed a maximum of 20 directors;
(v) all of the property of each of Primero NewCo and Brigus continues to be transferred by the holder thereof, without property of Amalco;
(vi) Amalco continues to be liable for the obligations of each of Primero NewCo and Brigus (other than any further act obligations of Primero NewCo or formality on its part, free and clear of all liens, claims and encumbrances, Brigus to the Applicable Purchaserother);
(vii) any existing cause of action, in exchange for claim or liability to prosecution is unaffected;
(viii) a payment in cash equal to the Considerationcivil, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected criminal or administrative action or proceeding pending by or against Primero NewCo or Brigus may continue to be transferred to prosecuted by or against Amalco;
(ix) a conviction against, or ruling, order or judgment in favour of or against Primero NewCo or Brigus may be enforced by or against Amalco;
(x) the Purchaser, articles of Primero NewCo immediately before the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be Effective Time are deemed to be the legal articles of incorporation of Amalco, and beneficial owner thereofthe Certificate of Arrangement is deemed to be the certificate of incorporation of Amalco;
(xi) the by-laws of Primero NewCo immediately before the Effective Time are deemed to be the by-laws of Amalco;
(xii) Amalco shall be authorized to issue an unlimited number of common shares;
(xiii) the directors of Amalco may appoint one or more directors of Amalco but the total number of directors so appointed may not exceed one third of the number of directors elected at the previous annual meeting of shareholders of Amalco, free and clear any directors of Amalco appointed pursuant to the previous sentence shall hold office for a term expiring not later than the close of the next annual meeting of shareholders;
(xiv) the Class A Shares shall continue as common shares of Amalco, and any lienscertificates formerly representing the Class A Shares and common shares of Primero NewCo shall represent and be deemed to represent common shares of Amalco;
(xv) all shares in the capital stock of Brigus shall be cancelled; and
(xvi) the stated capital of the Amalco common shares will be an amount equal to the “paid-up capital”, claims or encumbrancesas that term is defined in the Tax Act, attributable to all of the issued and outstanding shares of Brigus immediately prior to the Amalgamation.
Appears in 1 contract
Arrangement. Commencing Subject to receipt of the Final Order, on the Effective Date, commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur sequentially, in the following sequence order, without any further act or formalityformality required on the part of any Person, except as expressly provided herein:
(a) each outstanding Corporation Nevada Holdco Dissenting Share held by a Nevada Holdco Dissenting Shareholder in respect of which a Nevada Holdco Shareholder has validly exercised his, her or its Nevada Holdco Dissent Right shall be deemed to be transferred by the holder thereof such Nevada Holdco Dissenting Shareholder to the Corporation Nevada Holdco (free and clear of all liens, claims any Liens of any nature whatsoever) in accordance with and encumbrancesfor the consideration set forth in Article 4 hereof, and each such Nevada Holdco Dissenting Shareholder shall cease to have any rights be a holder of such Nevada Holdco Share and his, her or its name shall be removed from the central securities register of Nevada Holdco as a Corporation holder of a Nevada Holdco Dissenting Share. Such Nevada Holdco Dissenting Shareholder other than the right shall be deemed to be paid the fair value of their Corporation have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Nevada Holdco Dissenting Shares by the Corporation to Nevada Holdco in accordance with this Subsection. Nevada Holdco shall be the holder of all of the Nevada Holdco Dissenting Shares transferred in accordance with this Subsection and such Nevada Holdco Shares will be cancelled and the central securities register of Nevada Holdco shall be revised accordingly;
(b) one minute after 3.2(a) above, each Cannex Dissenting Share held by a Cannex Dissenting Shareholder in respect of which a Cannex Shareholder has validly exercised his, her or its Cannex Dissent Right shall be deemed to be transferred by such Cannex Dissenting Shareholder to Cannex (free and clear of any Liens of any nature whatsoever) in accordance with and for the consideration set forth in Article 4 hereof, and the name such Cannex Dissenting Shareholder shall cease to be a holder of such Cannex Share and his, her or its name shall be removed from the central securities register of Cannex as a holder of a Cannex Dissenting Share. Such Cannex Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Cannex Dissenting Shares to Cannex in accordance with this Subsection. Cannex shall be the holder of all of the Cannex Dissenting Shares transferred in accordance with this Subsection and such Cannex Shares will be cancelled and the central securities register of Cannex shall be revised accordingly;
(c) one minute after 3.2(b) above, BC Newco and Nevada Holdco shall amalgamate to form the Resulting Issuer, with the same effect as if they had amalgamated under Section 269 of the BCBCA;
(i) without limiting the generality of 3.2(c) above, BC Newco and Nevada Holdco shall amalgamate and continue as one company, the Resulting Issuer, under the terms and conditions prescribed in this Plan of Arrangement;
(ii) the property, rights and interests of each of BC Newco and Nevada Holdco shall continue to be the property, rights and interests of the Resulting Issuer;
(iii) the Resulting Issuer shall continue to be liable for the obligations of each of BC Newco and Nevada Holdco;
(iv) the Resulting Issuer shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil action commenced by or against either BC Newco or Nevada Holdco before the BC Amalgamation has become effective;
(v) a conviction against, or a ruling, order or judgment in favour of or against, either BC Newco or Nevada Holdco may be enforced by or against the Resulting Issuer;
(vi) the board of directors of the Resulting Issuer shall be comprised of a minimum of three and a maximum of 10 directors and the initial five directors of the Resulting Issuer will be the Board Nominees;
(vii) the notice of articles and articles of the Resulting Issuer shall be substantially in the form of the notice of articles and articles of Nevada Holdco following the Continuance and the registered office of the Resulting Issuer shall be the registered office of Nevada Holdco following the Continuance;
(viii) each BC Newco Share held by a holder thereof will be cancelled and the holder’s name shall be removed from the register of holders of Corporation such BC Newco Shares, and such Corporation Shares in consideration therefor, the holder thereof shall be cancelled;
(b) receive a fully paid and non-assessable Resulting Issuer Subordinate Voting Share on the basis of one Resulting Issuer Subordinate Voting Share for each Qualifying Holdco BC Newco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and thereof shall be deemed to be the legal have executed and beneficial owner thereofdelivered all consents, free releases, assignments and clear of any lienswaivers, claims statutory or encumbrances; andotherwise, required to exchange such BC Newco Share in accordance herewith;
(cix) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Nevada Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.Subordinate
Appears in 1 contract
Sources: Business Combination Agreement (4Front Ventures Corp.)
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur sequentially in the following sequence order without any further act or formality:
(a) each outstanding Corporation Company Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable PurchaserCompany and the Company shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 4 hereof, in exchange for a payment in cash equal to the Consideration, and and: (i) the name of such holder shall be removed from the central securities register as a holder of holders of Corporation Shares, and, with respect to Corporation Company Shares elected and such Company Shares shall be cancelled and cease to be transferred outstanding; and (ii) such Dissenting Shareholder will cease to have any rights as a Company Shareholder other than the Purchaser, right to be paid the Purchaser shall be recorded as fair value for their Company Shares by the registered holder Company;
(b) each Company Share (other than a Company Share held by a Dissenting Shareholder or a Company Share held by Acquiror or any subsidiary of the Corporation Shares so transferred and Acquiror) shall be deemed to be transferred to Acquiror and, in consideration therefor, Acquiror shall issue the Consideration for each Company Share, subject only to adjustment for fractional Acquiror Shares pursuant to Section 3.3(a);
(c) notwithstanding the terms of the Company Stock Option Plan, each Company Option outstanding immediately prior to the Effective Time that has not been duly exercised (whether vested or unvested) shall be exchanged for an option (each a "Replacement Option") to acquire from Acquiror, other than as provided herein, the number of Acquiror Shares equal to the product of: (A) the number of Company Shares subject to such Company Option immediately prior to the Effective Time; multiplied by (B) the Exchange Ratio, provided that, if the foregoing would result in the issuance of a fraction of an Acquiror Share on any particular exercise of Replacement Options, then the number of Acquiror Shares otherwise issued shall be rounded down to the nearest whole number of Acquiror Shares. The exercise price per Acquiror Share subject to a Replacement Option shall be an amount equal to the quotient of: (A) the exercise price per Company Share subject to each such Company Option immediately before the Effective Time; divided by (B) the Exchange Ratio, provided that the aggregate exercise price payable on any particular exercise of Replacement Options shall be rounded up to the nearest whole cent. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to the exchange of a Company Option for a Replacement Option. Therefore, in the event that the Replacement Option In-The-Money Amount in respect of a Replacement Option exceeds the Company Option In-The-Money Amount in respect of the Company Option for which it is exchanged, the number of Acquiror Shares which may be acquired on exercise of the Replacement Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Replacement Option In-The-Money Amount in respect of the Replacement Option does not exceed the Company Option In-The-Money Amount in respect of the Company Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged. All other terms and conditions of the Replacement Options, including vesting terms and the term to expiry, will be the same as the Company Option for which it was exchanged and each Replacement Option shall continue to be governed by and be subject to the terms of the Company Stock Option Plan and the agreement evidencing the grant of such Company Option. For greater certainty, any Replacement Options that are held by a person who ceases to be a "Director", "Employee" or "Consultant" of the Company pursuant to the Company Stock Option Plan shall terminate on the earlier of (A) the date that is 90 days from the date the person ceases to be a "Director", "Employee" or "Consultant", or (B) the expiry date of the Replacement Option, in accordance with the terms of the Company Stock Option Plan. Any document previously evidencing Company Options will thereafter evidence and be deemed to evidence the Replacement Options exchanged therefor and no certificates evidencing the Replacement Options will be issued;
(d) notwithstanding the terms of the Company Deferred Share Unit Plan, each Company DSU outstanding at the Effective Time (including, for certainty, any Company DSU that remains outstanding after the "Separation Date" in respect of any "Eligible Person" who has not yet filed a "Redemption Notice" in respect of such Company DSUs (in each case as such terms are defined in the Company Deferred Share Unit Plan)), whether vested or unvested, shall be deemed to be vested to the fullest extent, and such Company DSU shall be deemed to be assigned and transferred at the Effective Time to the Company and cancelled in exchange for a payment from the Company equal to the Closing Cash/Share Payment less any amounts withheld pursuant to Section 5.4; provided that, if the foregoing would result in the issuance of a fraction of an Acquiror Share to any particular holder of Company DSUs, then the number of Acquiror Shares otherwise issued shall be rounded down to the nearest whole number of Acquiror Shares;
(e) notwithstanding the terms of the Company Restricted Share Unit Plan:
(i) each Company RSU outstanding at the Effective Time held by Non-Continuing Executives and each 2▇▇▇ ▇▇▇ held by Continuing Employees and Continuing Executives, in each case whether vested or unvested, shall be deemed to be vested to the fullest extent, and such Company RSU shall be deemed to be assigned and transferred at the Effective Time to the Company and cancelled in exchange for a payment from the Company equal to the Closing Cash/Share Payment less any amounts withheld pursuant to Section 5.4;
(ii) each Company RSU outstanding at the Effective Time other than those held by Non-Continuing Executives and 2▇▇▇ ▇▇▇▇ held by Continuing Employees and Continuing Executives, in each case whether vested or unvested, shall continue to be subject to the terms and conditions of the Company Restricted Share Unit Plan; provided that:
(A) each such 2▇▇▇ ▇▇▇ shall continue to vest and be settled in accordance with and at the time provided in the Company Restricted Share Unit Plan except that, on settlement, the holder thereof shall receive 0.283 of an Acquiror Share or payment of the Cash Equivalent, at the Acquiror’s election, instead of one Company Share;
(B) each such 2▇▇▇ ▇▇▇ shall continue to vest and shall be settled in accordance with and at the time provided in the Company Restricted Share Unit Plan except that, on settlement, the holder thereof shall receive 0.283 of an Acquiror Share or payment of the Cash Equivalent, at the Acquiror’s election, instead of one Company Share;
(C) each such 2▇▇▇ ▇▇▇ shall continue to vest and shall be settled in accordance with and at the time provided in the Company Restricted Share Unit Plan except that, on settlement, the holder thereof shall receive 0.283 of an Acquiror Share or payment of the Cash Equivalent, at the Acquiror’s election, instead of one Company Share;
(iii) each Company PSU outstanding at the Effective Time held by Non-Continuing Executives and each 2021 PSU held by Continuing Employees and Continuing Executives, in each case whether vested or unvested, shall be deemed to be vested to the fullest extent, and such Company PSU shall be deemed to be assigned and transferred at the Effective Time to the Company and cancelled in exchange for a payment from the Company equal to twice the Closing Cash/Share Payment less any amounts withheld pursuant to Section 5.4;
(iv) each Company PSU outstanding at the Effective Time other than those held by Non-Continuing Executives and 2021 PSUs held by Continuing Employees and Continuing Executives, in each case whether vested or unvested, shall continue to be subject to the terms and conditions of the Company Restricted Share Unit Plan; provided that:
(A) each such 2020 PSU shall continue to vest and be settled in accordance with and at the time provided in the Company Restricted Share Unit Plan except that such 2020 PSU shall be settled on the basis of a Payout Factor of 200% and, on settlement, the holder thereof shall receive 0.283 of an Acquiror Share or payment of the Cash Equivalent, at the Acquiror’s election, instead of one Company Share;
(B) each such 2019 PSU shall continue to vest and be settled in accordance with and at the time provided in the Company Restricted Share Unit Plan except that, such 2019 PSU shall be settled on the basis of a Payout Factor of 200% and, on settlement, the holder thereof shall receive 0.283 of an Acquiror Share or payment of the Cash Equivalent, at the Acquiror’s election, instead of one Company Share; provided that, if the foregoing would result in the issuance of a fraction of an Acquiror Share to any particular holder of Company RSUs or Company PSUs, then the number of Acquiror Shares otherwise issued shall be rounded down to the nearest whole number of Acquiror Shares;
(f) Acquiror will sell all the Company Shares acquired under Section 3.1(b) to SubCo in exchange for 10,000 common shares in the capital of SubCo in accordance with section 85 of the Tax Act, at an elected amount to be determined by Acquiror;
(g) The stated capital of the Company Shares acquired under Section 3.1(b) shall be reduced to $1.00 without the repayment of capital in respect thereof;
(h) SubCo and the Company will amalgamate with the same effect as if they were amalgamated under section 269 of the BCBCA (the "Amalgamation") and will continue as one company ("NewCo"), except that the legal existence of the Company will be deemed not to have ceased and beneficial owner the Company will be deemed to have survived the Amalgamation as NewCo, and for the avoidance of doubt, the Amalgamation is intended to qualify as an amalgamation as defined in subsection 87(1) of the Tax Act. Without limiting the foregoing, with effect from the time of the Amalgamation:
(i) the separate legal existence of SubCo will cease without SubCo being liquidated or wound-up and no disposition or transfer of title of the Company's assets will have occurred as a result of the Amalgamation, SubCo and the Company will continue as one company, and the property of SubCo and the Company immediately before the Amalgamation will become the property of NewCo;
(ii) all rights of creditors or others will be unimpaired by the Amalgamation, all obligations of SubCo and the Company immediately before the Amalgamation, whether arising by contract or otherwise, may be enforced against NewCo to the same extent as if such obligations had been incurred or contracted by it, and all liabilities of SubCo and the Company immediately before the Amalgamation will become liabilities of NewCo;
(iii) all rights, contracts, permits and interests of SubCo and the Company immediately before the Amalgamation will continue as rights, contracts, permits and interests of NewCo and, for greater certainty, the Amalgamation will not constitute a transfer or assignment of the rights or obligations of SubCo and the Company under any such rights, contracts, permits and interests;
(iv) any existing cause of action, claim or liability to prosecution will be unaffected;
(v) a civil, criminal, quasi-criminal, administrative or regulatory action or proceeding being prosecuted or pending by or against SubCo and the Company immediately before the Amalgamation may be prosecuted or its prosecution may be continued by or against NewCo;
(vi) a conviction against, or ruling, order or judgment in favour of or against, SubCo or the Company may be enforced by or against NewCo;
(vii) the Notice of Articles and Articles of the Company immediately before the Amalgamation, including, for greater certainty, all descriptions of share capital therein, will become the Notice of Articles and Articles of NewCo;
(viii) the authorized share structure of the Company immediately before the Amalgamation will be the authorized share structure of NewCo;
(ix) Acquiror will receive one common share in the capital of NewCo in exchange for each common share in the capital of SubCo held immediately prior to the Amalgamation and all of the issued and outstanding common shares of SubCo and the Company will be cancelled without any repayment of capital in respect thereof;
(x) the name of NewCo will be determined by the Acquiror Board;
(xi) the registered office and records office of NewCo will be the registered office of the Company;
(xii) the stated capital of the common shares of NewCo will be an amount equal to the paid-up capital, free as that term is defined in the Tax Act, attributable to the common shares of SubCo immediately prior to the amalgamation; and
(i) the transfers, exchanges and clear of any lienscancellations provided for in this Section 3.1 will be deemed to occur on the Effective Date, claims or encumbrancesnotwithstanding certain procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
Arrangement. Section 2.1 Binding Effect This Plan of Arrangement will become effective at, and be binding at and after, the Effective Time on (i) the Company, (ii) Parent, the Purchaser, (iii) all holders and all beneficial holders of the Company Common Stock and (iv) all holders of the Company Stock Options.
Section 2.2 Arrangement Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order without any further act or formality:
(a) each outstanding Corporation Share share of Company Common Stock that is not held by a Dissenting Shareholder shall holder who has exercised its Dissent Rights and is ultimately entitled to be deemed to paid the fair value of its shares of Company Common Stock (other than shares of Company Common Stock held by Parent or the Purchaser or any affiliate thereof) will be transferred by the holder thereof to the Corporation free Purchaser in exchange for the Exchange Consideration;
(b) each share of Company Common Stock in respect of which Dissent Rights have been exercised shall be and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right be deemed to be paid transferred to the fair value of their Corporation Shares by Purchaser with the Corporation Purchaser and the Parent being jointly and severally obligated to pay therefor the amount determined in accordance with Article 4 hereof, 3 of this Plan of Arrangement;
(c) with respect to each share of Company Common Stock acquired or transferred in accordance with Section 2.2(a) or Section 2.2(b):
(i) the holder thereof shall cease to be the holder of such share of Company Common Stock and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelledCompany Common Stock;
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder the certificate representing such share of Company Common Stock shall be transferred deemed to have been canceled as of the Effective Time;
(iii) the holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to acquire or transfer such shares in accordance with Section 2.2(a) or Section 2.2(b);
(iv) the Purchaser shall be and shall be deemed to be the transferee of such share of Company Common Stock if transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with Section 2.2(a) or Section 2.2(b) and shall be entered in the register of registered holders of the Company as the legal holder of such shares of Company Common Stock; and
(v) the names of the holders of the Company Common Stock transferred to Parent pursuant hereto shall be added to the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying HoldcoParent Common Stock, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and such holders shall be deemed to be the legal and beneficial owner thereofowners of Parent Common Stock as of the Effective Time for those holders of Company Common Stock who have surrendered the certificates for their Company Common Stock at or prior to the Effective Time and, free and clear for those holders of any liensCompany Common Stock who surrender the certificates for their Company Common Stock after the Effective Time, claims or encumbrances; andas of the date of surrender.
(cd) Purchaser shall pay to each Corporation Share outstanding (other than holder of Vested Company Stock Options under the Company Stock Option Plans, for each share of Company Common Stock that such holder would be entitled to purchase upon the exercise of such options, each component of the Exchange Consideration, less an amount of cash which is equal to (i) Corporation Shares held the exercise price per each share of Company Common Stock covered by Brookfieldsuch options (if in Canadian dollars, converted into its U.S. dollar equivalent based on the Purchaser or any of their affiliates (which shall not be acquired under Noon Spot Rate on the Arrangement Business Day immediately prior to the Effective Time) and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcosany amounts required to be withheld for payment of applicable withholding taxes, deducted from the cash portion of the Exchange Consideration (provided that if the cash portion is insufficient, after consideration of tax withholding obligations, the Qualifying Holdco Shares excess amount shall be deducted from the securities portion of the Exchange Consideration by reducing the amount of Company Common Stock delivered to such holder, the value of which are acquired shall be determined by using the Purchaser pursuant closing price of the Company Common Stock on the day prior to Section 3.1(bthe Effective Time), and all such options shall be cancelled and the Company's Amended and Restated Stock Option Incentive Plan shall be terminated;
(e) (which Parent shall not assume the Company's Amended and Restated Employee Stock Option Plan and each Non-Vested Company Stock Option thereunder shall be acquired under the Arrangement assumed by Parent and shall remain outstanding as Corporation Shares held by be amended so that such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), Non-Vested Company Stock Option under such plan shall be transferred and deemed converted into an option (a "Replacement Option") to be transferred by the holder thereof, without any further act or formality on its part, free and clear purchase that number of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash shares of Parent Common Stock equal to the Considerationsum of (i) the Security Portion times the number of shares of Company Common Stock subject to the Non-Vested Company Stock Option; plus (ii) the quotient of (A) $11.50 times the number of shares of Company Common Stock subject to the Non-Vested Company Stock Option, and divided by (B) the name Parent Closing Price ("Parent Option Shares"); the exercise price per share of such holder Parent Common Stock for each Replacement Option shall be removed from the register quotient of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred (x) an aggregate amount equal to the Purchasernumber of shares of Company Common Stock subject to the Non-Vested Company Stock Option exchanged for such Replacement Option times the original exercise price per share of Company Common Stock pursuant to such Non-Vested Company Stock Option, at the option of the holder (i) converted into its U.S. dollar equivalent based on the Noon Spot Rate on the Business Day immediately preceding the Effective Date, or (ii) expressed in Canadian dollars, the Purchaser whole divided by (y) the Parent Option Shares subject to such Replacement Option. Except as expressly contemplated by this clause 2.2(e), the Arrangement shall be recorded as the registered holder not change any of the Corporation Shares so transferred terms or provisions contained in the Company's Amended and shall be deemed to be Restated Employee Stock Option Plan or the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesNon-Vested Company Stock Options granted thereunder.
Appears in 1 contract
Sources: Pre Merger Agreement (Dynacare Inc)
Arrangement. (1) Commencing at the Effective Time, Time each of the following events or transactions shall occur and shall be deemed to occur in the following sequence sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at one minute intervals starting at the Effective Time:
(a) each Nova Share outstanding Corporation Share immediately prior to the Effective Time held by a Dissenting Nova Shareholder shall in respect of which Dissent Rights have been validly exercised will be deemed to be have been transferred by the holder thereof without any further act or formality to the Corporation Nova for cancellation, free and clear of all liens, claims and encumbrancesany Liens, and each such Nova Shareholder will cease to be the registered holder of such Dissenting Shareholder shall Shares and will cease to have any rights as a Corporation Shareholder registered holders of such Nova Shares other than the right to be paid by ▇▇▇▇, to the extent available, out of its separate assets which are not directly or indirectly provided by Metalla or its affiliates or any proceeds of the disposition of such assets, fair value of their Corporation for such Dissenting Shares by the Corporation as set out in accordance with Article 4 hereofSection 4.1(2), and such Nova Shareholder's name will be removed as the registered holder of such Dissenting Shares from the registers of Nova Shares maintained by or on behalf of Nova, and Nova will be deemed to be the transferee of such Dissenting Shares, free and clear of any Liens, and such Dissenting Shares will be cancelled and returned to treasury of Nova.
(b) each outstanding Nova RSU shall, without any further act or formality by or on behalf of any holder of a Nova RSU, be deemed to be fully vested and each holder of a Nova RSU shall be entitled to receive the applicable RSU Consideration, and thereafter: (i) each holder of such Nova RSU shall cease to be the holder thereof and to have any rights as holder of a Nova RSU and such Nova RSUs shall be immediately cancelled; (ii) the name of each such holder shall be removed from the register of the Nova RSU holders maintained by or on behalf of Corporation Shares, Nova; and (iii) each such Corporation Shares former holder of such Nova RSUs shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be the holder of the Nova Shares comprising such RSU Consideration (notwithstanding that no certificates or DRS statements shall be issued with respect to such Nova Shares) and shall be entered in the register of the Nova Shares maintained by or on behalf of Nova; for greater certainty, any consideration a holder of a Nova RSU is entitled to receive shall be subject to tax withholdings pursuant to Section 7.
(c) each issued and outstanding Nova Share (other than any Nova Share in respect of which the Nova Shareholder has validly exercised their Dissent Right) will be transferred to, and acquired by the Qualifying Holdco ShareholderMetalla, without any further act or formality on its partthe part of the holder of such Nova Share or Metalla, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco AgreementLiens, in exchange for a payment in cash such number of Metalla Shares equal to the Holdco Share ConsiderationExchange Ratio, provided that the aggregate number of Metalla Shares payable to any one Nova Shareholder, if calculated to include a fraction of an Metalla Share, will be rounded down to the nearest whole Metalla Share, with no consideration being paid for the fractional share, and the name of each such holder shall Nova Shareholder will be removed from the register of holders of Qualifying Holdco Nova Shares maintained in respect and added to the register of the applicable Qualifying Holdcoholders of Metalla Shares, and the Purchaser shall Metalla will be recorded as the registered holder of the Qualifying Holdco such Nova Shares so transferred exchanged and shall will be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(cd) each Corporation Share outstanding (other than (i) Corporation Shares held by BrookfieldNova Option, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereofshall, without any further act or formality action on its partthe part of any holder of Nova Options, free be deemed fully vested and clear exchanged for a vested option of all liensMetalla (each, claims and encumbrancesa "Replacement Option") to purchase from Metalla, the number of Metalla Shares equal to: (x) the Exchange Ratio multiplied by (y) the number of Nova Shares subject to such Nova Option immediately prior to the Applicable PurchaserEffective Time, provided that if the foregoing would result in exchange for the issuance of a payment in cash equal fraction of a Metalla Share on any particular exercise of Replacement Options, then the number of Metalla Shares otherwise issued shall be rounded down to the Considerationnearest whole number of Metalla Shares. Such Replacement Option shall provide for an exercise price per Metalla Share (rounded up to the nearest whole cent) equal to: (x) the exercise price per Nova Share otherwise purchasable pursuant to such Nova Option, and divided by (y) the name Exchange Ratio, provided that the exercise price of such each Replacement Option of any particular holder shall be removed from the register of holders of Corporation Sharesbe, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be, adjusted by the amount, and only to the extent, necessary to ensure that the In the Money Amount of the Replacement Option immediately after the exchange does not exceed the In the Money Amount of the Nova Option immediately before the exchange. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of options. The term, exercisability and all other terms and conditions of the Nova Share Compensation Plan shall govern the Replacement Option for which the Nova Option is so exchanged. For Replacement Options that are held by Persons that will not constitute "Eligible Persons" under the Nova Share Compensation Plan, the post-termination exercise period of such Replacement Options shall be extended to the legal 12-month anniversary of the Effective Date, and beneficial owner thereof, free and clear all other Replacement Options shall have the same expiry date of the original Nova Option; provided that in no case shall the date of expiry of any liensReplacement Options extend beyond the date that is 10 years from the date of grant of the original Nova Option. With respect to each Nova Option held by any individual who is subject to taxation in the United States, claims or encumbrancesthe conversion of Nova Options into Replacements Options shall be effected in a manner consistent with the requirements of Section 409A of the U.S. Tax Code.
Appears in 1 contract
Sources: Arrangement Agreement (Metalla Royalty & Streaming Ltd.)
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formality:
(a) each outstanding Corporation Share held by a Dissenting Shareholder the Amalgamating Corporations shall be deemed to be transferred by the holder thereof to amalgamated and continue as the Corporation free and clear on the terms prescribed in this Plan of all liens, claims and encumbrances, and Arrangement and:
(i) the property of each Dissenting Shareholder Amalgamating Corporation shall cease to have any rights as a Corporation Shareholder other than become the right to be paid property of the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelledCorporation;
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder the Corporation shall be transferred and deemed continue to be transferred liable for the obligations of each Amalgamating Corporation;
(iii) an existing cause of action, claim or liability to prosecution is unaffected;
(iv) a civil, criminal or administrative action or proceeding pending by or against an Amalgamating Corporation may continue to be prosecuted by or against the Qualifying Holdco ShareholderCorporation;
(v) a conviction against, without any further act or formality on its partruling, free and clear order or judgment in favour of all liensor against, claims and encumbrances, to an Amalgamating Corporation may be enforced by or against the Purchaser, in accordance with Corporation; and
(vi) the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name Articles of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and Amalgamation shall be deemed to be the legal and beneficial owner thereof, free and clear articles of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder incorporation of the Corporation Shares so transferred and the Certificate shall be deemed to be the legal certificate of incorporation of the Corporation.
(b) all Big Horn Common Shares, if any, held by Subco shall be cancelled without any repayment of capital in respect thereof;
(c) all Big Horn Common Shares held by a Former Big Horn Shareholder who has made a Cash Election in a Letter of Transmittal and beneficial owner thereofElection Form, free provided that such Letter of Transmittal and clear Election Form has been completed and executed by such Former Big Horn Shareholder in accordance with the provisions thereof and has been received by the Depositary prior to or at the Election Deadline shall be exchanged for Special Shares and Westlinks Preferred Shares on the basis of any liens1.0 Special Share and, claims subject to section 3.3 hereof, 0.74 of a Westlinks Preferred Share for each Big Horn Common Share;
(d) all Big Horn Common Shares owned by a Former Big Horn Shareholder
(i) who has made a Share Election in a Letter of Transmittal and Election Form, provided that such Letter of Transmittal and Election Form has been completed and executed by such Former Big Horn Shareholder in accordance with the provisions thereof and has been received by the Depositary prior to or encumbrancesat the Election Deadline;
(ii) who has made an incomplete or invalid election in a Letter of Transmittal and Election Form received by the Depositary prior to or at the Election Deadline, or
(iii) who has not submitted a completed and executed Letter of Transmittal and Election Form such that it is received by the Depositary prior to or at the Election Deadline; shall be exchanged for Westlinks Common Shares on the basis of 0.1905 of a Westlinks Common Share for each Big Horn Common Share, subject to section 3.3 hereof, provided that in the event that the exchange of Big Horn Common Shares in accordance with this subsection 3.1(d) would result in a Former Big Horn Shareholder receiving less than 1▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shares then, at the sole option of Westlinks, which option may be exercised in respect of all but not less than all of the Big Horn Common Shares which entitle Former Big Horn Shareholders in accordance with this subsection 3.1(d) to receive, in each case, less than 1▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shares:
(iv) such Big Horn Common Shares shall be exchanged only for Westlinks Common Shares in accordance with this subsection 3.1(d), or
(v) such Big Horn Common Shares shall be exchanged for Special Shares and Westlinks Preferred Shares on the basis of 1.0 Special Share and, subject to section 3.3 hereof, 0.74 of a Westlinks Preferred Share for each Big Horn Common Share and such Former Big Horn Shareholders shall be deemed to have made a Cash Election;
(e) all Big Horn Options owned by a Big Horn Optionholder shall be exchanged for Westlinks Options on the basis of 0.1905 of a Westlinks Option for each Big Horn Option held, subject to section 3.3 hereof; each whole Westlinks Option shall provide for an exercise price per Westlinks Common Share equal to the exercise price per share of such Big Horn Option immediately prior to the Effective Time divided by 0.1905. The term to expiry, conditions to and manner of exercising, vesting schedule, and all other terms and conditions of such Westlinks Options will otherwise be unchanged from those of the Big Horn Options; and
(f) each common share of Subco shall be converted into one Common Share.
Appears in 1 contract
Arrangement. Commencing at On the Effective TimeDate, the following events or transactions shall occur and shall be deemed to occur sequentially in the following sequence order without any further act or formality:
(a) First, at the Effective Time, the following shall occur simultaneously:
(i) a fraction of each outstanding Corporation Company Share (other than a Company Share held by a Dissenting Shareholder, but including Company Shares held by a Dissenting Shareholder who is ultimately found not to be entitled to be paid fair value for its Company Shares or a Company Share held by the Purchaser or any subsidiary of the Purchaser) that is equal to the Non-Share Consideration Fraction shall be deemed to be transferred to the Purchaser free and clear of all liens, claims and encumbrances and, in consideration therefor, the Purchaser shall issue the Non-Share Consideration for each such fraction of a Company Share, subject to Section 3.3 and Article 5, and: (i) the name of such holder shall be removed from the central securities register of the Company as a holder of such fraction of a Company Share; and (ii) the Purchaser shall be recorded as the registered holder of such fraction of a Company Share and shall be deemed to be the legal owner of such fraction of a Company Share; and
(ii) a fraction of each Company Share (other than a Company Share held by a Dissenting Shareholder, but including Company Shares held by a Dissenting Shareholder who is ultimately found not to be entitled to be paid fair value for its Company Shares or a Company Share held by the holder thereof Purchaser or any subsidiary of the Purchaser) that is equal to the Corporation Share Consideration Fraction shall be deemed to be transferred to the Purchaser free and clear of all liens, claims and encumbrances and, in consideration therefor, the Purchaser shall issue the Share Consideration for each such fraction of a Company Share, subject to Section 3.3 and Article 5, and: (i) the name of such holder shall be removed from the central securities register of the Company as a holder of such fraction of a Company Share; and (ii) the Purchaser shall be recorded as the registered holder of such fraction of a Company Share and shall be deemed to be the legal owner of such fraction of a Company Share.
(b) Second, and five minutes after the Effective Time, all Company Shares held by Dissenting Shareholders shall be deemed to have been transferred (free and clear of all liens, claims and encumbrances) to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Section 4.1, and each and
(i) such Dissenting Shareholder Shareholders shall cease to be the holders of such Company Shares and to have any rights as a Corporation Shareholder Company Shareholders other than the right to be paid the fair value of their Corporation for such Company Shares by the Corporation as set out in accordance with Article 4 hereof, and Section 4.1;
(ii) the name of each such holder Dissenting Shareholder shall be removed as Company Shareholder, as applicable, from the register registers of holders Company Shareholders, as applicable, maintained by or on behalf of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained Company in respect of the applicable Qualifying Holdco, and such Company Shares; and
(iii) the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, transferee of such Company Shares (free and clear of any liens, claims and encumbrances) and shall be entered in the registers of Company Shareholders maintained by or encumbranceson behalf of Company.
(c) Third, and ten minutes after the Effective Time, all Company Shares held by the Purchaser shall be transferred by the Purchaser to Purchaser Subco in exchange for one hundred (100) common shares of Purchaser Subco; and
(cd) each Corporation Share outstanding Fourth, and fifteen minutes after the Effective Time, the Company and Purchaser Subco shall be amalgamated with the same effect as if they were amalgamated under Section 269 of the BCBCA (other than the “Amalgamation”). For greater certainty, the legal existence of the Company shall not cease as a result of the Amalgamation and the Company shall survive the Amalgamation. On and after the Amalgamation:
(i) Corporation Shares held by Brookfieldwithout limiting the generality of Section 3.1(d) above, the Company and Purchaser or any of their affiliates (which Subco shall not be acquired amalgamate and continue as one company, Amalco, under the Arrangement terms and conditions prescribed in this Plan of Arrangement;
(ii) the name of Amalco shall remain outstanding as a Corporation Share held by Brookfieldbe “Coral Gold Resources Ltd.”;
(iii) the initial registered office of Amalco will be the registered office of the Company;
(iv) the directors of Amalco will be ● [NTD: Insert directors of the Company immediately before the Amalgamation];
(v) there shall be no restrictions on the business Amalco may carry on or on the powers Amalco may exercise;
(vi) the property, rights and interests of each of the Company and Purchaser Subco shall continue to be the property, rights and interests of Amalco, and, for greater certainty, the Amalgamation will not constitute a transfer or assignment of any rights or obligations of the Company or Purchaser Subco;
(vii) Amalco shall continue to be liable for the obligations of each of the Company and Purchaser Subco, including civil, criminal and quasi-criminal, and all contracts, disabilities and debts, of each of the Company and Purchaser Subco;
(viii) Amalco shall be deemed to be the party plaintiff or such affiliatethe party defendant, as the case may be); , in any civil action commenced by or against either the Company or Purchaser Subco before the Amalgamation has become effective;
(iiix) Corporation Shares held by Qualifying Holdcosa conviction against, or ruling, order or judgment in favour or against, the Qualifying Holdco Shares of which are acquired by the Company or Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), Subco shall be transferred enforceable by or against Amalco;
(x) the notice of articles and deemed to articles of Amalco shall be transferred by substantially in the holder thereofform of the notice of articles and articles of the Company;
(xi) each Company Share shall be cancelled, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be Purchaser Subco removed from the central securities register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded Company as the registered a holder of the Corporation Shares so transferred such Company Share, and Purchaser Subco shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to cancel such Company Share;
(xii) each Purchaser Subco Share shall be exchanged for one Amalco Share; and
(xiii) the legal stated capital of the Amalco Shares shall be equal to the aggregate paid-up capital (as such term is defined in the Tax Act) of the Purchaser Subco Shares immediately prior to the Amalgamation. The exchanges, conversions and beneficial owner thereofcancellations provided for in this Section 3.1 will be deemed to occur at the above-mentioned times, free and clear notwithstanding that certain of any liens, claims or encumbrancesthe procedures related thereto are not completed until after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement First Amending Agreement (Coral Gold Resources, Ltd.)
Arrangement. Commencing at 3.1 Following the filing of Articles of Arrangement in respect of this Arrangement, Minera Andes and Scotia will be amalgamated and will continue as a separate corporation.
3.2 Upon the issuance of the Certificate of Amalgamation on the Amalgamation Effective TimeDate, each of the following events or transactions set out below shall occur and shall be deemed to occur in the following sequence set out therein without any further act action or formality:,
(a) with respect to each outstanding Corporation Share held by a Dissenting Shareholder shall be deemed to be transferred by the Minera Andes Common Shareholder:
(i) such holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as be a Corporation Shareholder other than the right to be paid the fair value holder of their Corporation Minera Andes Common Shares by the Corporation in accordance with Article 4 hereof, and the his name of such holder shall be removed from the register of holders of Corporation Minera Andes Common Shares, ;
(ii) the issued and such Corporation outstanding Minera Andes Common Shares shall be converted into Amalco Common Shares on the basis of one Amalco Common Share for each one Minera Andes Common Share held and the holder's name shall be added to the common share register of Amalco as the registered holder of such Amalco Common Shares;
(iii) all of the authorized but unissued shares of Minera Andes shall be cancelled;.
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder with respect to the holder of the Minera Performance Right:
(i) such holder shall cease to be the holder of the Minera Performance Right;
(ii) the Minera Performance Right shall be transferred converted into the Amalco Performance Right.
3.3 Upon the issuance of the Certificate of Amalgamation on the Amalgamation Effective Date, each of the events set out below shall occur and be deemed to be transferred by occur in the Qualifying Holdco sequence set out therein without further action or formality,
(a) with respect to each Scotia Common Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of :
(i) such holder shall cease to be a holder of Scotia Common Shares and his name shall be removed from the register of holders Scotia Common Shares;
(ii) the issued and outstanding Scotia Common Shares shall be converted into Amalco Common Shares on the basis of Qualifying Holdco one Amalco Common Share for each fifteen Scotia Common Shares maintained in respect of the applicable Qualifying Holdco, held and the Purchaser holder's name shall be recorded added to the common share register of Amalco as the registered holder of such Amalco Common Shares;
(iii) all of the Qualifying Holdco Shares so transferred authorized but unissued shares of Scotia shall be cancelled.
3.4 Amalco shall not be obligated to issue fractional shares. In the event that a fractional share results from the application of Article III hereof, then: in the case of a fraction of a share for Amalco of less than one-half of a share, the number of shares to be received by the holder thereof shall be rounded down to the next whole number of shares without further contemplation or claim against Amalco nor its respective directors, officers or agents; or, in the case of a fraction of a share for Amalco of one-half or more of a share, the number of shares to be received by the holder thereof shall be rounded up to the next higher whole number of shares of Amalco, provided that no shareholder will be required to compensate Amalco in respect thereof.
3.5 The stated capital of Amalco shall be the aggregate of the stated capital account of both of the Amalgamating Companies immediately before the Amalgamation becomes effective.
3.6 Each of the Amalgamating Companies shall contribute to Amalco all of its assets, subject to its liabilities, as such exist, immediately before the Amalgamation Effective Date.
3.7 Amalco shall possess all of the property, rights, privileges and franchises and shall be deemed subject to all of the liabilities, as such exist, immediately before the Amalgamation Effective Date.
3.8 All rights of creditors against the property, rights and assets of each of the Amalgamating Companies and all liens upon their property, rights and assets shall be unimpaired by the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by BrookfieldArrangement, the Purchaser Continuance or any the Amalgamation and all debts, contracts, liabilities and duties of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder each of the Corporation Shares so transferred Amalgamating Companies shall thenceforth attach to Amalco and shall be deemed to enforceable against it.
3.9 No action or proceeding by or against any of the parties hereto shall abate or be ▇▇▇▇▇ted by the legal and beneficial owner thereofArrangement, free and clear the Continuance or the Amalgamation.
3.10 Certificates representing the securities of any liensAmalco into which securities of the Amalgamating Companies have been converted will be held by The Montreal Trust Company of Canada, claims at its Calgary office, for those holders entitled thereto against deposit of the certificate or encumbrancescertificates representing the securities of the Amalgamating Companies so converted.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, each of the following events or transactions shall occur and shall be deemed to occur sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the following sequence Effective Time:
(a) the Corporation Rights Plan shall terminate and cease to have any force or effect, and all rights issued pursuant to the Corporation Rights Plan shall be cancelled without any payment therefor;
(b) each of the Corporation Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall, without any further act or formalityformality on the part of the Corporation or such Dissenting Holders, be deemed to have been transferred to the Corporation (free and clear of all Liens) and thereupon cancelled in consideration for a debt claim against the Corporation for the amount determined under Article 3, and:
(ai) such Dissenting Holders shall cease to be the holders of such Corporation Shares and to have any rights as holders of such Corporation Shares, other than the right to be paid fair value by the Corporation for such Corporation Shares, as set out in Section 3.1; and
(ii) such Dissenting Holders’ names shall be removed as the holders of such Corporation Shares from the securities register of the Corporation;
(c) each outstanding of the following steps shall occur simultaneously:
(A) each Corporation Share held outstanding immediately prior to the Effective Time, other than Corporation Shares cancelled under (b) above, shall, without any further action by or on behalf of a Dissenting Shareholder shall holder of Corporation Shares, be deemed to be assigned and transferred by the holder thereof to AcquisitionCo in exchange for the Consideration; (B) the holders of such Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder Shares shall cease to be the holders of such Corporation Shares and to have any rights as a holders of such Corporation Shareholder Shares other than the right to be paid the fair value of their Corporation Consideration Shares by the Corporation in accordance with Article 4 hereof, and the name this Plan of Arrangement; (C) such holder holders’ names shall be removed from the securities register of the Corporation; and (D) AcquisitionCo shall be deemed to be, the transferee of such Corporation Shares (free and clear of all Liens) and shall be entered in the securities register of the Corporation as the legal and beneficial holder of all such Corporation Shares (free and clear of all Liens);
(ii) Keel Infrastructure US will issue the Consideration to the holders of Corporation Shares, Shares referred to in Section 2.3(c)(i) in respect of each Corporation Share that is assigned and transferred to AcquisitionCo pursuant to Section 2.3(c)(i) and such Corporation Shares holders’ names shall be cancelledadded to the stock ledger of Keel Infrastructure US; and
(iii) in consideration for the issuance of the Consideration by Keel Infrastructure US described in Section 2.3(c)(ii), AcquisitionCo will issue to Keel Infrastructure US one common share of AcquisitionCo in respect of each share of Keel Infrastructure US Common Stock that Keel Infrastructure US issues pursuant to Section 2.3(c)(ii);
(bd) each Qualifying Holdco Share outstanding all Keel Infrastructure US Common Stock held by a Qualifying Holdco Shareholder the Trust shall be transferred redeemed and deemed to be transferred cancelled by the Qualifying Holdco Shareholder, Keel Infrastructure US without any further act or formality on its part, free and clear the part of all liens, claims and encumbrances, to the Purchaser, Keel Infrastructure US in accordance with the applicable Holdco Agreement, consideration for C$3.50 in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancescash; and
(ce) each Corporation Share outstanding Incentive Unit shall be exchanged for a Replacement Incentive Unit, with the terms and conditions of such Replacement Incentive Unit being substantially similar to such Incentive Unit for which it was exchanged (other than the currency of the exercise price, which shall be denominated in U.S. dollars and converted, as necessary, into U.S. dollars using the rate of exchange quoted by the Bank of Canada for the immediately preceding Business Day prior to the Effective Date), provided that, in respect of each Incentive Unit governed by section 7 of the Income Tax Act (iCanada) Corporation Shares held by Brookfieldor Section 409A of the U.S. Internal Revenue Code, as applicable, the Purchaser exercise price of such Incentive Unit shall be increased by such minimum amount that meets the requirements of paragraph 7(1.4)(c) of the Income Tax Act (Canada) or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliateU.S. Treasury Regulations Section 1.409A-1(b)(5)(v)(D), as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesapplicable.
Appears in 1 contract
Sources: Arrangement Agreement (Bitfarms LTD)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence without any further act or formality:
(a) each outstanding Corporation Share held by a of the Dissenting Shareholder Shares shall be deemed cancelled in consideration for a debt claim against the Company for the amount determined under Article 3. Any such claim shall be satisfied solely through the use of assets of the Company. Effective at the time of this step, (i) such Dissenting Company Shareholders shall cease to be transferred by the holder thereof to the Corporation free and clear holders of all lienssuch Company Common Shares or Company AA Shares, claims and encumbrancesas applicable, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder holders of such Company Common Shares or Company AA Shares, as applicable, other than the right to be paid the fair value for such Company Common Shares or Company AA Shares, as applicable, as determined under Article 3, and (ii) such Dissenting Company Shareholders’ names shall be removed as the holders of their Corporation such Company Common Shares or Company AA Shares, as applicable, from the registers maintained by the Corporation Company;
(b) each outstanding Company Common Share shall be transferred and assigned to CanCo Parent in accordance with Article 4 hereofexchange for, subject to Section 3.4, the delivery by CanCo Parent of the applicable Arrangement Share Consideration, and in respect of each Company Common Share so transferred and assigned,
(i) the registered holder thereof shall cease to be the registered holder of such Company Common Share and the name of such registered holder shall be removed from the register of holders Company Shareholders as of Corporation Shares, and such Corporation Shares shall be cancelled;the Effective Time; and
(bii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser CanCo Parent shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred such Company Common Share and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
thereof (c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims charges, encumbrances and encumbrances, any other rights of others); and
(iii) there shall be added to the Applicable Purchaser, stated capital account maintained by CanCo Parent for CanCo Parent Shares an amount equal to the value of the CanCo Parent Shares issued in exchange for a payment the Company Common Shares;
(c) each outstanding Company AA Share shall be transferred and assigned to CanCo Parent in cash equal exchange for, subject to Section 3.4, the delivery by CanCo Parent of the applicable Arrangement Share Consideration, and in respect of each Company AA Share so transferred and assigned,
(i) the registered holder thereof shall cease to be the registered holder of such Company AA Share and the name of such registered holder shall be removed from the register of holders Company Shareholders as of Corporation Shares, the Effective Time; and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser
(ii) CanCo Parent shall be recorded as the registered holder of the Corporation Shares so transferred such Company AA Share and shall be deemed to be the legal and beneficial owner thereof, thereof (free and clear of any all liens, claims charges, encumbrances and any other rights of others); and
(iii) there shall be added to the stated capital account maintained by CanCo Parent for CanCo Parent Multiple Voting Shares an amount equal to the value of the CanCo Parent Multiple Voting Shares issued in exchange for the Company AA Shares.
(d) notwithstanding any vesting or encumbrancesexercise provisions to which an Option might otherwise be subject (whether by contract, the conditions of a grant, applicable Laws or the terms of the Stock Option Plan):
(i) each Option that is issued and outstanding at the Effective Time shall, without any further action by or on behalf of any holder of such Option, cease to represent an option or other right to acquire Company A Shares and shall be converted on the same terms and conditions as were applicable under the Option (but taking into account any changes thereto provided for in the Stock Option Plan, in any applicable award agreement, in such option or deemed necessary to comply with applicable Laws) as of the Effective Time into a stock option to acquire the same number of CanCo Parent Shares as Company A Shares, at the same exercise price per share;
(ii) with respect to each such Option, the holder thereof will cease to be the holder of such Option, will cease to have any rights as a holder in respect of such Option or under the Stock Option Plan, such holder’s name will be removed from the register of Options, and all option agreements, grants and similar instruments relating thereto will be cancelled;
(e) Notwithstanding any provisions of the Company Share Purchase Plan:
(i) all rights of each CSPP Participant under the Company Share Purchase Plan to contributions by the Company and to the acquisition of Company A Shares under the Company Share Purchase Plan shall, without any further action by or on behalf of the CSPP Participant, be cancelled in exchange for equivalent rights under a new employee share purchase plan to be adopted by CanCo Parent for the purchase of CanCo Parent Shares; and
(ii) each CSPP Participant shall be entitled to the return of any contributions he or she made under the Company Share Purchase Plan after the fiscal quarter ending immediately before the Effective Time, without interest;
(f) the Stock Option Plan and the Company Share Purchase Plan shall be terminated (and all rights issued thereunder shall expire) and shall be of no further force or effect.
Appears in 1 contract
Sources: Arrangement Agreement (Edgewater Technology Inc/De/)
Arrangement. Commencing at On the Effective TimeDate, the following events or transactions shall occur and shall be deemed to occur sequentially in the following sequence order without any further act or formality:
(a) First, at the Effective Time, the following shall occur simultaneously:
(i) a fraction of each outstanding Corporation Company Share (other than a Company Share held by a Dissenting Shareholder, but including Company Shares held by a Dissenting Shareholder who is ultimately found not to be entitled to be paid fair value for its Company Shares or a Company Share held by the Purchaser or any subsidiary of the Purchaser) that is equal to the Non-Share Consideration Fraction shall be deemed to be transferred to the Purchaser free and clear of all liens, claims and encumbrances and, in consideration therefor, the Purchaser shall issue the Non-Share Consideration for each such fraction of a Company Share, subject to Section 3.3 and Article 5, and: (i) the name of such holder shall be removed from the central securities register of the Company as a holder of such fraction of a Company Share; and (ii) the Purchaser shall be recorded as the registered holder of such fraction of a Company Share and shall be deemed to be the legal owner of such fraction of a Company Share; and
(ii) a fraction of each Company Share (other than a Company Share held by a Dissenting Shareholder, but including Company Shares held by a Dissenting Shareholder who is ultimately found not to be entitled to be paid fair value for its Company Shares or a Company Share held by the holder thereof Purchaser or any subsidiary of the Purchaser) that is equal to the Corporation Share Consideration Fraction shall be deemed to be transferred to the Purchaser free and clear of all liens, claims and encumbrances and, in consideration therefor, the Purchaser shall issue the Share Consideration for each such fraction of a Company Share, subject to Section 3.3 and Article 5, and: (i) the name of such holder shall be removed from the central securities register of the Company as a holder of such fraction of a Company Share; and (ii) the Purchaser shall be recorded as the registered holder of such fraction of a Company Share and shall be deemed to be the legal owner of such fraction of a Company Share.
(b) Second, and five minutes after the Effective Time, all Company Shares held by Dissenting Shareholders shall be deemed to have been transferred (free and clear of all liens, claims and encumbrances) to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Section 4.1, and each and
(i) such Dissenting Shareholder Shareholders shall cease to be the holders of such Company Shares and to have any rights as a Corporation Shareholder Company Shareholders other than the right to be paid the fair value of their Corporation for such Company Shares by the Corporation as set out in accordance with Article 4 hereof, and Section 4.1;
(ii) the name of each such holder Dissenting Shareholder shall be removed as Company Shareholder, as applicable, from the register registers of holders Company Shareholders, as applicable, maintained by or on behalf of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained Company in respect of the applicable Qualifying Holdco, and such Company Shares; and
(iii) the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, transferee of such Company Shares (free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred ) and shall be entered in the registers of Company Shareholders maintained by or on behalf of Company. The exchanges and cancellations provided for in this Section 3.1 will be deemed to be occur on the legal and beneficial owner thereofEffective Date, free and clear notwithstanding that certain of any liens, claims or encumbrancesthe procedures related thereto are not completed until after the Effective Date.
Appears in 1 contract
Arrangement. Commencing at 3.1 At the Effective Time, the following events or and transactions set out below shall occur and shall be deemed to occur occur, unless otherwise provided, in the following sequence set out below, without any further act or formality, and with each event or transaction occurring and being deemed to occur at the time that is immediately after the occurrence of the immediately preceding event or transaction:
(a) each outstanding Corporation Share the ESI Shares held by a Dissenting Shareholder ESI Shareholders shall be deemed to be have been transferred by the holder thereof to the Corporation ESI (free and clear of all liens, claims and encumbrancesany Encumbrances) for cancellation, and each cease to be outstanding, and as of the Effective Time, such Dissenting Shareholder ESI Shareholders shall cease to have any rights as a Corporation Shareholder ESI Shareholders, other than the right to be paid the fair value of their Corporation ESI Shares by the Corporation in accordance with Article 4 hereof, hereof and the name of such holder Dissenting ESI Shareholders' names shall be removed from the register of holders ESI Shares maintained by or on behalf of Corporation Shares, and such Corporation Shares shall be cancelledESI;
(b) each Qualifying Holdco Share outstanding the Exploratus Shares held by a Qualifying Holdco Shareholder Dissenting Exploratus Shareholders shall be transferred and deemed to be have been transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, to Exploratus (free and clear of all liensany Encumbrances) for cancellation, claims and encumbrancescease to be outstanding, and as of the Effective Time, such Dissenting Exploratus Shareholders shall cease to have any rights as Exploratus Shareholders, other than the Purchaser, right to be paid the fair value of their Exploratus Shares in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, Article 4 hereof and the name of such holder Dissenting Exploratus Shareholders' names shall be removed from the register of holders of Qualifying Holdco Exploratus Shares maintained in respect by or on behalf of Exploratus;
(c) ESI and Spinco shall be amalgamated and continued as one corporation, "New ESI", pursuant to paragraph 193(1)(b) of the applicable Qualifying HoldcoABCA, with the same effect as provided in Sections 181 and 186 of the ABCA (except as otherwise set forth herein), and the Purchaser Exploratus Shares shall be recorded exchanged pursuant to paragraph 193(1)(f) of the ABCA, all in accordance with the following:
(i) the name of the amalgamated corporation shall be "ESI Energy Services Inc.";
(ii) the articles of amalgamation of New ESI shall be the same as the registered holder articles of incorporation of Spinco;
(iii) the authorized capital of New ESI shall be the authorized capital of Spinco and shall be comprised of the Qualifying Holdco New ESI Shares;
(iv) the ESI Shares so transferred will be and shall be deemed to be exchanged on the legal basis of one New ESI Share for every 0.7514 of an ESI Share;
(v) the Spinco Shares will be and beneficial owner thereofbe deemed to be exchanged for such number of New ESI Shares equal to the number of Exploratus Shares divided by 15.92;
(vi) the by-laws of New ESI shall be the by-laws of Spinco, free except that references to Spinco shall be changed to New ESI;
(vii) the registered office of New ESI shall be the registered office of ESI;
(viii) the board of directors of New ESI shall consist of six directors and clear the first directors of New ESI shall be the persons whose names and municipality of residence appear below: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇ Calgary, Alberta New York, NY Victoria, British Columbia ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Calgary, Alberta Houston, Texas Calgary, Alberta and such directors shall hold office until the first annual meeting of shareholders of New ESI or until such time as such directors resign or until their successors are duly elected or appointed;
(ix) the persons who appear below shall be the first officers of New ESI and shall hold the office(s) set opposite their respective names until their successors are duly appointed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ President and Chief Executive Officer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Chief Financial Officer
(x) KPMG LLP shall be the auditor of New ESI, to hold office until the next annual meeting of shareholders of New ESI, or until KPMG LLP resigns or is removed from office;
(xi) the property of each of ESI and Spinco shall continue to be the property of New ESI;
(xii) New ESI shall continue to be liable for the obligations (except amounts payable to ESI or Spinco) of each of ESI and Spinco;
(xiii) any liensexisting cause of action, claims claim or encumbrancesliability to prosecution of either of ESI or Spinco shall be unaffected;
(xiv) any civil, criminal or administrative action or proceeding pending by or against ESI or Spinco may be continued to be prosecuted by or against New ESI; and
(cxv) each Corporation Share outstanding a conviction against, or ruling, order or judgment in favour of or against, ESI or Spinco may be enforced by or against New ESI; and
(other than (id) Corporation The Exploratus Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not will be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be exchanged on the legal basis of: (i) one New Exploratus Share for each Exploratus Share; and beneficial owner thereof, free and clear of any liens, claims or encumbrances.(ii) one New ESI Share for every 15.92
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur sequentially in the following sequence order without any further act or formality:
(a) each outstanding Corporation Karora Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to Acquireco and Acquireco shall thereupon be obliged to pay the Applicable Purchaseramount therefor determined and payable in accordance with Article 4 hereof, in exchange for a payment in cash equal to the Consideration, and and: (i) the name of such holder shall be removed from the central securities register as a holder of Karora Shares and such Karora Shares shall be cancelled and cease to be outstanding; and (ii) such Dissenting Shareholders will cease to have any rights as Karora Shareholders other than the right to be paid the fair value for their Karora Shares by ▇▇▇▇▇▇;
(b) the transactions contemplated by (i) the Spinco Contribution Agreement, and (ii) all agreements (if any) required to transfer those Transferred Assets held by any applicable direct or indirect subsidiary of Karora to Spinco at the Effective Time, shall become effective, and pursuant thereto Karora, or its applicable direct or indirect subsidiaries, shall or shall cause to be transferred, assigned and conveyed to Spinco the Transferred Assets and Spinco shall accept and assume the Transferee Liabilities and issue or transfer to Karora and its applicable direct or indirect subsidiaries the Spinco Distribution Shares and such other applicable securities, properties, rights, liabilities or interests described in each applicable agreement, and Karora and each applicable direct or indirect subsidiary of Karora receiving Spinco Distribution Shares shall be entered into the register of Spinco Shares maintained by or on behalf of Spinco as a registered holder of such Spinco Distribution Shares;
(c) the transactions contemplated by those agreements (if any) entered into by Karora, its direct or indirect subsidiaries and Spinco to transfer or issue to Karora all Spinco Distribution Shares not otherwise acquired by Karora pursuant to Section 3.2(b) shall become effective, and pursuant thereto Karora shall be issued or transferred all Spinco Distribution Shares not otherwise acquired by Karora pursuant to Section 3.2(b) for that consideration set out in each applicable agreement, each direct or indirect subsidiary of Karora shall transfer such Spinco Distribution Shares acquired pursuant to Section 3.2(b) (if any) to Karora and, Spinco shall issue to Karora any Spinco Distribution Shares not previously issued to Karora or its applicable direct or indirect subsidiaries pursuant to Section 3.2(b) (if any) and Karora shall be entered into the register of Spinco Shares maintained by or on behalf of Spinco as a registered holder of such Spinco Distribution Shares so transferred or issued and the name of each direct or indirect subsidiary of Karora that acquired Spinco Distribution Shares pursuant to Section 3.2(b) shall be removed from the register of holders of Corporation Spinco Shares maintained by or on behalf of Karora;
(d) the authorized share capital of Karora shall be amended by the creation of an unlimited number of Karora Class A Shares, andof which an unlimited number of shares may be issued, with respect to Corporation Shares elected and the articles of Karora shall be deemed to be amended accordingly;
(e) Karora shall undertake a reorganization of capital within the meaning of section 86 of the Tax Act, pursuant to which each Karora Share held by the Participating Former Karora Shareholders (including, for the avoidance of doubt, any Karora Shares issued to holders of Karora Options, Karora RSUs, Karora PSUs and Karora DSUs pursuant to Section 2.4, but excluding any Karora Shares that are held by Westgold or its affiliates, if any, and any Karora Shares that are cancelled pursuant to Section 3.1(a)) shall be, and shall be deemed to be, transferred to Karora (free and clear of any liens, claims and encumbrances) in exchange for one (1) Karora Class A Share and a Fractional Spinco Share, and such Karora Shares shall thereupon be cancelled, and:
a. the Purchaser, Participating Former Karora Shareholders shall cease to be the Purchaser holders thereof and to have any rights or privileges as holders of such Karora Shares;
b. the Participating Former Karora Shareholders’ names shall be recorded as removed from the registered holder register of the Corporation Shares so transferred and holders of ▇▇▇▇▇▇ ▇▇▇▇▇▇ maintained by or on behalf of Karora;
c. each Participating Former Karora Shareholder shall be deemed to be the legal holder of that number of Karora Class A Shares and beneficial owner thereofthat number of Spinco Shares as rounded down pursuant to Section 3.2(a) (in each case, free and clear of any liens, claims and encumbrances) received in exchange for their Karora Shares and shall be entered in the registers of holders of Karora Class A Shares and Spinco Shares, as the case may be, as the registered holder thereof;
d. Karora shall be removed from the register of holders of Spinco Shares in respect of those Fractional Spinco Shares transferred to the Participating Former Karora Shareholders; and
e. the stated capital account maintained by Karora in respect of the Karora Shares shall be reduced by an amount equivalent to the aggregate paid-up capital (as determined for purposes of the Tax Act) attributable to the Karora Shares exchanged pursuant to this Section 3.1 immediately prior to their exchange, and there shall be added to the stated capital account maintained by Karora in respect of the Karora Class A Shares, the amount by which (A) the aggregate paid-up capital attributable to the Karora Shares exchanged pursuant to this Section 3.1 immediately prior to the exchange exceeds the fair market value of the Spinco Shares distributed by Karora to the Participating Former Karora Shareholders on such exchange;
(f) the Initial Spinco Share held by Karora shall be cancelled without any repayment therefor, and Karora shall be removed from Spinco’s register of holders of Spinco Shares;
(g) each Participating Former Karora Shareholder shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Karora Shareholder, free and clear of all liens, claims and encumbrances, each Karora Class A Share held by such Participating Former Karora Shareholder in exchange for the Consideration, and each of Westgold and Acquireco shall be deemed to have directed the Depositary to issue and to pay to such Participating Former Karora Shareholder the Consideration to which such Participating Former Karora Shareholder is entitled pursuant to this Section 3.1(g), and upon such exchange:
a. Acquireco shall issue to Westgold, as consideration for the issue of the Share Consideration by ▇▇▇▇▇▇▇▇, one fully paid and non-assessable Acquireco Common Share for each such Westgold Share, and the capital account maintained by Acquireco in respect of the Acquireco Common Shares shall be increased, in respect of each Acquireco Common Share issued pursuant to this Section 3.1(g)a, by an amount equal to $[⚫]1, and Westgold shall be entered in Acquireco’s central securities register of holders of Acquireco Common Shares;
b. each Participating Former Karora Shareholder shall be removed from Karora’s central securities register of holders of Karora Class A Shares;
c. Acquireco shall be entered in Karora’s central securities register of holders of Karora Class A Shares as the legal and beneficial owner of such Karora Class A Shares, free of all liens, claims and encumbrances; and
d. each Participating Former Karora Shareholder shall be entered in Westgold’s register of holders of Westgold Shares in respect of Westgold Shares payable to such Participating Former Karora Shareholder pursuant to this Section 3.1(g); and
(h) the Karora Plan and all agreements relating thereto shall be terminated and shall be of no further force and effect. At such time following the completion of those transactions described in the foregoing paragraphs of this Section 3.1, as promptly as possible after all conditions therefore have been met, Karora shall file or cause to be filed the prescribed form of election under the Tax Act with the Canada Revenue Agency electing to cease being a public corporation for the purposes of the Tax Act.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at 3.1 On the Effective TimeDate, each of the following events or transactions shall occur and shall below will, except as otherwise expressly provided, be deemed to occur in the following sequence sequentially without any further act or formality:
(a) each outstanding Corporation Share the Cinram Shares held by a Dissenting Shareholder shall Shareholders who have exercised Dissent Rights which remain valid immediately before the Effective Date will be deemed to have been transferred to Cinram and cancelled and cease to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrancesoutstanding, and each such Dissenting Shareholder shall Shareholders will cease to have any rights as a Corporation Shareholder Shareholders other than the right to be paid the fair value of their Corporation Cinram Shares;
(b) each issued and outstanding Cinram Share in respect of which an Electing Shareholder (who is not an Excluded Shareholder) has validly elected to receive an Exchangeable LP Unit (except, for greater certainty, any such Cinram Shares elected to be transferred in consideration for Exchangeable LP Units exceeding the Shareholder's pro rata allocation of the Maximum Number of Exchangeable LP Units) will be transferred to Holding Partnership in consideration for one Exchangeable LP Unit and related Ancillary Rights;
(c) each issued and outstanding Cinram Share not transferred to Holding Partnership under paragraph (b) will be transferred to the Fund in consideration for one Fund Unit;
(d) the Fund will transfer the Cinram Shares held by it to the Trust in consideration for Trust Units and Series 1 Trust Notes;
(e) the Trust will transfer the Cinram Shares held by it to Holding Partnership in consideration for Class A Holding Partnership Units;
(f) Holding Partnership will transfer the Cinram Shares held by it (which, at that time, will be all of the issued and outstanding Cinram Shares) to the ULC in consideration for ULC Shares pursuant to a joint election under Section 85 of the Tax Act;
(g) the ULC will transfer the Cinram Shares held by it to Newco in consideration for Newco Shares and the Newco Notes pursuant to a joint election under Section 85 of the Tax Act;
(h) Cinram and Newco (collectively, the "PREDECESSOR CORPORATIONS") will amalgamate pursuant to the laws of Canada to form Amalco, with the effect that:
(i) all of the property of the predecessor corporations held immediately before the amalgamation (except any amounts receivable from any predecessor corporation or shares of any predecessor corporation) will become the property of Amalco;
(ii) all of the liabilities of the predecessor corporations immediately before the amalgamation (except amounts payable to any predecessor corporation) will become liabilities of Amalco;
(iii) all of the issued and outstanding Cinram Shares held by Newco immediately before the amalgamation will be cancelled without repayment of capital;
(iv) the articles and by-laws of Amalco will be the same as the articles and by-laws of the Newco; and
(v) the Newco Shares and the Newco Notes held by the Corporation ULC immediately before the amalgamation will become Amalco Shares and the Amalco Notes, respectively, by virtue of the amalgamation and the stated capital of the Amalco Shares will be equal to the stated capital of the Newco Shares immediately before such amalgamation; and
(i) each Option will be exchanged for a Fund Option.
3.2 Subject to Section 3.3, with respect to the elections required to be made by a Shareholder in order to dispose of Cinram Shares pursuant to Section 3.1(b):
(a) each such Shareholder shall make such election by depositing with the Depositary a duly completed Letter of Transmittal and Election Form prior to the Election Deadline, indicating such Shareholder's election, together with certificates representing such Shareholder's Cinram Shares; and
(b) any Shareholder who does not deposit with the Depositary a completed Letter of Transmittal and Election Form prior to the Election Deadline or otherwise fails to comply with the requirements of Section 3.2(a) and the Letter of Transmittal and Election Form shall be deemed to have elected to dispose of Cinram Shares to the Fund pursuant to Section 3.1(c).
3.3 With respect to any election required to be made by a Shareholder in order to effect the transfer of Cinram Shares pursuant to Section 3.1(b), such Shareholder may so elect in respect of any portion of the aggregate number of Cinram Shares (excluding any fractions of a Cinram Share) held by such holder and otherwise satisfying the conditions to such election. In the event that the aggregate Elected Number of all Electing Shareholders is greater than the Maximum Number of Exchangeable LP Units, the Exchangeable LP Units will be allocated on a pro rata basis to each Electing Shareholder in accordance with Article 4 hereofthe following formula: the Maximum Number of Exchangeable LP Units divided by the aggregate Elected Number of all Electing Shareholders multiplied by the Elected Number of the particular Electing Shareholder. Each Electing Shareholder will be deemed to have elected to exchange that number of Cinram Shares equal to the number of Exchangeable LP Units allocated to such Electing Shareholder and the balance of such Electing Shareholder's Cinram Shares shall be transferred to the Fund in exchange for Fund Units pursuant to Section 3.1(c).
3.4 With respect to each Shareholder (other than Dissenting Shareholders), on the Effective Date:
(a) upon the transfer of Cinram Shares to the Holding Partnership in consideration for Exchangeable LP Units and related Ancillary Rights pursuant to Section 3.1(b):
(i) such former Shareholder shall be added to the registers of holders of Exchangeable LP Units and Special Voting Units, added as a party to the Limited Partnership Agreement and the Exchange Agreement and the name of such holder shall be removed from the register of holders of Corporation Shares, Cinram Shares as it relates to the Cinram Shares so transferred; and
(ii) the Holding Partnership shall become the holder of the Cinram Shares so transferred and such Corporation Shares shall be cancelledadded to the register of holders of Cinram Shares;
(b) upon the transfer of Cinram Shares to the Fund in consideration for Fund Units and an obligation of the Fund to issue and deliver one Unit for each Qualifying Holdco Cinram Share outstanding held by a Qualifying Holdco so transferred pursuant to Section 3.1(b) or Section 3.1(c):
(i) such former Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, added to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, register of holders of Fund Units and the name of such holder shall be removed from the register of holders of Qualifying Holdco Cinram Shares maintained in respect of as it relates to the applicable Qualifying Holdco, and Cinram Shares so transferred; and
(ii) the Purchaser Fund shall be recorded as become the registered holder of the Qualifying Holdco Cinram Shares so transferred and shall be deemed added to be the legal and beneficial owner thereof, free and clear register of any liens, claims or encumbrances; andholders of Cinram Shares;
(c) each Corporation Share outstanding (other than upon the transfer of Cinram Shares by the Fund to the Trust in consideration for Trust Units and Series 1 Trust Notes pursuant to Section 3.1(d);
(i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which Fund shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed cease to be a holder of the Cinram Shares so transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder the Fund shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Cinram Shares elected to be transferred as it relates to the Purchaser, Cinram Shares so transferred;
(ii) the Purchaser Trust shall be recorded as become the registered holder of the Corporation Cinram Shares so transferred and shall be deemed added to the register of holders of Cinram Shares; and
(iii) the Trust shall issue to the Fund the Trust Units and Series 1 Trust Notes issuable to the Fund on the basis set forth in Section 3.1(d) and the name of the Fund shall be added to the registers of holders of Trust Units and Series 1 Trust Notes;
(d) upon the transfer of Cinram Shares by the Trust to the Holding Partnership in consideration for Class A Holding Partnership pursuant to Section 3.1(e):
(i) the Trust shall cease to be a holder of the legal Cinram Shares so transferred and beneficial owner thereofthe name of the Trust shall be removed from the register of holders of Cinram Shares as it relates to the Cinram Shares so transferred;
(ii) the Holding Partnership shall become the holder of the Cinram Shares so transferred and shall be added to the register of holders of Cinram Shares; and
(iii) the Holding Partnership shall issue to the Trust the Class A Holding Partnership Units issuable to the Trust on the basis set forth in Section and the name of the Trust shall be added to the register of holders of Class A Holding Partnership Units;
(e) upon the transfer of Cinram Shares by the Holding Partnership to the ULC in consideration for ULC Shares pursuant to Section 3.1(f):
(i) the Holding Partnership shall cease to be a holder of the Cinram Shares so transferred and the name of the Holding Partnership shall be removed from the register of holders of Cinram Shares as it relates to the Cinram Shares so transferred;
(ii) the ULC shall become the holder of the Cinram Shares so transferred and shall be added to the register of holders of Cinram Shares; and
(iii) the ULC shall issue to the Holding Partnership the ULC Shares issuable to the Holding Partnership on the basis set forth in Section 3.1(f) and the name of the Holding Partnership shall be added to the register of holders of the ULC Shares;
(f) upon the transfer of Cinram Shares by the ULC to Newco in consideration for Newco Shares and the Newco Notes pursuant to Section 3.1(g);
(i) the ULC shall cease to be a holder of the Cinram Shares so transferred and the name of the ULC shall be removed from the register of holders of Cinram Shares as it relates to the Cinram Shares so transferred;
(ii) Newco shall become the holder of the Cinram Shares so transferred and shall be added to the register of holders of Cinram Shares; and
(iii) Newco shall issue to the ULC the Newco Shares and the Newco Notes issuable to the ULC on the basis set forth in Section 3.1(g) and the name of the ULC shall be added to the registers of holders of the Newco Shares and the Newco Notes;
(g) upon the amalgamation of Cinram and Newco pursuant to Section 3.1(h):
(i) all of the Cinram Shares held by Newco immediately before the amalgamation shall be cancelled, free and clear Newco shall be removed from the register of holders of Cinram Shares; and
(ii) the Newco Shares and the Newco Notes will become Amalco Shares and the Amalco Notes on the basis set forth in Section 3.1(h), and the ULC shall be added to the register of holders of Amalco Shares; and
(h) upon the exchange of Options for Fund Options pursuant to Section 3.1(i), each holder of Options shall cease to be a holder of Options and the name of such former holder of Options shall be removed from the register of holders of Options as it relates to the Options so exchanged and the name of such former holder of Options shall be added to the register of holders of Fund Options.
3.5 A Shareholder, who is not an Excluded Shareholder, may elect to transfer Cinram Shares to the Partnership pursuant to Section 3.1(b). A holder who has transferred Cinram Shares pursuant to Section 3.1(b) shall be entitled to make an income tax election pursuant to subsection 97(2) of the Tax Act (and the analogous provisions of provincial income tax law) with respect thereto by providing two signed copies of the necessary election forms to the Holding Partnership within 60 days following the Effective Date, duly completed with the details of the number of Cinram Shares transferred and the applicable agreed amounts for the purposes of such elections. Thereafter, subject to the election forms complying with the provisions of the Tax Act (and applicable provincial tax law), the election forms will be signed and one copy thereof shall be forwarded by mail to such former Shareholders within 30 days after the receipt thereof by the Holding Partnership for filing with the CRA (and/or the applicable provincial taxing authority). The Holding Partnership will not be responsible for the proper completion and filing of any lienselection form, claims except for the obligation of the Holding Partnership to so sign and return election forms which are received by the Holding Partnership within 60 days of the Effective Date, and the Holding Partnership will not be responsible for any taxes, interest or encumbrancespenalties resulting from the failure by a former Shareholder to properly complete or file the election forms in the form and manner and within the time prescribed by the Tax Act (and any applicable provincial legislation).
Appears in 1 contract
Sources: Arrangement Agreement (Cinram International Income Fund)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order set out below without any further authorizations, act or formality, in each case effective as at two minute intervals starting at the Effective Time:
(a) each outstanding Corporation Share of the Company Shares held by a Dissenting Shareholder Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have transferred, without further act or formality by or on behalf of any Dissenting Holder, to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3 , and:
(i) such Dissenting Holder shall cease to be transferred by the holder thereof to the Corporation free of such Company Shares and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value for such Company Shares, as set out in Section 3.1;
(ii) such Dissenting Holder’s name shall be removed as the holder of their Corporation Company Shares from the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares, free and clear of all Liens (other than the right to be paid fair value for such Company Shares as set out in Section 3.1), and shall be entered into the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(b) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company Legacy Equity Incentive Plan or Company PRSU Plan or applicable Law), each Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further act or formality by or on behalf of any Company RSU Holder, be deemed to be fully vested and shall be surrendered by the Corporation holder thereof to the Company (free and clear of all Liens) and cancelled in accordance with Article 4 hereofexchange for the applicable Company RSU Consideration; and
(i) the relevant holder of such Company RSU will be issued Company Shares equal to the Company RSU Net Payment, having a fair market value equal to the Company RSU Consideration, net of applicable source deductions, and the Company RSU Net Payment issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non-assessable Company Shares;
(ii) the Company RSU Balance Shares will be issued in trust for the relevant holder of such Company RSU to a securities dealer designated by the Purchaser, who is authorized on behalf of the relevant holder of such Company RSU, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such Company RSU Balance Shares pursuant to Section (h) to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such Company RSUs, and the Company RSU Balance Shares issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non- assessable Company Shares;
(iii) each holder of such Company RSU shall cease to be the holder thereof and to have any rights as a Company RSU Holder;
(iv) the name of each such holder shall be removed from the register of holders the Company RSU Holders maintained by or on behalf of Corporation the Company;
(v) each such former holder of such Company RSU shall be deemed to be the holder of the Company Shares comprising the Company RSU Consideration and shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company and such Company Shares shall be issued to such former holder of such Company RSUs as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares; and
(vi) all Award Agreements in respect of Company RSUs, grants and such Corporation Shares similar instruments relating thereto shall be cancelled;
(bc) notwithstanding any vesting provisions to which a Company PSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company Legacy Equity Incentive Plan or Company PRSU Plan or applicable Law), each Qualifying Holdco Share Company PSU issued and outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed immediately prior to be transferred by the Qualifying Holdco ShareholderEffective Time shall, without any further act or formality by or on its partbehalf of any Company PSU Holder, be deemed to be fully vested and shall be surrendered by the holder thereof to the Company (free and clear of all liensLiens) and cancelled in exchange for the applicable Company PSU Consideration; and
(i) the relevant holder of such Company PSU will be issued Company Shares equal to the Company PSU Net Payment, claims having a fair market value equal to the Company PSU Consideration, net of applicable source deductions, and encumbrances, the Company PSU Net Payment issuable in connection therewith will be deemed to be issued to such holder of such Company PSUs as fully-paid and non-assessable Company Shares;
(ii) the Company PSU Balance Shares will be issued in trust for the relevant holder of such Company PSU to a securities dealer designated by the Purchaser, who is authorized on behalf of the relevant holder of such Company PSU, to sell in accordance with the applicable Holdco Agreement, capital markets or otherwise the Purchaser Shares received in exchange for a payment such Company PSU Balance Shares pursuant to Section 2.3(h) to realize cash proceeds to satisfy the applicable source deductions in cash equal to respect of the Holdco Share Considerationsurrender of such Company PSUs, and the Company PSU Balance Shares issuable in connection therewith will be deemed to be issued to such holder of such Company RSUs as fully-paid and non- assessable Company Shares;
(iii) each holder of such Company PSU shall cease to be the holder thereof and to have any rights as a Company PSU Holder;
(iv) the name of each such holder shall be removed from the register of holders of Qualifying Holdco Shares the Company PSU Holders maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered Company;
(v) each such former holder of the Qualifying Holdco Shares so transferred and such Company PSU shall be deemed to be the legal holder of the Company Shares comprising the Company PSU Consideration and beneficial owner thereofshall be entered in the register of the Company Shareholders maintained by or on behalf of the Company, free and clear such Company Shares shall be issued to such former holder of any lienssuch Company PSUs as fully paid and non-assessable Company Shares, claims or encumbrancesprovided that no share certificates shall be issued with respect to such Company Shares;
(vi) all Award Agreements in respect of Company PSUs, grants and similar instruments relating thereto shall be cancelled; and
(cvii) the Company PRSU Plan shall be terminated, and none of the Company nor the Purchaser shall have any further liabilities or obligations thereunder;
(d) each Corporation Share outstanding Company Out-Of-The-Money Option will be cancelled without any payment in respect thereof and the holder thereof will cease to be the holder of such Company Option, will cease to have any rights as a holder in respect of such Company Option, will be removed from the register of the Company Options, and all option agreements, grants and similar instruments relating thereto will be cancelled, and none of the Company nor the Purchaser shall have any further liabilities or obligations with respect thereto;
(other than e) each Company In-The-Money Option will be surrendered and cancelled in exchange for:
(i) Corporation the relevant In-The-Money Amount and the relevant Company Optionholder will be issued the Company Option Shares, having a fair market value equal to the relevant aggregate In-The-Money Amount, net of applicable source deductions, and the Company Option Shares held by Brookfieldwill be deemed to be issued to such Company Optionholder as fully paid and non-assessable Company Shares, the Purchaser or any of their affiliates (which provided that no share certificates shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or issued with respect to such affiliate, as the case may be); Company Shares;
(ii) Corporation the Company Option Balance Shares held by Qualifying Holdcos, will be issued in trust for the Qualifying Holdco Shares of which are acquired relevant Company Optionholder to a securities dealer designated by the Purchaser is issued in trust the Company Option Balance Shares, who will be authorized on behalf of the relevant holder of such Company Optionholder, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such Company Option Balance Shares pursuant to Section 3.1(b2.3(h) (which shall not to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such Company Options and the Company Option Balance Shares will be acquired under the Arrangement deemed to be issued to such Company Optionholder as fully paid and shall remain outstanding as Corporation Shares held by such Qualifying Holdco)non-assessable Company Shares; and and
(iii) Corporation Shares acquired by the holder of such Company Option will cease to be the holder of such Company Option, will cease to have any rights as a holder in respect of such Company Option, will be removed from the applicable register of the Company Options, and all Award Agreements relating thereto will be cancelled, and neither the Company nor the Purchaser pursuant shall have any further liabilities or obligations with respect thereto
(f) the Company Option Plan and the Company Legacy Equity Incentive Plan shall each be terminated, and none of the Company nor the Purchaser shall have any further liabilities or obligations thereunder.
(g) notwithstanding any vesting provisions to Section 3.1(a)which a TJAC Option might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the TJAC Option Plan or applicable Law), shall be transferred each TJAC Option issued and deemed outstanding immediately prior to be transferred by the holder thereofEffective Time shall, without any further act or formality by or on its partbehalf of any TJAC Optionholder, be deemed to be fully vested and shall be surrendered by the holder thereof to TJAC (free and clear of all liens, claims Liens) and encumbrances, to the Applicable Purchaser, cancelled in exchange for a payment in cash the TJAC Option Consideration; and
(i) TJAC will issue such number of TJAC common shares to the Company that is equal to the aggregate number of Company Shares required to be delivered by the Company pursuant to Section 2.3(g)(ii) in consideration of the Company issuing the aggregate TJAC Option Consideration in respect of all TJAC Options;
(ii) the Company will deliver to the relevant holder of such TJAC Option Company Shares equal to the TJAC Option Net Payment, having a fair market value equal to the TJAC Option Consideration, net of applicable source deductions, and the TJAC Net Option Payment issuable in connection therewith will be deemed to be issued to such holder of such TJAC Options as fully-paid and non-assessable;
(iii) the Company will issue in trust for the relevant holder of such TJAC Options to a securities dealer designated by the Purchaser the TJAC Option Balance Shares, who is authorized on behalf of the relevant holder of such TJAC Options, to sell in the capital markets or otherwise the Purchaser Shares received in exchange for such TJAC Option Balance Shares pursuant to Section 2.3(h) to realize cash proceeds to satisfy the applicable source deductions in respect of the surrender of such TJAC Options and the TJAC Option Balance Shares will be deemed to be issued to such TJAC Optionholder as fully paid and non- assessable Company Shares
(iv) each holder of such TJAC Option shall cease to be the holder thereof and to have any rights as a TJAC Optionholder;
(v) the name of each such holder shall be removed from the register of holders the TJAC Optionholders maintained by or on behalf of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered TJAC;
(vi) each such former holder of the Corporation Shares so transferred and such TJAC Option shall be deemed to be the legal holder of the Company Shares comprising the TJAC Option Net Payment and beneficial owner thereofshall be entered in the register of the Company Shareholders maintained by or on behalf of the Company, and such Company Shares shall be issued to such former holder of such TJAC Options as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares;
(vii) all Award Agreements in respect of TJAC Options, grants and similar instruments relating thereto shall be cancelled; and
(viii) the TJAC Option Plan shall be terminated, and none of the Company, TJAC nor the Purchaser shall have any further liabilities or obligations thereunder;
(h) each Company Share outstanding immediately prior to the Effective Time (other than Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised under Section 2.3(a) shall be deemed to be assigned and transferred by the holder thereof to the Purchaser in exchange for the Consideration; and
(i) each holder of such Company Shares shall cease to be the holder thereof and to have any rights as a Company Shareholder, other than the right to be paid the Consideration per Company Share in accordance with this Plan of Arrangement;
(ii) the name of the each such holder of Company Shares shall be removed from the register of the Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares, free and clear of any liensall Liens, claims and shall be entered in the register of the Company Shareholders maintained by or encumbranceson behalf of the Company.
Appears in 1 contract
Sources: Amending Agreement
Arrangement. Commencing at Pursuant to the Effective TimeArrangement, each of the following events or transactions shall occur and shall be deemed to occur sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Effective Time:
(1) AcquireCo shall make the Purchaser Loan to the extent required by the Corporation;
(2) each Corporation Option (whether vested or unvested) which has not been exercised or surrendered immediately prior to the Effective Time, notwithstanding the terms of the Corporation Option Plan, any resolutions of the Board or any agreement, certificate or other instrument granting or confirming the grant of Corporation Options or representing Corporation Options, shall be, and shall be deemed to be, without any further action by or on behalf of the holder of such Corporation Options, fully and unconditionally vested and exercisable, and shall be surrendered and transferred to the Corporation (free and clear of all Liens) in exchange for a cash payment from the Corporation equal to the amount (if any) by which the Consideration exceeds the exercise price of such Corporation Option subject to any applicable withholding, and each such Corporation Option shall immediately be cancelled and, for greater certainty, where such amount is zero or negative, none of the Corporation or the Purchaser Parties shall be obligated to pay the holder of such Corporation Option any amount in respect of such Corporation Option;
(3) each Corporation Share Unit (whether vested or unvested) which has not been redeemed or surrendered immediately prior to the Effective Time, notwithstanding the terms of the Corporation Stock Performance Unit Plan, any resolutions of the Board or any agreement, certificate or other instrument granting or confirming the grant of Corporation Share Units or representing Corporation Share Units, shall be, and shall be deemed to be, without further action by or on behalf of the holder of such Corporation Share Unit, fully and unconditionally vested and redeemable, and shall be settled by the Corporation for a cash payment from the Corporation equal to the Consideration subject to any applicable withholding, and each such Corporation Share Unit shall be immediately cancelled;
(i) each holder of Corporation Options or Corporation Share Units shall cease to be a holder of such Corporation Options or Corporation Share Units, as applicable, (ii) such holder’s name shall be removed from each applicable register or account, (iii) the Corporation Option Plan, the Corporation Stock Performance Unit Plan and all agreements relating to the Corporation Options and the Corporation Share Units shall be terminated and shall be of no further force and effect, and (iv) such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 2.3(2) and Section 2.3(3), as applicable, at the time and in the following sequence manner specified in such Section 2.3(2) and Section 2.3(3);
(5) each outstanding Share held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised, and have been not withdrawn or deemed to be withdrawn, shall be deemed to have been transferred without any further act or formalityformality by the holder thereof to AcquireCo (free and clear of all Liens), and:
(a) each outstanding Corporation Share held by a such Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder Holder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation its Shares by the Corporation AcquireCo in accordance with Article 4 hereof, and 3;
(b) the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares maintained by or on behalf of the Corporation; and
(c) AcquireCo shall be cancelledrecorded as the holder of the Shares so transferred and shall be deemed to be the legal and beneficial owner thereof (free and clear of all Liens);
(b6) each Qualifying Holdco outstanding Share outstanding (other than Shares held by a Qualifying Holdco Shareholder the Dissenting Holders who have validly exercised such holders’ Dissent Right) shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, by the holder thereof to AcquireCo (free and clear of all liensLiens) in exchange for the Consideration per Share, claims and encumbrances, and
(a) the holder of such Share shall cease to have any rights as a Shareholder other than the Purchaser, right to be paid the Consideration per Share in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and this Plan of Arrangement;
(b) the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser Corporation; and
(c) AcquireCo shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
thereof (c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesLiens).
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, Time each of the following events or transactions shall occur and shall be deemed to occur sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the following sequence Effective Time:
(a) notwithstanding the terms of the Rights Plan, the Rights Plan shall be terminated and all rights issued pursuant to the Rights Plan shall be cancelled without any payment in respect thereof;
(b) each Common Share outstanding immediately prior to the Effective Time held by a Company Shareholder in respect of which Dissent Rights have been validly exercised and have not been withdrawn or deemed to have been withdrawn shall be deemed to have been transferred without any further act or formality:
(a) each outstanding Corporation Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof , to the Corporation Purchaser, free and clear of all liensany Liens, claims in consideration for a debt claim against the Purchaser in an amount and encumbrancespayable in accordance with Article 3, and:
(i) such Company Shareholder will cease to be the holder of such Dissenting Shares and each Dissenting Shareholder shall will cease to have any rights as a Corporation Shareholder holder of such Common Shares other than the right to be paid the fair value for such Dissenting Shares as set out in Section 3.1(a);
(ii) such Company Shareholder’s name will be removed as the registered holder of their Corporation such Dissenting Shares from the registers of Common Shares maintained by or on behalf of the Company; and
(iii) the Purchaser will be deemed to be the transferee of such Dissenting Shares, free and clear of any Liens.
(c) each Common Share outstanding immediately prior to the Effective Time (other than any Common Share in respect of which a Company Shareholder has validly exercised, and has not withdrawn or been deemed to have withdrawn, its Dissent Right, and Common Shares held by the Corporation Purchaser or any Affiliate thereof) shall be transferred to, and acquired by the Purchaser, without any further act or formality on the part of the holder of such Common Share or the Purchaser, free and clear of all Liens, in accordance with Article 4 hereofexchange for the Consideration, and the name of each such holder shall Company Shareholder will be removed from the register of holders of Corporation Shares, Common Shares and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed added to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying HoldcoPurchaser Shares, and the Purchaser shall will be recorded as the registered holder of the Qualifying Holdco such Common Shares so transferred exchanged and shall will be deemed to be the legal and beneficial owner thereof;
(d) each Company Option which is outstanding and which has not been duly exercised prior to the Effective Time, free notwithstanding the terms of the Company Stock Option Plan, without any further action by or on behalf of a Company Optionholder, be deemed to be assigned and clear transferred by such holder to the Company in exchange for a cash payment from the Company equal to the amount by which $9.40 exceeds the exercise price of such Company Option less applicable withholdings, and such Company Option shall immediately be cancelled and, for greater certainty, where such amount is a negative, neither the Company nor the Purchaser shall be obligated to pay the Company Optionholder any liensamount in respect of such Company Option, claims and the Company Stock Option Plan will terminate and none of the former Company Optionholders, the Parties or encumbrancesany of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the Company Options or the Company Stock Option Plan; and
(ce) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfieldnotwithstanding any vesting or exercise provisions to which a Company RSU might otherwise be subject, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and Effective Date shall be deemed to be the legal Redemption Date (as defined in the Company RSU Plan) for all of the then issued and beneficial owner thereofoutstanding Company RSUs, free and clear each such Company RSU will be redeemed for two Purchaser Shares plus $0.001 in cash (less any applicable withholding), and thereafter the Company RSU Plan will terminate and none of the former holders of Company RSUs, the Parties or any liensof their respective successors or assigns shall have any rights, claims liabilities or encumbrancesobligations in respect of the Company RSU Plan.
Appears in 1 contract
Arrangement. 3.1 Commencing at the Effective Time, each of the following events or transactions set out below shall occur and shall be deemed to occur in the following sequence sequential order without any further act or formalityformality except as otherwise provided herein:
(a) each outstanding Corporation Share the Dissent BioCan Shares held by a Dissenting Shareholder BioCan Shareholders shall be and be deemed to be transferred by the holder holders thereof to the Corporation Makena (free and clear of all liens, claims and encumbrances, ) and each such Dissenting Shareholder BioCan Shareholders shall cease to have any rights as a Corporation Shareholder BioCan Shareholders, other than the right to be paid the fair value of their Corporation BioCan Shares by the Corporation Makena in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelledDissent Rights;
(b) with respect to all of the issued and outstanding BioCan Shares (other than any BioCan Shares beneficially owned by and registered in the name of Makena, including any such shares transferred to Makena pursuant to Section 3.1(a)), each Qualifying Holdco Share outstanding held by a Qualifying Holdco such BioCan Shareholder shall be transferred deemed to have received an offer from Makena to acquire all of such BioCan Shareholder’s BioCan Shares, and an agreement of purchase and sale shall be deemed to exist between Makena and such BioCan Shareholder on the terms set out in the Arrangement Agreement, and such BioCan Shares shall be and be deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, holder thereof to Makena (free and clear of all liens, claims and encumbrances, ) and Makena shall issue to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco each BioCan Shareholder whose BioCan Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares have been so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances7.301 Makena Shares for every 1 BioCan Share so transferred; and
(c) each Corporation Share with respect to all of the issued and outstanding Epimeron Shares (other than (i) Corporation any Epimeron Shares held beneficially owned by Brookfieldand registered in the name of Makena), each such Epimeron Shareholder shall be deemed to have received an offer from Makena to acquire all of such Epimeron Shareholder’s Epimeron Shares, and an agreement of purchase and sale shall be deemed to exist between Makena and such Epimeron Shareholder on the Purchaser or any of their affiliates (which shall not be acquired under terms set out in the Arrangement Agreement, and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Epimeron Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and be deemed to be transferred by the holder thereof, without any further act or formality on its part, thereof to Makena (free and clear of all liens, claims and encumbrances) and Makena shall issue to each Epimeron Shareholder whose Epimeron Shares have been so transferred 577.153 Makena Shares for every 1 Epimeron Share so transferred.
3.2 The parties shall make the appropriate entries in their respective securities registers to reflect the matters referred to in Section 3.1.
3.3 Makena, BioCan, Epimeron and the Depositary shall be entitled to deduct and withhold from any consideration otherwise payable to any former BioCan Shareholder or Epimeron Shareholder under this Plan of Arrangement, including from any amount payable to any Dissenting BioCan Shareholder or any dividend or other distribution, as the case may be, such amounts as Makena is required to deduct and withhold from such consideration in accordance with the Tax Act, the United States Internal Revenue Code of 1986, or any other provision of any applicable law. Any such amounts will be deducted and withheld from the consideration payable pursuant to this Plan of Arrangement and shall be treated for all purposes as having been paid to the former BioCan Shareholder or Epimeron Shareholder in respect of which such deduction and withholding was made, provided that such withheld amounts are actually remitted to the appropriate taxing authority. To the extent that the amount so required to be deducted or withheld from any payment to a former BioCan Shareholder or Epimeron Shareholder exceeds the cash component, if any, of the consideration otherwise payable to the holder, each of Makena and the Depositary is hereby authorized, for and on behalf of such holder, to sell or otherwise dispose of such portion of the Applicable Purchaser, in exchange for a payment in cash equal Makena Shares otherwise issuable to the Considerationholder as is necessary to provide sufficient funds to Makena or the Depositary, as the case may be, to enable it to comply with such deduction or withholding requirement and Makena or the Depositary shall notify the holder thereof and remit the applicable portion of the net proceeds of such sale to the appropriate taxing authority and shall remit to such holder any unapplied balance of the proceeds of such sale.
3.4 The Arrangement shall be structured such that, assuming the resolutions approving the Arrangement are approved and the Final Order is obtained, the issuance of Makena Shares issuable to the BioCan Shareholders and the Epimeron Shareholders under the Arrangement will not require registration under the United States Securities Act of 1933, as amended, and the name of such holder shall be removed from the register of holders of Corporation Sharesrules and regulations promulgated thereunder, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner in reliance on section 3(a)(10) thereof, free and clear of any liens, claims or encumbrances.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. 3.1 Commencing at the Effective Time, each of the following events or transactions set out below shall occur and shall be deemed to occur in the following sequence order without any further act or formalityformality except as otherwise provided herein:
(a) each outstanding Corporation Share the Shellbridge Shares held by a Dissenting Shareholder shall Shareholders who have exercised Dissent Rights which remain valid immediately prior to the Effective Time shall, as of the Effective Time, be deemed to be have been transferred by the holder thereof to the Corporation True (free and clear of all liens, claims and encumbrancesany claims), and each as of the Effective Time, such Dissenting Shareholder Shareholders shall cease to have any rights as a Corporation Shareholder shareholders of Shellbridge other than the right to be paid the fair value of their Corporation Shellbridge Shares by the Corporation in accordance with Article 4 hereof4;
(b) the Trust shall issue to True a number of Trust Units equal to 0.14 times the number of issued and outstanding Shellbridge Shares (other than those held by Dissenting Shareholders) at the Effective Time;
(c) True shall issue a Note to the Trust for the Trust Units issued pursuant to Section 3.1(b) in the principal amount equal to the Trust Unit Weighted Average Trading Price multiplied by the total number of Trust Units issued pursuant to Section 3.1(b);
(d) Subject to Section 5.6, each issued and outstanding Shellbridge Share (other than those held by Dissenting Shareholders) shall be transferred to True in exchange for 0.14 of a Trust Unit;
(e) True and Shellbridge shall be amalgamated and continue as one corporation such that:
(i) immediately prior to such amalgamation the stated capital of the outstanding Shellbridge Shares shall be reduced, without payment, to $1.00 in aggregate;
(ii) all of the shares of Shellbridge shall be cancelled without any repayment of capital;
(iii) the articles of the amalgamated corporation shall be the same as the articles of True and the name of the amalgamated corporation shall be “True Energy Inc.”;
(iv) no securities shall be issued by the amalgamated corporation in connection with the amalgamation, and for greater certainty, the shares of True shall survive and continue to be shares of the amalgamated corporation without amendment;
(v) the property of each of the amalgamating corporations shall continue to be the property of the amalgamated corporation;
(vi) the amalgamated corporation shall continue to be liable for the obligations of each of the amalgamating corporations;
(vii) any existing cause of action, claim or liability to prosecution of any of the amalgamating corporations shall be unaffected;
(viii) any civil, criminal or administrative action or proceeding pending by or against any of the amalgamating corporations may be continued to be prosecuted by or against the amalgamated corporation;
(ix) a conviction against, or ruling, order or judgment in favour of or against any of the amalgamating corporations may be enforced by or against the amalgamated corporation;
(x) the articles of amalgamation of the amalgamated corporation shall be deemed to be the articles of incorporation of the amalgamated corporation and the certificate of amalgamation of the amalgamated corporation shall be deemed to be the certificate of incorporation of the amalgamated corporation;
(xi) the by-laws of True shall be the by-laws of the amalgamated corporation;
(xii) the first directors of the amalgamated corporation shall be the directors of True;
(xiii) the first officers of the amalgamated corporation shall be the officers of True; and
(xiv) the registered office of the amalgamated corporation shall be the registered office of True.
3.2 With respect to each holder of Shellbridge Shares (other than a Dissenting Shareholder) at the Effective Time, upon the exchange of Shellbridge Shares for Trust Units pursuant to Section 3.1(d):
(i) such former holder of Shellbridge Shares shall be added to the register of holders of Trust Units;
(ii) such holder shall cease to be a holder of the Shellbridge Shares so exchanged and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shellbridge Shares shall be cancelledas it relates to the Shellbridge Shares so exchanged;
(biii) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder True shall become the holder of the Shellbridge Shares so exchanged and shall be transferred and deemed added to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shellbridge Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances.;
Appears in 1 contract
Arrangement. Commencing at Pursuant to the Effective TimeArrangement, the following events or transactions shall occur and shall be deemed to occur at the Effective Time (unless otherwise specified), in the following sequence without any further act or formalityorder:
(a) Purchaser (or one of its Affiliates) will provide (i) one or more loans (the “Royal Third Party Debt Payoff Loans”) to Royal in the aggregate amount equal to the aggregate of all amounts owing under the Specified Third Party Debt;(ii) a loan to Royal equal to the aggregate amount payable by Royal under section 3.1(d) (the “Royal Option Loan”); and (iii) a loan to Royal equal to the aggregate amount payable by Royal under section 3.1(e) (the “RSU Payment Loan”). The Royal Third Party Debt Payoff Loans, the Royal Option Loan and the RSU Payment Loan will be evidenced by demand promissory notes issued by Royal to Purchaser (or the applicable Affiliate of Purchaser);
(b) immediately upon receipt of the Royal Third Party Debt Payoff Loans, Royal will repay in full all amounts owing under the Specified Third Party Debt;
(c) two minutes after the completion of the immediately preceding step, each outstanding Corporation Royal Share, other than a Royal Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, will be acquired by Purchaser without any further authorization, act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreementformality, in exchange for a cash payment in cash by Purchaser equal to the Holdco Share ConsiderationPurchase Price, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying Holdcoless any required withholding taxes, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall will be deemed to be the legal and beneficial owner thereof, free and clear of any all liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all lienscharges, claims and encumbrances, . The names of the holders of the Royal Shares transferred to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder Purchaser shall be removed from the register applicable registers of holders of Corporation Shares, and, with respect to Corporation Royal Shares elected to be transferred to the Purchaser, the and Purchaser shall be recorded as the registered holder of the Corporation Royal Shares so transferred acquired and shall be deemed to be the legal and beneficial owner thereof;
(d) two minutes after the completion of the immediately preceding step, free each Royal Option issued and clear outstanding immediately prior to the Effective Time, whether vested or unvested, will be cancelled and will be deemed to have been disposed of to Royal in exchange for a cash payment by Royal equal to the amount, if any, of the In-the-Money Amount of such Royal Option, less any liensrequired withholding taxes;
(e) at the same time as the preceding step, claims each RSU issued and outstanding immediately prior to the Effective Time, whether vested or encumbrancesunvested, will be cancelled in exchange for a cash payment by Royal equal to $l per RSU, less any required withholding taxes; and
(f) the Long-Term Incentive Plan and the Senior Management Incentive Plan shall be terminated.
Appears in 1 contract
Sources: Arrangement Agreement (Royal Group Technologies LTD)
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur sequentially in the following sequence order set out below without any further authorization, act or formality:
(a) each outstanding Corporation Share held by the notice of articles of GCM be amended to:
(i) change the name of GCM to “Aris Gold Corporation” and the articles of GCM be altered to reflect such change; and
(ii) alter the authorized share structure of GCM to create up to a Dissenting Shareholder shall be deemed maximum of 1,000 GCM Series 1 Preferred Shares designated as “Series 1 Preferred” shares, to be transferred by a new series of the holder thereof to preferred shares of GCM, without par value and attaching the Corporation free special rights and clear restrictions as set out in Schedule A of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value this Plan of their Corporation Shares by the Corporation in accordance with Article 4 hereofArrangement, and the name articles of GCM be altered by adding such holder shall be removed from special rights and restrictions as Section 2.1(2) of the register of holders of Corporation Shares, and such Corporation Shares shall be cancelledArticles;
(b) each Qualifying Holdco Share outstanding all Aris Shares held by a Qualifying Holdco Shareholder Caldas Holding shall be transferred and deemed to be transferred by the Qualifying Holdco ShareholderGCM, without any further act or formality on its part, free and clear of all liens, claims Liens and encumbrances, in consideration therefor GCM shall issue to Caldas Holding the Purchaser, in accordance with the applicable Holdco Agreement, in exchange GCM Note and 1,000 fully paid and non-assessable GCM Series 1 Preferred Shares for a payment in cash equal to the Holdco Share Considerationall such Aris Shares, and the name of such holder Caldas Holding shall be removed from the central securities register maintained by or on behalf of holders Aris as a holder of Qualifying Holdco Aris Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser GCM shall be recorded entered in the central securities register maintained by or on behalf of Aris as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; andsuch ▇▇▇▇ ▇▇▇▇▇▇;
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Aris Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), an Aris Dissenting Shareholder shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrancesLiens, to the Applicable Purchaser, in exchange for a payment in cash equal to the ConsiderationAris, and Aris shall thereupon be obliged to pay the amount therefor determined and payable in accordance with ARTICLE 4 hereof, and (i) the name of such holder shall be removed from the central securities register maintained by or on behalf of Aris as a holder of Aris Shares and such Aris Shares so transferred, as the case may be, shall be cancelled and cease to be outstanding; and (ii) such Aris Dissenting Shareholders will cease to have any rights as Aris Shareholders other than the right to be paid the fair value for their Aris Shares by Aris; and
(d) Aris and SubCo shall amalgamate to continue as one corporate entity (as so amalgamated, “AmalCo”) with the same effect as if they had amalgamated under section 276 of the BCBCA (the “Amalgamation”) except that the legal existence of SubCo will not cease and SubCo will survive, and, without limiting the foregoing, the separate legal existence of Aris will cease without Aris being liquidated or wound up, SubCo and Aris will continue as one corporation, AmalCo, and the property of Aris will become the property of AmalCo and on the following terms and otherwise on the terms set out in this Plan of Arrangement and the Final Order implementing this Plan of Arrangement. From and after the Amalgamation:
(i) the name of AmalCo shall be “Aris Gold Holdings Corp.”, as shall be set out in the notice of articles of AmalCo;
(ii) the shareholders of AmalCo shall have the powers and the liability provided in the BCBCA;
(iii) all of the property, rights and interests of each of Aris and SubCo immediately before the Amalgamation shall become property, rights and interests of AmalCo by virtue of the Amalgamation, and the Amalgamation shall not constitute an assignment by operation of Law, a transfer or any other disposition of the property, rights and interests of either of Aris or SubCo to AmalCo;
(iv) all of the liabilities of each of Aris and SubCo immediately before the Amalgamation shall become liabilities of AmalCo by virtue of the Amalgamation and AmalCo shall continue to be liable for the obligations of each of Aris and SubCo;
(v) any legal proceedings being prosecuted or pending by or against Aris or SubCo are unaffected by the Amalgamation and every such legal proceeding may be prosecuted, or their prosecution may be continued, as the case may be, by or against AmalCo;
(vi) any existing cause of action, claim or liability to prosecution against either Aris or SubCo shall be unaffected;
(vii) a conviction against, or a ruling, order or judgment in favour of or against, either Aris or SubCo may be enforced by or against AmalCo;
(viii) the initial directors of AmalCo shall be:
(1) ▇▇▇▇ ▇▇▇▇▇▇▇ with a prescribed address of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇;
(2) ▇▇▇▇ ▇▇▇▇▇▇ with a prescribed address of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇; and
(3) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with a prescribed address of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇; as to be set out in the notice of articles of AmalCo;
(ix) the notice of articles and articles of AmalCo shall be the notice of articles and articles of SubCo immediately prior to the Amalgamation other than to reflect 3.1(d)(i) and (viii), and the registered and records office of AmalCo shall be the registered and records office of SubCo immediately prior to the Amalgamation;
(x) each SubCo Share held by a holder thereof shall be cancelled and the holder’s name shall be removed from the register of holders of Corporation SubCo Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaserand in exchange therefor, the Purchaser holder thereof shall be recorded as receive, and AmalCo shall issue, for each SubCo Share, one fully paid and non-assessable AmalCo Share and the registered holder of the Corporation Shares so transferred and thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to exchange such SubCo Share in accordance herewith;
(xi) each Aris Share held by a Former Aris Shareholder immediately prior to the Amalgamation will be cancelled and the holder’s name shall be removed from the central securities register maintained by or on behalf of ▇▇▇▇ as a holder of ▇▇▇▇ ▇▇▇▇▇▇, and in exchange therefor, on the Amalgamation, the holder thereof shall receive, and GCM shall issue, for each Aris Share, fully paid and non-assessable Consideration Shares (and, for greater certainty, the holder thereof shall receive no consideration on the Amalgamation other than such Consideration Shares), subject to Section 3.2, Section 3.3 and ARTICLE 5 hereof, and the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to exchange such Aris Share in accordance herewith;
(xii) each Aris Share held by GCM will be cancelled and GCM’s name shall be removed from the register of holders of Aris Shares, and in exchange therefor, GCM shall receive, and AmalCo shall issue, for each Aris Share, one fully paid and non-assessable AmalCo Share and GCM shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to exchange such Aris Shares in accordance herewith;
(xiii) in consideration of the issuance by GCM of the GCM Shares comprising the Consideration Shares pursuant to Section 3.1(d)(xi), AmalCo shall issue to GCM one fully paid and non-assessable AmalCo Share for each GCM Share comprising part of the Consideration Shares issued pursuant to Section 3.1(d)(xi);
(xiv) the amount added to the capital of GCM shall be the legal and beneficial owner thereofpaid-up capital (as that term is used for purposes of the Tax Act) of the Aris Shares (other than the Aris Shares held by Aris Dissenting Shareholders or GCM) immediately prior to the Effective Time; and
(xv) each Aris Convertible Security outstanding immediately prior to the Effective Time shall be adjusted to be exercisable, free and clear redeemable or otherwise convertible into GCM Shares based on the exchange ratio contemplated by the Consideration Shares in lieu of any liensAris Shares such Aris Convertible Security was exercisable, claims redeemable or encumbrancesotherwise convertible into prior to the Effective Time in accordance with the adjustment provisions of the applicable underlying agreement, indenture, certificate, plan or other terms and conditions attaching thereto and GCM shall issue such GCM Shares upon such due exercise, redemption or other conversion of such Aris Convertible Securities. In the event that the Adjusted Option In-The-Money Amount in respect of an Aris Option following such adjustment exceeds the Aris Option In-The-Money Amount in respect of such Aris Option, the exercise price per GCM Share of such Aris Option following such adjustment will be increased accordingly with effect at and from the Effective Time by the minimum amount necessary to ensure that the Adjusted Option In-The-Money Amount in respect of such Aris Option following such adjustment does not exceed the Aris Option In-The-Money Amount in respect of such Aris Option.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following sequence order without any further act or formality:
(a) each outstanding Corporation Each RDK Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof to the Corporation free and clear of all liens, claims and encumbrances, and each Dissenting Shareholder shall cease to have any rights as a Corporation Shareholder other than the right to be paid the fair value of their Corporation Shares by the Corporation in accordance with Article 4 hereof, and the name of such holder shall be removed from the register of holders of Corporation Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of which the applicable Qualifying HoldcoRDK Shareholder has validly exercised his, and the Purchaser her or its Dissent Rights shall be recorded as the registered holder of the Qualifying Holdco Shares so irrevocably transferred and shall be deemed assigned by such Dissenting Shareholder to be the legal and beneficial owner thereof, CBK (free and clear of any liens, claims or encumbrances; and
(ccharges and encumbrances of any nature whatsoever) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Considerationaccordance with, and for the consideration payable by CBK as set forth in Section 3.1, and such Dissenting Shareholder’s name of such holder shall be removed as the holder of such RDK Shares from the central securities register of holders of Corporation Shares, and, with respect to Corporation RDK Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder maintained by or on behalf of the Corporation Shares so transferred and RDK.
(b) Each RDK Share (other than any RDK Share held by any Dissenting Shareholder) shall be deemed to be irrevocably transferred and assigned by the legal and beneficial owner thereof, holder thereof to CBK (free and clear of any liens, claims charges and encumbrances of any nature whatsoever) in exchange for, subject to Section 2.5, that number of fully paid and non-assessable CBK Consideration Shares equal to the Exchange Ratio.
(c) With respect to each of the RDK Shares transferred and assigned in accordance with Section 2.3(b):
(i) the registered holder thereof shall cease to be the registered holder of such RDK Share and the name of such registered holder shall be removed from the central securities register of holders of RDK Shares as of the Effective Time;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or encumbrancesotherwise, required to transfer and assign such RDK Shares to CBK; and
(iii) CBK shall be the holder of all of the outstanding RDK Shares and the central securities register of holders of RDK Shares shall be revised accordingly.
(d) Each outstanding RDK Option shall be assumed by CBK and automatically adjusted as contemplated by its terms, such that on exercise of each adjusted RDK Option and for the same aggregate consideration payable therefor, the holder shall be entitled to acquire and shall accept in lieu of the number of RDK Shares to which such holder was entitled immediately before the Effective Date, such number of CBK Shares as is equal to the number of RDK Shares that the holder was entitled to receive upon exercise of the RDK Option, multiplied by the Exchange Ratio. The RDK Options shall thereafter evidence only a right to purchase CBK Shares in accordance with their terms, and no amended certificates with respect to RDK Options shall be issued.
(e) Each outstanding RDK Warrant shall be assumed by CBK and automatically adjusted as contemplated by its terms, such that on exercise of each adjusted RDK Warrant and for the same aggregate consideration payable therefor, the holder shall be entitled to acquire and shall accept in lieu of the number of RDK Shares to which such holder was entitled immediately before the Effective Date, such number of CBK Shares as is equal to the number of RDK Shares that the holder was entitled to receive upon exercise of the RDK Warrant, multiplied by the Exchange Ratio. The RDK Warrants shall thereafter evidence only a right to purchase CBK Shares in accordance with their terms, and no amended certificates with respect to RDK Warrants shall be issued.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective TimeTime on the Effective Date, each of the following events or transactions set out below shall occur and shall be deemed to occur sequentially in the following sequence order without any further authorization, act or formalityformality of or by the Company, the Purchaser or any other person:
(a) the rights issued under the Company Rights Plan shall be, and shall be deemed to be cancelled, without any payment or other consideration to the Company Shareholders, and the Company Rights Plan shall be terminated and cease to have any further force or effect;
(b) each Company RSU that is outstanding Corporation immediately prior to the Effective Time, whether vested or unvested, notwithstanding the terms of the Company RSU Plan, shall and shall be deemed to unconditionally vest to the fullest extent (which, for greater certainty, shall include the full vesting of Company RSUs subject to performance criteria on the basis that all performance criteria associated therewith had been achieved), and shall be settled by the Company at the Effective Time in exchange for Company Shares valued in accordance with the terms of the Company RSU Plan less applicable withholdings pursuant to Section 5.04, such Company Shares shall be transferred at the Effective Time for the Consideration pursuant to Section 3.01(d) hereof, and each Company RSU Holder shall be entered in the register of the Company Shareholders maintained by or on behalf of Company as the holder of such Company Shares provided that no share certificates shall be issued with respect to such Company Shares, and each such Company RSU shall be immediately cancelled and the holders of such Company RSUs shall cease to be holders thereof and to have any rights as holders of Company RSUs. Such holders’ names shall be removed from the register of Company RSUs maintained by or on behalf of the Company and all agreements relating to the Company RSUs shall be terminated and shall be of no further force and effect;
(c) each Company Share held by a Dissenting Company Shareholder in respect of which Dissent Rights have been validly exercised shall be, and shall be deemed to be be, transferred by the holder thereof to the Corporation thereof, free and clear of all liensLiens, claims and encumbrancesto the Purchaser for the amount therefor determined under Article 4 hereof, and: (i) the name of such Dissenting Company Shareholder shall be removed from the register of the Company Shareholders maintained by or on behalf of Company and each such Company Share shall be cancelled and cease to be outstanding; (ii) such Dissenting Company Shareholder shall cease to be the holder of each such Company Share or to have any rights as a Corporation Company Shareholder other than the right to be paid the fair value of their Corporation Shares by for each such Company Share as set out in Article 4; and (iii) the Corporation in accordance with Article 4 hereofPurchaser shall be, and shall be deemed to be, the name transferee of such holder shall be removed from the register of holders of Corporation Company Shares, and such Corporation Shares shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share ConsiderationLiens, and the name of such holder shall be removed from entered in the register of holders of Qualifying Holdco Shares the Company Shareholders maintained in respect by or on behalf of the applicable Qualifying Holdco, and the Purchaser shall be recorded Company as the registered holder of the Qualifying Holdco such Company Shares;
(d) each Company Share, including Company Shares so transferred issued pursuant to Section 3.01(b), (other than any Company Share held by a Dissenting Company Shareholder who has validly exercised their Dissent Right) shall be, and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrancesLiens, to the Applicable PurchaserPurchaser and, in exchange consideration therefor, the Purchaser shall issue and pay the Consideration for a payment in cash equal each Company Share, subject to Section 3.03 and Article 5, and: (i) the Consideration, and the name holders of such holder Company Shares shall cease to be the holders of such Company Shares and to have any rights as holders of such Company Shares, other than the right to be issued and paid the Consideration by the Purchaser in accordance with this Plan of Arrangement; (ii) such holders’ names shall be removed from the register of holders the Company Shareholders maintained by or on behalf of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, Company; and (iii) the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred be, and shall be deemed to be be, the legal and beneficial owner thereoftransferee of such Company Shares, free and clear of all Liens, and shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company as the holder of such Company Shares;
(e) each Company Option outstanding immediately prior to the Effective Time, whether vested or unvested, shall be transferred to the Purchaser in exchange for an option (each a “Replacement Option”) to purchase from the Purchaser such number of Purchaser Shares (rounded down to the nearest whole number) equal to: (A) the Exchange Ratio, multiplied by (B) the number of Company Shares subject to such Company Option immediately prior to the Effective Time, at an exercise price per Purchaser Share (rounded up to the nearest whole cent) equal to (M) the exercise price per Company Share otherwise purchasable pursuant to such Company Option immediately prior to the Effective Time, divided by (N) the Exchange Ratio. The Replacement Options held by or on behalf of an individual that will be continuing as a director, officer, employee or consultant of the Purchaser shall be exercisable until the original expiry date of such Company Option, and the Replacement Options held by or on behalf of an individual that will not be continuing as a director, officer, employee or consultant of the Purchaser following the Effective Time, shall be exercisable until the earlier of: (Y) the date that is 24 months following the Effective Date; and (Z) the original expiry date of such Company Option. Except as set out above, all other terms and conditions of the Replacement Option, including the vesting terms and conditions to and manner of exercising, will be the same as the Company Option so exchanged, and shall be governed by the terms of the Company Option Plan (or the predecessor thereto, as applicable), and any liensdocument evidencing a Company Option shall thereafter evidence and be deemed to evidence such Replacement Option. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such exchange. Therefore, claims or encumbrancesin the event that the Replacement Option In-The-Money Amount in respect of a Replacement Option exceeds the Company Option In-The-Money Amount in respect of the Company Option, the exercise price per Purchaser Share of such Replacement Option will be increased accordingly with effect at and from the Effective Time by the minimum amount necessary to ensure that the Replacement Option In-The-Money Amount in respect of the Replacement Option does not exceed the Company Option In-The-Money Amount in respect of the Company Option. The exchanges, transfers and cancellations provided for in this Section 3.01 will be deemed to occur on the Effective Date, notwithstanding that certain of the procedures related thereto are not completed until after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement (Gold Standard Ventures Corp.)
Arrangement. Commencing at the Effective Time, each of the following events or transactions set out below shall occur and shall be deemed to occur in the following sequence or as otherwise provided below or herein, without any further act or formality:
(a) Each G2 Share in respect of which a G2 Shareholder has validly exercised Dissent Rights (each outstanding Corporation Share held by a Dissenting Shareholder “Dissent Share”) shall be deemed to be transferred by cancelled and the holder thereof to (the Corporation free and clear of all liens, claims and encumbrances, and each “Dissenting Shareholder Shareholder”) shall cease to have any rights as a Corporation Shareholder holder of such G2 Share other than the right to be paid the fair value of their Corporation Shares by the Corporation such G2 Share in accordance with Article 4 hereof, and the name 3 of such holder shall be removed from the register this Plan of holders of Corporation Shares, and such Corporation Shares shall be cancelled;Arrangement.
(b) each Qualifying Holdco Bartica will sell all of the G3 Guyana Shares that it holds to G3 Barbados in exchange for that number of G3 Barbados Shares as determined by the Board of Directors of G2 having a value equal to the fair market value of G3 Guyana.
(c) Bartica will sell all of the G3 Barbados Shares that it holds to G3 for a promissory note (that is non-interest bearing and due on demand) with a principal amount equal to the fair market value of the G3 Barbados Shares.
(d) G2 will transfer to G3 all of the G3 Barbados Shares that it holds and an amount of cash that the Board of Directors of G2 determines at the relevant time will be sufficient to satisfy G3’s working capital requirements and the Initial Listing Requirements, plus an additional amount equal to the Non-Core Assets Funds as reflected in the Carve-Out Financial Statements, in exchange for that number of G3 Shares as determined by the Board of Directors of G2 and equal to one G3 Share for every two issued and outstanding held by G2 Shares, pursuant to subsection 85(1) of the Tax Act.
(e) G2 and G3 will file a Qualifying Holdco Shareholder shall be transferred joint election under Section 85 of the Tax Act and deemed any applicable provincial tax laws.
(f) G3 will file a Form T2073 with the Canada Revenue Agency, to elect to be transferred a public corporation.
(g) G3 will subscribe for that number of G3 Barbados Shares as determined by the Qualifying Holdco Shareholder, without any further act or formality on its part, free and clear Board of all liens, claims and encumbrances, Directors of G2 for cash in an amount equal to the PurchaserNon-Core Asset Funds.
(h) G3 Barbados will subscribe for that number of G3 Guyana Shares as determined by the Board of Directors of G2 for cash in an amount equal to the Non-Core Asset Funds.
(i) G3 Guyana will purchase from G2 Guyana its interest in the Tiger Creek Property and the Aremu Partnership for an amount of the Non-Core Asset Funds that is equal to the book value of such assets as reflected in the Carve-Out Financial Statements.
(j) G3 Guyana will purchase from Ontario Inc. its interest in the ▇▇▇▇▇▇ Mine Property, Aremu Mine Property and the Amsterdam Option for the balance of Non-Core Asset Funds, which is equal to the book value of such assets as reflected in the Carve-Out Financial Statements.
(k) G2 will distribute one G3 Share in accordance with the applicable Holdco Agreement, in exchange provisions of Article 4 of this Plan of Arrangement for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco every two G2 Shares maintained in respect of the applicable Qualifying Holdco, and the Purchaser shall be recorded as the registered holder of the Qualifying Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding then held by G2 Shareholders (other than (iDissenting Shareholders) Corporation Shares held by Brookfield, as of the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding Effective Date as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares return of which are acquired by the Purchaser capital pursuant to Section 3.1(b) (which shall not be acquired under a reorganization of G2's business and a distribution of proceeds from a disposition of G2's property outside the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear ordinary course of all liens, claims and encumbrances, to the Applicable Purchaser, in exchange for a payment in cash equal to the Consideration, and the name of such holder shall be removed from the register of holders of Corporation Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, the Purchaser shall be recorded as the registered holder of the Corporation Shares so transferred and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrancesG2’s business.
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Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, each of the following transactions or events or transactions set out below shall occur and shall be deemed to occur in the following sequence sequence, in each case without any further authorization, act or formality:
(a) formality on the part of any Person, and in each outstanding Corporation case, unless otherwise specifically provided in this Section 3.2, effective as at two-second intervals starting at the Effective Time: each Company Floating Share held by a Dissenting Company Floating Shareholder shall be, and shall be deemed to be be, transferred to the Purchaser by the holder thereof to the Corporation thereof, free and clear of all liens, claims and encumbrancesLiens, and thereupon: each Dissenting Company Floating Shareholder shall cease to have any rights as a Corporation Shareholder holder of such Company Floating Shares other than the right to be paid the fair value of their Corporation Shares by the Corporation a claim against Canopy in an amount determined and payable in accordance with Article 4 hereof, and 4; the name of such holder Dissenting Company Floating Shareholder shall be removed from the securities register of holders of Corporation for the Company Floating Shares, ; and such Corporation Shares the Purchaser shall be cancelled;
(b) each Qualifying Holdco Share outstanding held by a Qualifying Holdco Shareholder shall be transferred and deemed to be transferred by the Qualifying Holdco Shareholder, without any further act or formality on its parttransferee of such Dissenting Shares, free and clear of all liens, claims and encumbrances, to the Purchaser, in accordance with the applicable Holdco Agreement, in exchange for a payment in cash equal to the Holdco Share Consideration, and the name of such holder shall be removed from the register of holders of Qualifying Holdco Shares maintained in respect of the applicable Qualifying HoldcoLiens, and the Purchaser shall be recorded entered in the Company’s securities register for the Dissenting Shares as the registered holder legal owner of such transferred Dissenting Shares; each Company Floating Share held by a Company Floating Shareholder (other than the Qualifying Holdco Shares so transferred Purchaser, Canopy or their respective affiliates) shall be transferred, and shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances; and
(c) each Corporation Share outstanding (other than (i) Corporation Shares held by Brookfield, the Purchaser or any of their affiliates (which shall not be acquired under the Arrangement and shall remain outstanding as a Corporation Share held by Brookfield, the Purchaser or such affiliate, as the case may be); (ii) Corporation Shares held by Qualifying Holdcos, the Qualifying Holdco Shares of which are acquired by the Purchaser pursuant to Section 3.1(b) (which shall not be acquired under the Arrangement and shall remain outstanding as Corporation Shares held by such Qualifying Holdco); and (iii) Corporation Shares acquired by the Purchaser pursuant to Section 3.1(a)), shall be transferred and deemed to be transferred by the holder thereof, without any further act or formality on its parttransferred, free and clear of all liensLiens, claims and encumbrances, by the holder thereof to the Applicable PurchaserPurchaser for the Canopy Share Consideration (or, in exchange for the event a payment in cash equal Canopy Change of Control shall have occurred prior to the Effective Date, the Per Share Consideration), which Canopy Share Consideration or Per Share Consideration, as applicable, shall be paid in accordance with the provisions of Article 5, and the name upon such transfer: each such former holder of such holder transferred Company Floating Shares shall be removed from the Company’s securities register of holders of Corporation for the Company Floating Shares, and, with respect to Corporation Shares elected to be transferred to the Purchaser, ; the Purchaser shall be recorded entered in the Company’s securities register for the Company Floating Shares as the registered legal owner of such transferred Company Floating Shares; and each such former holder of such transferred Company Floating Shares shall, subject to Section 5.1 of this Plan of Arrangement, be entered in Canopy’s securities register for the Corporation Canopy Shares so transferred in respect of the Consideration Shares issued to such holder pursuant to this Section 3.2(b), or, to the extent applicable, in the securities register of the issuer of any Alternate Consideration that such former holder of Company Floating Shares is entitled to receive in lieu of the Consideration Shares; each Company Floating Option shall be exchanged for a Replacement Option to acquire from Canopy such number of Canopy Shares as is equal to: (A) the number of Company Floating Shares that were issuable upon exercise of such Company Floating Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio (provided that if any holder of Replacement Options, following the exchange pursuant to this Section 3.2(c), is holding in aggregate, Replacement Options that would result in the issuance of a fraction of a Canopy Share, then the number of Canopy Shares to be issued pursuant to such Replacement Options shall be rounded down to the nearest whole number). Such Replacement Options shall provide for an exercise price per Replacement Option (rounded up to the nearest whole cent) equal to the quotient obtained when: (i) the exercise price per Company Floating Share that would otherwise be payable pursuant to the Company Floating Option it replaces is divided by (ii) the Exchange Ratio, and any document evidencing a Company Floating Option shall thereafter evidence and be deemed to evidence such Replacement Option. Except as provided herein, all terms and conditions of a Replacement Option, including the term to expiry, conditions to and manner of exercising, will be the same as the Company Floating Option for which it was exchanged, and shall be governed by the terms of the Canopy Equity Incentive Plan, and the exchange shall not provide any optionee with any additional benefits as compared to those under his or her original Company Floating Option. Notwithstanding clause (i) immediately above, the terms and conditions of those Replacement Options exchanged for Company Floating Options held by the Company Executives (the “Executive Company Floating Options”) pursuant to this Plan of Arrangement shall be deemed to provide that such Replacement Options shall continue to vest according to the terms of the Executive Company Floating Options as at the date of the Arrangement Agreement, regardless of the resignation of the Company Executives from their positions or offices with the Company, provided that such Company Executives retain a position of employment with Acreage or an affiliate thereof. It is intended that subsection 7(1.4) of the Tax Act and Sections 1.424-1(a)(5) and 1.409A-1(b)(5)(v)(D) of the U.S. Treasury Regulations, as applicable, apply to the exchange of Company Floating Options provided for in this Section 3.2(c). Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option will be increased such that the Replacement Option In-The-Money Amount immediately after the exchange does not exceed the Company Floating Option In-The-Money Amount of the Company Floating Option (or a fraction thereof) exchanged for such Replacement Option immediately before the exchange and so on a share-by-share basis, the ratio of the exercise price to the fair market value of the Company Floating Options being exchanged shall not be less favourable to the optionee than the ratio of the exercise price to the fair market value of the Replacement Options immediately following the exchange; each Company Floating Warrant shall be exchanged for a Replacement Warrant to acquire from Canopy such number of Canopy Shares as is equal to: (A) the number of Company Floating Shares that were issuable upon exercise of such Company Floating Warrant immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio (provided that if any holder of Replacement Warrants, following the exchange pursuant to this Section 3.2(d), is holding in aggregate, Replacement Warrants that would result in the issuance of a fraction of a Canopy Share, then the number of Canopy Shares to be issued pursuant to such Replacement Warrants shall be rounded down to the nearest whole number). Such Replacement Warrants shall provide for an exercise price per whole Replacement Warrant (rounded up to the nearest whole cent) equal to the quotient obtained when: (i) the exercise price per Company Floating Share that would otherwise be payable pursuant to the Company Floating Warrant it replaces is divided by (ii) the Exchange Ratio, and any document evidencing a Company Floating Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant. Except as provided herein, all terms and conditions of a Replacement Warrant, including the term to expiry, conditions to and manner of exercising, will be the legal same as the Company Floating Warrant for which it was exchanged, and beneficial owner the exchange shall not provide any optionee with any additional benefits as compared to those under his or her original Company Floating Warrant; and each Company Floating Share Unit shall be exchanged for a Replacement Share Unit to acquire from Canopy such number of Canopy Shares as is equal to: (A) the number of Company Floating Shares that were issuable upon vesting of such Company Floating Share Unit immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio (provided that if any holder of Replacement Share Units, following the exchange pursuant to this Section 3.2(e), is holding in aggregate, Replacement Share Units that would result in the issuance of a fraction of a Canopy Share, then the number of Canopy Shares to be issued pursuant to such Replacement Share Units shall be rounded down to the nearest whole number). Any document evidencing a Company Floating Share Unit shall thereafter evidence and be deemed to evidence such Replacement Share Unit. Except as provided herein, all terms and conditions of a Replacement Share Unit, including the term to expiry, conditions to and manner of exercising, will be the same as the Company Floating Share Unit for which it was exchanged, and the exchange shall not provide any holder with any additional benefits as compared to those under his or her original Company Floating Share Unit. Notwithstanding clause (i) immediately above, the terms and conditions of those Replacement Share Units exchanged for Company Floating Share Units held by the Company Executives (the “Executive Company Floating Share Units”) pursuant to this Plan of Arrangement shall be deemed to provide that such Replacement Share Units shall continue to vest according to the terms of the Executive Company Floating Options as at the date of the Arrangement Agreement, regardless of the resignation of the Company Executives from their positions or offices with the Company, provided that such Company Executives retain a position of employment with Acreage or an affiliate thereof, free and clear of any liens, claims or encumbrances.
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