Arrangement. 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 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 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Amending Agreement (Klondex Mines LTD)

Arrangement. 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 order without any further act or formality: (a) ~~the Purchaser shall subscribe for that number of Acquireco~~ Each Elected Company 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 immediately prior to the ~~Effective Time shall~~Arrangement (other than Shares held by Dissenting Shareholders) will, without any further action ~~by or~~ on behalf of ~~any holder of such In-the- Money Option~~the Shareholder, be ~~deemed~~ transferred 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 Exchangeco in consideration for ~~the issuance by Spinco to the Company of~~ that number of fully paid and non-assessable ~~Spinco~~ Exchangeable Shares as is determined in accordance with the formula in section 1.1 of the Combination Agreement (the ~~“Distribution Spinco Shares”~~"Exchange Ratio"). (b) Upon the transfer referred to in subsection 2.1(a), Exchangeco shall deliver or cause to be delivered to each such holder, that number of fully paid and non-assessable Exchangeable Shares equal to the Exchange Ratio in exchange for each Company Common Share transferred and each such holder of Elected Company Common Shares shall cease to be such a holder, shall have his name removed from the register of holders of Company Common Shares and shall become a holder of the number of fully paid and non-assessable Exchangeable Shares to which he is entitled as a result of the transfer referred to in subsection 2.1(a) and such holder's name shall be added to the register of holders of Exchangeable Shares accordingly. (c) Each Company ~~Shares~~ Common Share issued and outstanding immediately prior to the ~~transfer in this Section 3.02(g)~~ Arrangement (~~for the avoidance of doubt, excluding any~~ other than Elected Company Common Shares ~~in respect of which~~ and Company Common Shares held by Dissenting Shareholders ~~have exercised Dissent Rights)~~who are ultimately entitled to be paid the fair value of their Company Common Shares) will, ~~all~~ without any further action on behalf of such Shareholder, be transferred to FCE in consideration for that number of shares of FCE Common Stock as is determined in accordance with the ~~terms of the Spinco Contribution Agreement;~~Exchange Ratio. (hd) Upon the transfer referred to 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”subsection 2.1(c), ~~which~~ FCE shall deliver or cause to be delivered to each such holder, that number of fully paid and non-assessable shares of FCE Common Stock equal to the Exchange Ratio in exchange for each Company Common Share so transferred and each such holder of Company Common Shares, shall cease to be such a holder, 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 his name removed from the ~~Company’s~~ register of holders of Company ~~Shares; (B) each~~ Common Shares and shall become a holder of ~~such exchanged Company Shares shall be entered in~~ the ~~Company’s register~~ number of ~~holders~~ shares of ~~Class A Shares in respect~~ FCE Common Stock to which he is entitled as a result of the ~~Class A Shares issued~~ transfer referred to in subsection 2.1(c) and 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 's name 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;~~FCE Common Stock accordingly. (je) ~~all~~ The Exchange Ratio shall be adjusted to reflect fully the effect of any stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into FCE Common Stock or Company Common Shares), merger, reorganization, recapitalization or other like change with respect to FCE Common Stock or Company Common Shares occurring after the date of the ~~issued~~ Combination Agreement 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the ~~exchange in this Section 3.02(k~~Effective Date. (f) ~~in exchange~~ Shareholders who are residents of Canada for purposes of the ITA and who receive Exchangeable Shares under subsection 2.1(a) shall be entitled to make an income tax election pursuant to subsections 85(1) and 85(2) of the ITA with respect to the transfer of their Company Common Shares to Exchangeco Sub by providing two signed copies of the necessary election forms to Exchangeco within 90 days following the Effective Date, duly completed with the details of the number of shares transferred and the applicable agreed amounts for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner purposes of such ~~Class A Shares, free of all Encumbrances; and (vi) each such Participating Former Securityholder shall~~elections. Thereafter, 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 election forms being correct and ~~validly completes~~ complete and ~~delivers the applicable Election Form(s) in accordance~~ complying 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a Participating Former Securityholder validly electing to receive the Cash Consideration, the Cash Consideration, subject to the provisions of ~~Section 3.02(m); and~~ the ITA, the forms will be completed by Exchangeco as to its information signed by Exchangeco and returned to such holders of Company Common Shares for filing with the Canada Customs and Revenue Agency. Exchangeco will not be responsible for the proper completion of any election form, (iiother than with respect to its information) and except for the obligation to return duly completed election forms which are received within 90 days following the Effective Date will not be responsible for any taxes, interest or penalties resulting from the failure by a Shareholder to properly complete or file the election forms in the ~~case of a Participating Former Securityholder validly electing to receive~~ form and manner and within the Purchaser Share Consideration, the Purchaser Share Consideration, subject to the provisions of Section 3.02(n), and upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective Time shall be cancelled in exchange for a cash payment time prescribed by the ~~Company to the holder of such Company DSU equal to the Company Sh~~ITA.

Appears in 1 contract

Sources: Combination Agreement (Fuelcell Energy Inc)

Arrangement. At Commencing at the Effective ~~Time, unless otherwise specifically provided in this Section 3.02,~~ Time the following ~~events or~~ transactions ~~shall~~ will occur and ~~shall~~ be deemed to occur ~~sequentially~~ in the following ~~order~~ sequence without ~~any~~ further act or formality: (a) Each Anacott Common Share in respect of which a registered Anacott Shareholder has exercised Dissent Rights and for which the ~~Purchaser~~ registered Anacott Shareholder is ultimately entitled to be paid fair value (each a “Dissent Share”) shall ~~subscribe~~ be repurchased by Anacott for ~~that number of Acquireco Common Shares, at~~ cancellation in consideration for a ~~price of $1.00 per share, equal~~ debt-claim against Anacott to ~~the quotient obtained when (A)~~ be paid the fair ~~market~~ value of ~~the Maximum Purchaser Shares~~ such Dissent Share in accordance with Article 5 of this Plan of Arrangement and ~~Maximum Cash Consideration is divided by~~ such Dissent Share shall thereupon be cancelled; (Bb) ~~$1.00,~~ The authorized share structure of Anacott shall be reorganized 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:altered by (i) changing 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 identifying name of the ~~subscription price payable by~~ issued and unissued Anacott Common Shares from “Common shares” to “Class A Common shares” and amending the ~~Purchaser for such Acquireco Common Shares~~rights, privileges, restrictions and conditions attached to those shares to provide the holders thereof with two votes in respect of each share held; 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 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 creating a new class of shares without par value, ~~of which an unlimited~~ with no maximum number ~~may be issued~~ and ~~which shall be designated~~ with the identifying name “Class ~~A Shares~~B Common shares” having the rights, privileges, restrictions and conditions identical to those attaching to the Anacott Common Shares prior to the amendments described in paragraph (b)(i) above (the “~~Class A~~ Anacott New Common Shares”)~~, which shall have the special rights and restrictions set forth in Schedule “A” to this Plan of Arrangement~~; (iic) 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)) Each Anacott Warrant shall be exchanged ~~with the Company, free and clear of any Encumbrances,~~ for one ~~Class A Share~~ Anacott Replacement Warrant and ~~one Distribution Spinco Share, and upon such exchange: (A) each such exchanged Company Share~~ the Anacott Warrants shall thereupon be cancelled~~, and the holders of such exchanged Company Shares shall be removed from the Company’s register of holders of Company Shares~~; (Bd) Anacott shall reorganize its capital within the meaning of Section 86 of the Tax Act such that each ~~holder~~ Anacott Shareholder shall dispose of ~~such exchanged Company~~ all of the Anacott Shareholder's Anacott Common Shares to Anacott and in consideration therefor, Anacott shall ~~be entered in the Company’s register of holders of Class A Shares~~ issue (in respect of the ~~Class A Shares issued~~ securities referred to ~~such holder;~~ in (Ci) ~~the Company shall be removed from the Spinco’s register of holders of Spinco Shares~~ below) or distribute (in respect of the ~~Distribution Spinco Shares; and~~ securities referred to in (Dii) ~~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;~~ through (~~iii~~viii) ~~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~~ below) 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);Anacott Shareholder: (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~~ same number 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 Anacott New Common Shares; (ii) ~~has not completed~~ the number of Buckingham Common Shares equal to the product of the number of Anacott Common Shares held 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 Consideration is respect of all of such Participating Former Securityholder’s Company Shares; orConversion Factor; (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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear the number of ~~all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior~~ Lillingstone Common Shares equal to the ~~exchange in this Section 3.02(k) in exchange for~~ product of the ~~Combination Consideration Cash~~ number of Anacott Common Shares held and the ~~Combination Consideration Purchaser Shares, and upon such exchange:~~applicable Conversion Factor; (iv) the number of Silverstone Common Shares equal to the product of the number of Anacott Common Shares held and the applicable Conversion Factor; (v) the number of ▇▇▇▇▇ Common Shares equal to the product of the number of Anacott Common Shares held and the applicable Conversion Factor; (vi) the number of 258 Common Shares equal to the product of the number of Anacott Common Shares held and the applicable Conversion Factor; (vii) the number of Akeley Trust Units equal to the product of the number of Anacott Common Shares held and the applicable Conversion Factor; and (viii) the number of Chackmore Trust Units equal to the product of the number of Anacott Common Shares held and the applicable Conversion Factor, (collectively, the “Share Exchange”), and, in connection with the Share Exchange: (A) the name of each ~~such Participating Former Securityholder~~ Anacott Shareholder shall be removed from the ~~Company’s~~ central securities register for the Anacott Common Shares and added to the central securities register for the Anacott New Common Shares, the Buckingham Common Shares, the Lillingstone Common Shares, the Silverstone Common Shares, the ▇▇▇▇▇ Common Shares, the 258 Common Shares; the Akeley Trust Units and the Chackmore Trust Units, as the holder of ~~holders~~ the number of ~~Class A~~ Anacott New Common Shares,, the Buckingham Common Shares, the Lillingstone Common Shares, the Silverstone Common Shares, the ▇▇▇▇▇ Common Shares, the 258 Common Shares, the Akeley Trust Units and the Chackmore Trust Units, respectively, received pursuant to the Share Exchange; (vB) ~~Acquireco~~ the Anacott Common Shares shall be ~~entered~~ cancelled and the capital in ~~the Company’s securities register of holders of Class A Shares as the legal and beneficial owner~~ respect of such ~~Class A~~ shares shall be reduced to nil; (C) an amount equal to the capital of the Anacott Common Shares immediately before the Share Exchange less the aggregate fair market value of the Buckingham Common Shares, ~~free~~ the Lillingstone Common Shares, the Silverstone Common Shares, the ▇▇▇▇▇ Common Shares, the 258 Common Shares, the Akeley Trust Units and the Chackmore Trust Units distributed on the Share Exchange shall be added to the capital in respect of ~~all Encumbrances~~the Anacott New Common Shares; and (vie) ~~each such Participating Former Securityholder shall, subject to the provisions of Section 3.06, be entered in the Purchaser’s~~ All 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);~~Anacott Subsidiaries held by Anacott shall be cancelled for no consideration; and (lf) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers the applicable 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 The authorized share structure of ~~all of such Participating Former Securityholder’s Company Shares shall transfer, and~~ Anacott shall be ~~deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free~~ reorganized and ~~clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for:~~altered by (i) in eliminating the ~~case~~ Anacott Common Shares from the authorized share structure of ~~a Participating Former Securityholder validly electing to receive the Cash Consideration, the Cash Consideration, subject to the provisions of Section 3.02(m)~~Anacott; and (ii) in changing 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 identifying name of the ~~Purchaser Shares, if any, payable~~ issued and unissued Anacott New Common Shares from “Class B Common shares” 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh“Common shares”.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At Commencing at the Effective Time, the following steps or transactions shall, unless ~~otherwise~~ specifically provided otherwise in this Section ~~3.02~~2.3, ~~the following events or transactions shall~~ occur and shall be deemed to occur ~~sequentially~~ in the following order as set out below without any further authorization, act or formality, in each case at one-minute intervals starting at the Effective Time: (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 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 Argonaut Share held by a Dissenting Shareholder shall be, and shall be deemed to be, ~~surrendered to the Company~~ transferred (free and clear of all Liens) by the holder thereof, without any further act or formality by on its part, to Argonaut for cancellation, and in consideration therefor such Dissenting ~~Shareholder~~Shareholder shall have a debt-claim to be paid the aggregate fair value of such Argonaut Shares as determined pursuant to Section 3.1, ~~free and clear~~ and, in respect of ~~all Encumbrances, and~~ the Argonaut Shares so transferred: (i) each such ~~Company Share so surrendered shall be cancelled and thereupon each~~ Dissenting Shareholder shall cease to be the holder of such Argonaut Shares and to have any rights as ~~a holder of such Company Shares~~ Argonaut Shareholders other than ~~a claim against~~ the ~~Company~~ right to be paid the fair value for such Argonaut Shares as set out in ~~an amount determined and payable in accordance with Article 4 and~~ Section 3.1; (ii) the name of each such Dissenting Shareholder shall be removed as an Argonaut Shareholder from the ~~securities register~~ registers of ~~holders~~ Argonaut Shareholders maintained by or on behalf of ~~Company Shares~~Argonaut; (fiii) ~~concurrently with~~ each such Dissenting Shareholder shall have been deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Argonaut Shares to Argonaut; (iv) such Argonaut Shares so transferred to Argonaut shall thereupon be cancelled by Argonaut and the ~~surrender and cancellation~~ registers of ~~Company Shares held~~ Argonaut Shareholders maintained by ~~Dissenting Shareholders pursuant to Section 3.02(e),~~ or on behalf of Argonaut shall be revised accordingly; and (v) the stated capital account maintained by ~~the Company~~ Argonaut in respect of the ~~Company~~ Argonaut Shares shall be ~~reduced, in respect of the Company Shares cancelled pursuant to Section 3.02(e),~~ reduced by an amount equal to the product obtained when (Ai) the amount of the stated capital account in respect of ~~all~~ the ~~issued and outstanding Company~~ Argonaut Shares ~~immediately~~ immediate prior to the ~~step in Section 3.02(e)~~Effective Time, is multiplied by (Bii) a fraction, the numerator of which is the number of ~~Company~~ Argonaut Shares ~~surrendered~~ transferred and cancelled pursuant to this Section ~~3.02(e),~~ 2.3(a) and the denominator of which is the number of ~~issued and outstanding Company~~ Argonaut 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~~ Effective Time; (b) the transactions contemplated by the New Argonaut Contribution Agreement shall become effective, and pursuant thereto Argonaut shall transfer, assign and convey to New Argonaut the Argonaut Contributed Assets and New Argonaut shall accept and assume the New Argonaut Liabilities and issue to Argonaut the New Argonaut Consideration Shares, and Argonaut shall be entered into the register of New Argonaut Shares maintained by or on behalf of New Argonaut as the registered owner of such New Argonaut Consideration Shares; (c) each outstanding Argonaut RSU that has vested prior to the Effective Time shall be redeemed and cancelled, and in ~~this Section 3.02(g) (for~~ consideration Argonaut shall allot and issue from treasury to the ~~avoidance~~ holders of ~~doubt, excluding any Company~~ such redeemed Argonaut RSUs such number of fully-paid Argonaut Shares ~~in respect of which Dissenting Shareholders have exercised Dissent Rights), all in accordance with~~ as are due to such holders under the terms of the ~~Spinco Contribution Agreement~~Argonaut Incentive Plan (less any amounts withheld in accordance with this Plan of Arrangement); (hd) in each holder of an Argonaut DSU shall resign from, and shall be deemed to have immediately resigned from, the ~~course~~ Argonaut Board and the board of ~~a reorganization~~ directors of any affiliate of Argonaut; (e) following the resignation of the ~~Company’s authorized~~ holders of Argonaut DSUs in accordance with Section 2.3(d), all of the issued and ~~issued share capital:~~outstanding Argonaut DSUs shall immediately vest, and upon such vesting shall immediately be redeemed and cancelled, and in consideration Argonaut shall allot and issue from treasury to each holder of Argonaut DSUs such number of fully-paid Argonaut Shares as are due to such holder under the terms of the Argonaut Incentive Plan (less any amounts withheld in accordance with this Plan of Arrangement); (if) the ~~notice~~ authorized share capital of ~~articles and articles of the Company~~ Argonaut shall be ~~amended to create a new class of shares without par value~~amended, ~~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~~ as more particularly described in Schedule “A” to this Plan of Arrangement, by the creation of Argonaut Class A Shares, of which an unlimited number of shares may be issued, and the articles of Argonaut shall be deemed to be amended accordingly; (g) the New Argonaut Incentive Plan shall come into force; (h) each holder of an issued and outstanding Argonaut Option shall simultaneously: (i) dispose of, and be deemed to have disposed of, the Argonaut Portion of such Argonaut Option to Argonaut (free and clear of all Liens), and as the sole consideration therefor Argonaut will grant to such holder an option to purchase one (1) Argonaut Class A Share (an “Argonaut Class A Option”), which Argonaut Class A Option will (A) have an exercise price equal to the product obtained when the exercise price payable to acquire an Argonaut Share under such Argonaut Option is multiplied by the Argonaut Portion (provided that the aggregate exercise price payable on any particular exercise of Argonaut Class A Options shall be rounded up to the nearest whole cent), and (B) otherwise shall have the same terms and conditions, including with respect to expiry and manner of exercising, as such Argonaut Option (except that the term to expiry of any Argonaut Class A Option shall not be affected by a holder thereof ceasing to be an employee, consultant, officer or director of Argonaut), and any document evidencing such Argonaut Option shall thereafter evidence and be deemed to evidence such Argonaut Class A Option; and (ii) dispose of, and be deemed to have disposed of, the New Argonaut Portion of such Argonaut Option to New Argonaut (free and clear of all Liens), and as the sole consideration therefor New Argonaut will grant to such holder an option, pursuant to the New Argonaut Incentive Plan, to purchase a Fractional New Argonaut Share (a “New Argonaut Option”), which New Argonaut Option will (A) have an exercise price for such Fractional New Argonaut Share equal to the product obtained when the exercise price payable to acquire an Argonaut Share under such Argonaut Option is multiplied by the New Argonaut Portion (provided that the aggregate exercise price payable on any particular exercise of Argonaut Class A Options shall be rounded up to the nearest whole cent), (B) have the same expiry date as the expiry date of such Argonaut Option, and (C) otherwise be subject to the terms and conditions, including with respect to manner of exercising, set out in the New Argonaut Incentive Plan (except that the term to expiry of any New Argonaut Option shall not be affected by a holder thereof ceasing to be an employee, consultant, officer or director of New Argonaut). It is intended that subsection 7(1.4) of the Tax Act apply to the disposition and exchange of Argonaut Options pursuant to this Section 2.3(h). Accordingly, and notwithstanding clauses (i) and (ii) above, the exercise price of an Argonaut Class A Option or a New Argonaut Option, as the case may be, shall be adjusted as necessary to ensure that the aggregate In-the-Money Amount of the Argonaut Class A Option and New Argonaut Option immediately after the exchange does not exceed the In-the-Money Amount of the Argonaut Option immediately before the exchange; (i) Argonaut shall undertake a reorganization of capital within the meaning of section 86 of the Tax Act, pursuant to which each outstanding Argonaut Share (including, for the avoidance of doubt, any Argonaut Shares issued to holders of Argonaut RSUs and Argonaut DSUs pursuant to Section 2.3, but excluding any Argonaut Shares that are cancelled pursuant to Section 2.3(a)) shall be, and shall be deemed to be, transferred to Argonaut (free and clear of any Liens) in exchange for one (1) Argonaut Class A Share and a Fractional New Argonaut Share, and such Argonaut Shares shall thereupon be cancelled, and: (i) the holders of such Argonaut Shares shall cease to be the holders thereof and to have any rights or privileges as holders of such Argonaut Shares; (ii) ~~each Company Share issued and outstanding immediately before~~ such holders’ names shall be removed from the ~~reorganization~~ register of the ~~Company’s share capital pursuant to this Section 3.02(h~~Argonaut Shares maintained by or on behalf of Argonaut; (iii) (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)) each Argonaut Shareholder shall be ~~exchanged with~~ deemed to be the ~~Company~~holder of the Argonaut Class A Shares and New Argonaut Shares (in each case, free and clear of any ~~Encumbrances,~~ Liens) received in exchange for ~~one Class A Share~~ their Argonaut Shares 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~~ Argonaut or New Argonaut, as the case may be, as the registered holder thereof; and (iv) the stated capital account maintained by Argonaut 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 Argonaut 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)~~nil, and there shall be added to the stated capital account maintained by ~~the Company~~ Argonaut in respect of the Argonaut 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~~ paid-up 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder Argonaut Shares immediately prior to the exchange in this Section ~~3.02(k~~2.3(i) exceeds the Fair Market Value of the New Argonaut Shares distributed by Argonaut to the Argonaut Shareholders on such exchange; (j) concurrently with the transfer of Argonaut Shares under Section 2.3(i), the New Argonaut Board Nominees shall be appointed to, and shall comprise, the board of directors of New Argonaut and, concurrently with such appointment, any individuals other than the New Argonaut Board Nominees who are directors of New Argonaut immediately prior to such time shall, and shall be deemed to, resign as directors of New Argonaut; (k) each outstanding Argonaut Class A Share (other than Argonaut Class A Shares held by Alamos or any affiliate thereof) shall, without further act or formality by or on behalf of a holder of Argonaut Class A Shares, be irrevocably assigned and transferred by the holder thereof to Alamos (free and clear of all Liens) in exchange for 0.0185 of an Alamos Share for each Argonaut Class A Share held, and: (i) the ~~Combination Consideration Cash~~ holders of such Argonaut Class A Shares shall cease to be the holders thereof and to have any rights as holders of such Argonaut Class A Shares other than the right to receive 0.0185 of an Alamos Share per Argonaut Class A Share in accordance with this Plan of Arrangement; (ii) such holders’ name shall be removed from the register of the Argonaut Class A Shares maintained by or on behalf of Argonaut; (iii) Alamos shall be deemed to be the transferee and the ~~Combination Consideration Purchaser Shares,~~ legal and ~~upon~~ beneficial holder of such ~~exchange:~~Argonaut Class A Shares (free and clear of all Liens) and shall be entered as the registered holder of such Argonaut Class A Shares in the register of the Argonaut Class A Shares maintained by or on behalf of Argonaut; and (iv) each former holder of such ~~Participating Former Securityholder shall be removed from the Company’s securities register of holders of~~ exchanged Argonaut Class A ~~Shares, (v) Acquireco~~ Shares shall be entered in the ~~Company’s securities~~ register of ~~holders~~ the Alamos Shares maintained by or on behalf of ~~Class A Shares~~ Alamos 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 registered holder of the ~~Purchaser~~ Alamos Shares ~~payable~~ which such holder is entitled to ~~such Participating Former Securityholder~~ receive pursuant to this Section ~~3.02(k~~2.3(k); (l) each ~~Participating Former Securityholder receiving~~ holder of an Argonaut Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers the applicable 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 Option shall ~~transfer~~dispose of, and ~~shall~~ be deemed to have ~~transferred~~disposed of, such Argonaut Class A Option to ~~Acquireco, without any further act or formality by such Participating Former Securityholder,~~ Alamos (free and clear of all ~~Encumbrances~~Liens), ~~each~~ and as the sole consideration therefor Alamos will grant to such holder an option (each, an “Alamos Replacement Option”) to purchase from Alamos 0.0185 of an Alamos Share (provided that if the foregoing would result in the issuance of a fraction of an Alamos Share on any particular exercise of Alamos Replacement Options in the aggregate, then the number of Alamos Shares otherwise issuable shall be rounded down to the nearest whole number of Alamos Shares). Such Alamos Replacement Option shall provide for an exercise price per whole Alamos Share (rounded up to the nearest whole cent) equal to the quotient obtained when (i) the exercise price that would otherwise be payable to acquire an Argonaut Class A Share ~~held by such Participating Former Securityholder immediately prior~~ pursuant to the ~~exchange in this Section 3.02(l) in exchange for: (i) in the case of a Participating Former Securityholder validly electing to receive the Cash Consideration~~Argonaut Class A Option it replaces, ~~the Cash Consideration, subject to the provisions of Section 3.02(m); and~~ is divided by (ii) in the Alamos Exchange Ratio (provided that the aggregate exercise price payable on any particular exercise of Alamos Replacement Options shall be rounded up to the nearest whole cent). All terms and conditions of an Alamos Replacement Option, including the term to expiry, conditions to and manner of exercising, will be the same as the Argonaut Class A Option for which it was exchanged (except that the term to expiry of any Alamos Replacement Option shall not be affected by a holder of Alamos Replacement Options not becoming, or ceasing to be, an employee, consultant, officer or director of Argonaut or Alamos, as 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~~may be), and ~~upon~~ any document evidencing an Argonaut Class A Option shall thereafter evidence and be deemed to evidence such ~~exchange: (iii~~Alamos Replacement Option. It is intended that subsection 7(1.4) ~~each~~ of the Tax Act apply to such ~~Participating Former Securityholder~~ exchange of options. Accordingly, and notwithstanding the foregoing, the exercise price of an Alamos Replacement Option shall be ~~removed from~~ adjusted as necessary to ensure that the ~~Company’s securities register~~ In-the-Money Amount of ~~holders~~ the Alamos Replacement Option immediately after the exchange does not exceed the In-the-Money Amount of the Argonaut Class A ~~Shares, (iv) Acquireco shall be entered in~~ Option immediately before 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, 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 Securityholderexchange; (m) in each outstanding Argonaut RSU that has not vested prior to 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): Effective Time shall (i) ~~only~~ be adjusted, and be deemed to have been adjusted, pursuant to the Argonaut Incentive Plan, so that on or after the Vesting Date (as defined in the Argonaut Incentive Plan) of such Argonaut RSU the holder of such Argonaut RSU shall be entitled to receive ~~the Cash Consideration for that portion~~ – in lieu of ~~their Class A Shares~~ Argonaut Shares, cash, securities or other property or a combination thereof equal in value to an Argonaut Share – a fraction of an Alamos Share, cash, securities or other property or a combination thereof equal in value to a ~~fraction~~Fractional Alamos Share, ~~rounded~~ (ii) remain outstanding on the same terms as it had immediately prior to ~~six decimal places~~the Effective Time, apart from the ~~numerator~~ adjustment referred to in (i) of ~~which is the Maximum Cash Consideration minus the aggregate Combination Consideration Cash payable pursuant to~~ this Section ~~3.02(k~~2.3(m), and (iii) continue to be subject to and governed by the ~~denominator of which is the Aggregate Elected Cash~~Argonaut Incentive Plan; and (n) except in relation to holders of unvested Argonaut RSUs, the Argonaut Incentive Plan will terminate and none of (i) the former holders of Argonaut Options, Argonaut Class A Options, Argonaut PSUs or Argonaut DSUs, (ii) ~~be entitled~~ the former holders of Argonaut RSUs that have vested prior to ~~receive~~ the ~~Purchaser Share Consideration for~~ Effective Time, (iii) the ~~remaining portion~~ Parties or (iv) any of ~~their Class A Shares~~ the respective successors or assigns of any of the foregoing (including, for the avoidance of doubt, ~~a corresponding portion~~ New Argonaut with respect to the New Argonaut Portion of ~~the Purchaser Share Consideration for any fractional Class A Share included in such remaining portion); (n) in the event that (A) the sum~~ an Argonaut Option disposed of ~~(I) the aggregate Combination Consideration Purchaser Shares payable~~ pursuant to Section ~~3.02(k~~2.3(h)(ii)) ~~and (II)~~ shall have any rights, liabilities or obligations in respect of the ~~Aggregate Elected Purchaser Shares~~Argonaut Incentive Plan. Each of the events listed in this Section 2.3 will be, ~~exceeds (B)~~ without affecting the ~~Maximum Purchaser Shares~~timing set out herein, ~~each Participating Former Securityholder who validly elects to receive the Purchaser Share Consideration shall~~mutually conditional, ~~notwithstanding Section 3.02(l)(ii): (i) only be entitled to receive the Purchaser Share Consideration for~~ such that portion of their Class A Shares equal to a fraction, rounded to six decimal places, the numerator of which is the Maximum Purchaser Shares minus the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k)no event may occur without all steps occurring, and those events will affect the ~~denominator of~~ integrated transaction which is constitutes 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShArrangement.

Appears in 1 contract

Sources: Arrangement Agreement (Alamos Gold Inc)

Arrangement. At Commencing 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 order without any further act or formality: (a) the ~~Purchaser~~ Shareholder Rights Plan 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~~ be cancelled and shall have no further force or effect and each 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 rights thereunder 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”) be cancelled 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 Considerationno consideration; (b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which ~~a Company~~ an Orko Option might otherwise be subject (whether by contract, the ~~terms and~~ conditions of ~~any Award Agreement or~~ grant, applicable law or the terms ~~and conditions~~ of the ~~Company 2013 Share Incentive Plan or Company 2016~~ Orko Stock Option Plan~~, or applicable law~~): (ic) ~~each In-the-Money Option issued and~~ the outstanding ~~immediately prior to the Effective Time shall~~Orko Options will, without any further action by or on behalf of any holder of such ~~In-the- Money Option~~Orko Options, 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~~ compensation therefor; (~~iii~~d) with respect to each ~~Company~~ Orko Option~~: (A)~~ , the holder thereof ~~shall~~ will cease to be the holder of such ~~Company~~ Orko Option, ~~and shall~~ will cease to have any rights as a holder in respect of such ~~Company Option under the applicable Company Option Plan, (B)~~ Orko Option, such ~~holder’s name shall~~ holder will be removed from the register of ~~Company~~ Orko Options, ~~and (C)~~ and 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;; and (de) the ~~Company~~ Orko Stock Option ~~Plans~~ Plan shall be terminated; (ef) five minutes after the steps contemplated in Section 2.3(b), each ~~Company~~ Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall bebe 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; (g) five minutes after the steps contemplated in Section 2.3(c), each Orko Share (other than any Orko Share held by any Dissenting Shareholder) shall be deemed to ~~be, surrendered~~ be transferred to ~~the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder,~~ First Majestic (free and clear of ~~all Encumbrances~~any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration; (h) with respect to each ~~such Company~~ Orko Share ~~so surrendered shall be cancelled~~ transferred and ~~thereupon each Dissenting Shareholder~~ assigned in accordance with Section 2.3(c) or Section 2.3(d): (i) the registered holder thereof shall cease to ~~have any rights as a~~ be the registered holder of such ~~Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4~~ Orko Share and the name of such ~~Dissenting Shareholder~~ registered holder shall be removed from the ~~securities~~ register of ~~holders~~ Orko Shareholders as of ~~Company Shares~~the Effective Time; (fj) ~~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~~ registered holder thereof shall be ~~reduced~~deemed to have executed and delivered all consents, ~~in respect of the Company Shares cancelled pursuant~~ releases, assignments and waivers, statutory or otherwise, required to ~~Section 3.02(e), by an amount equal to the product obtained when (A) the stated capital of all the issued~~ transfer 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 assign such Orko 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 (Dk) ~~each~~ First Majestic will be the holder of ~~such exchanged Company~~ all of the outstanding Orko Shares and the register of Orko Shareholders 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~~revised accordingly; (~~iii~~l) ~~concurrently with~~ five minutes after the ~~exchange~~ steps contemplated in Section ~~3.02(h)(ii~~2.3(d) and (e), ~~the stated capital account~~ each outstanding Orko Share will be transferred to Subco in ~~respect~~ consideration of the ~~Company Shares shall be reduced~~ issue by an Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount ~~equal~~ added to the stated capital of the ~~Company~~ Subco Shares ~~immediately prior~~ will be equal to the ~~reorganization~~ value of the Orko Shares so transferred; (m) concurrent with the step in Section ~~3.02(h~~2.3(f), ~~and there shall be added to~~ the stated capital ~~account maintained by the Company~~ in respect of the ~~Class A Shares,~~ Orko Shares shall be reduced to an aggregate of $1.00 without any repayment of capital in respect thereof; (n) five minutes after the steps contemplated in Section 2.3(f) and (g), Orko and Subco shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the ~~Class A Shares issued pursuant to~~ Business Corporations Act, except that the legal existence of Orko shall not cease and Orko shall survive the merger as Amalco; (o) without limiting the generality of Section ~~3.02(h)(ii~~2.3(h), the ~~amount by which (A)~~ separate legal existence of Subco shall cease without Subco being liquidated or wound up and Orko and Subco shall continue as one company and the ~~amount by which~~ property of Subco shall become the ~~stated capital account~~ property 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)Amalco; (ip) from and after the ~~Initial Spinco Share held~~ Effective Date, at the time of the step contemplated in Section 2.3(h): (q) Amalco will own and hold the property of Orko and Subco and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by ~~the Company shall be cancelled without any repayment thereon~~such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract or otherwise, may be enforced against Amalco to the ~~Company shall be removed from the Spinco register of holders of Spinco Shares~~same extent as if such obligations had been incurred or contracted by it; (jr) Amalco will continue to be liable for all of the liabilities and obligations of Orko and Subco; (s) all rights, contracts, permits and interests of Orko and Subco will continue as rights, contracts, permits and interests of Amalco as if Orko and Subco continued and, for greater certainty, the amalgamation will not constitute a transfer or assignment of the rights or obligations of either of Orko or Subco under any such rights, contracts, permits and interests; (t) any existing cause of action, claim or liability to prosecution will be unaffected; (u) a civil, criminal or administrative action or proceeding pending by or against either Orko or Subco may be continued by or against Amalco; (v) a conviction against, or ruling, order or judgment in favour of or against either Orko or Subco may be enforced by or against Amalco; (w) First Majestic as the holder of the Subco Shares shall receive on the amalgamation one common share in the authorised share structure of Amalco in exchange for each Subco Share previously held and all of the issued and outstanding ~~Spinco~~ Orko 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 Spinco Share Consolidation shall will be cancelled without ~~payment or compensation therefor, and upon such Spinco Share Consolidation the register~~ repayment of ~~holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation~~capital in respect thereof; (kx) ~~each 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~~ name of ~~all of such Participating Former Securityholder’s Company Shares~~Amalco shall be “Orko Silver Corp.”; (iiy) ~~has not completed and delivered the applicable Election Form(s) by the Election Deadline or who has otherwise failed~~ Amalco shall be authorised to ~~make a valid election to receive the Cash Consideration or the Purchaser Share Consideration is respect~~ issue an unlimited number of ~~all of such Participating Former Securityholder’s Company Shares; or~~common shares without par value; (~~iii~~z) ~~exercises Dissent Rights~~ the articles and ~~is ultimately not entitled, for any reason, to be paid fair value for its Company Shares, shall transfer, and~~ notice of articles of Amalco shall be ~~deemed~~ substantially in the form of the articles and notice of articles of Orko; (aa) the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from the Effective Date; (bb) the first directors of Amalco following the amalgamation shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and (cc) the stated capital of the common shares of Amalco will be an amount equal to ~~have transferred~~the paid-up capital, as that term is defined in the ITA, attributable to ~~Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder~~ the Subco Shares immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrancesamalgamation; and (vidd) ~~each such Participating Former Securityholder shall, subject to~~ the ~~provisions of Section 3.06, be entered~~ exchanges and cancellations provided for 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 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 transfer, and shall 2.3 will be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to occur on the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 shallEffective Date, notwithstanding ~~Section 3.02(l)(i): (i) only~~ certain procedures related thereto may not 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to completed until after the Effective ~~Time shall be cancelled in exchange for a cash payment by the Company to the holder of such Company DSU equal to the Company Sh~~Date.

Appears in 1 contract

Sources: Arrangement Agreement (First Majestic Silver Corp)

Arrangement. At the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall occur and shall be deemed to occur sequentially ~~in the following order~~ as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting immediately following the Effective Time: (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 each Company Share Option outstanding immediately prior to the ~~acquisition~~ Effective Time (whether vested or unvested), notwithstanding the terms of the ~~Class A Shares by Acquireco pursuant~~ Company Share Option Plan, shall be deemed to ~~Section 3.02(k)~~be unconditionally vested and exercisable, and such Company Share Option shall, without any further action by or on behalf of the holder of the Company Share Option, be deemed to be assigned and transferred by such holder to the Company (free and clear of all Encumbrances) in ~~connection with~~ exchange for a cash payment from the Company equal to the amount equal to the product of: (i) the amount by which the Company Common Share Consideration exceeds the exercise price per Company Common Share of such ~~share subscription~~Company Share Option; and (ii) the number of Company Common Shares into which such Company Share Option is exercisable; provided that in the event the foregoing calculation would result in a product less than $0.01, the consideration to be received in respect of such Company Share Option shall be $0.01, and: (i) ~~the Purchaser~~ each holder of Company Share Options shall cease to be a holder of such Company Share Options; (ii) such holder’s name shall be ~~deemed to have directed~~ removed from the ~~Depositary to hold,~~ register of the Company Share Options; (iii) the Company Share Option Plan and ~~the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser~~ all agreements relating to the ~~Depositary in accordance with Section 3.05(a)(i) (such cash~~ Company Share Options shall be terminated and ~~Purchaser Shares, collectively, the “Purchaser Consideration”) for~~ shall be of no further force and ~~on behalf of Acquireco, in satisfaction of the subscription price payable by the Purchaser for such Acquireco Common Shares~~effect; and (iiiv) ~~Acquireco~~ such holder shall ~~be deemed~~ thereafter have only the right to ~~have issued such fully paid and non-assessable Acquireco Common Shares~~ receive the consideration 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~~ which they are entitled pursuant to this Section ~~3.02(a~~2.3(a)~~, by an amount equal to the fair market value of the Purchaser Consideration~~; (b) ~~notwithstanding any vesting or exercise provisions~~ each Company Award outstanding immediately prior to ~~which a Company Option might otherwise be subject~~ the Effective Time (whether vested or unvested) shall be deemed to be unconditionally vested, and such Company Award shall, without any further action by ~~contract,~~ or on behalf of the ~~terms and conditions of any Award Agreement or grant, the terms and conditions~~ holder of the Company ~~2013~~ Award, be deemed to be assigned and transferred by such holder to the Company (free and clear of all Encumbrances) in exchange for a cash payment from the Company equal to the Company Common Share ~~Incentive Plan or Company 2016 Stock Option Plan~~Consideration, ~~or applicable law):~~and: (i) each ~~In-the-Money Option issued~~ holder of Company Awards shall cease to be a holder of such Company Awards; (ii) such holder’s name shall be removed from the register of the Company Awards; (iii) the Company MTIP and all agreements relating to the Company Awards 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 this Section 2.3(b); (c) each Company DSU outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of ~~any~~ the holder of ~~such In-the- Money Option~~the Company DSU, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by ~~the~~ such holder ~~thereof~~ to the Company (free and clear of all Encumbrances) ~~and cancelled~~ in exchange for a cash payment from the ~~Option~~ Company equal to the Company Common Share Consideration, ~~and the~~ and: (i) each holder of Company DSUs shall cease to be a 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 ConsiderationDSUs; (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 the Company ~~Options,~~ DSUs; (iii) the Company DSUP and all agreements relating to the Company DSUs shall be terminated and shall be of no further force and effect; and (Civ) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto~~ such holder shall ~~be cancelled~~thereafter have only the right to receive the consideration to which they are entitled pursuant to this Section 2.3(c); (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): (id) each Company ~~RSU issued~~ Common Share held by Dissenting Holders in respect of which Dissent Rights have been validly exercised and ~~outstanding immediately prior~~ not withdrawn or deemed to ~~the Effective Time~~ have been withdrawn shall, without any further action by or on behalf of ~~any holder of such Company RSU~~the Dissenting Holder, be deemed to have been assigned and transferred by such Dissenting Holder to the Purchaser (free and clear of all Encumbrances) in consideration for a debt claim against the Purchaser for the amount determined under Article 3, and: (i) such Dissenting Holders shall cease to be ~~fully vested~~ the holders of such Company Common Shares and to have any rights as holders of such Company Common Shares other than the right to be paid fair value for such Company Common Shares as set out in Section 3.1; (ii) such Dissenting Holders’ names shall be ~~transferred~~ removed as the holders of such Company 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 legal and ~~disposed by the holder thereof to the~~ beneficial owner of such Company Common Shares (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 entered 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,~~ Common Shares maintained by or on behalf of the Company; 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 Common Share outstanding immediately prior to the Effective Time, other than Company Common Shares held by a Dissenting ~~Shareholder shall be,~~ Holder in respect of which Dissent Rights have been validly exercised and ~~shall be~~ not withdrawn or deemed to behave been withdrawn, ~~surrendered to the Company by the holder thereof~~shall, without any further ~~act~~ action by or ~~formality~~ on behalf of the holder of the Company Common Share, be deemed to be assigned and transferred by ~~such Dissenting Shareholder,~~ the holder thereof to the Purchaser (free and clear of all Encumbrances~~, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against~~ ) in exchange for the Company ~~in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of~~ Common Share Consideration for each Company ~~Shares; (f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders pursuant to Section 3.02(e)~~Common Share held, 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 capitaland: (i) the ~~notice~~ holders of ~~articles~~ such Company Common Shares shall cease to be the holders thereof and ~~articles~~ to have any rights as holders of such Company Common Shares other than the right to be paid 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 Common Share Consideration for each Company Common Share formerly held in ~~Schedule “A” to~~ accordance with 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~~ holders’ names shall be removed from the ~~Company’s~~ register of ~~holders~~ the Company Common Shares maintained by or on behalf 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be ~~removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as~~ the legal and beneficial owner of such ~~Class A Shares, free of all Encumbrances; and~~ Company Common Shares (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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances~~, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l~~) in exchange for: (i) in the case of a 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 ~~upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (iv) Acquireco~~ shall be entered in the ~~Company’s securities~~ register of ~~holders of Class A~~ the Company Common 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, subject to the provisions of Section 3.02(m)~~ maintained by 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~~ on behalf 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShCompany.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. 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 order without any further act or formality: (a) each Shareholder who has duly exercised the ~~Purchaser~~ right of dissent as set forth in Article 3 shall ~~subscribe~~ be deemed to have transferred the PTI Common Shares held by such holder to PTI 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~~ cancellation and ~~Maximum Cash Consideration is divided~~ such shares shall be cancelled and any Options held 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 such Shareholder which have not been exercised prior to the ~~acquisition~~ time such Shareholder exercises such right of ~~the Class A Shares by Acquireco pursuant~~ dissent shall be deemed to ~~Section 3.02(k),~~ be transferred to PTI for no consideration and shall be cancelled and shall no longer be outstanding and in ~~connection with~~ no case shall PTI or OSI be required to recognize such ~~share subscription~~holders as Optionholders on and after the Effective Time and the names of such persons shall be deleted from the registers of Optionholders at the Effective Time; (b) the Unanimous Shareholder Agreement shall be terminated and of no further force or effect; (c) OSI shall acquire: (i) all of the ~~Purchaser shall be deemed to have directed the Depositary to hold, and the Depositary shall hold, the cash and certificates representing the Purchaser~~ PTI Common Shares ~~delivered~~ held by the ~~Purchaser~~ Non-Accredited U.S. PTI Shareholder in exchange for a payment, in United States dollars, equal to the ~~Depositary in accordance with Section 3.05(a)(i) (such cash~~ OSI IPO Price less underwriters' discounts and ~~Purchaser Shares~~commissions applicable to the OSI IPO, ~~collectively, the “Purchaser Consideration”) for and on behalf of Acquireco, in satisfaction of the subscription price payable~~ multiplied by the ~~Purchaser for such Acquireco~~ Exchange Ratio multiplied by the number of PTI Common ~~Shares~~Shares held by the Non-Accredited U.S. PTI Shareholder; and (iid) ~~Acquireco~~ OSI ULC shall ~~be deemed to have issued such fully paid and non-assessable Acquireco~~ acquire all of the PTI Common Shares ~~to the Purchaser, and the stated capital account maintained~~ acquired by ~~Acquireco in respect of the Acquireco Common Shares shall be increased, in respect of the Acquireco Common Shares issued~~ OSI pursuant to ~~this~~ Section ~~3.02(a), by an amount equal to~~ 2.1(c) hereof in exchange for one common share in the ~~fair market value~~ capital of ~~the Purchaser Consideration~~OSI ULC for each whole PTI Common Share; (be) 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 PTI Holdco shall acquire all of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):~~PTI Common Shares acquired by OSI ULC pursuant to Section 2.1(d) hereof in exchange for one common share in the capital of PTI Holdco for each whole PTI Common Share; (f) PTI and PTI Amalco shall be amalgamated pursuant to the Amalgamation Agreement to form New PTI; (g) Upon the amalgamation of PTI and PTI Amalco to form New PTI: (i) New PTI shall issue to PTI Holdco one Class A Common Share for each ~~In-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 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 Considerationits PTI Common Shares; (ii) New PTI shall issue to PTI Holdco one Class A Common Share for 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~~its PTI Amalco Common Shares; (iii) ~~with respect~~ New PTI shall issue to 812375 one Class B Common Share for 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company its PTI Common Shares; (fiv) ~~concurrently with the surrender and cancellation~~ New PTI shall issue to RJM one Class C Common Share for each 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)its PTI Common Shares; (gv) New PTI shall issue to each of the ~~Company shall transfer all~~ Shareholders other than 812375, RJM, PTI Holdco and holders 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 PTI Common Shares in respect of which ~~Dissenting Shareholders~~ rights of dissent have been 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 pursuant to ~~create a new class of shares without par value, of which an unlimited number may be issued~~ Article 3 hereof 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 been cancelled pursuant to Section ~~3.02(b~~2.1(a) 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 hereof one Class A D Common Share ~~and one Distribution Spinco Share, and upon such exchange: (A)~~ for 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~~ their PTI Common 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~~vi) 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~~ for the Class A ~~Shares, in~~ Common Shares with respect of to the Class A Common Shares issued pursuant to Sections 2.1(g)(i) and (ii) shall be equal to the paid-up capital, for the purposes of the ITA, of the PTI Common Shares and the PTI Amalco Common Shares held by PTI Holdco; (vii) the amount added to the stated capital account maintained for the Class B Common Shares with respect to the Class B Common Shares issued pursuant to Section ~~3.02(h)(ii)~~2.1(g)(iii) shall be equal to the paid-up capital, for the purposes of the ITA, of the PTI Common Shares held by 812375; (viii) the amount added to the stated capital account maintained for the Class C Common Shares issued pursuant to Section 2.1(g)(iv) shall be equal to the paid-up capital, for the purposes of the ITA, of the PTI Common Shares held by ~~which~~ RJM; (ix) the amount added to the stated capital account maintained for the Class D Common Shares with respect to the Class D Common Shares issued pursuant to Section 2.1(g)(v) shall be equal to the paid-up capital, for the purposes of the ITA, of the PTI Common Shares other than (A) the ~~amount~~ PTI Common Shares held by PTI Holdco, 812375 and RJM and (B) PTI Common Shares in respect of which ~~the~~ rights of dissent have been exercised pursuant to Article 3 hereof and which have been cancelled pursuant to Section 2.1(a) hereof. (h) The stated capital account maintained for (i) the Class B Common Shares shall be increased by a portion of the ~~Company Shares is reduced pursuant~~ amount credited to ~~this Section 3.02(h)(iii), exceeds~~ New PTI's retained earnings account equal to [$6,794,359] and (Bii) the ~~fair market value~~ Class C Common Shares shall be increased by a portion of the ~~Distribution Spinco Shares transferred~~ amount credited to ~~the former holders of Company Shares pursuant~~ New PTI's retained earnings account equal to ~~Section 3.02(h)(ii)~~[$3,903,303]; (i) ~~the Initial Spinco Share held by the Company~~ The Articles of Incorporation of PTI Holdco shall be ~~cancelled without any repayment thereon~~amended to add (i) the Exchangeable Shares to the authorized capital of PTI Holdco, (ii) the Exchangeable Share Provisions and (iii) certain other provisions, set forth in Exhibit B to the ~~Company shall be removed from~~ Combination Agreement and to delete the ~~Spinco register of holders of Spinco Shares~~private company provisions; (j) OSI and PTI Holdco shall execute and deliver the Support Agreement; (k) OSI, PTI Holdco and the Trustee shall execute and deliver the Voting and Exchange Trust Agreement; (l) PTI Holdco shall acquire all of the issued and outstanding ~~Spinco~~ Class B Common Shares from the holders thereof in exchange for the number of Exchangeable Shares equal to the Exchange Ratio for each whole Class B Common Share; (m) PTI Holdco shall acquire all of the issued and outstanding Class C Common Shares from the holders thereof in exchange for the number of Exchangeable Shares equal to the Exchange Ratio for each whole Class C Common Share; (n) PTI Holdco shall acquire all of the issued and outstanding Class D Common Shares from the holders thereof in exchange for the number of Exchangeable Shares equal to the Exchange Ratio for each whole Class D Common Share; (o) The amount added to the stated capital account maintained for the Exchangeable Shares with respect to the Exchangeable Shares issued pursuant to Section 2.1(l) shall be equal to the paid up capital, for the purposes of the ITA, of the Class B Common Shares; (p) The amount added to the stated capital account maintained for the Exchangeable Shares with respect to the Exchangeable Shares issued pursuant to Section 2.1(m) shall be equal to the paid up capital, for the purposes of the ITA, of the Class C Common Shares; (q) The amount added to the stated capital account maintained for the Exchangeable Shares with respect to the Exchangeable Shares issued pursuant to Section 2.1(n) shall be equal to the paid up capital, for the purposes of the ITA, of the Class D Common Shares; (r) Upon the transfer of New PTI Shares referred to in paragraphs (l), (m) and (n) above: (i) each holder of New PTI Shares shall cease to 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~~ such a ~~holder of Spinco Shares~~holder, ~~and any fractional Spinco Shares resulting~~ shall have his name removed from ~~such Spinco Share Consolidation shall be cancelled without payment or compensation therefor, and upon such Spinco Share Consolidation~~ the register of holders of ~~Spinco~~ New PTI Shares and shall become a holder of the number of fully paid Exchangeable Shares to which he is entitled as a result of the transfer referred to above and such holder's name shall be ~~amended~~ added to ~~reflect~~ the ~~Spinco Share Consolidation; (k) each Participating Former Securityholder receiving Class A~~ register of holders of Exchangeable 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;accordingly; and (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 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, PTI Holdco shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as become the legal and beneficial owner of ~~such Class A~~ all of the New PTI Shares so transferred. (s) OSI shall issue to and deposit with the Depositary the Voting Share in consideration of the payment to OSI of US$1, to be thereafter held by the Depositary as trustee for and on behalf of, and for the use and benefit of, the holders of the Exchangeable 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 Election Form(s) in accordance with ~~Section 3.03~~ the Voting 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 transfer, and shall be deemed to have transferred, to AcquirecoExchange Trust Agreement. (t) The then outstanding Options will, without any further ~~act or formality by such Participating Former Securityholder, free and clear~~ action on the part of ~~all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for:~~ any Optionholder: (i) if applicable, vest in accordance with the ~~case~~ terms and conditions of ~~a 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)Option Agreements, and upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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~~ converted into or exchanged for an option to ~~receive~~ purchase the ~~Purchaser Share Consideration for~~ number of shares of OSI Common Stock determined by multiplying the ~~remaining portion~~ number of ~~their Class A~~ PTI Common Shares ~~(including~~subject to such Option at the Effective Time by the Exchange Ratio, ~~for the avoidance~~ at an exercise price per share of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 OSI Common Stock equal to ~~a fraction, rounded to six decimal places,~~ the ~~numerator~~ exercise price per share of which is the Maximum Purchaser Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding Option immediately prior to the Effective Time divided by the Exchange Ratio, and expressed in U.S. dollars. For the purposes of determining the exercise price per share of OSI Common Stock, the exercise price per share of PTI Common Shares subject to such Option shall be ~~cancelled~~ adjusted using the Canadian dollar exchange rate based upon the average of the noon buying rate expressed to the fourth decimal place for each of the Business Days in the Measurement Period as reported by the Bank of Canada. If the foregoing calculation results in a converted Option being exercisable for a fraction of a share of OSI Common Stock, then the number of shares of OSI Common Stock subject to such Option will be rounded down to the nearest whole number of shares, and the exercise price per whole share of OSI Common Stock will be as determined above. The obligations of PTI under the Options as so converted shall be assumed by OSI and OSI shall be substituted for PTI under the Option Agreements. Except as provided in this paragraph (d), the term and all other terms and conditions of the Options in effect immediately prior to giving effect to the Arrangement shall govern the Options. (u) PTI Holdco Sub shall acquire all of the issued and outstanding New PTI Shares from PTI Holdco in exchange for ~~a cash payment by~~ an equal number of common shares in the ~~Company to the holder~~ capital of ~~such Company DSU equal to the Company Sh~~PTI Holdco Sub.

Appears in 1 contract

Sources: Combination Agreement (Oil States International Inc)

Arrangement. At 3.1 Commencing at the Effective Time, ~~unless otherwise specifically provided~~ each of the events set out below shall occur and be deemed to occur in ~~this~~ the following sequence, in each case effective on the Effective Date as at the specified time set out below, and shall be effective and binding on TGOD, AcquiCo and all registered and beneficial TGOD Shareholders, without any further authorization, act or formality of or by TGOD, AcquiCo or any other Person: (a) In accordance with the terms of the Transaction Expense Agreement, in consideration for TGOD’s payment of the Transaction Costs, AcquiCo shall issue to TGOD such number of AcquiCo Unit Purchase Warrants equal to the number of issued and outstanding TGOD Shares of record on the Distribution Record Date (other than those TGOD Shares held by Dissenting Holders) multiplied by the Conversion Factor (the “Distributed AcquiCo Unit Purchase Warrants”); (b) Each TGOD Share held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall be, and be deemed to have been, assigned and transferred, without any further act or formality, by the Dissenting Holder thereof, to TGOD (free and clear of all Encumbrances), and (i) such Dissenting Holders shall cease to be the holders of such TGOD Shares and to have any rights as holders of such TGOD Shares other than the right to be paid the fair value for such TGOD Shares as set out in Section ~~3.02~~5.1; (ii) such Dissenting Holders’ names shall be removed from the register of TGOD Shares maintained by or on behalf of TGOD; (iii) such TGOD Shares held by Dissenting Holders shall be cancelled; and (iv) the Dissenting Holder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such TGOD Shares; (c) TGOD shall be deemed to undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which reorganization shall be deemed to occur in the following sequential order: (i) one minute following the Effective Time, the identifying name of the TGOD Shares shall be changed to “Class A Common Shares” and the special rights and restrictions attached to such shares shall be amended to provide that each such Class A Common Share is entitled to two (2) votes at any meeting of the shareholders of TGOD; and to reflect such amendments, TGOD’s articles of incorporation shall be deemed to be amended by adding the special rights and restrictions as set out in Schedule “A” to the Plan of Arrangement; (ii) two minutes following the Effective Time, the “New TGOD Shares”, being shares without par value and without any special rights and restrictions, shall be created as a class, the identifying name of the New TGOD Shares shall be “Common Shares” and the maximum number of New TGOD Shares which TGOD shall be authorized to issue shall be unlimited; (iii) three minutes following the Effective Time, each outstanding Class A Common Share shall be exchanged (without any further act or formality on the part of a TGOD Shareholder), free and clear of all Encumbrances, for (i) one (1) New TGOD Share and (ii) in the case of each Electing TGOD Shareholder, that number of AcquiCo Unit Purchase Warrants that is equal to the number of Class A Common Share held by such holder multiplied by the Conversion Factor, and the Class A Common Shares shall thereupon be cancelled, and: (A) the holders of Class A Common Shares shall cease to be holders thereof and cease to have any rights or privileges as holders of Class A Common Shares; (B) the holders of Class A Common Shares names shall be removed from the central securities register of TGOD; and (C) each TGOD Shareholder shall be deemed to be the holder of the New TGOD Shares and, in the case of each Electing TGOD Shareholder, the Distributed AcquiCo Unit Purchase Warrants exchanged for the TGOD Shares, in each case free and clear of any Encumbrances, and shall be entered into the central securities register of TGOD and AcquiCo, as the case may be, as the registered holder thereof; (iv) four minutes following the Effective Time, the authorized share capital of TGOD shall be amended to eliminate the Class A Common Shares and the special rights and restrictions attached to such shares, and the notice of articles of TGOD shall be deemed to be amended accordingly; (v) the capital of TGOD in respect of the New TGOD Shares shall be an amount equal to the paid-up capital for the purposes of the Tax Act in respect of the TGOD Shares immediately prior to the Effective Time, less the fair market value of the Distributed AcquiCo Unit Purchase Warrants distributed on such exchange; and (vi) The articles of incorporation of TGOD shall be amended to reflect the changes to its authorized share structure made pursuant to this Plan of Arrangement; and (d) All AcquiCo Shares owned by TGOD shall be cancelled immediately upon the issuance of any AcquiCo Shares comprising part of the AcquiCo Units and the appropriate entries shall be made in the register of shareholders of AcquiCo. 3.2 Notwithstanding Section 3.1(c)(iii), (i) no fractional AcquiCo Unit Purchase Warrants shall be distributed to TGOD Shareholders and as a result all fractional AcquiCo Unit Purchase Warrant amounts arising under such sections shall be rounded down to the nearest whole number and (ii) no AcquiCo Unit Purchase Warrants shall be distributed to TGOD Shareholders who are not Electing TGOD Shareholders. Subject to Section 2.8(g) of the Arrangement Agreement, any Distributed AcquiCo Unit Purchase Warrants not distributed as a result of (i) this rounding down or (ii) a TGOD Shareholder not being an Electing TGOD Shareholder shall be dealt with as determined by the TGOD Board in its absolute discretion. 3.3 The holders of the Class A Common Shares and the holders of New TGOD Shares referred to in Section 3.1 shall mean in all cases those persons who are TGOD Shareholders at the close of business on the Distribution Record Date, subject to Article 5. 3.4 All New TGOD Shares and AcquiCo Unit Purchase Warrants 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 Act. 3.5 The Arrangement shall become final and conclusively binding on the TGOD Shareholders, the AcquiCo Shareholders, TGOD and AcquiCo at and after the Effective Time without any further act or formality required on the part of any Person. 3.6 Notwithstanding that the transactions and events ~~or transactions~~ set out in Section 3.1 shall occur and shall be deemed to occur ~~sequentially~~ in the ~~following~~ chronological order therein set out without any ~~further~~ act or formality~~: (a) the Purchaser~~ , each of TGOD and AcquiCo shall ~~subscribe for that number of Acquireco Common Shares~~be required to make, ~~at a price of $1.00 per share~~do and execute or cause and procure to be made, ~~equal~~ done and executed all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may be required to ~~the quotient obtained when (A) the fair market value~~ give effect to, or further document or evidence, any 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 transactions 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 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 events set out in Section ~~3.02(e)~~3.1, 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, any resolutions of directors authorizing the ~~Company Shares issued to former holders~~ issue, transfer or redemption of ~~In-the-Money Options~~ shares, any share transfer powers evidencing the transfer of shares 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 Sharesreceipt therefore, and any ~~fractional Spinco Shares resulting~~ necessary additions to or deletions from such 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shshare registers.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At Commencing 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~~ consecutively in the following ~~order~~ order, each occurring five minutes following completion of the previous event without any further authorization, act or formality: (a) notwithstanding the ~~Purchaser~~ terms of the Shareholder Rights Plan, the Shareholder Rights Plan shall ~~subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal~~ be terminated and all rights issued pursuant to the ~~quotient obtained when~~ Shareholder Rights Plan shall be cancelled without any payment in respect thereof; (Ab) ~~the fair market value~~ each Dissent Share shall be transferred by such Dissenting Shareholder to Purchaser (free and clear of ~~the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B~~any Liens) ~~$1.00~~in accordance with, and for ~~greater certainty for~~ the ~~purposes of determining variable~~ consideration contemplated in, Article 4; (Ac) ~~in relation~~ all Company Options, 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 extent not exercised prior to the ~~acquisition~~ Effective Time, shall be deemed terminated without any payment in respect thereof; (d) the Effective Date shall be deemed to be the vesting date for all of the ~~Class A Shares by Acquireco pursuant to Section 3.02(k)~~then issued and outstanding Company RSUs, and ~~in connection with~~ the Company shall allot and issue to each Company RSU Holder such ~~share subscription:~~ number of Company Shares as are due to such holder under the terms of such RSUs and thereafter (i) the ~~Purchaser shall be deemed to have directed the Depositary to hold,~~ Company Incentive Plans will terminate 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 none of the ~~subscription price payable by the Purchaser for such Acquireco Common Shares; and (ii) Acquireco~~ former holders of Company RSUs or Company Options shall ~~be deemed to~~ have ~~issued such fully paid and non-assessable Acquireco Common Shares to the Purchaser~~any rights, ~~and the stated capital account maintained by Acquireco~~ liabilities or obligations in respect of the ~~Acquireco Common Shares shall~~ Company Incentive Plans and (ii) the Company RSU Holders will be ~~increased,~~ treated in all respects as Company Shareholders with respect of to the ~~Acquireco Common~~ Company Shares issued pursuant to this Section ~~3.02(a~~3.1(d); (e) the following shall occur and be deemed to occur concurrently: (i) in consideration for the Consideration issued or paid to the Company Shareholders by Parent for the benefit of Purchaser in Subsection 3.1(e)(iii), by Purchaser shall issue to Parent a number of common shares of Purchaser with an aggregate fair market value equal to the fair market value of such Consideration; (ii) an amount equal to the fair market value of the Consideration issued or paid to the Company Shareholders by Parent for the benefit of Purchaser ~~Consideration;~~in Subsection 3.1(e)(iii) shall be added to the stated capital account of Purchaser in respect of the common shares of Purchaser issued to Parent in Subsection 3.1(e)(i); and (biii) 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 Purchaser shall purchase all 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 ~~immediately prior to~~ Company Shares for the ~~Effective Time shall, without any further action by or on behalf of any holder of such In-the- Money Option, be deemed~~ Consideration (to be ~~fully vested~~ issued or paid directly by Parent) and each Company Share (other than any Dissent Share) shall be transferred ~~and disposed by the holder thereof~~ to ~~the Company~~ Purchaser (free and clear of ~~all Encumbrances~~any Liens) ~~and cancelled~~ in exchange for: (A) the Share Consideration to be issued directly by Parent to the Company Shareholder for the ~~Option Consideration~~benefit of Purchaser; or (B) the Cash Consideration to be issued or paid directly by Parent to the Company Shareholder for the benefit of Purchaser, ~~and~~ in each case in accordance with the ~~holder~~ election or deemed election 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~~Shareholder pursuant to Section 3.2, ~~but the holder of such Option Consideration shall not be entitled~~ in each case, subject to ~~receive a share certificate or other document representing the Option Consideration~~proration in accordance with Section 3.3; (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; (iiif) with respect to each Company ~~Option:~~Share transferred in accordance with Section 3.1(b) or Section 3.1(e): (Ai) the registered holder thereof shall cease to be the registered holder of such Company ~~Option,~~ Share and shall cease to have any rights ~~as a holder~~ in respect of such Company ~~Option under~~ Share and the ~~applicable Company Option Plan, (B)~~ name of such ~~holder’s name~~ registered holder shall be removed from the register of Company ~~Options~~Shareholders as of the time of transfer prescribed in Section 3.1(b) or Section 3.1(e), as applicable; (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 such Company Share; and (Ciii) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto shall~~ Purchaser will 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~~ all of the outstanding Company Shares ~~comprising such RSU Consideration~~ as of the time of transfer prescribed in Section 3.1(b) or Section 3.1(e), as applicable and the central securities register of ~~the~~ Company shall be revised ~~accordingly, but the holder of such RSU Consideration~~ accordingly and Purchaser shall ~~not~~ be entitled to ~~receive a share certificate or other document representing~~ all of the ~~RSU Consideration; (ii) with respect to each Company RSU: (A) the holder thereof shall cease to be the holder of such Company RSU,~~ rights 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, surrendered privileges attached to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh.

Appears in 1 contract

Sources: Arrangement Agreement (Interoil Corp)

Arrangement. At Commencing at the Arrangement Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall ~~occur and shall be deemed to~~ occur sequentially in the ~~following~~ order 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 Arrangement Effective Time: (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 all applicable Company Convertible Instruments outstanding immediately prior to the ~~acquisition of the Class A Shares by Acquireco pursuant to Section 3.02(k)~~Arrangement Effective Time (excluding, ~~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~~for greater certainty, the ~~cash and certificates representing the Purchaser Shares delivered~~ Remaining Company Convertible Instruments) shall, without further action 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~~ or on behalf of ~~Acquireco~~a holder of Company Convertible Instruments, ~~in satisfaction of the subscription price payable by the Purchaser for such Acquireco Common Shares; and (ii) Acquireco shall~~ be ~~deemed~~ converted into Company Shares pursuant to ~~have issued such fully paid and non-assessable Acquireco Common Shares to the Purchaser,~~ their terms and the ~~stated capital account maintained by Acquireco in respect~~ terms 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 Considerationany Conversion Agreements; (b) ~~notwithstanding any vesting or exercise provisions to which a~~ all 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 Options outstanding immediately prior to the Arrangement Effective Time (whether vested or unvested), notwithstanding the terms of the Company Incentive Plan or any applicable award agreements in relation thereto, shall be deemed to be unconditionally vested and exercisable, and each Company Optionholder shall, without any further action by or on behalf of ~~any holder of~~ such ~~In-the- Money Option~~Company Optionholder, be deemed to ~~be fully vested and shall be transferred and disposed by the holder thereof to the~~ have exercised such Company ~~(free and clear of all Encumbrances) and cancelled~~ Optionholder’s Company Options in exchange for such number of Company Shares (rounded down to the ~~Option Consideration, and~~ nearest whole Company Share) having an aggregate fair market value equal to (A) the ~~holder of such In-the-Money Option shall become the holder~~ aggregate fair market value of the Company Shares ~~comprising~~ underlying such Company Optionholder’s Company Options, minus (B) the aggregate Option ~~Consideration~~ Exercise Price in respect of such Company Optionholder’s Company Options, and ~~the central securities register~~ none of the Company or SPAC shall be ~~revised accordingly, but the holder~~ obligated to pay such Company Optionholder any amount in respect 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 shallCompany Option; and, ~~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:~~ Option that is exercised pursuant to this Section 2.3(b), as of the effective time of such exercise: (Ai) the holder thereof shall cease to be the holder of such Company Option, ~~and~~ (ii) the holder thereof shall cease to have any rights as a holder in respect of such Company Option or under the ~~applicable~~ Company ~~Option~~ Incentive Plan, , as applicable, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(b), (Biii) such holder’s name shall be removed from the ~~register of Company Options~~applicable register, ~~and~~ and (Civ) 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Business Combination Agreement (Oxus Acquisition Corp.)

Arrangement. At Commencing 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 ~~order~~ sequence, except where noted, without any further act or formality: (a) at 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)Effective Time, 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 Rights Agreement shall be ~~deemed to have directed the Depositary to hold,~~ terminated (and ~~the Depositary~~ all rights thereunder shall ~~hold, the cash~~ expire) 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 Considerationno further force or effect; (b) ~~notwithstanding any vesting or exercise provisions to which a Company Option might otherwise be subject (whether by contract,~~ immediately following 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 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 Planpreceding step, (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 Common Share held by a Dissenting Shareholder shall be, and shall be deemed to be, ~~surrendered~~ transferred to ~~the Company~~ Amalgamation Sub by the holder thereof, without any further act or formality by ~~such~~ or on behalf of the Dissenting Shareholder, ~~free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled~~ and thereupon each Dissenting Shareholder shall cease to have any rights as a holders of such Company Common Shares other than the rights set out in Article 4 hereof, (ii) the registered holder thereof shall cease to be the registered holder of such Company ~~Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4~~ Common Share and the name of such ~~Dissenting Shareholder~~ registered holder shall be removed from the ~~securities~~ register of ~~holders of~~ 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~~ as of the ~~Company Shares shall be reduced, in respect~~ time 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 Sharesstep; and (Diii) ~~each~~ Amalgamation Sub shall be recorded as the registered 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 Common 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to ~~have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder,~~ be the legal and beneficial owner thereof free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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)Liens; (lc) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers the applicable 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 ~~transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective~~preceding step, each Company DSU outstanding immediately prior to the Effective Time shall be, and shall be ~~cancelled~~ deemed to be, fully vested, and the Company shall pay each holder of a Company DSU an amount in cash equal to the product of (i) the Arrangement Mixed Consideration Value multiplied by (ii) the number of Company Common Shares subject to such Company DSU, all in full satisfaction of the obligations of the Company in respect of the Company DSUs and all of the Company DSUs, as well as the Company Non-Employee Director Deferred Stock Unit Plan, shall be, and shall be deemed to be, terminated; (d) concurrent with the preceding step, each Company PSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, fully vested, with performance goals deemed satisfied based on the maximum or highest level achievable under the Company PSU, and the Company shall issue to each holder of a Company PSU in settlement of such PSU that number of Company Common Shares subject to such Company PSU (based on the deemed satisfaction of performance goals) and the name of such holder shall be recorded as the registered holder of such Company Common Shares acquired pursuant to such Company PSUs all in full satisfaction of the obligations of the Company in respect of the Company PSUs and all of the Company PSUs shall be, and shall be deemed to be, terminated; (e) concurrent with the preceding step, each Company RSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, fully vested, and the Company shall issue to each holder of a Company RSU in settlement of such RSU that number of Company Common Shares issuable pursuant to the terms of such Company RSU and the name of such holder shall be recorded as the registered holder of such Company Common Shares acquired pursuant to such Company RSUs all in full satisfaction of the obligations of the Company in respect of the Company RSUs and all of the Company RSUs shall be, and shall be deemed to be, terminated; (f) immediately following the preceding step, subject to the requirement of Section 7.4(c) of the Arrangement Agreement, each Surrendered Company Option shall be, and shall be deemed to be, surrendered and transferred to the Company in consideration for the issuance by the Company of that number of Company Common Shares (the “Net Surrender Shares”) equal to, rounded down to the nearest whole share, (i) the number of Company Common Shares subject to such Surrendered Company Option immediately prior to the Effective Time minus (ii) the number of whole and partial (computed to the nearest four decimal places) Company Common Shares subject to such Surrendered Company Option that, when multiplied by the Fair Market Value (as such term is defined in the applicable Company Stock Plan) of a Company Common Share as of immediately prior to the time of this step, is equal to the aggregate exercise price of such Surrendered Company Option, and the holder of such Surrendered Company Option shall be recorded on the register of holders of Company Common Shares as the registered holder of the Net Exercise Shares, all in full satisfaction of the obligations of the Company in respect of the Surrendered Company Options and all of the Surrendered Company Options shall be, and shall be deemed to be, terminated; (g) immediately following the preceding step, each Company Shareholder who has not deposited with the Arrangement Exchange Agent a duly completed Letter of Transmittal and Election Form prior to the Election Deadline, or has otherwise failed to comply with the requirements of Section 3.3(b) and the Letter of Transmittal and Election Form, shall be deemed to have elected to receive, in respect of all Company Common Shares held by such holder (each such share, a “No Election Share”), the Arrangement Mixed Consideration; (h) immediately following the preceding step, each outstanding Company Common Share (other than any Company Common Share held by Amalgamation Sub) shall be transferred and assigned to Amalgamation Sub in accordance with the election of such holder pursuant to Section 3.3 or deemed election of such holder pursuant to Section 3.2(g) in exchange for, subject to Sections 3.4 and 3.7, the payment by Amalgamation Sub of (i) the Arrangement Cash Consideration, (ii) the Arrangement Mixed Consideration or (iii) the Arrangement Share Consideration, as applicable, 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 Company Shareholders as of the time of this step; (ii) Amalgamation Sub shall be recorded as the registered holder of such Company Common Share and shall be deemed to be the legal and beneficial owner thereof free and clear of all Liens; and (iii) there shall be added to the stated capital account maintained by Holdings for Holdings Common Shares an amount equal to the value as of — of the Holdings Common Shares, if any, issued in exchange for such Company Common Share; (i) concurrent with the preceding step, in consideration for Holdings delivering, on behalf of Amalgamation Sub, Holdings Common Shares directly to the Selling Shareholders pursuant to Section 3.2(h), AS Common Shares (the “AS Delivered Common Shares”) with the aggregate fair market value equal to the fair market value of the aggregate number of Holdings Common Shares so delivered shall be issued to Holdings, and in respect thereof, there shall be added to the stated capital account maintained by Amalgamation Sub for AS Common Shares an amount equal to the fair market value of the aggregate number of Holdings Common Shares so delivered (the “Share Consideration Value”); (j) immediately following the preceding step, each Company Option (and its tandem stock appreciation right) that is outstanding immediately prior to the time of this step (other than the Surrendered Company Options), whether or not vested, shall be exchanged for a ~~cash~~ Holdings Arrangement Option (with a tandem stock appreciation right) to acquire from Holdings that number of Holdings Common Shares equal to the product of: (i) the number of Company Common Shares subject to such Company Option immediately prior to the Effective Time multiplied by (ii) the Exchange Ratio, provided that the number of Holdings Common Shares issuable shall be rounded down to the nearest whole number of Holdings Common Shares. The exercise price per Holdings Common Share subject to a Holdings Arrangement Option shall be an amount equal to the quotient of: (i) the exercise price per Company Common Share subject to each such Company Option immediately before the Effective Time divided by (ii) the Exchange Ratio, provided that the aggregate exercise price payable on exercise of a Holdings Arrangement Option shall be rounded up to the nearest whole cent. Notwithstanding the foregoing, if it is determined in good faith that the excess of the aggregate fair market value of the Holdings Common Shares subject to the Holdings Arrangement Options immediately after the issuance of the Holdings Arrangement Options over the aggregate option exercise price for such shares pursuant to the Holdings Arrangement Options (such excess referred to as the “In the Money Amount” of the Holdings Arrangement Options) would otherwise exceed the excess of the aggregate fair market value of the Company Common Shares subject to such Company Options immediately before the issuance of the Holdings Arrangement Options over the aggregate option exercise price for such shares pursuant to the Company Options, (such excess referred to as the In the Money Amount of the Company Options), the previous provisions shall be modified so that the In the Money Amount of the Holdings Arrangement Options does not exceed the In the Money Amount of the Company Options, but only to the extent necessary and in a manner that does not otherwise adversely affect the holder of the Holdings Arrangement Options. Except as otherwise provided herein, each Holdings Arrangement Option (and its tandem stock appreciation right) shall be on the same terms and conditions as were applicable to the exchanged Company Option (and its tandem stock appreciation right) immediately before the Effective Time (including, but not limited to, the term to expiry, conditions to and manner of exercising and vesting schedule) and Holdings shall assume all the obligations of the Company under the Company Stock Plans pertaining to the Company Options (and their tandem stock appreciation rights) and the agreements evidencing the grants thereof. Holdings shall comply with the requirements of Section 7.4(c) of the Arrangement Agreement with respect to each Holdings Arrangement Option until final settlement of all Holdings Arrangement Options; (k) immediately following the preceding step, transactions are undertaken pursuant to transfer agreements that result in all AS Delivered Common Shares acquired by Holdings pursuant to Section 3.2(i) being contributed to LLC. Thereafter LLC shall be deemed to be the legal and beneficial owner thereof free and clear of all Liens; (l) following the preceding step and at the Merger Effective Time, the Merger shall become effective; (m) coincident with the Merger Effective Time, (i) Holdings, the Partnership and the Trustee shall execute the Voting Trust Agreement, and (ii) Holdings shall issue to and deposit with the Trustee the Special Voting Share, in consideration of the payment to Holdings of $1.00 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 Units in accordance with the Voting Trust Agreement; (n) immediately following the preceding step, the stated capital of the Company Common Shares shall be reduced to $1.00 without any distribution; and (o) at 5:00 p.m. (Toronto time) on the first Business Day following the Effective Date, (i) Amalgamation Sub and the Company shall amalgamate to form New Amalco with the same effect as if they were amalgamated under s. 181 of the CBCA, except that the separate legal existence of the Company will not cease and the Company will survive the amalgamation, as more fully described in Section 3.5; and (ii) without limiting the foregoing, the separate legal existence of Amalgamation Sub will cease without Amalgamation Sub being liquidated or wound up, Amalgamation Sub and the Company will continue as one Company, and the property of Amalgamation Sub (other than Company Common Shares held by Amalgamation Sub and any amounts owing by the Company to Amalgamation Sub) will become the ~~holder~~ property of ~~such Company DSU equal to the Company Sh~~New Amalco.

Appears in 1 contract

Sources: Arrangement Agreement and Plan of Merger (Burger King Worldwide, Inc.)

Arrangement. At Commencing 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 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 each Alexco In-the-Money Option outstanding immediately prior to the ~~acquisition~~ Effective Time (whether vested or unvested) shall immediately and unconditionally vest, notwithstanding the terms of the ~~Class A Shares~~ Alexco Option Plan and shall, without any further action by ~~Acquireco pursuant to Section 3.02(k)~~or on behalf of any Alexco Optionholder, ~~and in connection with such share subscription: (i) the Purchaser shall~~ be deemed to ~~have directed~~ be assigned and transferred by such Alexco Optionholder (free and clear of all Liens) to Alexco for cancellation in exchange for the ~~Depositary~~ Option Consideration. The Alexco Shares comprising the Option Consideration will be issued 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 Alexco Optionholder as fully paid and non-assessable ~~Acquireco Common Shares to~~ shares in 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 ConsiderationAlexco; (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 InAlexco 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 Alexco Optionholder, be cancelled without any payment in respect thereof; (c) (i) each Alexco Optionholder shall cease to be a holder of such ~~In-the- Money Option~~Alexco Options, 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~~ such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco Options shall be terminated and shall be of no further force and effect; (d) each Alexco DSU outstanding immediately prior to the Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the Alexco DSU Plan and shall, without any further action by or on behalf of ~~any holder of such Out-of-the-Money Option~~the Alexco DSU Holder thereof, be ~~cancelled without any~~ deemed to be assigned and transferred by such Alexco DSU Holder to Alexco (free and clear of all Liens) in exchange for, as determined by the board of directors of Alexco in accordance with the Alexco DSU Plan, either a cash payment ~~therefor~~or the number of Alexco Shares equal to the number of Alexco Shares a holder is entitled to under each Alexco DSU. Any such Alexco Shares will be issued to such Alexco DSU Holder as fully paid and non-assessable shares in the capital of Alexco; provided that no share certificates shall be issued with respect to such shares; (~~iii~~e) ~~with respect to~~ each ~~Company Option: (A) the holder thereof~~ Alexco DSU Holder shall cease to be ~~the~~ a holder of such ~~Company Option~~Alexco DSUs, ~~and shall cease to have any rights as a holder in respect of such Company Option under the applicable Company Option Plan,~~ (Bii) each such holder’s name shall be removed from ~~the~~ each applicable register ~~of Company Options~~maintained by Alexco, ~~and~~ and (Ciii) all ~~option agreements, Award Agreements, grants and similar instruments~~ agreements relating ~~thereto~~ to the Alexco DSUs shall be ~~cancelled~~terminated and shall be of no further force and effect; (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): (if) each ~~Company~~ Alexco RSU ~~issued and~~ outstanding immediately prior to the Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the Alexco RSU Plan and shall, without any further action by or on behalf of ~~any holder of such Company RSU~~the Alexco RSU Holder thereof, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by ~~the holder thereof~~ such Alexco RSU Holder to ~~the Company~~ Alexco (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled~~ in exchange for the ~~applicable~~ number of Alexco Shares equal to the number of Alexco Shares a holder is entitled to under each Alexco RSU ~~Consideration,~~ less that number of Alexco Shares with a fair market value equal to the amount of required withholding tax rounded up to the nearest Alexco Share. The Alexco Shares will be issued to such Alexco RSU Holder as fully paid and non-assessable shares in the ~~holder~~ capital of ~~such Company RSU shall become the holder of the Company Shares comprising such RSU Consideration and the central securities register of the Company~~ Alexco; provided that no share certificates shall be ~~revised accordingly, but the holder of~~ issued with respect to such ~~RSU Consideration shall not be entitled to receive a share certificate or other document representing the RSU Consideration~~shares; (iig) ~~with respect to~~ (i) each ~~Company RSU: (A) the holder thereof~~ Alexco RSU Holder shall cease to be ~~the~~ a holder of such ~~Company RSU~~Alexco RSUs, ~~and shall cease to have any rights as a holder in respect of such Company RSU under the applicable Company Option Plan,~~ (Bii) each such holder’s name shall be removed from ~~the~~ each applicable register ~~of Company RSUs~~maintained by Alexco, ~~and~~ and (Ciii) all ~~Award Agreements, grants~~ agreements relating to the Alexco RSUs shall be terminated and ~~similar instruments relating thereto will~~ shall be ~~cancelled~~of no further force and effect; (~~d) the Company Option Plans shall be terminated; (e~~h) each ~~Company Share held by a~~ Dissenting Shareholder shall ~~be,~~ transfer to 108 all of the Dissent Shares held (free and ~~shall be deemed to be, surrendered to the Company by the holder thereof~~clear of all Liens), without any further act or formality ~~by such Dissenting Shareholder, free and clear of all Encumbrances~~on its part, and ~~each such Company Share~~ in consideration therefor, 108 shall issue to the Dissenting Shareholder a debt- claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so ~~surrendered shall be cancelled and thereupon each~~ transferred (i) the Dissenting Shareholder shall cease to ~~have any rights as a~~ be the holder ~~of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and~~ thereof, (ii) the name of ~~such~~ the Dissenting Shareholder shall be removed from the ~~securities~~ register ~~of holders of 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~~ or on behalf of Alexco in respect of the ~~Company Shares~~ Alexco Shares, (iii) the Dissenting Shareholder shall be ~~reduced~~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 108 shall be added to the register maintained by or on behalf of Alexco in respect of the ~~Company~~ Alexco Shares ~~cancelled~~ as the holder thereof; and (i) each Alexco Shareholder shall transfer to 108 (free and clear of all Liens) each whole Alexco Share held (other than any Alexco Shares held by 108 immediately before the Effective Time or acquired by 108 from a Dissenting Shareholder under Section 3.1(h)), including the Alexco Shares issued pursuant to Section ~~3.02(e), by an amount equal to the product obtained when (A~~3.1(d) ~~the stated capital of all the issued and outstanding Company Shares immediately prior to the step~~ or Section 3.1(f) 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 exchange 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) (Consideration for ~~the avoidance of doubt~~each Alexco Share held, 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:and (i) the ~~notice of articles and articles of~~ Alexco Shareholder shall cease to be 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;holder thereof, (ii) ~~each Company Share issued and outstanding immediately before~~ the ~~reorganization~~ name 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 Alexco Shareholder shall be removed from the ~~Company’s~~ register maintained by or on behalf 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~~ Alexco 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~~ Alexco 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~~ Alexco Shareholder shall be ~~reduced by an amount equal~~ deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the ~~stated capital~~ transfer thereof, and (iv) the name of ~~the Company Shares immediately prior to the reorganization in Section 3.02(h), and there~~ 108 shall be added to the ~~stated capital account~~ register maintained by ~~the Company~~ or on behalf of Alexco in respect of the ~~Class A Shares,~~ Alexco Shares as the holder thereof; it being expressly provided that the events provided for 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 3.1 will be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to occur on the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 shallEffective Date, notwithstanding ~~Section 3.02(l)(i): (i) only~~ that certain procedures related thereto may not 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to completed until after the Effective ~~Time shall be cancelled in exchange for a cash payment by the Company to the holder of such Company DSU equal to the Company Sh~~Date.

Appears in 1 contract

Sources: Assignment and Amendment Agreement (Alexco Resource Corp)

Arrangement. At Subject to the ~~Effective Time, unless otherwise specifically provided~~ satisfaction or waiver of the conditions set out within Article 7 of the Arrangement Agreement in ~~this Section 3.02~~accordance with the relevant provisions of the Arrangement Agreement, the following ~~events or~~ transactions shall occur and shall be deemed to occur ~~sequentially~~ and be completed in the following order on the Effective Date without any further act or formality, in each case effective as at five minute intervals starting at the Effective Time (unless stated otherwise), provided that the purchase and sale provided for in Section 3.01 shall have occurred prior to the Effective Time: (a) Holdco shall amalgamate with Parentco to form one corporation, with 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~~ same effect as if Holdco and Parentco had amalgamated under Section 269 of the ~~Maximum Purchaser Shares~~ BCBCA, except that the separate legal existence of Parentco shall not cease and ~~Maximum Cash Consideration is divided by~~ Parentco will survive the amalgamation (~~B) $1.00~~Parentco, ~~and for greater certainty for~~ as such surviving entity, the ~~purposes of determining variable (A) in relation to the quotient under this Section 3.02(a~~“Resulting Issuer”), in accordance with the ~~fair market value~~ following, all of which shall occur and become effective simultaneously at the time 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 subscriptionamalgamation: (i) the ~~Purchaser~~ separate legal existence of Holdco shall ~~be deemed to have directed the Depositary to hold,~~ cease without Parentco being liquidated or wound up and ~~the Depositary~~ Holdco and Parentco 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 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 Considerationcontinue as one company; (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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~ Resulting Issuer shall be ~~amended~~ substantially in the form of the notice of articles and articles of Parentco, subject to ~~create a new class~~ the other terms 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; (iiA) each ~~Company~~ Holdco Share issued and outstanding immediately prior to the amalgamation shall automatically be exchanged for the Tevva Consideration; (B) the authorized capital of the Resulting Issuer shall be the same as the authorized capital of Parentco immediately prior to the amalgamation; and (C) in connection with the foregoing, the capital of the Resulting Issuer in respect of the Resulting Issuer Shares shall be equal to the capital of Holdco in respect of the Holdco Shares immediately before the ~~reorganization~~ Effective Time; (iv) the property, rights and interests of Holdco and Parentco shall be the property, rights and interests of the ~~Company’s share capital pursuant to this Section 3.02(h~~Resulting Issuer; (v) ~~(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)) Resulting Issuer shall be ~~exchanged with~~ liable for the ~~Company~~liabilities and obligations of Holdco and Parentco; (vi) any existing cause of action, ~~free~~ claim or liability to prosecution of Holdco or Parentco shall be unaffected and ~~clear~~ any legal proceeding being prosecuted or pending by or against either Holdco or Parentco may be prosecuted, or by its prosecution may be continued, as the case may be, by or against the Resulting Issuer; (vii) a conviction against, or ruling, order or judgment in favour of ~~any Encumbrances~~or against either ▇▇▇▇▇▇ or Parentco may be enforced by or against the Resulting Issuer; (viii) the name of the Resulting Issuer shall be “Tevva Motors, ~~for one Class A Share and one Distribution Spinco Share, and upon such exchange~~Inc.”; (ix) the first directors of the Resulting Issuer following the amalgamation shall be: (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Appears in 1 contract

Sources: Arrangement Agreement (Electrameccanica Vehicles Corp.)

Arrangement. At 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 ~~Time~~Time and in chronological order, ~~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 order~~ without any further act or formality: (a) ~~the Purchaser~~ Buyco shall ~~subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when~~ acquire all issued and outstanding Subco-RI Shares from Pubco (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~~Purchase Shares”) for ~~and on behalf of Acquireco, in satisfaction~~ consideration of the ~~subscription price payable by~~ Purchase Price comprised of the ~~Purchaser for such Acquireco Common Shares; and (ii) Acquireco shall~~ Deposit to be ~~deemed to have issued such fully~~ paid ~~and non-assessable Acquireco Common Shares to~~ on execution of the ~~Purchaser,~~ Arrangement Agreement and the ~~stated capital account maintained by Acquireco in respect of the Acquireco Common Shares shall~~ Balance to 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~~paid at Closing; (b) ~~notwithstanding any vesting or exercise provisions to~~ 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 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 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 Dissent Rights have been validly exercised by the holder thereof ~~to the Company (free~~ who is a Dissenting Buyco Shareholder 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 who is ultimately 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~~be paid fair value for his Buyco Shares, ~~without any further action by or on behalf of any holder of such Out-of-the-Money Option,~~ will 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 exchanged 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, surrendered to the Company by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder,~~ and free and clear of all ~~Encumbrances~~liens, claims and ~~each such Company Share so surrendered shall be cancelled~~ encumbrances, for one (1) fully paid and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 non- assessable Subco-RI Share, and the name of ~~such Dissenting Shareholder shall~~ each holder will be removed from the central securities register of ~~holders~~ Buyco and added to the central securities register of ~~Company Shares~~Subco-RI; ~~(f) concurrently with~~ ii. the ~~surrender~~ Buyco Shareholder thereof shall be deemed, without any further action on his or her part, to have executed and ~~cancellation~~ delivered any necessary transfer form, power of ~~Company~~ attorney or assignment required to transfer his or her Buyco Shares to Subco-RI; and iii. the certificates representing the Buyco 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 Buyco Shareholders will be deemed to have ~~transferred,~~ been cancelled subsequent to ~~Acquireco, without any further act or formality~~ their transfer to Subco-RI and will be replaced by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered a single share certificate registered in the ~~Company’s securities register~~ name of ~~holders of Class A Shares as the legal~~ Subco-RI 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,~~ Subco-RI will 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 will be deemed to be ~~effective immediately following~~ the ~~transfers~~ lawful owner and transferee of ~~the Class A Shares~~ all such Buyco Shares; thereafter, any director of Subco-RI will be authorized to ~~Acquireco pursuant~~ execute any such further documents and assurances as may be required by any transfer agent or depositary to ~~Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior~~ fully give effect to the ~~Effective Time shall be cancelled in exchange for a cash payment by the Company to the holder of such Company DSU equal to the Company Sh~~transfer and cancellations contemplated hereby;

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions shall occur~~ will occur, and ~~shall~~ will be deemed to ~~occur~~ occur, sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minutes intervals starting at the Effective Time: (a) each outstanding Company Option not exercised on or prior to the Company Option Exercise Deadline shall be terminated for no consideration, shall be null and void and shall cease to have further force and effect; (b) each outstanding Company RSU not settled in the ~~following order~~ form of Company Shares pursuant to the RSU Plan prior to the Effective Time shall be terminated for no consideration, shall be null and void and shall cease to have further force and effect; (c) each of the Company Shares held by Dissenting Shareholders in respect of which Dissent Rights have been validly exercised will be deemed to have been transferred without any further act or ~~formality: (a)~~ formality to the Purchaser ~~shall subscribe for that number~~ (free and clear 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 (Aall Liens) in ~~relation to~~ consideration for a debt claim against the ~~quotient~~ Purchaser for an amount determined under ~~this Section 3.02(a)~~Article 4, 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 subscriptionand: (i) such Dissenting Shareholders will cease to be the ~~Purchaser shall be deemed~~ holder of such Company Shares and to have ~~directed~~ any rights as holders of such Company Shares other than the ~~Depositary~~ right to ~~hold, and~~ be paid fair value for such Company Shares as set out in Section 3.2(d); (ii) such Dissenting Shareholders' name(s) will be removed as the ~~Depositary shall hold,~~ holders of such Company Shares from the ~~cash and certificates representing the Purchaser~~ registers of Company Shares ~~delivered~~ maintained 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~~ or on behalf of ~~Acquireco, in satisfaction of~~ the ~~subscription price payable by the Purchaser for such Acquireco Common Shares~~Company; and (iiiii) ~~Acquireco shall~~ the Purchaser will be deemed to ~~have issued~~ be the transferee of such ~~fully paid~~ Company Shares free and ~~non-assessable Acquireco Common Shares to the Purchaser~~clear of all Liens, and will be entered in the ~~stated capital account~~ register of Company Shares maintained by ~~Acquireco in respect~~ or on behalf 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 ConsiderationCompany; (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): (id) each ~~In-the-Money Option issued and~~ Company Share outstanding immediately prior to the Effective ~~Time shall~~Time, other than Company Shares held by a Dissenting Shareholder who validly exercised such holder's Dissent Right in respect of such Company Shares, will, without any further action by or on behalf of ~~any~~ a holder of ~~such In-the- Money Option~~Company Shares, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to the ~~Company~~ Purchaser (free and clear of all ~~Encumbrances~~Liens) ~~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 for each Company ~~Option~~Share held, and: (Ai) ~~the holder thereof shall~~ each Former Company Shareholder will cease to be ~~the~~ a holder of ~~such~~ Company ~~Option,~~ Shares and ~~shall~~ will cease to have any rights as ~~a holder in respect~~ holders of such Company ~~Option under~~ Shares, other than 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 right to be ~~fully vested and shall be transferred and disposed by~~ paid 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 Former 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 Shareholder will be removed from the ~~Company’s~~ register of ~~holders of Company Shares; (B) each holder of such exchanged~~ Company Shares ~~shall be entered in~~ maintained by or on behalf of 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 will be deemed to ~~have transferred, to Acquireco, without any further act or formality by~~ be the transferee of such ~~Participating Former Securityholder,~~ Company Shares (free and clear of all ~~Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k~~Liens) ~~in exchange for the Combination Consideration Cash~~ and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall will be entered in the ~~Company’s securities~~ register of ~~holders of Class A~~ Company Shares 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 maintained by or on behalf 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh.

Appears in 1 contract

Sources: Arrangement Agreement (Fitlife Brands, Inc.)

Arrangement. At the Effective Time, ~~unless~~ except as otherwise ~~specifically provided in this Section 3.02~~noted herein, the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ sequentially, in the following ~~order~~ order, without any further act or ~~formality~~formality required on the part of any person, in each case effective as at five minute intervals starting at the Effective Time: (a) ~~the Purchaser~~ each ProMed Share shall ~~subscribe for that number~~ be deemed to be transferred to FCR (free and clear of ~~Acquireco Common Shares~~any Liens, ~~at a price~~ charges and encumbrances of ~~$1.00 per share, equal~~ any nature whatsoever) and FCR shall be deemed to have acquired all of GAA’s rights and interest in and to the ~~quotient obtained when (A)~~ ProMed Debt, in consideration for the ~~fair market value~~ issuance of the ~~Maximum Purchaser~~ Consideration Shares to GAA; (b) simultaneously: (i) each GAA Share (other than those already owned by Gazit Maple or any GAA Shares held by a Dissenting Shareholder) shall be deemed to be transferred to Gazit Maple (free and ~~Maximum Cash Consideration is divided by (B) $1.00~~clear of any Liens, charges and ~~for greater certainty for the purposes~~ encumbrances of ~~determining variable (A~~any nature whatsoever) in ~~relation to the quotient under this Section 3.02(a), the fair market value of the Maximum Purchaser Shares~~ exchange for an Acquisition Promissory Note and the ~~Maximum~~ Cash ~~Consideration will~~ Consideration, subject to Article 4 hereof; (ii) each GAA Share in respect of which the GAA Shareholder has validly exercised his, her or its Dissent Right shall be ~~no less than the fair market value~~ directly transferred and assigned by such Dissenting Shareholder to Gazit Maple (free and clear of ~~the Class A Shares immediately prior~~ any Liens, charges and encumbrances of any nature whatsoever) in accordance with Article 4 hereof; (c) with respect to ~~the acquisition of the Class A Shares by Acquireco pursuant~~ each GAA Share transferred and assigned in accordance with Subsection 3.1(b) hereof and subject, where applicable, to ~~Section 3.02(k), and in connection with such share subscription~~Article 4 hereof: (i) the ~~Purchaser~~ registered holder thereof shall cease to be the registered holder of such GAA Share and the name of such registered holder shall be removed from the register of GAA Shareholders as of the Share Transfer Time; (ii) the registered holder thereof shall be deemed to have ~~directed the Depositary~~ executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to ~~hold,~~ transfer and ~~the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser to the Depositary~~ assign such GAA Share in accordance with ~~Section 3.05(a)(i~~Subsection 3.1(b) (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 Shareshereof; and (iiiii) ~~Acquireco~~ Gazit Maple will be the holder of all of the outstanding GAA Shares and the register of GAA Shareholders shall be revised accordingly; (d) each GAA Option that remains unvested immediately prior to the Effective Time shall be deemed to ~~have issued such fully paid~~ be vested and ~~non-assessable Acquireco Common Shares~~ exercisable in full immediately prior to the ~~Purchaser~~Effective Time, 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 each GAA 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 immediately prior to the Effective Time ~~shall, without any further action by or on behalf of any holder of such In-the- Money Option,~~ shall be deemed to be ~~fully vested and shall be~~ transferred ~~and disposed by the holder thereof~~ to ~~the Company~~ GAA (free and clear of ~~all Encumbrances~~any Liens, charges and encumbrances of any nature whatsoever) and cancelled in exchange for a cash payment equal to the ~~Option Consideration, and the holder of such In-the-Money Option shall become the holder of the Company Shares comprising such~~ GAA Option Consideration ~~and the central securities register of the Company shall be revised accordingly, but the holder of~~ for each GAA Share subject to 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 GAA 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company GAA DSU outstanding immediately prior to the Effective Time shall be deemed to be transferred to GAA (free and clear of any Liens, charges and encumbrances of any nature whatsoever) and redeemed in exchange for a cash payment equal to the GAA DSU Consideration; (f) with respect to the GAA Warrants, simultaneously: (i) each 2010 Warrant outstanding immediately prior to the Effective Time (other than 2010 Warrants owned by Gazit Maple) shall be deemed to be transferred to GAA (free and clear of any Liens, charges and encumbrances of any nature whatsoever) and cancelled in exchange for a cash payment ~~by the Company~~ equal to the 2010 Warrant Consideration for each GAA Share subject to such ▇▇▇▇ ▇▇▇▇▇▇▇; and (ii) each ▇▇▇▇ ▇▇▇▇▇▇▇ outstanding immediately prior to the Effective Time (other than 2011 Warrants owned by Gazit Maple) shall be deemed to be transferred to GAA (free and clear of any Liens, charges and encumbrances of any nature whatsoever) and cancelled in exchange for a cash payment equal to the 2011 Warrant Consideration for each GAA Share subject to such ▇▇▇▇ ▇▇▇▇▇▇▇; (g) with respect to each GAA Warrant, GAA Option or GAA DSU transferred and assigned in accordance with Subsection 3.1(d), Subsection 3.1(e) or Subsection 3.1(f) hereof: (i) the registered holder thereof shall cease to be the registered holder of such ~~Company~~ GAA Warrant, GAA Option or GAA DSU, as the case may be, and the name of such registered holder shall be removed from the respective registers of GAA Warrantholders, Optionholders and DSU ~~equal~~ holders as of the time the transfer under Subsection 3.1(d), Subsection 3.1(e) or Subsection 3.1(f) hereof, as the case may be, is completed; and (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 GAA Warrant, GAA Option or GAA DSU, as the ~~Company Sh~~case may be, in accordance with Subsection 3.1(d), Subsection 3.1(e) or Subsection 3.1(f) hereof, as applicable; (h) the GAA Stock Option Plan, GAA DSU Plan and GAA RSU Plan shall each be terminated and none of GAA, Gazit Maple or any of their respective affiliates or successors shall have any liability in respect thereof; (i) the stated capital account maintained by GAA in respect of the GAA Shares shall be reduced to $1.00; (j) GAA and Gazit Maple shall be amalgamated and continued as one corporation under the OBCA to form Gazit Amalco in accordance with the following:

Appears in 1 contract

Sources: Arrangement Agreement (Gazit-Globe LTD)

Arrangement. At Pursuant to the ~~Effective Time~~Arrangement, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall occur and shall be deemed to occur sequentially ~~in the following order~~ 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) each unvested Option and DSU shall, notwithstanding the terms of the Stock Option Plan, the Omnibus Plan or any award agreement pursuant to which DSUs were awarded, as applicable, be deemed to have been vested; (2) the following transactions shall occur simultaneously: (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 each outstanding 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 immediately prior to the Effective Time shall, without any further action by or on behalf of ~~any~~ the holder ~~of such In-the- Money Option~~thereof, be deemed to be ~~fully vested~~ transferred by such holder to Corporation in exchange for, in respect of each Option for which the cash portion of the Consideration exceeds the exercise price, (i) an amount equal to the cash portion of the Consideration less the applicable exercise price in respect of such Option, and (ii) one CVR, less any applicable withholdings, and such Option shall be ~~transferred and disposed by~~ immediately cancelled. For greater certainty, where the ~~holder thereof to~~ exercise price of any Option is greater than the ~~Company (free and clear~~ cash portion 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~~ neither Corporation nor Purchaser shall be ~~revised accordingly, but~~ obligated to pay the holder of such Option the Consideration ~~shall not be entitled to receive a share certificate~~ or any other ~~document representing~~ amount in respect of such Option, and the Option ~~Consideration~~shall be immediately cancelled for no consideration; (iib) each ~~Out-of-the-Money Option issued and~~ outstanding ~~immediately prior to the Effective Time~~ DSU shall, without any further action by or on behalf of ~~any~~ the holder ~~of such Out-of-the-Money Option~~thereof, be ~~cancelled without~~ deemed to be transferred by such holder to Corporation in exchange for the Consideration, less any ~~payment therefor~~applicable withholdings, and such DSU shall be immediately cancelled; (~~iii~~i) ~~with respect to~~ each ~~Company Option: (A) the~~ holder ~~thereof~~ of Options or DSUs shall cease to be ~~the~~ a holder of such ~~Company Option~~Options or DSUs, (ii) such holder's name shall be removed from each applicable register, (iii) the Stock Option Plan, the Omnibus Plan and any and all agreements relating to the Options and the DSUs 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, if any, to which it is entitled pursuant to Section 2.3(2)(a) or Section 2.3(2)(b), as applicable, at the time and in the manner specified in such Sections; (3) each outstanding Share 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 by the holder thereof to Purchaser, and: (a) such Dissenting Holder shall cease to have any rights as a ~~holder~~ Shareholder other than the right to be paid the fair value of its Shares by Purchaser in ~~respect~~ accordance with Article 3; (b) the name of such ~~Company Option under the applicable Company Option Plan, (B) such holder’s name~~ holder 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 holders 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 Shares maintained by or on behalf of ~~any~~ Corporation; and (c) Purchaser shall be recorded as the holder of ~~such Company RSU,~~ the Shares so transferred and shall be deemed to be ~~fully vested~~ the legal and beneficial owner thereof; and (4) concurrently with step (3), each outstanding Share (other than Shares held by Dissenting Holders who have validly exercised such holders' respective Dissent Rights) shall be transferred ~~and disposed~~ without any further act or formality by the holder thereof to ~~the Company (free and clear of all Encumbrances) and cancelled~~ Purchaser in exchange for the Consideration per Share, less any applicable ~~RSU Consideration~~withholdings, ~~and~~ and: (a) 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 Share shall cease to have any rights as a ~~holder~~ Shareholder other than the right to be paid the Consideration per Share in ~~respect~~ accordance with this Plan of Arrangement; (b) the name of such ~~Company RSU under the applicable Company Option Plan, (B) such holder’s name~~ holder shall be removed from the register of ~~Company RSUs,~~ holders of Shares maintained by or on behalf of Corporation; and (Cc) ~~all Award Agreements, grants and similar instruments relating thereto will be cancelled; (d) the Company Option Plans~~ Purchaser shall be ~~terminated; (e) each Company Share held by a Dissenting Shareholder shall be,~~ recorded as the holder of the Shares so transferred and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shthereof.

Appears in 1 contract

Sources: Arrangement Agreement (Clementia Pharmaceuticals Inc.)

Arrangement. 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 order~~ 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) 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 each Company Option which was conditionally exercised pursuant to Section ~~3.02(k), and in connection with such share subscription: (i~~2.7(1)(b) of the ~~Purchaser~~ Arrangement Agreement shall be deemed to have ~~directed~~ been exercised for a Common Share pursuant to the ~~Depositary to hold~~terms of such Company Option, the Stock Option Plan and the ~~Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser to the Depositary~~ conditional exercise procedures implemented in ~~accordance~~ connection with Section ~~3.05(a)(i~~2.7(1)(b) ~~(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 PurchaserArrangement Agreement, 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 Considerationless applicable withholdings; (b) ~~notwithstanding any vesting or exercise provisions to which a~~ each 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 immediately prior to the Effective Time (whether vested or unvested and, for greater certainty, not including those Company Options referenced in Section 2.3(a) above), notwithstanding the terms of the Stock Option Plan, shall be deemed to be unconditionally vested and exercisable, and such Company Option shall, without any further action by or on behalf of ~~any holder of such In-the- Money Option~~a Company Optionholder, be deemed to be ~~fully vested~~ assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the amount (if any) by which the Consideration exceeds the exercise price of such Company Option, less applicable withholdings, and such Company Option shall immediately be cancelled; (c) each holder of Company Options shall cease to be a holder of such Company Options, such holder's name shall be removed from each applicable register and the Stock Option Plan, and all agreements relating to the Company Options shall be terminated and shall be ~~transferred~~ of no further force and ~~disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for the Option Consideration~~effect, and such holder shall thereafter have only 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 right to receive ~~a share certificate or other document representing~~ the ~~Option Consideration~~consideration to which they are entitled pursuant to Section 2.3(b) at the time and in the manner specified in Article 4; (iid) each ~~Out-of-the-Money Option issued and~~ Company Warrant outstanding immediately prior to the Effective ~~Time~~ Time, notwithstanding the terms of the Company Warrant, shall, without any further action by or on behalf of ~~any~~ a holder thereof, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the amount (if any) by which the Consideration exceeds the exercise price of such ~~Out-of-the-Money Option~~Company Warrant, less applicable withholdings, and such Company Warrant shall immediately be ~~cancelled without any payment therefor~~cancelled; (~~iii~~e) ~~with respect to~~ each holder of Company ~~Option: (A) the holder thereof~~ Warrants shall cease to be ~~the~~ a holder of such Company ~~Option~~Warrants, ~~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 's name shall be removed from each applicable register, and all agreements relating to the ~~register of~~ Company ~~Options, and (C) all option agreements, Award Agreements, grants and similar instruments relating thereto~~ Warrants shall be ~~cancelled~~terminated and shall be of no further force and effect, and such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 2.3(d) at the time and in the manner specified in Article 4; (cf) ~~notwithstanding any vesting provisions to which~~ each Common Share (including, for greater certainty, a Common Share issuable on the exercise of 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~~under Section 2.3(a)) ~~each Company RSU issued and~~ outstanding ~~immediately prior to~~ at the Effective ~~Time shall~~Time, ~~without any further action~~ other than a Common Share held by a Dissenting Holder who has validly exercised his, her or ~~on behalf of any holder of such Company RSU~~its Dissent Right, shall be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to the ~~Company~~ Purchaser in exchange for the Consideration for each Common Share held; (g) each Common Share in respect of which a holder of Common Shares has validly exercised his, her or its Dissent Right shall be directly assigned and transferred by such Dissenting Holder to the Purchaser (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled~~ in ~~exchange for~~ accordance with Section 3.1; and (h) the ~~applicable RSU Consideration, and the holder of such Company RSU shall become the holder~~ names of the ~~Company Shares comprising such RSU Consideration and the central securities register~~ holders of the ~~Company shall be revised accordingly, but~~ Common Shares transferred to 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 Purchaser 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register applicable registers of holders of ~~Company~~ Common 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~~ the Common 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have ~~transferred~~executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to ~~Acquireco, without any further act or formality by~~ transfer and assign such ~~Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange~~ Common Shares in accordance with this Section ~~3.02(k) in exchange for the Combination Consideration Cash~~ 2.3, and the ~~Combination Consideration~~ Purchaser ~~Shares, and upon such exchange: (iv) each such Participating Former Securityholder~~ shall be ~~removed from~~ recorded as the ~~Company’s securities register~~ registered holder of ~~holders of Class A Shares, (v) Acquireco~~ the Common Shares so transferred and shall be ~~entered in the Company’s securities register of holders of Class A Shares as~~ deemed 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shthereof.

Appears in 1 contract

Sources: Arrangement Agreement (Pni Digital Media Inc)

Arrangement. At 3.1 Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the ~~following~~ events ~~or transactions~~ set out below shall occur and shall be deemed to occur ~~sequentially~~ in the following order without any further act or ~~formality~~formality except as otherwise provided herein: (a) NAL GP shall be dissolved in accordance with 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 subscriptionfollowing: (i) the ~~Purchaser~~ stated capital of the shares of NAL GP shall be ~~deemed~~ reduced to ~~have directed~~ $1.00 in aggregate; (ii) all of the ~~Depositary~~ property of NAL GP shall be distributed to ~~hold,~~ NAL; and (iii) NAL shall assume all of the liabilities and ~~the Depositary~~ obligations of NAL GP; (b) NAL Petroleum shall ~~hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser to the Depositary~~ be dissolved in accordance with ~~Section 3.05(a)(i~~the following: (i) ~~(such cash and Purchaser Shares, collectively,~~ the ~~“Purchaser Consideration”) for and on behalf of Acquireco, in satisfaction~~ stated capital of the ~~subscription price payable~~ shares of NAL Petroleum shall be reduced to $1.00 in aggregate; (ii) all of the property of NAL Petroleum shall be distributed to NAL; and (iii) NAL shall assume all of the liabilities and obligations of NAL Petroleum; (c) Addison LP shall be dissolved by virtue of the ~~Purchaser for such Acquireco Common Shares~~dissolution of NAL Petroleum pursuant to Section 3.1(b) and: (i) all of the property of Addison LP shall be distributed to NAL; and (ii) ~~Acquireco~~ NAL 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~~ assume all of the ~~Acquireco Common Shares shall be increased, in respect~~ liabilities and obligations 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~~Addison LP; (bd) ~~notwithstanding any vesting or exercise provisions to~~ the NAL Shares held by Dissenting Shareholders who have exercised Dissent Rights 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 remain valid immediately prior to the Effective Time shall, ~~without any further action by or on behalf~~ as of ~~any holder of such In-the- Money Option~~the Effective Time, be deemed to ~~be fully vested and shall be~~ have been transferred ~~and disposed by the holder thereof~~ to ~~the Company~~ NAL (free and clear of ~~all Encumbrances~~any Liens) ~~and cancelled in exchange for the Option Consideration~~and, ~~and the holder of such In-the-Money Option shall become the holder~~ as of the ~~Company Shares comprising~~ Effective Time, 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 Dissenting Shareholders shall cease to have any rights as ~~a holder in respect of such Company Option under~~ NAL Shareholders other than 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 right to be ~~fully vested and shall be transferred and disposed by~~ paid the ~~holder thereof to the Company (free and clear~~ fair value of ~~all Encumbrances) and cancelled~~ their NAL Shares 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) accordance 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 terminatedArticle 4; (e) each ~~Company~~ issued and outstanding NAL Share (other than those held by a Dissenting ~~Shareholder~~ Shareholders) shall be, and shall be deemed to be, ~~surrendered to the Company by the holder thereof~~transferred to, ~~without any further act or formality by such Dissenting Shareholder~~and acquired by, Pengrowth (free and clear of ~~all Encumbrances~~any Liens) and, subject to Sections 5.5, 5.6 and 6.1, each Former NAL Shareholder shall be entitled to receive from Pengrowth in exchange for each such ~~Company Share so surrendered~~ NAL Share, 0.86 of a Pengrowth Share; (f) Pengrowth shall: (i) assume all of NAL’s covenants and obligations for the NAL Debentures under the NAL Debenture Indenture, such that the NAL Debentures shall become valid and binding obligations of Pengrowth; and (ii) provided that the other provisions of Article 11 of the NAL Debenture Indenture are complied with, the Supplemental Indenture shall become effective; and (g) the Amended NAL DRIP shall become effective, all existing participants in the NAL DRIP will be deemed to be participants in the Amended NAL DRIP and any dividends declared but not paid prior to the Effective Date to a person deemed to be a participant in the Amended NAL DRIP will be automatically applied to the purchase of Pengrowth Shares in accordance with the terms and conditions of the Amended NAL DRIP. 3.2 With respect to each Former NAL Shareholder (other than a Dissenting Shareholder) at the Effective Time, upon the exchange of NAL Shares for Pengrowth Shares pursuant to Section 3.1(e): (a) such Former NAL Shareholder shall be ~~cancelled and thereupon each Dissenting~~ added to the register of holders of Pengrowth Shares; (b) such Former NAL Shareholder shall cease to ~~have any rights as~~ be a holder of ~~such Company~~ the NAL Shares ~~other than a claim against the Company in an amount determined and payable in accordance with Article 4~~ so exchanged and the name of such ~~Dissenting~~ Former NAL Shareholder shall be removed from the ~~securities~~ register of ~~holders~~ NAL Shareholders maintained by or on behalf of ~~Company Shares;~~NAL as it relates to the NAL Shares so exchanged; and (fc) ~~concurrently with~~ Pengrowth shall become the ~~surrender~~ holder of the NAL Shares so exchanged and ~~cancellation~~ shall be added to the register of ~~Company Shares held~~ NAL Shareholders maintained by ~~Dissenting Shareholders~~ or on behalf of NAL. 3.3 NAL is hereby granted full power and authority, in name, place and stead of NAL GP, NAL Petroleum and Addison LP to execute, under seal or otherwise, swear to, acknowledge, deliver, and record or file, as the case may be, as and where required: (a) any conveyance or other instrument which NAL deems necessary or appropriate to reflect the dissolution of NAL GP, NAL Petroleum and Addison LP pursuant to the terms of 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 3.1(a) (Ab) ~~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(ec); (gb) any instrument required in connection with any election, designation or determination relating to NAL GP, NAL Petroleum or Addison LP under 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 Income Tax Act (~~the “Distribution Spinco Shares”~~Canada) 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 Agreementor other fiscal legislation; (hc) any documents which NAL deems necessary or appropriate to be filed in connection with the ~~course~~ dissolution of ~~a reorganization of~~ NAL GP, NAL Petroleum or Addison LP or 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 transactions contemplated by this Plan of Arrangement; (iid) ~~each Company Share issued and outstanding immediately before the reorganization of the Company’s share capital pursuant~~ any document required 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 be filed with any ~~Company Shares surrendered and cancelled~~ Governmental Authority in ~~accordance with Section 3.02(e)) shall be exchanged~~ connection with the ~~Company~~dissolution of NAL GP, ~~free and clear~~ NAL Petroleum or Addison LP or the transactions contemplated by this Plan 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 SharesArrangement; and (De) ~~each holder~~ any other document or instrument on behalf of ~~such exchanged Company Shares~~ and in the name of NAL GP, NAL Petroleum or Addison LP as may be required to give effect to this Plan of Arrangement. The signing authority granted hereby is irrevocable and shall ~~be entered in Spinco’s register~~ survive the dissolution 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)~~NAL GP, 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 NAL Petroleum or Addison LP pursuant to this ~~Section 3.02(h)(iii), exceeds (B) the fair market value~~ Plan 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShArrangement.

Appears in 1 contract

Sources: Arrangement Agreement (PENGROWTH ENERGY Corp)

Arrangement. 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 order without any further act or formality: (a) Parent agrees that the ~~Purchaser~~ Arrangement shall ~~subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal~~ be implemented in accordance with and subject to the ~~quotient obtained when (A)~~ terms and conditions contained in this Agreement and the ~~fair market value~~ Plan of Arrangement, and the Domestication, which forms part of the ~~Maximum Purchaser Shares~~ Arrangement, shall be implemented in accordance with Section 388 of the General Corporation Law of the State of Delaware (“GCL”). (b) The Arrangement shall become effective on the Arrangement Effective Date and ~~Maximum Cash Consideration is divided by~~ the steps to be carried out pursuant to the Arrangement shall become effective on the Arrangement Effective Date in the order set forth in the Plan of Arrangement. (Bc) ~~$1.00~~Parent agrees that as soon as reasonably practicable after the date hereof, Parent shall, in a manner acceptable to the Company, acting reasonably, pursuant to section 192 of the CBCA and ~~for greater certainty~~ in cooperation with the Company, prepare, file and diligently pursue a motion for the ~~purposes of determining variable (A) in relation to the quotient under this Section 3.02(a)~~Interim Order, 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)which shall provide, ~~and in connection with such share subscription~~among other things: (i) for the ~~Purchaser shall be deemed to have directed the Depositary to hold~~calling, holding 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 conducting 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 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 ConsiderationParent Shareholders’ Meeting; (ii) ~~each Out-of-the-Money Option issued~~ for the class of persons to whom notice is to be provided in respect of the Arrangement and ~~outstanding immediately prior~~ the Parent Shareholders’ Meeting and for the manner in which such notice is 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~~provided; (iii) ~~with respect to each Company Option: (A)~~ that the ~~holder thereof~~ only requisite approval for the Arrangement Resolution shall ~~cease to~~ be two-thirds of the ~~holder~~ votes cast on the Arrangement Resolution by shareholders of ~~such Company Option~~Parent as of the record date, present in person or represented by proxy at the Parent Shareholders’ Meeting and ~~shall cease to have any rights~~ voting 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 cancelledsingle class; (civ) ~~notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract,~~ for the ~~terms and conditions of any Award Agreement or grant, the terms and conditions~~ grant 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 Dissent 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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) contemplated 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; (iiv) ~~each Company Share issued and outstanding immediately before~~ for 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 notice requirements 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~~ application 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange Court for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all EncumbrancesFinal Order; and (vi) ~~each~~ that the Parent Shareholders’ Meeting may be adjourned or postponed from time to time by Parent (with the prior written consent of the Company, not to be unreasonably withheld) without the need for additional approval of the Court. (d) If the Interim Order is obtained and the Arrangement Resolution is passed at the Parent Shareholders’ Meeting, Parent shall forthwith thereafter take all actions necessary or desirable to submit the Arrangement to the Court and to apply to the Court for the Final Order in form and substance satisfactory to the Company, acting reasonably. (e) Parent shall provide the Company’s legal counsel with a reasonable opportunity to review and comment upon a draft of all material to be filed with the Court in connection with the Arrangement prior to such ~~Participating Former Securityholder shall~~material being filed with the Court, and all materials filed with the Court shall be subject to the ~~provisions~~ prior review, comment and consent of ~~Section 3.06, be entered in~~ Company. Parent shall also provide the ~~Purchaser~~Company’s ~~securities register~~ legal counsel on a timely basis with copies of ~~holders of Purchaser Shares~~ any appearance and evidence served on Parent or its legal counsel in respect of the ~~Purchaser Shares payable~~ proceedings for the Interim Order, the Final Order or any appeal therefrom and of any notice (written or oral) received by Parent indicating any intention 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 oppose the ~~applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive either~~ granting of the ~~Cash Consideration~~ Interim Order or the ~~Purchaser Share Consideration~~ Final Order or to appeal the Interim Order or the Final Order. Subject to applicable Laws, Parent shall not file any material with the Court in ~~respect of all of~~ connection with the Arrangement or serve any such ~~Participating Former Securityholder’s Company Shares shall transfer~~material, and shall ~~be deemed~~ agree not to ~~have transferred~~modify or amend materials so filed or served, ~~to Acquireco, without any further act~~ except as contemplated hereby or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from with the Company’s ~~securities register of holders of 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~~ prior written consent, such Class A Shares, free of all Encumbrances; and (v) each such Participating Former Securityholder shall, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 consent not to be effective immediately following the transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effectiveunreasonably withheld, ~~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 such Company DSU equal to the Company Sh~~conditioned or delayed.

Appears in 1 contract

Sources: Merger Agreement (Swisher Hygiene Inc.)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the ~~following~~ events ~~or transactions~~ set out below shall occur and shall be deemed to occur ~~sequentially~~ in the following order without any further authorization, act or ~~formality~~formality required on the part of any person, except as expressly provided herein: (a) each Trust Unit Right shall be deemed transferred by the ~~Purchaser shall subscribe~~ holder thereof to Harvest (free and clear of any Encumbrances, and notwithstanding any vesting conditions) in exchange for ~~that number~~ a cash payment from Harvest in respect of ~~Acquireco Common Shares, at a price of $1.00 per share,~~ each Trust Unit Right equal to the ~~quotient obtained when~~ greater of $0.01 and the amount, if any, by which $10.00 exceeds the Exercise Price thereof (Aless all applicable withholding taxes) and the holder of such Trust Unit Right shall thereafter only have the right to receive the consideration to which they are entitled pursuant to this Section 2.3(a) and all Trust Unit Rights shall be deemed terminated and Harvest shall have no liabilities or obligations with respect to such Trust Unit Rights except pursuant to this Section 2.3(a); (b) each Unit Award shall be deemed transferred by the holder thereof to Harvest (free and clear of any Encumbrances, and notwithstanding any vesting conditions) in exchange for a cash payment from Harvest equal to $10.00 (less all applicable withholding taxes) and the holder of such Unit Awards shall thereafter only have the right to receive the consideration to which they are entitled pursuant to this Section 2.3(b) and all Unit Awards shall be deemed terminated and Harvest shall have no liabilities or obligations with respect to such Unit Awards except pursuant to this Section 2.3(a); (c) the ~~fair market value~~ Trust Units held by Unitholders in respect of which Dissent Rights have been validly exercised (the ~~Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B~~“Dissenting Unitholders”) ~~$1.00, and for greater certainty for the purposes of determining variable (A) in relation~~ shall be deemed to have been transferred without any further act or formality to the ~~quotient under this Section 3.02(a), the fair market value~~ Purchaser (free and clear 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 subscriptionany Encumbrances) and: (i) such Dissenting Unitholders shall cease to be the holders of such Trust Units and to have any rights as holders of such Trust Units other than the right to be paid fair value for such Trust Units as set out in Section 3.1; (ii) such Dissenting Unitholders’ names shall be removed as the holders of such Trust Units from the registers of Harvest maintained by or on behalf of Harvest; and (iii) the Purchaser shall be deemed to ~~have directed~~ be the ~~Depositary to hold,~~ transferee of such Trust Units (free and clear of any Encumbrances) and shall be entered in the ~~Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered~~ registers of Trust Units maintained 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~~ or 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 ConsiderationHarvest; (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): (id) each ~~In-the-Money Option issued and~~ Trust Unit outstanding 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~~ (other than Trust Units subject to ~~be fully vested and~~ step (C)) 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, surrendered to the Company by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder,~~ to the Purchaser (free and clear of ~~all~~ any Encumbrances) for $10.00 per Trust Unit, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 capitaland: (i) the ~~notice~~ holders of ~~articles~~ such Trust Units immediately before the Effective Time shall cease to be holders thereof and ~~articles~~ to have any rights as holders of such Trust Units other than the ~~Company shall~~ right to 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 paid $10.00 per Trust Unit in ~~Schedule “A” to~~ accordance with this Plan of ~~Arrangement~~Arrangement and other than the right to receive any declared but unpaid dividends on such Trust Units; (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)) such holders’ names shall be ~~exchanged with~~ removed as the ~~Company,~~ holders from the registers of Trust Units maintained by or on behalf of Harvest; and (iii) the Purchaser shall be deemed to be the transferee of such Trust Units (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~~ registers 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 Trust Units maintained by ~~the Company in respect~~ or on behalf 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShHarvest.

Appears in 1 contract

Sources: Arrangement Agreement (Harvest Energy Trust)

Arrangement. At Pursuant to the ~~Effective Time~~Arrangement, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall occur and shall be deemed to occur sequentially ~~in the following order~~ as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective at five minute intervals starting at the Effective Time: (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): (i1) each ~~In-the-Money~~ Vested Performance Option ~~issued and outstanding immediately prior to the Effective Time~~ shall, without any further action by or on behalf of ~~any~~ the holder ~~of such In-the- Money Option~~thereof, be deemed to be ~~fully vested~~ assigned and surrendered by such holder to the Corporation in exchange for, in respect of each Vested Performance Option for which the Consideration exceeds the exercise price, an amount in cash from the Corporation equal to the Consideration less the applicable exercise price (or, in respect of a Vested Performance Option that has an exercise price denominated in Canadian dollars, the US Equivalent thereof) in respect of such Vested Performance Option, less any applicable withholdings pursuant to Section 4.3, and such Vested Performance Option shall immediately be cancelled. For greater certainty, where the exercise price (or, in respect of a Vested Performance Option that has an exercise price denominated in Canadian dollars, the US Equivalent thereof) of any Vested Performance Option is greater than or equal to the Consideration, neither the Corporation nor the Purchaser shall be ~~transferred and disposed by the holder thereof~~ obligated to ~~the Company (free and clear of all Encumbrances) and cancelled in exchange for the Option Consideration, and~~ pay the holder of such ~~In-the-Money~~ Vested Performance Option the Consideration or any other amount in respect of such Vested Performance Option, and the Vested Performance 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~~immediately cancelled; (ii2) each ~~Out-of-the-Money~~ Unvested Performance Option ~~issued and outstanding immediately prior to the Effective Time~~ shall, without any further action by or on behalf of the holder thereof, immediately be cancelled; (3) each unvested RSU and PSU shall, notwithstanding the terms of any Incentive Plan or any award or similar agreement pursuant to which any Incentive Securities were granted or awarded, as applicable, be deemed to have been vested; (4) an aggregate number of RSUs and PSUs equal to the number of Shares held in the Share Purchase Trust (the "Settled Share Units"), if any, shall be settled in exchange for one Share (all such Shares delivered in settlement, the "Trust Shares") for each such Settled Share Unit and, without any further action by or on behalf of the holders of each such Settled Share Unit, the Corporation, the trustee under the Share Purchase Trust or the Share Purchase Trust, each such Trust Share shall thereupon be held by the Share Purchase Trust for and on behalf of the holders of each such Settled Share Unit (subject to any withholding in accordance with Section 4.3) and each such Settled Share Unit shall be immediately cancelled; provided that the aggregate number of RSUs and PSUs to be so settled shall be allocated between RSUs and PSUs, and among holders, pro rata based on the number of RSUs and/or PSUs held by each holder relative to the aggregate number of RSUs and PSUs outstanding immediately prior to such settlement; (5) each Trust Share shall be transferred without any further action by or on behalf of the trustee under the Share Purchase Trust, the Share Purchase Trust or any holder of ~~such Out-of-the-Money Option~~Settled Share Units, ~~be cancelled without any payment therefor; (iii) with respect~~ to ~~each Company Option:~~ the Purchaser in exchange for the Consideration, and in connection therewith: (A) a portion of the amount held by the Depositary as agent for and on behalf of the Purchaser, equal to the aggregate Consideration payable in respect of Trust Shares, shall thereupon be held by the Depositary as agent for and on behalf of holders of Settled Share Units (which amount, following the completion of the Plan of Arrangement, shall be transferred to the Corporation to be held on behalf of the applicable holders and paid to such holders in accordance with Section 4.1(3) (subject to any withholding in accordance with Section 4.3)), (B) the holder ~~thereof~~ of each such Trust Share shall cease to be the holder thereof and to have any rights as a Shareholder other than the right to be paid the amount determined in accordance with this Section 2.3(5), and (C) the Purchaser shall be recorded in the register of holders of Shares maintained by or on behalf of the Corporation as the holder of the Trust Shares so transferred and shall be deemed to be the legal and beneficial owner thereof; (6) each RSU and PSU that remains outstanding (for greater certainty, not including the Settled Share Units settled in accordance with Section 2.3(4)) shall, without any further action by or on behalf of the holder thereof, be deemed to be transferred by such holder to the Corporation in exchange for an amount in cash from the Corporation equal to the Consideration, in each case, with such amounts to be paid to the applicable holders in accordance with Section 4.1(3) less any applicable withholdings pursuant to Section 4.3, and each such RSU and PSU shall immediately be cancelled; for greater certainty following this step: (i) each former holder of Incentive Securities shall have ceased to be a holder of such ~~Company Option~~Incentive Securities, (ii) the Incentive Plans and any and all option, award or similar agreements relating to the Incentive Securities shall be terminated and shall be of no further force and effect, and (iii) each such holder shall cease to have any rights as a holder in respect of such ~~Company Option~~ Incentive Securities or under the ~~applicable Company Option~~ Incentive Plans and have only the right to receive the consideration, if any, to which it is entitled pursuant to this Section 2.3, at the time and in the manner specified in this 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): (i7) each ~~Company RSU issued and~~ outstanding ~~immediately prior~~ Share held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be deemed to ~~the Effective Time shall,~~ have been transferred 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~~Purchaser, 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 RSUand: (Aa) ~~the holder thereof~~ such Dissenting Holder shall cease to be the holder of such ~~Company RSU,~~ Share and ~~shall cease~~ to have any rights as a ~~holder~~ Shareholder, other than the right to be paid the fair value of its Shares by the Purchaser in ~~respect of such Company RSU under the applicable Company Option Plan,~~accordance with Section 3.1; (Bb) such ~~holder’s~~ Dissenting Holder's name shall be removed from the register of ~~Company RSUs,~~ holders of Shares maintained by or on behalf of the Corporation; and (~~C) all Award Agreements, grants and similar instruments relating thereto will be cancelled; (d~~c) the ~~Company Option Plans~~ Purchaser shall be ~~terminated; (e) each Company Share held~~ recorded in the register of holders of Shares maintained by ~~a Dissenting Shareholder shall be~~or on behalf of the Corporation as the holder of the Shares so transferred, and shall be deemed to bebe the legal and beneficial owner thereof; (8) concurrently with step (7) above, ~~surrendered to~~ each outstanding Share (for greater certainty, other than the ~~Company~~ Trust Shares or Shares held by Dissenting Holders who have validly exercised their respective Dissent Rights) shall be transferred without any further action by or on behalf of the holder thereof, ~~without~~ to the Purchaser in exchange for the Consideration, less any ~~further act or formality by such Dissenting Shareholder~~applicable withholdings pursuant to Section 4.3, ~~free and clear~~ and: (a) the holder of ~~all Encumbrances, and~~ each such ~~Company~~ Share ~~so surrendered shall be cancelled and thereupon each Dissenting Shareholder~~ shall cease to be the holder thereof and to have any rights as a ~~holder of such Company Shares~~ Shareholder other than ~~a claim against~~ the ~~Company in an amount determined and payable~~ right to be paid the Consideration in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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; (iib) ~~each Company Share issued and outstanding immediately before the reorganization~~ a portion of the ~~Company’s share capital pursuant~~ amount held by the Depositary as agent for and on behalf of the Purchaser, equal to ~~this Section 3.02(h) (including~~the aggregate Consideration payable in respect of such outstanding Shares, ~~without limitation,~~ shall thereupon be held by the ~~Company Shares issued to~~ Depositary as agent for and on behalf of the former holders of ~~In-the-Money Options and Company RSUs pursuant~~ such Shares, to ~~Section 3.02(b) and Section 3.02(c), respectively, but excluding any Company Shares surrendered and cancelled~~ be paid to such holders following the completion of the Plan of Arrangement 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:~~4.1; (Ac) ~~each~~ such ~~exchanged Company Share shall be cancelled, and the holders of such exchanged Company Shares~~ holder's name 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~~ maintained by or on behalf 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~~Corporation; and (Dd) ~~each holder of such exchanged Company Shares~~ the Purchaser shall be ~~entered~~ recorded 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 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 amended to reflect~~ maintained by or on behalf of the ~~Spinco Share Consolidation; (k) each Participating Former Securityholder receiving Class A~~ Corporation as the holder of the 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 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 transferso transferred, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be ~~removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shthereof.

Appears in 1 contract

Sources: Arrangement Agreement (POINTS.COM Inc.)

Arrangement. At Commencing at the Effective ~~Time, unless otherwise specifically provided in this Section 3.02,~~ Time each of the following events ~~or transactions~~ shall occur and shall be deemed to occur sequentially ~~in the following order~~ 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) notwithstanding 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~~ terms 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 nonLong-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 Term Incentive ~~Plan or Company 2016 Stock Option~~ Plan, ~~or applicable law): (i)~~ each ~~In-the-Money Option issued and~~ DSU outstanding immediately prior to the Effective Time (whether vested or unvested) shall, without any further action by or on behalf of ~~any~~ a holder of ~~such In-the- Money Option~~DSUs, be deemed to be ~~fully vested~~ assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such DSU shall immediately be cancelled and (i) the holders of such DSUs shall cease to be the holders thereof and to have any rights as holders of such DSUs, other than the right to receive the consideration to which they are entitled under this Section 2.3(a); (ii) such holders’ names shall be removed from the register of the DSUs maintained by or on behalf of the Company; and (iii) all agreements relating to the DSUs (other than the Long-Term Incentive Plan) shall be terminated and shall be ~~transferred~~ of no further force 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 Considerationeffect; (iib) notwithstanding the terms of the Long-Term Incentive Plan, each ~~Out-of-the-Money Option issued and~~ RSU outstanding immediately prior to the Effective Time (whether vested or unvested) 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 the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such RSU shall immediately be cancelled and (i) the holders of such RSUs shall cease to be the holders thereof and to have any rights as holders of such RSUs, other than the right to receive the consideration to which they are entitled under this Section 2.3(b); (ii) such holders’ names shall be removed from the register of the RSUs maintained by or on behalf of the Company; and (iii) all agreements relating to the RSUs (other than the Long-Term Incentive Plan) shall be terminated and shall be of no further force and effect; (c) notwithstanding the terms of the Long-Term Incentive Plan, each PSU outstanding immediately prior to the Effective Time (whether vested or unvested) 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 the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such PSU shall immediately be cancelled and (i) the holders of such PSUs shall cease to be the holders thereof and to have any rights as holders of such PSUs, other than the right to receive the consideration to which they are entitled under this Section 2.3(c); (ii) such holders’ names shall be removed from the register of the PSUs maintained by or on behalf of the Company; and (iii) all agreements relating to the PSUs (other than the Long-Term Incentive Plan) shall be terminated and shall be of no further force and effect; (d) notwithstanding the terms of the Long-Term Incentive Plan, each RSR outstanding immediately prior to the Effective Time (whether vested or unvested) shall, without any further action by or on behalf of a holder of RSRs, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such RSR shall immediately be cancelled and (i) the holders of such RSRs shall cease to be the holders thereof and to have any rights as holders of such RSRs, other than the right to receive the consideration to which they are entitled under this Section 2.3(d); (ii) such holders’ names shall be removed from the register of the RSRs maintained by or on behalf of the Company; and (iii) all agreements relating to the RSRs (other than the Long-Term Incentive Plan) shall be terminated and shall be of no further force and effect; (e) notwithstanding the terms of the Stock Option Plan or the Long-Term Incentive Plan, each Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall be deemed to be unconditionally vested and exercisable and such Option shall, without any further action by or on behalf of a holder of Options, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the amount by which the Consideration exceeds the exercise price of such Option, less applicable withholdings, and each such 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 holder of such ~~Out~~Option any amount in respect of such Option and (i) the holders of such Options shall cease to be the holders thereof and to have any rights as holders of such Options, other than the right to receive the consideration to which they are entitled under this Section 2.3(e); (ii) such holders’ names shall be removed from the register of the Options maintained by or on behalf of the Company; and (iii) all agreements relating to the Options (other than the Stock Option Plan and the Long-~~of-the-Money Option,~~ Term Incentive Plan) shall be ~~cancelled without any payment therefor~~terminated and shall be of no further force and effect; (~~iii~~f) ~~with~~ each Warrant shall, without any further action by or on behalf of a holder of the Warrants, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the amount by which the Consideration exceeds the exercise price of such Warrant, and each such Warrant 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 holder of such Warrant any amount in respect ~~to each Company Option:~~ of such Warrant and (Ai) the holder ~~thereof~~ of the Warrants shall cease to be the holder ~~of such Company Option,~~ thereof and ~~shall cease~~ to have any rights as a the holder ~~in respect~~ of ~~such Company Option~~ the Warrants, other than the right to receive the consideration to which they are entitled under ~~the applicable Company Option Plan,~~ this Section 2.3(f); (Bii) such holder’s name shall be removed from the register of ~~Company Options, and~~ the Warrants maintained by or on behalf of the Company; and (Ciii) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto~~ the certificate(s) representing the Warrants shall be cancelled; (cg) ~~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~~ each of the ~~Company 2013 Share Incentive Plan~~ 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 ~~Company 2016 Stock Option Plan~~formality to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3, ~~or applicable law):~~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 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 the transferee of such Common Shares, free and clear of all Liens, and shall be entered in the register of Common Shares maintained by or on behalf of the Company; and (h) each ~~Company RSU issued and~~ Common Share outstanding immediately prior to the Effective Time (other than (A) Common Shares held by a Dissenting Holder who has validly exercised such holder’s Dissent Right; and (B) Common Shares owned by the Purchaser or its affiliates) shall, without any further action by or on behalf of ~~any~~ a holder of ~~such Company RSU~~Common Shares, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to the ~~Company (free and clear of all Encumbrances) and cancelled~~ Purchaser 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~ holders of ~~articles~~ such Common Shares shall cease to be the holders of such Common Shares and ~~articles~~ to have any rights as holders of such Common Shares, other than the ~~Company shall~~ right to 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~~ paid the ~~“Class A Shares” (~~Consideration by the ~~“Class A Shares”), which shall have the special rights and restrictions set forth~~ Purchaser in ~~Schedule “A” to~~ accordance with 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~~ holders’ names shall be removed from the ~~Company’s~~ register of ~~holders~~ the Common Shares maintained by or on behalf 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to ~~have transferred, to Acquireco, without any further act or formality by~~ be the transferee of such ~~Participating Former Securityholder~~Common Shares, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser SharesLiens, and ~~upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco~~ shall be entered in the ~~Company’s securities~~ register of ~~holders of Class A~~ the Common Shares 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 maintained by or on behalf 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh.

Appears in 1 contract

Sources: Amending Agreement

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02~~except as noted below, the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ in the following ~~order~~ order, without any further act or formality: (a) ~~the Purchaser shall subscribe for that number of Acquireco~~ all 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~~ held 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 Dissenting Shareholders 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 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 been transferred ~~and disposed by the holder thereof to the Company~~ (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled in exchange for~~ to 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;Company; and (iii) ~~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~~ Dissenting Shareholders shall cease to be the ~~holder~~ holders of such ~~Company Option,~~ Common Shares and ~~shall~~ cease to have any rights as ~~a holder in respect of such Company Option under~~ Shareholders other than 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 right to be ~~fully vested and shall be transferred and disposed by~~ paid the ~~holder thereof to the Company (free and clear of all Encumbrances) and cancelled~~ fair value for such Common Shares as set out 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 ConsiderationArticle 4; (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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to ~~have any rights as~~ be a ~~holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4~~ Shareholder, and the name of such Dissenting Shareholder shall be removed from the ~~securities~~ register of holders of ~~Company Shares~~Common Shares maintained by or on behalf of the Company; and (iii) such transferred Common Shares will then be deemed to be redeemed and cancelled by the Company; (fb) ~~concurrently with the surrender and cancellation of Company Shares~~ subject to Section 3.3, each outstanding Common Share (other than those held by Dissenting ~~Shareholders pursuant to Section 3.02(e), the stated capital account maintained by the Company in respect of the Company Shares~~ Shareholders) shall be ~~reduced, in respect of the Company Shares cancelled pursuant~~ deemed to ~~Section 3.02(e), by an amount equal to the product obtained when~~ be assigned and transferred (~~A) the stated capital~~ free and clear of all Liens) to Teranga in exchange for 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)Consideration; (gc) the ~~Company~~ replacement stock options that were issued by Teranga under the Roll-over Stock Option Agreements shall ~~transfer all of its entire legal and beneficial right~~be deemed to have been issued under the Teranga Stock Option Plan, 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~~Roll-over Stock Option Agreements, without any further action of the parties to the Roll-over Stock Option Agreements or the Company; (hd) in Oromin and NewCo will merge and continue as one company (“Amalco”) with the ~~course of a reorganization~~ same effect as if they had amalgamated under Section 273 of the ~~Company’s authorized~~ BCBCA and ~~issued share capital:~~with effect under Section 282 of the BCBCA; and (e) from and after the Effective Date, at the time of the step contemplated in Section 2.3(d): (i) the shares of NewCo shall be cancelled on the amalgamation without any repayment of capital in respect of such shares; (ii) the stated capital of the Amalco common shares will be an amount equal to the “paid-up capital”, as that term is defined in the Tax Act, attributable to the Common Shares immediately prior to the Amalgamation; and (iii) Amalco shall have, as its notice of articles and articles, the notice of articles and articles of the ~~Company shall be~~ Company. 5. Except as expressly amended ~~to create a new class~~ herein, all other terms and conditions of ~~shares without par value, of which an unlimited number may be issued~~ the Arrangement Agreement 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;~~Arrangement shall remain in full force and effect. ~~(ii) each Company Share issued~~ 6. This Agreement will be governed by 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 interpreted and ~~Company RSUs pursuant to Section 3.02(b) and Section 3.02(c), respectively, but excluding any Company Shares surrendered and cancelled~~ enforced in accordance with ~~Section 3.02(e)) shall be exchanged with~~ the ~~Company, free~~ laws of the Province of Ontario and ~~clear~~ the federal laws of Canada applicable therein. Each Party irrevocably attorns and submits to the exclusive jurisdiction of the Ontario courts situated in the City of Toronto and waives objection to the venue of any ~~Encumbrances, for one Class A Share and one Distribution Spinco Share, and upon~~ proceeding in such ~~exchange: (A) each~~ court or that such ~~exchanged Company Share shall~~ court provides an inconvenient forum. This Agreement may 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 executed 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrancescounterparts, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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~~ an original and all of which shall together constitute one and the ~~transfers~~ same instrument. The Parties may rely on copies of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective Time shall be cancelled in exchange for a cash payment this Agreement which are delivered by ~~the Company to the holder of~~ telecopier or electronic mail as if such ~~Company DSU equal to the Company Sh~~copies were originals.

Appears in 1 contract

Sources: Amending Agreement

Arrangement. At Commencing at the Effective Time, ~~unless~~ except as otherwise ~~specifically provided in this Section 3.02~~noted herein, the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ sequentially, in the following ~~order~~ order, without any further act or ~~formality~~formality required on the part of any person, in each case effective as at the Effective Time: (a) 343,332 European Goldfields RSUs shall be granted pursuant to the ~~Purchaser~~ European Goldfields RSU Plan and 525,000 European Goldfields DPUs shall ~~subscribe~~ be granted pursuant to the European Goldfields DPU Plan to those individuals identified in a resolution of the board of directors of European Goldfields dated prior to the Effective Date; (b) the Effective Date shall be deemed to be the vesting date for ~~that~~ all of the then issued and outstanding European Goldfields RSUs, and European Goldfields shall allot and issue to each holder of a European Goldfields RSU such number of ~~Acquireco Common Shares~~European Goldfields Shares as are due to such holder under the terms of the European Goldfields RSU Plan (less any amounts withheld pursuant to Section 5.4 of this Plan of Arrangement) and thereafter the European Goldfields RSU Plan will terminate and none of the former holders of European Goldfields RSUs, at European Goldfields, Eldorado or any of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the European Goldfields RSU Plan; (c) each European Goldfields Share held by a ~~price~~ Dissenting Shareholder in respect of ~~$1.00 per share~~which the European Goldfields Shareholder has validly exercised his, ~~equal~~ her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to Eldorado (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with Article 4 hereof; (d) each European Goldfields Share (other than any European Goldfields Shares held by Eldorado and any Dissenting Shareholder) shall be deemed to be transferred to Eldorado (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Consideration; (e) each European Goldfields Option, which is outstanding and has not been duly exercised prior to the ~~quotient obtained when~~ Effective Date, shall be exchanged for an option (Aeach, a “Replacement Option”) to purchase from Eldorado the number of Eldorado Shares (rounded down to the nearest whole share) equal to: (i) the ~~fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided~~ Option Exchange Ratio multiplied by (Bii) ~~$1.00, and for greater certainty for~~ the ~~purposes~~ number of ~~determining variable (A) in relation~~ European Goldfields Shares subject 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~~ such European Goldfields Option immediately prior to the ~~acquisition~~ Effective Date. Such Replacement Option shall provide for an exercise price per Eldorado Share (rounded up to the nearest whole cent) equal to: (x) the exercise price per European Goldfields Share otherwise purchasable pursuant to such European Goldfields Option; divided by (y) the Option Exchange Ratio. 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 European Goldfields Option for which it was exchanged, and shall be governed by the terms of the ~~Class A Shares~~ applicable European Goldfields Option Plan and any certificate or option agreement previously evidencing the European Goldfields Option shall thereafter evidence and be deemed to evidence such Replacement Option and such Replacement Options shall be designed to meet the requirements under Subsection 7(1.4) of the Tax Act; (f) the DPU Payment (as defined in the European Goldfields DPU Plan) for each European Goldfields DPU held by ~~Acquireco pursuant~~ a European Goldfields DPU Holder in respect of which the European Goldfields DPU Election is made on or prior to ~~Section 3.02(k~~the Election Deadline, shall be satisfied, on behalf of European Goldfields, on the applicable Separation Date (as defined in the European Goldfields DPU Plan), by the European Goldfields DPU Election Consideration, and after such Separation Date, such European Goldfields DPU Holders or any of their respective successors or assigns shall have not any rights, liabilities or obligations in respect of the European Goldfields DPU Plan; (g) from and after the Effective Date, no additional European Goldfields DPUs shall be issued under the European Goldfields DPU Plan (including in connection with ~~such share subscription~~the declaration of any dividends); (h) with respect to each European Goldfields Share transferred and assigned in accordance with Subsection 3.1(c) or 3.1(d) hereto: (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 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 registered holder thereof shall cease to be the registered holder of such ~~Company Option,~~ European Goldfields Share and ~~shall cease to have any rights as a holder in respect~~ the name of such ~~Company Option under the applicable Company Option Plan, (B) such holder’s name~~ registered holder 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 European Goldfields Shareholders as 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 ConsiderationTime; (ii) ~~with respect to each Company RSU: (A)~~ the registered holder thereof shall ~~cease~~ be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such European Goldfields Share in accordance with Subsection 3.1(c) or 3.1(d) hereto, as applicable; and (iii) Eldorado will be the holder of ~~such Company RSU,~~ all of the outstanding European Goldfields Shares 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~~ European Goldfields Shareholders shall be ~~cancelled~~revised accordingly; (i) Eldorado will sell all of the European Goldfields Shares acquired under Subsection 3.1 (c) and (d) ~~the Company Option Plans shall be terminated~~hereto to Eldorado Holdco in exchange for 100,000 common shares of Eldorado Holdco; (e) each Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 (Aj) the stated capital of ~~all~~ the ~~issued and outstanding Company~~ European Goldfields Shares ~~immediately prior~~ shall be reduced to ~~the step~~ $1.00 without payment or distribution 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);respect thereof; and (gk) Eldorado Holdco and European Goldfields shall be amalgamated and continued as one corporation under the ~~Company shall transfer all of its entire legal and beneficial right, title and interest in and~~ YBCA 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 form Amalco 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~~following: (i) ~~the notice~~ Name. The name of ~~articles and articles of the Company~~ Amalco shall be ~~amended to create a new class of shares without par value, of which an unlimited number~~ such name as Eldorado 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 Arrangementdetermine; (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Arrangement Agreement (Eldorado Gold Corp /Fi)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the ~~following~~ events ~~or transactions~~ set out below shall occur and be deemed to occur effective as at five-minute intervals in the following sequence, in each case without any further authorization, act or formality on the part of any Person: (1) first, at the Effective Time, each Dissenting Share held by a Dissenting Shareholder shall be deemed to ~~occur sequentially in~~ have been transferred by the ~~following order~~ holder thereof, without any further act or ~~formality~~formality on its part, to GameSquare (free and clear of all Liens) and GameSquare shall thereupon be obliged to pay (with its own available funds on hand and not funds directly or indirectly provided by Engine Gaming or any affiliate of Engine Gaming) the amount therefor determined and payable in accordance with Article 4, and: (a) such Dissenting Shareholder will cease to be the ~~Purchaser shall subscribe for that number~~ holder thereof or to have any rights as a holder in respect of ~~Acquireco Common Shares, at a price of $1.00 per share, equal~~ such Dissenting Share other than the right to ~~the quotient obtained when (A)~~ be paid the fair ~~market~~ value of ~~the Maximum Purchaser Shares~~ such Dissenting Share determined 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 payable 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 SharesArticle 4; and (iib) ~~Acquireco~~ the name of each Dissenting Shareholder shall be ~~deemed to have issued~~ removed from the register of GameSquare Shareholders and 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~~ Dissenting Shares shall be ~~increased, in respect of the Acquireco Common Shares issued pursuant~~ automatically cancelled and cease to ~~this Section 3.02(a), by an amount equal to the fair market value of the Purchaser Consideration~~be outstanding; (b2) ~~notwithstanding any vesting or exercise provisions to which a Company Option might otherwise be subject (whether by contract~~second, ~~the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013~~ each GameSquare Share ~~Incentive Plan or Company 2016 Stock Option Plan, or applicable law): (i) each In-the-Money Option issued and~~ outstanding immediately prior to the Effective Time ~~shall~~(other than Dissenting Shares), ~~without any further action by or on behalf of any holder of such In-the- Money Option~~shall be, and shall be deemed to ~~be fully vested and shall be~~ be, transferred ~~and disposed~~ by the holder thereof to ~~the Company~~ Engine Gaming (free and clear of all ~~Encumbrances~~Liens) and, in consideration therefor, Engine Gaming shall issue and ~~cancelled in exchange for~~ deliver or cause to be delivered to such holders the ~~Option~~ Share 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 Optionand: (Aa) ~~the holder thereof~~ holders of such GameSquare Shares shall cease to be the holder ~~of such Company Option~~thereof, and shall cease to have any rights as a holder ~~in respect of such Company Option under~~ thereof other than 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 right 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders Consideration 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; (iib) ~~each Company Share issued and outstanding immediately before~~ the ~~reorganization~~ names 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~~ GameSquare Shares shall be removed from the ~~Company’s~~ register of ~~holders of Company Shares;~~GameSquare Shareholders; and (Bc) ~~each holder~~ Engine Gaming shall be deemed to be the transferee of such ~~exchanged Company~~ GameSquare Shares (free and clear of all Liens) and shall be entered in the ~~Company’s~~ register of ~~holders~~ GameSquare Shareholders maintained by or on behalf of ~~Class A Shares in respect of the Class A Shares issued to such holder~~GameSquare; (C3) third, each GameSquare Option, to the ~~Company~~ extent it has not been exercised as at the Effective Date, notwithstanding the terms of the GameSquare Stock Option Plan, 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 transferred 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~~ holder thereof 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to AcquirecoEngine Gaming, without any further act or formality ~~by such Participating Former Securityholder,~~ and free and clear of all ~~Encumbrances~~Liens, for such number of Replacement Options issued by Engine Gaming under the Engine Gaming Omnibus Incentive Plan equal to 4869-1584-5952\3 66314327.5 87171082.3 the Exchange Ratio (provided that, if the foregoing would result in the issuance of a fraction of a Replacement Option to a particular holder of GameSquare Options, then the total number of Replacement Options issued by Engine Gaming to such holder shall be rounded down to the nearest whole number) and each ~~Class A~~ such Replacement Option shall have an exercise price per Engine Gaming Share ~~held by~~ equal to the exercise price per share of such ~~Participating Former Securityholder~~ GameSquare Option for which it was exchanged immediately prior to the ~~exchange in this Section 3.02(k) in exchange for~~ Effective Time divided by the ~~Combination Consideration Cash~~ Exchange Ratio and rounded up to the ~~Combination Consideration Purchaser Shares~~nearest whole cent, ~~and upon such exchange~~and: (iva) such GameSquare Option shall thereupon be cancelled; (b) the term to expiry, conditions to and manner of exercise (including vesting schedules) and other terms and conditions of each ~~such Participating Former Securityholder~~ of the Replacement Options shall be ~~removed from~~ the ~~Company’s securities register~~ same as the terms and conditions of ~~holders of Class A Shares,~~the GameSquare Option for which they were exchanged; (vc) ~~Acquireco~~ any document previously evidencing such GameSquare Option shall thereafter evidence and be deemed to evidence such Replacement Options and no certificates evidencing the Replacement Options shall be ~~entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrances~~issued; and (vid) ~~each such Participating Former Securityholder shall~~notwithstanding the foregoing, ~~subject to the provisions of Section 3.06, be entered~~ if required in ~~the Purchaser’s securities register of holders of Purchaser Shares in respect~~ order for subsection 7(1.4) of the ~~Purchaser Shares payable~~ Tax Act apply to such ~~Participating Former Securityholder pursuant to this Section 3.02(k)~~exchange of options, 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 GameSquare Option immediately before the exchange; (l4) fourth, each ~~Participating Former Securityholder receiving Class A Shares pursuant~~ GameSquare RSU, to ~~Section 3.02(h)(ii) who duly and validly completes and delivers~~ the ~~applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive either~~ extent it has not been exchanged for a GameSquare Share as at the ~~Cash Consideration or~~ Effective Date, notwithstanding the ~~Purchaser Share Consideration in respect~~ terms of ~~all of such Participating Former Securityholder’s Company Shares shall transfer~~the GameSquare RSU Plan, ~~and~~ shall be ~~deemed~~ transferred by the holder thereof to ~~have transferred, to Acquireco~~Engine Gaming, without any further act or formality ~~by such Participating Former Securityholder,~~ and free and clear of all ~~Encumbrances~~Liens, ~~each Class A Share held~~ for such number of Replacement RSUs issued by ~~such Participating Former Securityholder immediately prior~~ Engine Gaming under the Engine Gaming Omnibus Incentive Plan equal to the Exchange Ratio (provided that, if the foregoing would result in the issuance of a fraction of a Replacement RSU to a particular holder of GameSquare RSUs, then the total number of Replacement RSUs issued by Engine Gaming to such holder shall be rounded down to the nearest whole number) reduced for any withholding or deduction for Taxes required in connection with the exchange ~~in this Section 3.02(l) in exchange for~~of such GameSquare RSU, and: (ia) in such GameSquare RSU shall thereupon be cancelled; (b) the ~~case~~ term to expiry and conditions to vesting and other terms and conditions of ~~a Participating Former Securityholder validly electing to receive~~ each of the ~~Cash Consideration,~~ Replacement RSUs shall be the ~~Cash Consideration, subject to~~ same as the ~~provisions~~ terms and conditions of ~~Section 3.02(m)~~the GameSquare RSU for which they were exchanged; and (iic) in any document previously evidencing such GameSquare RSU shall thereafter evidence and be deemed to evidence such Replacement RSUs and no certificates evidencing 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 upon such exchange: (iii) each such Participating Former Securityholder Replacement RSUs shall be removed from the Company’s securities register of holders of 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, 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 Securityholderissued; (m5) ~~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~~fifth, each ~~Participating Former Securityholder who validly elects~~ GameSquare Warrant, to ~~receive~~ the ~~Cash Consideration in respect~~ extent it has not been exercised as at the Effective Date, will be transferred by the holder thereof to Engine Gaming, without any further act or formality and free and clear of all Liens, for a warrant (a “Replacement Warrant”) issued by Engine Gaming to purchase such number 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~~ Engine Gaming 4869-1584-5952\3 66314327.5 87171082.3 Shares equal to ~~a fraction, rounded to six decimal places,~~ the ~~numerator~~ Exchange Ratio multiplied by the number of ~~which is the Maximum Cash Consideration minus the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k), and the denominator~~ GameSquare Shares issuable on exercise of which is the Aggregate Elected Cash; and (ii) be entitled to receive the Purchaser Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding GameSquare Warrant immediately prior to the Effective Time ~~shall be cancelled in exchange~~ for ~~a cash payment by the Company to the holder of such Company DSU~~ an exercise price per Engine Gaming Share equal to the ~~Company Sh~~exercise price per share of such GameSquare Warrant immediately prior to the Effective Time divided by the Exchange Ratio and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Warrant being exercisable for a fraction of an Engine Gaming Share, then the number of Engine Gaming Shares subject to such Replacement Warrant shall be rounded down to the next whole number of Engine Gaming Shares), and: (a) the GameSquare Warrants shall thereupon be cancelled; (b) the term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Warrants shall be the same as the terms and conditions of the GameSquare Warrant for which it is exchanged; and (c) any document previously evidencing a GameSquare Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued; (6) sixth, each of the GameSquare Stock Option Plan and the GameSquare RSU Plan shall be terminated and, for greater certainty, all rights thereunder to receive any securities of GameSquare or other benefits formerly held by GameSquare Securityholders shall be extinguished.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. 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 order without any further authorization, act or formality, in each case, unless stated otherwise: (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): (i1) each In-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 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 Alacer Share held by a Dissenting Shareholder shall ~~be, and shall~~ be deemed to ~~be, surrendered to the Company~~ be transferred by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder~~on its part, free and clear of all ~~Encumbrances~~Liens, ~~and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease~~ to ~~have any rights as a holder of such Company Shares other than a claim against~~ Alacer for the ~~Company~~ consideration contemplated in ~~an amount determined and payable in accordance with~~ Article ~~4 and~~ 4, and: (i) the name of such Dissenting Shareholder shall be removed from the central securities register as a holder of ~~holders of Company Shares~~Alacer Shares and such Alacer Shares shall be cancelled and cease to be outstanding; and (ii) such Dissenting Shareholder will cease to have any rights as an Alacer Shareholder other than the right to be paid the fair value for their Alacer Shares as set out in Article 4; (f2) ~~concurrently with the surrender and cancellation of Company Shares~~ each Alacer Share (other than an Alacer Share held by a Dissenting ~~Shareholders~~ Shareholder) shall be deemed to be transferred to SSR and, in consideration therefor, SSR shall issue the Consideration for each Alacer Share, subject to Section 3.3 and Article 5; (3) each Alacer RSU held by a holder who has consented thereto in an agreement with Alacer shall, without any further action on the part of any such holder of Alacer RSUs, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to ~~Section 3.02(e)~~the terms of the Alacer RSU Plan, the ~~stated capital account maintained by the Company in respect~~ terms of the ~~Company Shares~~ Alacer RSUs shall be ~~reduced, in respect~~ amended so as to substitute for the Alacer Shares subject to such Alacer RSUs such number of ~~the Company~~ SSR Shares ~~cancelled pursuant to Section 3.02(e), by an amount~~ equal to ~~the product obtained when~~ (A) the ~~stated capital~~ number of ~~all~~ Alacer Shares subject to the ~~issued and outstanding Company Shares~~ Alacer RSUs immediately prior to the ~~step in Section 3.02(e)~~Effective Time, is multiplied by (B) ~~a fraction~~the Exchange Ratio, ~~the numerator of which is the number of Company Shares surrendered and cancelled pursuant~~ rounded down 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)~~two decimal places; (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; (iii4) concurrently with the ~~exchange~~ events described in Section ~~3.02(h)(ii~~3.1(3), 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~~ Alacer PSU held by a holder of Spinco Shares, and any fractional Spinco Shares resulting from such 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquirecoconsented thereto in an agreement with Alacer shall, without any further ~~act or formality by~~ action on the part of any such ~~Participating Former Securityholder, free and clear~~ holder of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 3.06Alacer PSUs, be ~~entered in~~ continued on 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 same terms and ~~validly completes and delivers the~~ conditions as were applicable 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective ~~Time~~ Time, except that, pursuant to the terms of the Alacer PSU Plan, the terms of the Alacer PSUs shall be ~~cancelled in exchange~~ amended so as to substitute for ~~a cash payment by~~ the ~~Company~~ Alacer Shares subject to such Alacer PSUs such number of SSR Shares equal to (A) the number of Alacer Shares subject to the Alacer PSUs immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places; (5) concurrently with the events described in Section 3.1(3) and Section 3.1(4), each Alacer DSU shall, without any further action on the part of any holder of Alacer DSUs, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the Alacer DSU Plans, the terms of the Alacer DSUs shall be amended so as to substitute for the Alacer Shares subject to such ~~Company DSU~~ Alacer DSUs such number of SSR Shares equal to (A) the ~~Company Sh~~number of Alacer Shares subject to the Alacer DSUs immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places;

Appears in 1 contract

Sources: Arrangement Agreement (SSR Mining Inc.)

Appears in 1 contract

Sources: Arrangement Agreement (Alamos Gold Inc)

Arrangement. At Commencing 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 order without any further act or formality, in each case, effective at the Effective Time: (a) the ~~Purchaser~~ Rights Plan shall ~~subscribe for that number of Acquireco Common Shares~~be terminated; (b) each outstanding Option, ~~at a price of $1.00 per share~~SAR and SPAU (whether vested or unvested), ~~equal to~~ notwithstanding the ~~quotient obtained when (A) the fair market value~~ terms of the ~~Maximum Purchaser Shares~~ applicable Company Stock Plan, shall be deemed to be unconditionally vested and ~~Maximum Cash Consideration is divided by (B) $1.00~~exercisable, and ~~for greater certainty for the purposes of determining variable (A) in relation to the quotient under this Section 3.02(a)~~such Option, 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 subscriptionSAR or SPAU: (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 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, surrendered to the Company by the holder thereof, ~~without any further act or formality~~ be transferred by such ~~Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease~~ holder to ~~have any rights as a holder of such Company Shares other than a claim against~~ the Company in ~~an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed~~ exchange for a cash payment from the ~~securities register of holders of~~ 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~~ amount (Aif any) 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~~ Purchase Price exceeds the ~~Company Shares is reduced pursuant to this Section 3.02(h)(iii)~~exercise price thereof, 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 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 amended to reflect the Spinco Share Consolidation; (k) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who: (i) duly and validly completes and delivers the less 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a Participating Former Securityholder validly electing to receive the Cash Consideration, the Cash Consideration, subject to the provisions of Section 3.02(m)withholdings; and (ii) in shall immediately be cancelled and all agreements related thereto shall be terminated and the ~~case of a Participating Former Securityholder validly electing~~ holder thereof shall thereafter have only the right to receive the ~~Purchaser Share Consideration,~~ consideration to which such holder is entitled pursuant to this Section 2.03(b) at the ~~Purchaser Share Consideration, subject to the provisions of Section 3.02(n),~~ time and ~~upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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~~manner specified in Article IV; and (vc) each ~~such Participating Former Securityholder shall, subject to the provisions of Section 3.02(m) or Section 3.02(n), as applicable,~~ outstanding PSU 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU ~~outstanding immediately prior to the Effective Time shall~~ will be cancelled by the Company in exchange for a cash payment by the Company in the amount of the Purchase Price per PSU or DSU, as applicable, less applicable withholdings; (d) each Common Share outstanding at the Effective Time other than a Common Share held by (i) a Dissenting Holder who is ultimately entitled to be paid the fair value of the Common Shares held by such Dissenting Holder, or (ii) Parent, Acquisition Sub or any Affiliate thereof (which shall not be exchanged under the Arrangement and shall remain outstanding as a Common Share held by Parent, Acquisition Sub or any Affiliate thereof), shall be transferred to Acquisition Sub in exchange for the Purchase Price per Common Share in cash; (e) the names of the holders of the Common Shares transferred to Acquisition Sub shall be removed from the applicable registers of holders of Common Shares and Acquisition Sub shall be recorded as the registered holder of ~~such Company DSU equal to~~ the Common Shares so acquired and shall be deemed the legal and beneficial owner thereof free and clear of any liens or encumbrances; (f) the Company Shshall pay any short-term incentive compensation payable under the 2006 Incentive Plan in connection with a change in control; and (g) the Company Stock Plans shall be terminated.

Appears in 1 contract

Sources: Arrangement Agreement (Novelis Inc.)

Arrangement. At Commencing 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~~ as set out below without any further authorization, act or formality, in each case effective as at two minute intervals starting at the ~~following order~~ Effective Time: (a) Each of the Common Shares held by a Dissenting Company Shareholder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or ~~formality: (a)~~ formality to the Company in consideration for a debt claim against 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~~ amount determined under ~~this Section 3.02(a)~~Article 3, 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 subscriptionand: (i) such Dissenting Company Shareholder shall cease to be the ~~Purchaser shall be deemed~~ holder of such Common Shares and to have ~~directed~~ any rights as a Company Shareholder other than the ~~Depositary~~ right 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 be paid fair value for such ~~Acquireco~~ Common ~~Shares~~Shares as set out in Section 3.1; and (ii) ~~Acquireco~~ such Dissenting Company Shareholder'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 the Company shall be deemed to ~~have issued~~ be the transferee of such ~~fully paid and non-assessable Acquireco~~ Common Shares free and clear of all Liens (other than the right to ~~the Purchaser~~be paid fair value for such Common Shares as set out in Section 3.1), and shall be entered in the ~~stated capital account~~ register of Common Shares maintained by ~~Acquireco in respect~~ or on behalf 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 ConsiderationCompany; (b) ~~notwithstanding any vesting or exercise provisions~~ subject to ~~which a Company Option might otherwise be subject~~ Section 4.3 hereof, each RSU outstanding immediately prior to the Effective Time (whether ~~by contract~~vested or unvested), notwithstanding the terms ~~and conditions~~ of the RSU Plan and/or the terms of any ~~Award Agreement or grant~~award agreements related to the RSUs, shall be, and shall be deemed to be, fully vested and surrendered and transferred to the ~~terms~~ Company and ~~conditions~~ thereupon cancelled in consideration for the issuance by the Company of that number of Common Shares (the "RSU Shares") equal to the number of Common Shares subject to such RSU upon the settlement of such RSU immediately prior to the Effective Time, and the holder of such RSU shall be deemed to be the holder of such number of RSU Shares and the central securities register of the Company ~~2013 Share Incentive Plan~~ shall be, and shall be deemed to be, revised accordingly, but the holder of such RSU shall not be entitled to a certificate or ~~Company 2016 Stock Option Plan, or applicable law):~~other document representing the RSU Shares so issued; (ic) the RSU Plan shall be terminated and all outstanding RSUs shall be, and shall be deemed to be, terminated (and all rights thereunder shall expire) and be of no further force or effect; (d) subject to Section 4.3 hereof, each In-the-Money Option ~~issued and~~ outstanding ~~immediately prior to~~ at the Effective Time (whether vested or unvested) shall be deemed to have been transferred by the holder thereof, without any further act or formality on its part, to the Company for cancellation in consideration for the In-the-Money Option Consideration; (e) the holders of In-the-Money Options shall cease to be the holders thereof and to have any rights as holders thereof, other than the right of holders of In-the-Money Options to be paid the In-the-Money Option Consideration pursuant to Section 2.3(b) and the names of the holders thereof shall be removed from the register of the Company Options maintained by or on behalf of the Company; (f) the Hillcrest Entitlement Common Shares shall be issued to Hillcrest in full and final settlement and satisfaction of all amounts owing to Hillcrest in connection with and pursuant to the Hillcrest Entitlement, and Hillcrest shall be added as the holder of such Common Shares to the register of Common Shares maintained by or on behalf of the Company; (g) each outstanding Common Share (other than Common Shares held by a Dissenting Company Shareholder in respect of which Dissent Rights have been validly exercised under Section 2.3(a) and any Common Shares held by the Purchaser or any affiliates thereof), shall, without any further action by or on behalf of any ~~holder of such In-the- Money Option~~Company Shareholder, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to the Purchaser in exchange for the Share Consideration, and (i) each holder of such Common 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 Share Consideration per Common Share in accordance with this Plan of Arrangement; (ii) the name of each such holder shall be removed from the register of the 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 ~~Encumbrances)~~ Liens and ~~cancelled~~ shall be entered 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~~ Common Shares maintained by or on behalf of the ~~holder of such Option Consideration shall not be entitled to receive a share certificate or other document representing the Option Consideration;~~Company. (iih) each Out-of-the-Money Option ~~issued and~~ outstanding ~~immediately prior to~~ at the Effective Time ~~shall, without any further action by~~ (whether vested or ~~on behalf~~ unvested) will be exchanged for a Replacement Option to acquire such number of ~~any holder~~ Purchaser Shares as is equal to: (A) that number of Common Shares that were issuable upon exercise of such Out-of-the-Money 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 per Purchaser Share equal to the greater of (i) the quotient determined by dividing: (X) the exercise price per Common Share at which such Out-of-the-Money Option was exercisable immediately prior to the Effective Time, by (Y) the Exchange Ratio, rounded up to the nearest whole cent, and (ii) such 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 term to expiry, vesting, conditions to and manner of exercising, shall be ~~cancelled without~~ the same as the Out-of-the-Money Option for which it was exchanged, and any ~~payment therefor~~certificate or option agreement previously evidencing the Out-of-the-Money Option shall thereafter evidence and be deemed to evidence such Replacement Option; (~~iii) with respect to each Company Option: (A~~i) the ~~holder thereof~~ holders of Company Options shall cease to be the ~~holder of such Company Option,~~ holders thereof and ~~shall cease~~ to have any rights as ~~a holder in respect~~ holders thereof, other than the right of ~~such Company Option under~~ holders of the ~~applicable Company Option Plan, (B~~Out-of-the-Money Options to the Replacement Options pursuant to Section 2.3(h) ~~such holder’s name~~ and the names of the holders thereof 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~~ Options maintained 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, Company; and (Cj) ~~all Award Agreements~~subject to Section 4.3 hereof, ~~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~~ Warrant outstanding at the Effective Time shall be deemed to ~~be, surrendered to the Company~~ have been assigned and transferred by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder~~on its part, ~~free and clear~~ to the Company in exchange for the Warrant Consideration; and (i) each holder of ~~all Encumbrances, and each~~ such Company ~~Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder~~ Warrant shall cease to be the holder thereof and to have any rights as a ~~holder of such~~ Company ~~Shares~~ Warrantholder other than ~~a claim against~~ the ~~Company in an amount determined and payable~~ right to be paid the Warrant Consideration in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~ name 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~~ holder shall be removed from the ~~Company’s~~ register of ~~holders~~ the Company Warrants maintained by or on behalf 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 (Diii) ~~each holder of such exchanged~~ the Company ~~Shares~~ Warrants shall be ~~entered in Spinco’s register~~ cancelled, null, void and 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), no further force 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sheffect.

Appears in 1 contract

Sources: Arrangement Agreement (Valens Company, Inc.)

Arrangement. 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 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 immediately prior to At the Effective ~~Time shall~~Time, 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 Target Share held by a Dissenting Shareholder shall ~~be, and shall~~ be ~~deemed to be, surrendered to the Company by the holder thereof~~transferred, without any further act or formality ~~by such Dissenting Shareholder~~on the part of the holder, and free and clear of all ~~Encumbrances~~liens, claims and encumbrances, to ▇▇▇▇▇▇▇, and ~~each such Company Share so surrendered~~ ▇▇▇▇▇▇▇ shall be ~~cancelled and thereupon each Dissenting Shareholder shall cease~~ obligated to ~~have any rights as a holder of such Company Shares other than a claim against~~ pay the ~~Company in an~~ amount determined and payable in accordance with ~~Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares~~Section 4.01; (fb) ~~concurrently with~~ At the ~~surrender and cancellation of Company Shares held by Dissenting Shareholders pursuant to Section 3.02(e)~~Effective Time, the ~~stated~~ authorized capital ~~account maintained~~ of Target and its articles will be altered by creating an unlimited number of class A common shares without par value, which shall have attached thereto the right to two votes at all meetings of Target Shareholders, the right to dividends as and when declared by the ~~Company in respect~~ directors of Target, which may be declared independently of dividends on 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)Target Shares, and the ~~denominator~~ right to participate in the remaining assets of ~~which is~~ Target upon a winding up of Target (the ~~number of issued and outstanding Company Shares immediately prior to the step in Section 3.02(e~~“Target Class A Shares”); (gc) Five minutes following the ~~Company~~ Effective Time, Target 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 undertake a reorganization of capital within the ~~Company’s authorized~~ meaning of section 86 of the Tax Act as follows, and ~~issued share capital~~in the following order: (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~~ each issued and ~~which shall~~ outstanding Target Common Share, will be ~~designated the “~~deemed to be exchanged for (A) one Target Class A ~~Shares”~~ Share, and (~~the “Class A Shares”), which shall have the special rights and restrictions set forth in Schedule “A” to this Plan of Arrangement~~B) one Spinco Share; (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~~for greater certainty, 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,~~ authorized 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 unissued Target Common Shares shall be ~~removed from~~ cancelled and the ~~Company’s register~~ authorized capital of ~~holders of Company Shares; (B) each holder of such exchanged Company Shares~~ Target shall be ~~entered in~~ changed by deleting the ~~Company’s register~~ Target Common Shares as a class of ~~holders~~ shares 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 CompanyTarget; (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~~ added to the stated capital of the ~~Company~~ Target Class A Shares shall be the excess, if any, of (A) the paid-up capital (as that term is used for purposes of the Tax Act) of the Target Common Shares (other than Target Common Shares held by the Dissenting Shareholders) immediately prior to the ~~reorganization in Section 3.02(h)~~Effective Time, 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 less (B) the fair market value of the ~~Distribution~~ Spinco Shares ~~transferred~~ distributed to Target Shareholders. (d) Six minutes following the Effective Time, each of the Target Options and Target Warrants will be deemed to have been amended such that each Target Option or Target Warrant, as applicable, will be exercisable to acquire Target Class A Shares in place of Target Shares, but will otherwise remain unchanged; (e) Ten minutes following the Effective Time, Spinco shall issue to each holder of Spinco Shares one Spinco Arrangement Warrant for each Spinco Share held. (f) Eleven minutes following the Effective Time, Spinco will issue to each holder of Target Options and Target Warrants, one Spinco Arrangement Warrant for each whole Target Option or whole Target Warrant held. (g) Fifteen minutes following the Effective Time, Spinco shall issue: (i) to each holder of Target Options, an option (a “Replacement Spinco Option”) to purchase that number of Spinco Shares as is equal to the ~~former holders~~ number of ~~Company~~ Target Shares issuable under the Target Options at an exercise price equal to the original exercise price of the Target Option. Except as otherwise provided for in this Section 3.01, the term to expiry, conditions to and manner of exercising, vesting schedule, status under applicable laws and all other terms and conditions of the Target Options will apply to the Replacement Spinco Options issuable hereunder, unchanged from those that apply to the Target Options; and (ii) to each holder of Target Warrants, a warrant (a “Replacement Spinco Warrant”) to purchase that number of Spinco Shares as is equal to the number of Target Shares issuable under the Target Warrants at an exercise price equal to the original exercise price of the Target Warrant. Except as otherwise provided for in this Section 3.01, the term to expiry, conditions to and manner of exercising, vesting schedule, status under applicable laws and all other terms and conditions of the Target Warrants will apply to the Replacement Spinco Warrants issuable hereunder, unchanged from those that apply to the Target Warrants. (h) Twenty minutes following the Effective Time, the Amalgamating Corporations shall amalgamate pursuant to ~~Section 3.02(h)(ii)~~the BCBCA and continue as one corporation on the following terms and those prescribed elsewhere in this Plan of Arrangement; (i) the ~~Initial Spinco~~ name of Amalco shall be “▇▇▇▇▇▇▇ ▇▇ Holdings Corp.”; (ii) the property, rights and interests of each Amalgamating Corporation continue to be the property, rights and interests of Amalco; (iii) Amalco continues to be liable for the obligations of each Amalgamating Corporation; (iv) an existing cause of action, claim or liability to prosecution of an Amalgamating Corporation is unaffected by the amalgamation; (v) a legal proceeding being prosecuted or pending by or against an Amalgamating Corporation may be prosecuted, or its prosecution may be continued, as the case may be, by or against Amalco; (vi) a conviction against, or ruling, order or judgment in favour of or against, an Amalgamating Corporation may be enforced by or against Amalco; (vii) the Certificate is deemed to be the Certificate of Incorporation of Amalco; (viii) Amalco shall have as its Notice of Articles, the notice of articles contained in the Arrangement Application; (ix) Amalco shall have as its Articles, the articles of Acquisitionco as ordered by the Court in the Final Order; and (x) the registered office of Amalco shall be located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Street, Vancouver, British Columbia, V6C 3E8, as set out in its Notice of Articles; (xi) the number of directors of Amalco, until changed in accordance with the provisions of the BCBCA and the articles of Amalco, shall be two directors and the first directors of Amalco shall be the persons set out in its Notice of Articles, being ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇; (xii) the first officers of Amalco, until others are appointed in their place shall be: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as President and Chief Executive Officer, ▇▇▇▇▇ ▇▇▇▇▇ as Chief Financial Officer and ▇▇▇▇▇▇ ▇▇▇▇▇▇ as Corporate Secretary; (xiii) Amalco shall be authorized to issue an unlimited number of common shares without par value and there shall be no restrictions on the business of Amalco; (xiv) the issued and outstanding shares of each of the Amalgamating Corporations, other than Target Shares held by a Dissenting Shareholder, shall be exchanged for ▇▇▇▇▇▇▇ Shares or converted into issued and outstanding Amalco Shares as follows: (A) each Target Class A Share held by ~~the Company~~ a Target Shareholder other than ▇▇▇▇▇▇▇ shall be ~~cancelled without any repayment thereon~~exchanged for 0.26 ▇▇▇▇▇▇▇ Shares (the “Exchange Ratio”), subject to Section 3.03 and Article Five pursuant to which: 1. such holder shall cease to be a holder of Target Class A Shares and the ~~Company~~ name of such holder shall be deemed to be removed from the ~~Spinco~~ central securities register of holders of ~~Spinco~~ Target Class A Shares; ~~(j) all~~ 2. ▇▇▇▇▇▇▇ shall allot and issue and cause to be delivered to holder the ▇▇▇▇▇▇▇ Shares to which such holder is entitled as aforesaid, the name of the ~~issued and outstanding Spinco Shares~~ holder shall be ~~consolidated~~ entered into ▇▇▇▇▇▇▇’▇ securities register, and thus shall be added to ▇▇▇▇▇▇▇’▇ stated capital account the amount determined by ▇▇▇▇▇▇▇’▇ Board of Directors as required by the Business Corporations Act (~~the “Spinco~~ Ontario); and 3. each Target Class A Share ~~Consolidation”~~so exchanged shall be cancelled; (B) each Target Class A Share held by ▇▇▇▇▇▇▇ shall be converted on a share for share basis into Amalco Shares on the basis of one ~~post-consolidation Spinco~~ Amalco Share for each ~~eight~~ one Target Class A Share; and (~~8) pre- consolidation Spinco Shares held by a holder~~ C) all common shares of ~~Spinco Shares, and any fractional Spinco Shares resulting from such Spinco Share Consolidation~~ Acquisitionco shall be ~~cancelled without payment or compensation therefor, and upon such Spinco~~ converted on a share for share basis into Amalco Shares on the basis of one Amalco Share ~~Consolidation the register~~ for each one common share of ~~holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation~~Acquisitionco; (kxv) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder Target Option outstanding immediately prior to the ~~exchange in this Section 3.02(k~~Effective Time shall (A) ~~in exchange for~~ if unvested, be vested as at the ~~Combination Consideration Cash~~ Effective Date, and (B) be converted into an option (a “Converted ▇▇▇▇▇▇▇ Option”) to acquire, on the same terms and conditions as were applicable to such Target Option immediately before the Effective Time under the stock option plan of Target under which it was issued and the ~~Combination Consideration Purchaser Shares~~agreement evidencing the grant thereof, (provided that the Converted ▇▇▇▇▇▇▇ Option shall only be exercisable for 90 days after the Effective Date, notwithstanding the terms on which the Target Option was originally issued) the number of ▇▇▇▇▇▇▇ Shares (rounded down to the nearest whole number) equal to the product of: (A) the number of Target Common Shares subject to such Target Option immediately before the Effective Time and ~~upon~~ (B) the Exchange Ratio. The exercise price per ▇▇▇▇▇▇▇ Share subject to any such ~~exchange: (iv) each such Participating Former Securityholder~~ Converted ▇▇▇▇▇▇▇ Option shall be ~~removed from~~ an amount (rounded up to the ~~Company’s securities register~~ nearest cent) equal to the quotient of ~~holders of Class A Shares,~~ (vA) ~~Acquireco~~ the exercise price per Target Common Share subject to such Target Option immediately before the Effective Time divided by (B) the Exchange Ratio, provided that the exercise price otherwise determined shall be ~~entered in~~ increased to the ~~Company’s securities register~~ extent, if any, required to ensure that the In the Money Amount of ~~holders~~ the Converted ▇▇▇▇▇▇▇ Option immediately after the conversion is not greater than the In the Money Amount of ~~Class A Shares~~ the Target Option immediately before the conversion. The obligations of Target under the Target Options as ~~the legal and beneficial owner of such Class A Shares, free of all Encumbrances~~so converted shall be assumed by ▇▇▇▇▇▇▇; and (vixvi) 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU Target Warrant outstanding immediately prior to the Effective Time shall be ~~cancelled in exchange for~~ converted into a ~~cash payment by~~ warrant (a “Converted ▇▇▇▇▇▇▇ Warrant”) to acquire, on the ~~Company~~ same terms and conditions as were applicable to such Target Warrant immediately before the Effective Time under the relevant agreement under which it was issued or the certificate representing it, the number of ▇▇▇▇▇▇▇ Shares (rounded down to the ~~holder of such Company DSU~~ nearest whole number) equal to the ~~Company Sh~~product of: (A) the number of Target Common Shares subject to such Target Warrant immediately before the Effective Time and (B) the Exchange Ratio. The exercise price per ▇▇▇▇▇▇▇ Share subject to any such Converted ▇▇▇▇▇▇▇ Warrant shall be an amount (rounded up to the nearest cent) equal to the quotient of (A) the exercise price per Target Common Share subject to such Target Warrant immediately before the Effective Time divided by (B) the Exchange Ratio, provided that the exercise price otherwise determined shall be increased to the extent, if any, required to ensure that the In the Money Amount of the Converted ▇▇▇▇▇▇▇ Warrant immediately after the conversion is not greater than the In the Money Amount of the Target Warrant immediately before the conversion. The obligations of Target under the Target Warrants as so converted shall be assumed by ▇▇▇▇▇▇▇. (i) Amalco shall be a wholly-owned subsidiary of ▇▇▇▇▇▇▇ and shall have no issued or outstanding options, warrants or other rights or privileges to acquire securities of Amalco.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At On the Effective ~~Time~~Date, ~~unless~~ except as otherwise ~~specifically provided in this Section 3.02~~noted herein, the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ sequentially, in the following ~~order~~ order, without any further act or ~~formality~~formality required on the part of any Person, commencing as at the Effective Time: (a) ~~the Purchaser shall subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal~~ With respect 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 subscriptionAbsolute Options: (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 each Absolute 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 granted and outstanding immediately prior to the Effective Time ~~shall, without any further action by or on behalf of any holder of such In-the- Money Option,~~ will be deemed to be fully vested and ~~shall~~ exercisable, and shall, without further action, be deemed to be assigned and transferred ~~and disposed~~ by the holder thereof to ~~the Company (free and clear of all Encumbrances) and cancelled~~ Absolute in exchange for a cash payment from Absolute equal to the Option Consideration (if any) in respect of such Absolute Option, net of any applicable withholding tax, which withholding will be remitted, to the appropriate Governmental Authority to the extent required by law, and such Absolute Option shall immediately be cancelled. For greater certainty, where the Exercise Price of any Absolute Option is greater than or equal to the Per Share Consideration, ~~and~~ neither Absolute nor the Purchaser shall be obligated to pay the holder of such ~~In-the-Money~~ Absolute Option any amount in respect of such Absolute Option, and such Absolute 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;~~immediately cancelled; and (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~~ an Absolute Option will cease to be the holder ~~of such Company Option, and shall cease~~ thereof or to have any rights as a holder in respect of such ~~Company~~ Absolute Option or under the ~~applicable Company~~ Absolute Option Plan~~, (B)~~ , the Absolute Omnibus Plan or under any and all award or similar agreements relating to such ~~holder’s~~ Absolute Options and the name ~~shall~~ of the holder thereof will be removed from the applicable securities register of ~~Company Options, and (C) all option agreements, Award Agreements, grants and similar instruments relating thereto shall be cancelled~~Absolute with respect to such Absolute Option; (cb) ~~notwithstanding any vesting provisions~~ With respect 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):~~Absolute PSUs; (i) each ~~Company RSU issued~~ award of Absolute PSUs granted and outstanding immediately prior to the Effective Time ~~shall~~will, without further action, immediately be canceled and converted into, in substitution therefor, a non-transferable restricted cash award having the aggregate value equal to (x) the number of Absolute Shares underlying such Absolute PSUs (assuming an “Adjustment Factor” (as such term is defined in the applicable Absolute Stock Plan) of 150%), multiplied by (y) the Per Share Consideration (“PSU Consideration”); provided that (1) 50% of such PSU Consideration will be payable to the holder of such award promptly following the Effective Time, net of any ~~further action~~ applicable withholding tax, which withholding will be remitted to the appropriate Governmental Authority to the extent required by or law, and (2) the remaining 50% of such PSU Consideration will vest and be payable on ~~behalf~~ the original vesting date of the Absolute PSUs, subject to continued service through the applicable vesting date (provided that (A) any allowances under the corresponding award of Absolute PSUs for continued vesting following termination of service will continue to apply and (B) if the employment of any holder of such ~~Company RSU~~Absolute PSU is terminated without Cause (as defined in the applicable Absolute Stock Plan) prior to the applicable vesting date, such PSU Consideration will be ~~deemed~~ payable immediately upon such termination), and will otherwise be subject to the same terms and conditions (other than those terms and conditions rendered inoperative by the transactions contemplated by this Arrangement and other than the right to adjustments in connection with the payment of dividends or other distributions), as the corresponding award of Absolute PSUs; provided further that with respect to any Absolute PSUs that constitute nonqualified deferred compensation subject to Section 409A of the Code and that are not permitted to be ~~fully vested and~~ paid at the Effective Time without triggering a Tax or penalty under Section 409A of the Code, such payment shall be ~~transferred and disposed by~~ made at the ~~holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for~~ earliest time permitted under the applicable ~~RSU Consideration,~~ Absolute Stock Plan and ~~the holder of such Company RSU shall become the holder~~ award agreement that will not trigger a Tax or penalty under Section 409A 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;Code; and (ii) ~~with respect to each Company RSU: (A)~~ the holder ~~thereof shall~~ of an Absolute PSU will cease to be the holder ~~of such Company RSU, and shall cease~~ thereof or to have any rights as a holder in respect of such ~~Company RSU~~ Absolute PSU or under the ~~applicable Company Option~~ Absolute PRSU Plan~~, (B)~~ , the Absolute Omnibus Plan or under any and all award or similar agreements relating to such ~~holder’s~~ Absolute PSU and the name ~~shall~~ of the holder thereof will be removed from the applicable securities register of ~~Company~~ Absolute with respect to such Absolute PSU; (c) With respect to the Absolute RSUs; (i) each award of Absolute RSUs granted and outstanding immediately prior to the Effective Time will, without further action, be deemed assigned and transferred by the holder thereof to Absolute in exchange for a cash payment from Absolute equal to (x) the number of Absolute Shares subject to the award of Absolute RSUs as of immediately prior to the Effective Time, multiplied by (y) the Per Share Consideration (the “RSU Consideration”), net of any applicable withholding tax, which withholding tax will be remitted to the appropriate Governmental Authority to the extent required by law, and such Absolute RSU shall immediately be cancelled; provided that (1) fifty percent (50%) of the RSU Consideration will be payable to the holder of such award promptly following the Effective Time and (2) the remaining fifty percent (50%) of such RSU Consideration will vest and be payable on the original vesting schedule of the Absolute RSUs, subject to continued service through each applicable vesting date (provided that (A) any allowances under the corresponding award of Absolute RSUs for continued vesting following termination of services will continue to apply and (B) if the employment of any holder of Absolute RSUs is terminated without Cause (as defined in the applicable Absolute Stock Plan) prior to the applicable vesting date, such RSU Consideration will be payable immediately upon such termination); provided further that with respect to any Absolute RSUs that constitutes nonqualified deferred compensation subject to Section 409A of the Code and that is not permitted to be paid at the Effective Time without triggering a Tax or penalty under Section 409A of the Code, such payment shall be made at the earliest time permitted under the applicable Absolute Stock Plan and award agreement that will not trigger a Tax or penalty under Section 409A of the Code; (ii) an Absolute RSU Holder will cease to be the holder thereof or to have any rights as a holder in respect of such Absolute RSU or under the Absolute PRSU Plan, the Absolute Omnibus Plan or under any and all award or similar agreements relating to such Absolute RSU and the name of the holder thereof will be removed from the applicable securities register of Absolute with respect to such Absolute RSU; and (Ciii) the Absolute PRSU Plan and any and all ~~Award Agreements, grants and~~ awards or similar ~~instruments~~ agreements relating ~~thereto~~ to the Absolute RSUs will be cancelled; (d) The Absolute Omnibus Plan, the ~~Company~~ Absolute PRSU Plan, the Absolute Option ~~Plans~~ Plan and any and all awards or similar agreements relating to the Absolute Options, Absolute PSUs and Absolute RSUs, will be terminated and of no further force and effect and the Absolute Board shall ~~be terminated~~take all action required to effectuate the foregoing; (e) With respect to the Absolute DSUs; (i) each Absolute DSU granted and outstanding immediately prior to the Effective Time will, without further action, be deemed to be assigned and transferred by the holder thereof to Absolute in exchange for a cash payment from Absolute equal to the Per Share Consideration, net of any applicable withholding, which withholding tax will be remitted to the appropriate Governmental Authority to the extent required by law; (ii) an Absolute DSU Holder will cease to be the holder thereof or to have any rights as a holder in respect of such Absolute DSU or under the Absolute DSU Plan or under any and all award or similar agreements relating to such Absolute DSU and the name of the holder thereof will be removed from the applicable securities register of Absolute with respect to such Absolute DSU; and (iii) unless Purchaser notifies Absolute otherwise in writing not later than five (5) Business Days prior to the Effective Date, the Absolute DSU Plan and any and all award or similar agreements relating to the Absolute DSUs will be cancelled by resolutions adopted by the Company prior to the Effective Time (but such termination may be contingent upon the Closing). (f) With respect to the Absolute Shares: (i) each Absolute Share held by a Dissenting Shareholder ~~shall be, and~~ in respect of which Dissent Rights have been validly exercised shall be deemed to ~~be, surrendered to the Company by the holder thereof, without any further act or formality~~ be directly transferred and assigned by such Dissenting ~~Shareholder,~~ Shareholder to the Purchaser (free and clear of ~~all Encumbrances,~~ any Liens) and ~~each~~ such ~~Company Share so surrendered shall be cancelled and thereupon each~~ Dissenting Shareholder shall cease to be the holder of such Absolute Share and to have any rights as a holder of such ~~Company Shares~~ Absolute Share other than ~~a claim against~~ the ~~Company in an amount~~ right to receive the consideration determined and payable in accordance with Article 4 4; (ii) concurrently with the step in Section 3.1(f)(i), each Absolute Share (other than any Absolute Shares held by Dissenting Shareholders who have validly exercised Dissent Rights) shall be deemed to be directly transferred and assigned to the Purchaser (free and clear of any Liens) in exchange for the Per Share Consideration, and the holder thereof will cease to be the holder thereof and to have any rights as a holder of such Absolute Share other than the right to receive the Per Share Consideration, net of any applicable withholding tax, which withholding will be remitted to the appropriate Governmental Authority to the extent required by law; and (iii) at the same time as the steps in Section 3.1(f)(i) and 3.1(f)(ii), with respect to each Absolute Share: (A) the registered holder thereof shall cease to be the registered holder of such Absolute Share and the name of such ~~Dissenting Shareholder~~ registered holder shall be removed from the ~~securities~~ register of ~~holders of Company Shares; (f) concurrently with the surrender and cancellation of Company Shares held by Dissenting~~ Absolute Shareholders ~~pursuant to Section 3.02(e), the stated capital account maintained by the Company in respect~~ as 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;Effective Time; and (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 Consideration is respect of all of such Participating Former Securityholder’s Company Shares; or (iii) exercises Dissent Rights~~ will be the holder and is ultimately not entitled, for any reason, to be paid fair value for its Company Shares, shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of ~~such Class A Shares, free~~ all of ~~all Encumbrances; and (vi) each such Participating Former Securityholder shall, subject to~~ the ~~provisions of Section 3.06, be entered in~~ outstanding Absolute Shares and 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 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 transfer, and Absolute Shareholders shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shrevised accordingly.

Appears in 1 contract

Sources: Arrangement Agreement (Absolute Software Corp)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the ~~following~~ events ~~or transactions~~ set out below shall occur and shall be deemed to occur ~~sequentially~~ in the following order without any further authorization, act or ~~formality~~formality required on the part of any person, except as expressly provided herein: (a) ~~the Purchaser shall subscribe for~~ each Option 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~~ has an Option Exercise Price that 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 $0.06 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 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~~ any Encumbrances, and notwithstanding any vesting conditions) ~~and cancelled~~ in exchange for a cash payment from the Company equal to the amount by which $0.06 exceeds the Option ~~Consideration,~~ Exercise Price thereof (less all applicable withholding taxes) and the holder of such ~~In-the-Money~~ Option shall ~~become~~ thereafter only have the ~~holder of~~ right to receive the ~~Company Shares comprising such Option Consideration~~ consideration to which they are entitled pursuant to this Section 2.3(a) and ~~the central securities register of~~ all Options shall be deemed terminated and the Company shall ~~be revised accordingly, but the holder of~~ have no liabilities or obligations with respect to such ~~Option Consideration shall not be entitled~~ Options except pursuant to ~~receive a share certificate or other document representing the Option Consideration~~this Section 2.3(a); (iib) 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 Warrant that has a ~~holder in respect of such Company Option under the applicable Company Option Plan, (B) such holder’s name~~ Warrant Exercise Price that is less than $0.06 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~~ any Encumbrances, and notwithstanding any vesting conditions) ~~and cancelled~~ in exchange for a cash payment from the Company equal to the amount by which $0.06 exceeds the Warrant Exercise Price thereof (less all applicable ~~RSU Consideration,~~ withholding taxes) and the holder of such ~~Company RSU~~ Warrant shall ~~become~~ thereafter only have the ~~holder of~~ right to receive the ~~Company Shares comprising such RSU Consideration~~ consideration to which they are entitled pursuant to this Section 2.3(b) and ~~the central securities register of~~ all Warrants shall be deemed terminated and the Company shall ~~be revised accordingly, but the holder of~~ have no liabilities or obligations with respect to such ~~RSU Consideration shall not be entitled~~ Warrants except pursuant to ~~receive a share certificate or other document representing the RSU Consideration~~this Section 2.3(b); (~~ii) with respect to each Company RSU: (A~~c) the ~~holder thereof shall cease to be the holder of such Company RSU, and shall cease to have any rights as a holder~~ Common Shares held by Shareholders in respect of ~~such Company RSU under~~ which Dissent Rights have been validly exercised (the ~~applicable Company Option Plan, (B~~“Dissenting Shareholders”) 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, surrendered to the Company by the holder thereof,~~ have been transferred without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 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 amended to reflect the Spinco Share Consolidation; (k) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who: (i) ~~duly~~ such Common Shares shall be cancelled and ~~validly completes and delivers the applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing~~ cease to ~~receive the Combination Consideration in respect of all of such Participating Former Securityholder’s Company Shares~~be outstanding; (ii) ~~has not completed and delivered~~ such Dissenting Shareholders shall cease to be 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 Consideration is respect of all~~ holders of such ~~Participating Former Securityholder’s Company Shares; or (iii) exercises Dissent Rights~~ Common Shares and ~~is ultimately not entitled, for~~ to have any ~~reason,~~ rights as holders of such Common Shares other than the right to be paid fair value for ~~its~~ such Common Shares as set out in Section 3.1; (iii) such Dissenting Shareholders’ names shall be removed as the holders of such Common Shares from the registers of Company ~~Shares, shall transfer, and~~ maintained by or on behalf of the Company; and (iv) the Purchaser shall be deemed to ~~have transferred, to Acquireco, without any further act or formality by~~ be the transferee of such ~~Participating Former Securityholder,~~ Common Shares (free and clear of ~~all~~ any Encumbrances~~, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k~~) ~~in exchange for the Combination Consideration Cash~~ and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the ~~Company’s securities register~~ registers of ~~holders of Class A~~ Common Shares 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 maintained by or on behalf of the ~~Purchaser Shares payable to such Participating Former Securityholder pursuant to this Section 3.02(k)~~Company; (ld) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers the applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive either the Cash Consideration or the Purchaser Common Share Consideration in respect of all of such Participating Former Securityholder’s Company Shares shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective Time (other than Common Shares subject to step (c)) shall be ~~cancelled in exchange for a cash payment by the Company~~ transferred without any further act or formality to the ~~holder~~ Purchaser (free and clear of any Encumbrances) for $0.06 per Common Share, and: (i) the holders of such ~~Company DSU equal~~ Common Shares immediately before the Effective Time shall cease to be holders thereof and to have any rights as holders of such Common Shares other than the ~~Company Sh~~right to be paid $0.06 per Common Share in accordance with this Plan of Arrangement and other than the right to receive any declared but unpaid dividends on such Common Shares; (ii) such holders’ names shall be removed as the holders 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 of such Common Shares (free and clear of any Encumbrances) and shall be entered in the registers of Common Shares maintained by or on behalf of the Company.

Appears in 1 contract

Sources: Acquisition Agreement (Big Lots Inc)

Arrangement. At the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the ~~following~~ events ~~or transactions~~ set out below shall occur and ~~shall~~ be deemed to occur ~~sequentially~~ in the following ~~order without any further act or formality~~sequence, unless specifically noted: (a) the ~~Purchaser shall subscribe for that number~~ Notice of ~~Acquireco Common Shares, at a price~~ Articles and Articles of ~~$1.00 per share, equal~~ Ignite CAN are amended to create the ~~quotient obtained when (A) the fair market value of the Maximum Purchaser~~ Ignite CAN Proportionate Voting Shares and ~~Maximum Cash Consideration is divided by (B) $1.00, and for greater certainty for~~ redesignate 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~~ Ignite CAN Common Shares as Ignite CAN Subordinate Voting Shares and set out the ~~Maximum Cash Consideration will be no less than~~ rights and restrictions of Ignite CAN Subordinate Voting Shares; (b) if the ~~fair market value of the Class A Shares immediately~~ Financing is completed prior to the ~~acquisition~~ Effective Date, the Subscription Receipts are exchanged for no additional consideration into ▇▇▇▇▇ Shares in accordance with the terms of the ~~Class A Shares by Acquireco~~ Subscription Receipts; (c) if the Financing is completed prior to the Effective Date, ▇▇▇▇▇ and Merger Sub amalgamate under Section 269 of the BCBCA to form AmalCo; (d) pursuant to the amalgamation described in Section ~~3.02(k~~3.1(c), if applicable, each ▇▇▇▇▇ Share is cancelled and in ~~connection~~ exchange therefor Ignite CAN issues Ignite CAN Subordinate Voting Shares on a one-to-one basis; (e) if applicable, with ~~such share subscription~~respect to each ▇▇▇▇▇ Share cancelled in accordance with Section 3.1(d) hereof: (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 each of the ~~subscription price payable by~~ holders thereof shall cease to be 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 registered 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 immediately prior to the Effective Time shall, without any further action by or on behalf of any beneficial holder of such ~~In-the- Money Option, be deemed to be fully vested~~ ▇▇▇▇▇ Share and the name of the registered holders shall be ~~transferred and disposed by~~ removed from the ~~holder thereof to the Company (free and clear~~ registers of ~~all Encumbrances) and cancelled in exchange for the Option Consideration, and the holder of such In-the-Money Option shall become the holder~~ ▇▇▇▇▇ Shareholders as 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 ConsiderationEffective Time; (ii) each ~~Out-of-the-Money Option issued and outstanding immediately prior to~~ of 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 holders thereof ~~shall cease to be the holder of such Company Option, and~~ shall cease to have any rights as a ~~holder~~ shareholder other than the right to be issued the Ignite CAN Subordinate Voting Shares in ~~respect~~ accordance with this Plan of ~~such Company Option under the applicable Company Option Plan, (B) such holder’s name shall be removed from the register of Company Options,~~ Arrangement; and (Ciii) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto~~ the registered holder thereof shall be ~~cancelled~~deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect such cancellation and exchange; (cf) ~~notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract~~if applicable, the ~~terms~~ shares of Merger Sub will be cancelled and ~~conditions~~ exchanged for shares of ~~any Award Agreement or grant~~AmalCo on a one-to-one basis; (g) Ignite CAN shall accept for transfer from Ignite US Shareholders (other than Ignite CAN) that are not U.S. Residents their Ignite US Shares in consideration for Ignite CAN Subordinate Voting Shares on a one (1) Ignite US Share to 2.65 Ignite CAN Subordinate Voting Shares basis; (h) Ignite CAN shall accept for transfer from Ignite US Shareholders that are U.S. Residents their Ignite US Shares in consideration for Ignite CAN Proportionate Voting Shares on a one (1) Ignite US Share to 0.01325 Ignite CAN Proportionate Voting Share basis; (i) Ignite CAN shall cause Ignite US to, with respect to each Ignite US Share transferred in accordance with Sections 3.1(g) and 3.1(h) hereof, remove from the ~~terms and conditions~~ books of Ignite US each of the ~~Company 2013 Share Incentive Plan~~ holders thereof as registered or ~~Company 2016 Stock Option Plan~~beneficial holder of such Ignite US Share; (j) from and after the Effective Date, ~~or applicable law~~if applicable, at the time of the amalgamation contemplated in Section 3.1(c): (i) the property, rights and interests of each ~~Company RSU issued~~ of ▇▇▇▇▇ 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~~ Merger Sub shall continue to be ~~fully vested~~ the property, rights and ~~shall be transferred and disposed by the holder thereof to the Company (free and clear~~ interests 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 ConsiderationAmalCo; (ii) ~~with respect to each Company RSU: (A) the holder thereof~~ AmalCo shall ~~cease~~ continue 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 liable for the ~~issuance by Spinco to the Company~~ obligations of ~~that number~~ each 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 CompanyMerger Sub; (iii) ~~concurrently with the exchange in Section 3.02(h)(ii)~~any existing cause of action, ~~the stated capital account in respect of the Company Shares shall~~ claim or liability to prosecution will 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)unaffected; (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) ~~each such Participating Former Securityholder shall~~ a civil, criminal, quasi-criminal, administrative or regulatory action or proceeding being prosecuted or pending by or against either ▇▇▇▇▇ or Merger Sub may be ~~removed from~~ prosecuted, or its prosecution may be continued, as the ~~Company’s securities register of holders of Class A Shares,~~case may be, by or against AmalCo; (v) ~~Acquireco shall~~ a conviction against, or a ruling, order or judgment in favour of or against either ▇▇▇▇▇ or Merger Sub may be ~~entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrances~~enforced by or against AmalCo; and (vi) ~~each such Participating Former Securityholder shall, subject to~~ the ~~provisions~~ Notice of ~~Section 3.06, be entered in~~ Articles and Articles of Merger Sub shall remain the ~~Purchaser’s securities register~~ Notice of ~~holders~~ Articles and Articles of ~~Purchaser Shares in respect of the Purchaser Shares payable to such Participating Former Securityholder pursuant to this Section 3.02(k)~~AmalCo; (lk) ~~each Participating Former Securityholder receiving Class A Shares pursuant~~ Merger Sub, ▇▇▇▇▇, AmalCo, Ignite CAN and Ignite US shall make the appropriate entries in their respective securities registers to ~~Section 3.02(h)(ii) who duly and validly completes and delivers~~ reflect the ~~applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing~~ matters referred to receive either the Cash Consideration or the Purchaser Share Consideration in respect of all of such Participating Former Securityholder’s Company Shares shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh3.1.

Appears in 1 contract

Sources: Business Combination Agreement

Arrangement. At Commencing at the Effective Time, the following steps or transactions shall, unless ~~otherwise~~ specifically provided otherwise in this Section ~~3.02~~3.1, ~~the following events or transactions shall~~ occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality, in each case at five-minute intervals starting at the Effective Time: (a) each outstanding Mandalay DSU shall, without any further action on the ~~Purchaser shall subscribe for that number~~ part of ~~Acquireco Common Shares, at a price of $1.00 per share, equal to~~ any holder thereof and notwithstanding the ~~quotient obtained when (A) the fair market value~~ terms of the ~~Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00~~Mandalay Omnibus Plan, be, 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~~be, settled and cancelled, and ~~the Depositary~~ in consideration thereof, Mandalay shall ~~hold, the cash~~ allot and ~~certificates representing the Purchaser Shares delivered by the Purchaser~~ issue from treasury to the ~~Depositary~~ holder of such Mandalay DSU such number of Mandalay Shares as are due to such holder under the terms of the Mandalay Omnibus Plan (subject to withholding in accordance with ~~Section 3.05(a)(i~~this Plan of Arrangement) (and the name of each such ~~cash~~ former holder of a settled 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 cancelled Mandalay DSU shall be ~~deemed to have issued~~ entered in Mandalay's central securities register of holders of Mandalay Shares as a holder of Mandalay Shares but no 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~~ former holder shall be ~~increased, in respect of~~ entitled to a certificate or DRS representing the ~~Acquireco Common~~ Mandalay Shares issued ~~pursuant to this Section 3.02(a), by an amount equal to~~ upon the ~~fair market value~~ settlement and cancellation of ~~the Purchaser Consideration~~such holder's Mandalay DSUs; (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 each Mandalay Share ~~Incentive Plan or Company 2016 Stock Option Plan, or applicable law): (i) each In-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 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 in respect of which Dissent Rights have been validly exercised shall be, and shall be deemed to be, ~~surrendered~~ transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to Mandalay for cancellation and Mandalay shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 4 hereof, and: (i) the name of such registered holder shall be removed from the central securities register of Mandalay as a holder of such Mandalay Shares; (ii) such Dissenting Shareholders will cease to be the registered holder of such Mandalay Shares and will cease to have any rights as Mandalay Shareholders other than the right to be paid the fair value for their Mandalay Shares as set out in Article 4 hereof; and (iii) such Mandalay Shares so transferred to Mandalay shall thereupon be cancelled by Mandalay and the central securities register of Mandalay shall be revised accordingly; (c) each Mandalay Share outstanding immediately prior to the ~~Company~~ effective time of the transfer under this Section 3.1(c) (for the avoidance of doubt, not including Mandalay Shares held immediately before the Effective Time by a Dissenting Shareholder that were transferred to Mandalay for cancellation under Section 3.1(b) or Mandalay Shares held by Alkane or Acquireco, but including any Mandalay Shares issued to holders of Mandalay DSUs pursuant to Section 3.1(a)) shall be, and shall be deemed to be, transferred by the holder thereof, without any further act or formality by such ~~Dissenting~~ Mandalay Shareholder, free and clear of all ~~Encumbrances~~liens, claims and encumbrances, to Acquireco in exchange (subject to Section 3.2) for that number of Alkane Shares equal to the Exchange Ratio for each Mandalay Share, and each ~~such Company Share so surrendered~~ of Alkane and Acquireco shall be ~~cancelled~~ deemed to have directed the Depositary to issue and ~~thereupon~~ to deliver to such holder the Consideration to which such holder is entitled pursuant to this Section 3.1(c), and upon such exchange: (i) each ~~Dissenting Shareholder~~ holder of such Mandalay Shares shall cease to be the holder thereof and to have any rights as a ~~holder of such Company Shares~~ Mandalay Shareholder other than ~~a claim against~~ the ~~Company in an amount determined~~ right to be paid the Consideration pursuant to this Section 3.1(c) and ~~payable~~ in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 Former Mandalay Shareholder 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s Mandalay's central securities register of holders of ~~Class A~~ Mandalay Shares,; (viii) Acquireco shall be entered in ~~the Company’s~~ Mandalay's central securities register of holders of ~~Class A~~ Mandalay Shares as the legal and beneficial owner of such ~~Class A~~ Mandalay Shares, free of all ~~Encumbrances~~liens, claims and encumbrances; and (viiv) each ~~such Participating~~ Former ~~Securityholder shall, subject to the provisions of Section 3.06,~~ Mandalay Shareholder shall be entered in ~~the Purchaser’s securities~~ Alkane's register of holders of ~~Purchaser~~ Alkane Shares in respect of ~~the Purchaser~~ Alkane Shares ~~payable~~ deliverable to such ~~Participating~~ Former ~~Securityholder~~ Mandalay Shareholder pursuant to this Section ~~3.02(k~~3.1(c); (ld) each ~~Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers~~ of the applicable 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 transferfollowing shall, and shall be deemed ~~to have transferred~~to, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to occur concurrently with the ~~exchange~~ transfer in ~~this~~ Section ~~3.02(l) in exchange for:~~3.1(c): (i) in consideration for the ~~case~~ issuance by Alkane (on behalf of ~~a Participating Former Securityholder validly electing~~ and for the benefit of Acquireco) of the Consideration issued to ~~receive the Cash Consideration~~Mandalay Shareholders pursuant to Section 3.1(c), ~~the Cash Consideration~~Acquireco shall, ~~subject~~ and shall be deemed to, issue to Alkane that number of Acquireco Common Shares having an aggregate fair market value equal to the ~~provisions~~ aggregate Fair Market Value of the Alkane Shares issued pursuant to Section ~~3.02(m~~3.1(c); and (ii) Acquireco shall, and shall be deemed to, add to its capital for the Acquireco Common Shares, in respect of the ~~case~~ issuance of ~~a Participating Former Securityholder validly electing~~ Acquireco Common Shares to ~~receive the Purchaser Share Consideration~~Alkane under Section 3.1(d)(i), ~~the Purchaser Share Consideration, subject~~ an amount equal to the ~~provisions~~ aggregate Fair Market Value of the Alkane Shares issued pursuant to Section ~~3.02(n~~3.1(c), and upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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 (ve) ~~each such Participating Former Securityholder shall~~all outstanding Mandalay Options, ~~subject to the provisions of Section 3.02(m)~~ Mandalay PSUs and Mandalay RSUs that have not been duly exercised 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately settled prior to the Effective Time shall ~~be cancelled~~ terminate without any further act or formality, the Mandalay Plans will terminate and none of (i) the former holders of Mandalay Options, Mandalay DSUs, Mandalay PSUs or Mandalay RSUs, (ii) the Parties or (iii) any of the respective successors or assigns of any of the foregoing, shall have any rights, liabilities or obligations in ~~exchange for a cash payment by~~ respect of the ~~Company to the holder of such Company DSU equal to the Company Sh~~Mandalay Plans.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At Each of the ~~Effective Time, unless otherwise specifically provided in this Section 3.02, the following~~ events ~~or transactions~~ set out below shall occur as part of the Arrangement and shall be deemed to occur ~~sequentially~~ in the following ~~order~~ sequence or as otherwise provided below or herein, without any further act or formality: (a) effective at twenty (20) minutes prior to the ~~Purchaser~~ Effective Time, each Broadway Common Share in respect of which a Broadway Dissenting Shareholder has exercised Dissent Rights shall ~~subscribe~~ be, and shall be deemed to be, transferred to Broadway free and clear of any Encumbrances for cancellation without any further act or formality and (i) such Dissenting Broadway Shareholders shall cease to be the holders of such Broadway Common Shares, and to have any rights as holders of Broadway Common Shares, other than the right to be paid fair value for such Broadway Common Shares as set out in Article 5 hereof; (ii) such Dissenting Broadway Shareholders’ names shall be removed as the holders of such Broadway Common Shares from the register of Broadway Common Shares maintained by or on behalf of Broadway; and (iii) Broadway shall be deemed to be the transferee and legal and beneficial holder of such Broadway Common Share (free and clear of all Encumbrances) shall be entered as the registered holder of such Broadway Common Share in the register of Broadway Common Shares maintained by or on behalf of Broadway; (b) effective at fifteen (15) minutes prior to the Effective Time, Broadway shall, in the following order, complete (i) the Consolidation; (ii) the Name Change, and (iii) the Authorized Capital Amendment, and registered Broadway Shareholders will be entitled to receive Broadway Certificates after giving effect to the Consolidation, Name Change and Authorized Capital Amendment; (c) effective at ten (10) minutes prior to the Effective Time, Broadway will transfer the Transferred Assets to Spinco and Spinco will assume the Assumed Liabilities in accordance with the Transfer Agreement in consideration for that number of ~~Acquireco~~ Spinco Common Shares (the “Spinco Distribution Shares~~, at a price of $1.00 per share,~~ ”) as is equal to the ~~quotient obtained when~~ number of Broadway Common Shares issued and outstanding immediately prior to the Effective Time (Afor greater certainty, on a pre-Consolidation basis) on such record date as determined by Broadway less the number of Broadway Common Shares transferred to Broadway pursuant to Section 2.1(a) above (for greater certainty, on a pre- Consolidation basis), and Broadway shall be added to the register of Spinco Common Shares maintained by or on behalf of Spinco, and in connection therewith, in accordance with the BCBCA, Spinco shall add to the stated capital account maintained by Spinco for the Spinco Common Shares an amount that shall equal the fair market value of the ~~Maximum Purchaser~~ Spinco Distribution Shares ~~and Maximum Cash Consideration is divided by~~ issued to Broadway; (Bd) ~~$1.00, and for greater certainty for the purposes of determining variable~~ effective at five (A5) 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 minutes prior to the ~~acquisition~~ Effective Time, the Spinco Distribution Shares will be distributed to the holders of Broadway Common Shares (other than a Dissenting Broadway Shareholder) pursuant to section 2.1(c) above and the names of the ~~Class A~~ Broadway Shareholders shall be added to (and Broadway removed from) the register of Spinco Common Shares maintained by ~~Acquireco pursuant to Section 3.02(k)~~or on behalf of Spinco, and in connection ~~with such share subscription:~~therewith; (i) the ~~Purchaser~~ Spinco Incorporation Share issued to Broadway on incorporation shall be cancelled for no consideration and as a result thereof: (A) Broadway shall cease to be, and shall be deemed to have ~~directed the Depositary~~ ceased to ~~hold, and the Depositary shall hold~~be, 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 holder of the ~~subscription price payable by~~ Spinco Incorporation Share and to have any rights as a holder of the ~~Purchaser for such Acquireco Common Shares~~Spinco Incorporation Share; and (B) Broadway shall be removed as the holder of the Spinco Incorporation Share from the register of Spinco Common Shares maintained by or on behalf of Spinco; (ii) ~~Acquireco shall~~ Broadway will be deemed to have ~~issued such fully paid and non-assessable Acquireco Common Shares to the Purchaser, and~~ reduced the stated capital ~~account maintained by Acquireco in respect~~ of the ~~Acquireco~~ Broadway Common Shares ~~shall be increased, in respect~~ with the same effect as if reduced pursuant to Section 74 of the ~~Acquireco Common Shares issued pursuant to this Section 3.02(a)~~BCBCA, by an amount equal to the fair market value of the ~~Purchaser Consideration~~Spinco Distribution Shares, and Broadway will be deemed to have effected the reduction of capital of the Broadway Common Shares by being deemed to have paid and distributed the Spinco Distribution Shares to the Broadway Shareholders, other than the Dissenting Broadway Shareholders, on the basis of one Spinco Distribution Share for every one Broadway Common Share one held immediately prior to the Effective Time (for greater certainty, on a pre-Consolidation basis) as a return of capital distribution in-kind; provided that the aggregate reduction in the stated capital for the Broadway Common Shares shall not exceed the aggregate paid-up capital (as that term is used for the purposes of the Tax Act) of the Broadway Common Shares immediately prior to the Effective Time; (be) ~~notwithstanding any vesting or exercise provisions to which a Company Option might otherwise be subject (whether by contract~~effective at the Effective Time, Delaware Subco, in accordance with the ~~terms~~ Delaware General Corporation Law, shall merge with and ~~conditions of any Award Agreement or grant,~~ into MindMed and MindMed shall continue as the ~~terms and conditions~~ surviving corporation under the laws of the ~~Company 2013 Share Incentive~~ State of Delaware in the manner set out in Appendix “II” attached to this Plan ~~or Company 2016 Stock Option Plan~~of Arrangement, ~~or applicable law):~~and each of the following will occur: (i) in accordance with the constating documents of MindMed, each Inissued and outstanding MindMed Class B Share, MindMed Class C Share and MindMed Class D Share shall automatically convert into one fully-~~the~~paid, non-~~Money Option~~ assessable share of MindMed Class A Share; (ii) each issued and outstanding MindMed Class A Share (including all MindMed Class A Shares issued on automatic conversion of the MindMed Class B Shares, MindMed Class C Shares and MindMed Class D Shares set out in subsection 2.1(e)(i) above) shall be exchanged for either (A) one (1) Broadway Common Share or (B) one/hundredth (1/100) of a Broadway Multiple Voting Share (as determined by Broadway and MindMed), and thereafter the MindMed Class A Shares shall be cancelled without any repayment in respect thereof; (iii) each issued and outstanding MindMed Warrant shall be exchanged for one Broadway Replacement Warrant; (iv) each share of common stock, par value $0.001 per share, of Delaware Subco, issued and outstanding immediately prior to the Effective ~~Time shall~~Time, ~~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~~ converted into and ~~disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for the Option Consideration~~become one validly issued, 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 (~~MindMed Common Share of MindMed after 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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 EncumbrancesMerger; and (v) ~~each such Participating Former Securityholder shall, 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~~ consideration of the ~~Purchaser~~ Broadway Common Shares, ~~if any~~Broadway Multiple Voting Shares (as the case may be) and Broadway Replacement Warrants issued pursuant to section 2.1(e)(ii) and (iii) above, ~~payable~~ respectively, MindMed (as the surviving corporation in connection with the Merger) will issue 1,000 MindMed Common Shares to ~~such Participating Former Securityholder; (m) in~~ Broadway and, other than the ~~event that (A) the sum of (I) the aggregate Combination Consideration Cash payable~~ MindMed Common Shares issued pursuant to Section ~~3.02(k~~2.1(e)(iv) ~~and (II)~~ above, such shares shall constitute the ~~Aggregate Elected Cash, exceeds (B)~~ only outstanding shares of capital stock of MindMed after 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):Merger. (if) 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion All of the ~~Purchaser Share Consideration for~~ foregoing events are intended to be completed, failing any ~~fractional Class A Share included in such remaining portion); (n) in the event that (A) the sum~~ one of ~~(I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares~~which, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 none of the ~~Existing Company Directors,~~ foregoing will occur and ~~the appointment~~ this Plan of ~~the New Company Directors,~~ Arrangement shall be ~~deemed~~ null and void and of no further force and effect unless otherwise agreed to be effective immediately following the transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh~~Parties.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At Commencing 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 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~~ Tahoe PSA outstanding immediately prior to the Effective Time ~~shall, without~~ that is held by a Tahoe PSA Holder shall immediately vest in accordance with the terms of the Tahoe PSA Plan and will be settled by Tahoe issuing to the Tahoe PSA Holder one Tahoe Share less any ~~further action by or on behalf~~ amounts withheld pursuant to Section 4.4 and the Tahoe Shares issuable in connection therewith will be issued to such Tahoe PSA Holder as fully paid and non-assessable shares in the capital of ~~any holder of such In-the- Money Option, be deemed to be fully vested and~~ Tahoe: provided that no share certificates shall be ~~transferred and disposed by the holder thereof~~ issued with respect 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 Considerationshares; (iib) each ~~Out-of-the-Money Option issued and~~ Tahoe RSA outstanding immediately prior to the Effective Time ~~shall, without any further action~~ that is held by ~~or on behalf~~ a Tahoe RSA Holder shall immediately vest in accordance with the terms 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~~ Tahoe Long Term Incentive 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~~ Tahoe DSA outstanding immediately prior to the Effective Time ~~shall, without~~ that is held by a Tahoe DSA Holder shall immediately vest in accordance with the terms of the Tahoe Long Term Incentive Plan and will be settled by Tahoe issuing to the Tahoe DSA Holder one Tahoe Share less any ~~further action by or on behalf~~ amounts withheld pursuant to Section 4.4 and the Tahoe Shares issuable in connection therewith will be issued to such Tahoe DSA Holder as fully paid and non-assessable shares in the capital of ~~any holder of such Company RSU, be deemed to be fully vested and~~ Tahoe: provided that no share certificates 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) issued 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 cancelledshares; (d) each Tahoe SAR outstanding immediately prior to the ~~Company Option Plans~~ Effective Time that is held by a Tahoe SAR Holder and all rights in respect thereof shall be ~~terminated~~cancelled and terminated without any payment in respect thereof; (e) each ~~Company Share held by a~~ Dissenting Shareholder shall ~~be, and shall be deemed~~ transfer to ~~be, surrendered to~~ Pan American all of the ~~Company by the holder thereof~~Dissent Shares held, without any further act or formality ~~by such Dissenting Shareholder, free and clear of all Encumbrances~~on its part, and ~~each such Company Share~~ in consideration therefor, Pan American shall issue to the Dissenting Shareholder a debt-claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so ~~surrendered shall be cancelled and thereupon each~~ transferred (i) the Dissenting Shareholder shall cease to ~~have any rights as a~~ be the holder ~~of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and~~ thereof, (ii) the name of ~~such~~ the Dissenting Shareholder shall be removed from the ~~securities~~ register maintained by or on behalf of ~~holders~~ Tahoe in respect of ~~Company~~ the Tahoe Shares;, (iii) the Dissenting 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 Pan American shall be added to the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof; and (f) ~~concurrently with the surrender and cancellation of Company~~ each Tahoe Shareholder shall transfer to Pan American each whole Tahoe Share held (other than any Tahoe Shares held by Pan American immediately before the Effective Time or acquired by Pan American from a Dissenting ~~Shareholders~~ Shareholder under Section 3.1(e), but including, for greater certainty, any Tahoe Shares held or issued pursuant to Section ~~3.02(e~~3.1(a), 3.1(b) or 3.1(c)) in exchange for (A) one CVR and (B), (i) in the case of a Tahoe Share for which the Cash Election was made under Section 3.2(a)(i), the ~~stated capital account maintained by~~ Cash Consideration, or (ii) in the ~~Company~~ case of a Tahoe Share for which the Share Election was made under Section 3.2(a)(ii) or deemed to have been made under Section 3.2(b) or 5.1(b), the Share Consideration, in each case subject to proration in accordance with Section 3.3, and in respect of the ~~Company~~ Tahoe Shares so transferred (iii) the Tahoe Shareholder shall cease to be the holder thereof, (iv) the name of the Tahoe Shareholder shall be ~~reduced,~~ removed from the register maintained by or on behalf of Tahoe in respect of the ~~Company Shares cancelled pursuant~~ Tahoe Shares, (v) the Tahoe Shareholder shall be deemed to ~~Section 3.02(e)~~have executed and delivered all consents, ~~by an amount equal~~ releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and (vi) the name of Pan American shall be added to the ~~product obtained when~~ register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof; (g) each Tahoe Option outstanding immediately prior to the Effective Time (whether vested or unvested) will be exchanged for a Replacement Option to acquire from Pan American such number of Pan American Shares as is equal to: (A) the ~~stated capital~~ number of ~~all the issued and outstanding Company~~ Tahoe Shares that were issuable upon exercise of such Tahoe Option immediately prior to the ~~step in Section 3.02(e)~~Effective Time, is multiplied by (B) ~~a fraction~~the Exchange Ratio, rounded down to the ~~numerator of which is the~~ nearest whole number of ~~Company Shares surrendered and cancelled pursuant~~ Pan American Shares, at an exercise price per Pan American Share equal to ~~Section 3.02(e), and~~ the ~~denominator of~~ quotient determined by dividing: (X) the exercise price per Tahoe Share at which ~~is the number of issued and outstanding Company Shares~~ such Tahoe Option was exercisable immediately prior to the ~~step~~ Effective Time, by (Y) the Exchange Ratio, rounded up to the nearest whole cent. Except as set out above, the terms of each Replacement Option shall be the same as the terms of the Tahoe Option exchanged therefor pursuant to 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. Therefore, in ~~Section 3.02(e)~~the event that the Replacement Option In-The-Money Amount in respect of a Tahoe Option would otherwise exceed the Tahoe Option In-The-Money Amount in respect of the Replacement Option, the number of Pan American 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 Tahoe Option In-The- Money Amount in respect of the Tahoe Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged; (gh) each Tahoe Share held by Pan American, including the ~~Company~~ Tahoe Shares acquired pursuant to Section 3.1(f) hereof, shall ~~transfer all of its entire legal~~ be transferred to Subco and ~~beneficial right, title and interest in and to the Spinco Property to Spinco~~ in consideration ~~for the issuance by Spinco~~ therefor Subco shall issue to ~~the Company of that number of~~ Pan American one fully paid and non-assessable ~~Spinco Shares (the “Distribution Spinco Shares”) equal to the number~~ common share of ~~Company Shares issued and outstanding immediately prior to the transfer in this Section 3.02(g) (~~Subco for ~~the avoidance of doubt~~each Tahoe Share so transferred, 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:and (i) the ~~notice~~ name of ~~articles and articles of the Company~~ Pan American shall be ~~amended to create~~ removed from the central securities register as a ~~new class~~ holder of ~~shares without par value, of which an unlimited number may be issued and which shall be designated the “Class A~~ Tahoe 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~~ Subco shall be recorded as the ~~reorganization~~ registered holder of the ~~Company’s share capital pursuant to this Section 3.02(h) (including, without limitation, the Company~~ Tahoe Shares ~~issued to former holders of In-the-Money Options~~ so transferred 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~~ deemed to be the ~~Company, free~~ legal 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~~ beneficial owner 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 Tahoe Shares; and (Diii) ~~each holder of such exchanged Company Shares shall be entered in Spinco’s register of holders of Spinco Shares in respect~~ the amount added to the capital 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~~ Subco common shares will be ~~reduced by an amount~~ equal to the ~~stated capital~~ lesser 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~~ paid up capital (as such term is defined in the ~~stated capital account~~ Tax Act) of the ~~Company~~ Tahoe Shares ~~is reduced pursuant to this Section 3.02(h)(iii), exceeds~~ so transferred and (B) the fair market value of the ~~Distribution Spinco~~ Tahoe Shares ~~transferred to the former holders of Company Shares pursuant to Section 3.02(h)(ii)~~so transferred; (i) the ~~Initial Spinco Share held by~~ capital of the ~~Company~~ Tahoe Shares shall be ~~cancelled~~ reduced to US$1.00 without any repayment ~~thereon, and the Company shall be removed from the Spinco register~~ of ~~holders of Spinco Shares~~capital in respect thereof; (j) Tahoe and Subco shall merge (the “Merger”) to form one corporate entity (the “Merged Company”) with the same effect as if they had amalgamated under Section 269 of the BCBCA except that the separate legal existence of Subco shall not cease and Subco shall survive the merger, and Pan American shall receive on the Merger one common share of the Merged Company in exchange for each Subco common share previously held and all of the issued and outstanding ~~Spinco~~ Tahoe 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 Spinco Share Consolidation shall will be cancelled without ~~payment or compensation therefor, and upon such Spinco Share Consolidation the register~~ any repayment of ~~holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation~~capital in respect thereof; (k) ~~each Participating Former Securityholder receiving Class A Shares pursuant to~~ without limiting the generality of Section ~~3.02(h)(ii~~3.1(j), the separate legal existence of Tahoe shall cease without Tahoe being liquidated or wound up; Tahoe and Subco will continue as one company; and the properties and liabilities of Tahoe will become the properties and liabilities of Subco; and (l) ~~who:~~from and after the Effective Date, at the time of the step contemplated in Section 3.1(j): (i) ~~duly~~ Subco as the Merged Company will own and ~~validly completes~~ hold all property of Subco and ~~delivers~~ will own and hold all property of Tahoe and, without limiting the ~~applicable Election Form(s) in accordance with Section 3.03~~ provisions hereof, all rights of creditors or others will be unimpaired by such merger, and ~~Section 3.04 electing~~ all liabilities and obligations of Tahoe and Subco, whether arising by contract or otherwise, may be enforced against Subco to ~~receive~~ the ~~Combination Consideration in respect of all of~~ same extent as if such ~~Participating Former Securityholder’s Company Shares~~obligations had been incurred or contracted by it; (ii) ~~has not completed and delivered~~ Subco as the ~~applicable Election Form(s) by the Election Deadline or who has otherwise failed~~ Merged Company will continue to ~~make a valid election to receive the Cash Consideration or the Purchaser Share Consideration is respect of~~ be liable for all of ~~such Participating Former Securityholder’s Company Shares; or~~the liabilities and obligations of Tahoe and Subco; (iii) ~~exercises Dissent Rights~~ all rights, contracts, permits and ~~is ultimately not entitled~~interests of Tahoe and Subco will continue as rights, contracts, permits and interests of Subco as the Merged Company as if Tahoe and Subco continued and, for greater certainty, the merger will not constitute a transfer or assignment of the rights or obligations of either of Tahoe or Subco under any ~~reason~~such rights, ~~to be paid fair value for its Company Shares~~contracts, ~~shall transfer,~~ permits and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange:interests; (iv) ~~each such Participating Former Securityholder shall~~ any existing cause of action, claim or liability to prosecution will be ~~removed from the Company’s securities register of holders of Class A Shares,~~unaffected; (v) ~~Acquireco shall~~ a civil, criminal or administrative action or proceeding pending by or against either Subco or Tahoe may be ~~entered in~~ continued by or against the Merged Company~~’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrances; and~~; (vi) ~~each such Participating Former Securityholder shall~~a conviction against, ~~subject to~~ or ruling, order or judgment in favour of or against either Subco or Tahoe may be enforced by or against 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)Merged Company; (lvii) ~~each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers~~ the ~~applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive either~~ name of the ~~Cash Consideration or the Purchaser Share Consideration in respect of all of such Participating Former Securityholder’s~~ Merged Company ~~Shares shall transfer, and~~ shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the ~~case~~ name of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 SecurityholderSubco; (~~m) in the event that (A~~viii) the ~~sum~~ Merged Company shall be authorized to issue an unlimited number 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the Purchaser Share Consideration for any fractional Class A Share included in such remaining portion)common shares without par value; (nix) the Notice of Articles and Articles of the Merged Company shall be substantially in the ~~event that (A)~~ form of the ~~sum~~ Subco Notice of ~~(I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k)~~ Articles and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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)Articles; (ox) the ~~resignations~~ first annual general meeting of the ~~Existing~~ Merged Company ~~Directors, and~~ will be held within 18 months from the ~~appointment of the New Company Directors, shall be deemed to be effective immediately following the transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l)~~Effective Date; (pxi) ~~upon~~ the ~~resignation~~ registered office of the ~~Existing~~ Merged Company ~~Directors becoming effective, each~~ shall be the registered office of Subco; (xii) the first directors of the Merged Company ~~DSU outstanding~~ following the Merger shall be the individuals who were directors of Subco immediately prior to the Effective ~~Time~~ Time; (xiii) the first officers of the Merged Company following the Merger shall be ~~cancelled in exchange for a cash payment by~~ the ~~Company~~ individuals, if any, who were officers of Subco immediately prior to the ~~holder~~ Effective Time; (xiv) the aggregate capital of ~~such~~ the common shares of the Merged Company ~~DSU~~ will be an amount equal to the ~~Company Sh~~paid up capital, as that term is defined in the Tax Act, attributable to the shares of Subco immediately prior to the Merger; and (xv) the Merger shall not constitute an acquisition of property of Tahoe or Subco by the other pursuant to the purchase of property or as a result of the distribution or winding-up of Tahoe or Subco, it being expressly provided that the events 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 Effective Date.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At Section 3.1 The Arrangement Commencing at the Effective Time, ~~unless otherwise specifically provided~~ each of the events set out below shall occur and be deemed to occur in ~~this Section 3.02,~~ the following ~~events~~ sequence, in each case without any further authorization, act or ~~transactions~~ formality on the part of any Person: (1) at the Effective Time: (a) each Dissenting Share held by an Aphria Dissenting Shareholder who is ultimately determined to be entitled to be paid the fair value of the Dissenting Shares in respect of which such Aphria Dissenting Shareholder has exercised Dissent Rights shall ~~occur~~ be, and shall be deemed to ~~occur sequentially in~~ be, transferred by the ~~following order~~ holder thereof, without any further act or ~~formality: (a) the Purchaser shall subscribe for that number of Acquireco Common Shares~~formality on its part, ~~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 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 Aphria (free and clear of all ~~Encumbrances~~Liens) 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 Aphria Dissenting Shareholder will cease to be the holder ~~of such Company Option, and shall cease~~ thereof or to have any rights as a holder in respect of such ~~Company Option under~~ Dissenting Share other than the ~~applicable Company Option Plan,~~right to be paid the fair value of such Dissenting Share determined and payable in accordance with Article 4; and (Bb) ~~such holder’s~~ at the same time as the step in Section 3.1(b)(i) occurs, the name of each Aphria Dissenting Shareholder shall be removed from the register of ~~Company Options, and (C) all option agreements, Award Agreements, grants~~ the Aphria Shares and ~~similar instruments relating thereto~~ such Dissenting Shares shall be ~~cancelled~~automatically cancelled as of the Effective Date; (c2) ~~notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract,~~ at the ~~terms and conditions of any Award Agreement or grant,~~ same time as the ~~terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):~~steps in Section 3.1(a) occur: (ia) each ~~Company RSU issued and~~ Aphria Share outstanding immediately prior to the Effective Time ~~shall, without any further action~~ (other than Dissenting Shares held by ~~or on behalf of any holder of such Company RSU, be deemed~~ Aphria Dissenting Shareholders who are ultimately determined 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~~ be paid the ~~RSU Consideration; (ii)~~ fair value of their Dissenting Shares as determined in accordance with ~~respect to each Company RSU: (A) the holder thereof shall cease to be the holder of such Company RSU~~Article 4), 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, ~~surrendered~~ transferred by the holder thereof to Tilray (free and clear of all Liens) in exchange for issuance of the Share Consideration; (b) at the same time as the step in Section 3.1(b)(i) occurs, the Amended Tilray Omnibus Plan becomes effective and the holder of each Aphria Share transferred to Tilray pursuant to Section 3.1(b)(i) shall cease to be the holder thereof, or to have any rights as a holder thereof other than the right to receive the Share Consideration issuable in respect of each Aphria Share held pursuant to Section 3.1(b)(i) and shall be removed from the register of the Aphria Shares and legal and beneficial title to each such Aphria Share shall be transferred to Tilray and Tilray will be and be deemed to be the transferee and legal and beneficial owner of such Aphria Share (free and clear of any Liens) and will be entered in the central securities register of Aphria as the sole holder thereof; and (c) Tilray will be the holder of all of the outstanding Aphria Shares; (3) immediately after the steps in Section 3.1(b) occur: (a) each Aphria Option, to the ~~Company~~ extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder,~~ and free and clear of all ~~Encumbrances~~Liens, ~~and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease~~ for a stock option (a “Replacement Option”) to ~~have any rights as~~ purchase a ~~holder~~ number of ~~such Company~~ Tilray Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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)~~ of the ~~stated capital~~ Exchange Ratio, rounded down to two decimal places, multiplied by the number of ~~all the issued and outstanding Company~~ Aphria Shares issuable on exercise of such Aphria Option immediately prior to the ~~step in Section 3.02(e), is multiplied by~~ Effective Time (~~B) a fraction,~~ rounded down to the ~~numerator of which is the~~ next whole number of ~~Company Shares surrendered and cancelled pursuant~~ Tilray Shares) for an exercise price per Tilray Share (rounded up to ~~Section 3.02(e), and~~ the ~~denominator~~ nearest whole cent) equal to the exercise price per share of ~~which is the number of issued and outstanding Company Shares~~ such Aphria Option immediately prior to the ~~step~~ Effective Time divided by the Exchange Ratio, rounded down to two decimal places, and the Aphria Options shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Options shall be the same as the terms and conditions of the Aphria Option for which it is exchanged except that such Replacement Options shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria Options by Aphria Securityholders resident in Canada who acquired Aphria Options by virtue of their employment. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option held by such an Aphria Securityholder 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 Aphria Option immediately before the exchange. For any Aphria Option that is intended to qualify as an “incentive stock option” within the meaning of Section ~~3.02(e~~422 of the Code, it is intended that such exchange will comply with Treasury Regulation Section 1.424(1)(a). For any Aphria Option that is a nonqualified option held by a US taxpayer, it is intended that such exchange will be implemented in a manner intended comply with Section 409A of the Code. Any document previously evidencing the Aphria Option shall thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Options shall be issued; (gb) ~~the Company shall transfer all of its entire legal and beneficial right~~each Aphria RSU, ~~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 extent it has not been exercised ~~Dissent Rights), all in accordance with the terms~~ as 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 valueEffective Date, 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 will 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquirecothereof, without any further act or formality ~~by such Participating Former Securityholder,~~ and free and clear of all ~~Encumbrances~~Liens, ~~each Class A Share held~~ for an award of restricted share units granted by Tilray (the “Replacement RSUs”) in respect of a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares underlying such ~~Participating Former Securityholder~~ Aphria RSUs immediately prior to the ~~exchange in this Section 3.02(k) in exchange for~~ Effective Time (rounded down to the ~~Combination Consideration Cash~~ next whole number of Tilray Shares), and the ~~Combination Consideration Purchaser Shares~~Aphria RSUs shall thereupon be cancelled. The term to expiry, conditions to and ~~upon such exchange: (iv)~~ manner of receipt and other terms and conditions of each ~~such Participating Former Securityholder~~ of the Replacement RSUs shall be ~~removed from~~ the ~~Company’s securities register~~ same as the terms and conditions of ~~holders of Class A Shares, (v) Acquireco~~ the Aphria RSU for which it is exchanged except that such Replacement RSU shall be ~~entered~~ governed by the terms and conditions of the Tilray Plan and, in the ~~Company’s securities register~~ event of ~~holders~~ any inconsistency or conflict the Tilray Plan shall govern. Any document previously evidencing the Aphria RSUs shall thereafter evidence and be deemed to evidence such Replacement RSUs and no certificates evidencing the Replacement RSUs shall be issued. It is intended that subsection 7(1.4) of ~~Class A Shares as~~ the ~~legal and beneficial owner of such Class A Shares, free of all Encumbrances; and (vi) each such Participating Former Securityholder shall, subject~~ Tax Act apply to the ~~provisions~~ exchange of ~~Section 3.06, be entered~~ Aphria RSUs by Aphria Securityholders resident in ~~the Purchaser’s securities register~~ Canada who acquired Aphria RSUs by virtue of ~~holders of Purchaser Shares in respect of the Purchaser Shares payable to such Participating Former Securityholder pursuant to this Section 3.02(k)~~their employment; (lc) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers the applicable 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 transfer, and shall be deemed to have transferredAphria DSU, to ~~Acquireco~~the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality ~~by such Participating Former Securityholder,~~ and free and clear of all ~~Encumbrances~~Liens, ~~each Class A Share held~~ for an award of deferred share units granted by Tilray (the “Replacement DSUs”) in respect of a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares underlying such ~~Participating Former Securityholder~~ Aphria DSUs immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares), and the Aphria DSUs shall thereupon be cancelled. The term to expiry, conditions to and manner of receipt and other terms and conditions of each of the Replacement DSUs shall be the same as the terms and conditions of the Aphria DSU for which it is exchanged except that such Replacement DSU shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. Any document previously evidencing the Aphria DSUs shall thereafter evidence and be deemed to evidence such Replacement DSUs and no certificates evidencing the Replacement DSUs shall be issued. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria DSUs by Aphria Securityholders resident in ~~this Section 3.02(l) in exchange for:~~Canada who acquired Aphria DSUs by virtue of their employment ; (id) each 2016 Aphria Warrant, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a warrant (a “Replacement Warrant”) to purchase a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares issuable on exercise of such Aphria Warrant immediately prior to the Effective Time for an exercise price per Tilray Share equal to the exercise price per share of such Aphria Warrant immediately prior to the Effective Time divided by the Exchange Ratio, rounded down to two decimal places, and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in ~~the case~~ a Replacement Warrant being exercisable for a fraction of a ~~Participating Former Securityholder validly electing~~ Tilray Share, then the number of Tilray Shares subject to ~~receive~~ such Replacement Warrant shall be rounded down to the ~~Cash Consideration~~next whole number of Tilray Shares) and the 2016 Aphria Warrants shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Warrants shall be the same as the terms and conditions of the 2016 Aphria Warrant for which it is exchanged. Any document previously evidencing a 2016 Aphria Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued; (e) other than the 2016 Aphria Warrants, each Aphria Warrant shall, without any further action on the part of any holder of Aphria Warrant, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the Aphria Warrant Indenture, the ~~Cash Consideration,~~ terms of the Aphria Warrants shall be amended so as to substitute for the Aphria Shares subject to such Aphria Warrants such number of Tilray Shares equal to (A) the number of Aphria Shares subject to the ~~provisions~~ Aphria Warrants immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places; (f) the Aphria Omnibus Incentive Plan and the Aphria Warrant Indenture shall be terminated and, for greater certainty, all rights to receive any securities of ~~Section 3.02(m)~~the Aphria formerly held by Aphria Securityholders shall be extinguished; and (ii4) ~~in the case of a Participating Former Securityholder validly electing to receive the Purchaser Share Consideration~~no person shall have any rights, the Purchaser Share Consideration, subject to the provisions of Section 3.02(n), and upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, subject to the provisions of Section 3.02(m) liabilities or ~~Section 3.02(n), as applicable, and Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares~~ other obligations in respect of the ~~Purchaser~~ share capital of Aphria other than Tilray and each holder of Aphria Shares, ~~if any~~Aphria Options, 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 CashAphria RSUs, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU Aphria DSUs or 2016 Aphria Warrants outstanding immediately prior to the Effective ~~Time~~ Time, with respect to each step set out above applicable to such holder, shall be ~~cancelled~~ deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer all Aphria Shares, Aphria Options, Aphria RSUs, Aphria DSUs or 2016 Aphria Warrants held by such holder in ~~exchange for a cash payment by the Company to the holder of~~ accordance with such ~~Company DSU equal to the Company Sh~~step.

Appears in 1 contract

Sources: Arrangement Agreement (Aphria Inc.)

Arrangement. At Commencing 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 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 each Alexco In-the-Money Option outstanding immediately prior to the ~~acquisition~~ Effective Time (whether vested or unvested) shall immediately and unconditionally vest, notwithstanding the terms of the ~~Class A Shares~~ Alexco Option Plan and shall, without any further action by ~~Acquireco pursuant to Section 3.02(k)~~or on behalf of any Alexco Optionholder, ~~and in connection with such share subscription: (i) the Purchaser shall~~ be deemed to ~~have directed~~ be assigned and transferred by such Alexco Optionholder (free and clear of all Liens) to Alexco for cancellation in exchange for the ~~Depositary~~ Option Consideration. The Alexco Shares comprising the Option Consideration will be issued 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 Alexco Optionholder as fully paid and non-assessable ~~Acquireco Common Shares to~~ shares in 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 ConsiderationAlexco; (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 InAlexco 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 Alexco Optionholder, be cancelled without any payment in respect thereof; (i) each Alexco Optionholder shall cease to be a holder of such ~~In-the- Money Option~~Alexco Options, 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~~ such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco Options shall be terminated and shall be of no further force and effect; (d) each Alexco DSU outstanding immediately prior to the Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the Alexco DSU Plan and shall, without any further action by or on behalf of ~~any holder of such Out-of-the-Money Option~~the Alexco DSU Holder thereof, be ~~cancelled without any~~ deemed to be assigned and transferred by such Alexco DSU Holder to Alexco (free and clear of all Liens) in exchange for, as determined by the board of directors of Alexco in accordance with the Alexco DSU Plan, either a cash payment ~~therefor~~or the number of Alexco Shares equal to the number of Alexco Shares a holder is entitled to under each Alexco DSU. Any such Alexco Shares will be issued to such Alexco DSU Holder as fully paid and non-assessable shares in the capital of Alexco; provided that no share certificates shall be issued with respect to such shares; (~~iii~~e) ~~with respect to~~ each ~~Company Option: (A) the holder thereof~~ Alexco DSU Holder shall cease to be ~~the~~ a holder of such ~~Company Option~~Alexco DSUs, ~~and shall cease to have any rights as a holder in respect of such Company Option under the applicable Company Option Plan,~~ (Bii) each such holder’s name shall be removed from ~~the~~ each applicable register ~~of Company Options~~maintained by Alexco, ~~and~~ and (Ciii) all ~~option agreements, Award Agreements, grants and similar instruments~~ agreements relating ~~thereto~~ to the Alexco DSUs shall be ~~cancelled~~terminated and shall be of no further force and effect; (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): (if) each ~~Company~~ Alexco RSU ~~issued and~~ outstanding immediately prior to the Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the Alexco RSU Plan and shall, without any further action by or on behalf of ~~any holder of such Company RSU~~the Alexco RSU Holder thereof, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by ~~the holder thereof~~ such Alexco RSU Holder to ~~the Company~~ Alexco (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled~~ in exchange for the ~~applicable~~ number of Alexco Shares equal to the number of Alexco Shares a holder is entitled to under each Alexco RSU ~~Consideration,~~ less that number of Alexco Shares with a fair market value equal to the amount of required withholding tax rounded up to the nearest Alexco Share. The Alexco Shares will be issued to such Alexco RSU Holder as fully paid and non-assessable shares in the ~~holder~~ capital of ~~such Company RSU shall become the holder of the Company Shares comprising such RSU Consideration and the central securities register of the Company~~ Alexco; provided that no share certificates shall be ~~revised accordingly, but the holder of~~ issued with respect to such ~~RSU Consideration shall not be entitled to receive a share certificate or other document representing the RSU Consideration~~shares; (iii) ~~with respect to~~ each ~~Company RSU: (A) the holder thereof~~ Alexco RSU Holder shall cease to be ~~the~~ a holder of such ~~Company RSU~~Alexco RSUs, ~~and shall cease to have any rights as a holder in respect of such Company RSU under the applicable Company Option Plan,~~ (Bii) each such holder’s name shall be removed from ~~the~~ each applicable register ~~of Company RSUs~~maintained by Alexco, ~~and~~ and (Ciii) all ~~Award Agreements, grants~~ agreements relating to the Alexco RSUs shall be terminated and ~~similar instruments relating thereto will~~ shall be ~~cancelled~~of no further force and effect; (~~d) the Company Option Plans shall be terminated; (e~~h) each ~~Company Share held by a~~ Dissenting Shareholder shall ~~be,~~ transfer to Hecla all of the Dissent Shares held (free and ~~shall be deemed to be, surrendered to the Company by the holder thereof~~clear of all Liens), without any further act or formality ~~by such Dissenting Shareholder, free and clear of all Encumbrances~~on its part, and ~~each such Company Share~~ in consideration therefor, Hecla shall issue to the Dissenting Shareholder a debt- claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so ~~surrendered shall be cancelled and thereupon each~~ transferred (i) the Dissenting Shareholder shall cease to ~~have any rights as a~~ be the holder ~~of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and~~ thereof, (ii) the name of ~~such~~ the Dissenting Shareholder shall be removed from the ~~securities~~ register ~~of holders of 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~~ or on behalf of Alexco in respect of the ~~Company Shares~~ Alexco Shares, (iii) the Dissenting Shareholder shall be ~~reduced~~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 Hecla shall be added to the register maintained by or on behalf of Alexco in respect of the ~~Company~~ Alexco Shares ~~cancelled~~ as the holder thereof; and (i) each Alexco Shareholder shall transfer to Hecla (free and clear of all Liens) each whole Alexco Share held (other than any Alexco Shares held by Hecla immediately before the Effective Time or acquired by Hecla from a Dissenting Shareholder under Section 3.1(h)), including the Alexco Shares issued pursuant to Section ~~3.02(e), by an amount equal to the product obtained when (A~~3.1(d) ~~the stated capital of all the issued and outstanding Company Shares immediately prior to the step~~ or Section 3.1(f) 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 exchange 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) (Consideration for ~~the avoidance of doubt~~each Alexco Share held, 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:and (i) the ~~notice of articles and articles of~~ Alexco Shareholder shall cease to be 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;holder thereof, (ii) ~~each Company Share issued and outstanding immediately before~~ the ~~reorganization~~ name 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 Alexco Shareholder shall be removed from the ~~Company’s~~ register maintained by or on behalf 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~~ Alexco 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~~ Alexco 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~~ Alexco Shareholder shall be ~~reduced by an amount equal~~ deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the ~~stated capital~~ transfer thereof, and (iv) the name of ~~the Company Shares immediately prior to the reorganization in Section 3.02(h), and there~~ Hecla shall be added to the ~~stated capital account~~ register maintained by ~~the Company~~ or on behalf of Alexco in respect of the ~~Class A Shares,~~ Alexco Shares as the holder thereof; it being expressly provided that the events provided for 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 3.1 will be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to occur on the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 shallEffective Date, notwithstanding ~~Section 3.02(l)(i): (i) only~~ that certain procedures related thereto may not 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to completed until after the Effective ~~Time shall be cancelled in exchange for a cash payment by the Company to the holder of such Company DSU equal to the Company Sh~~Date.

Appears in 1 contract

Sources: Arrangement Agreement (Hecla Mining Co/De/)

Arrangement. At Commencing 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 ~~order~~ sequence without any further act or formality: (a) ~~the Purchaser shall subscribe for that number of Acquireco Common Shares, at~~ each Lexam VG Gold Share held by 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 Lexam VG Gold Dissenting Shareholder 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 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, surrendered to the Company by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder~~on its part, free and clear of all ~~Encumbrances~~liens, claims and ~~each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease~~ encumbrances, to ~~have any rights as a holder of such Company Shares other than~~ ▇▇▇▇▇▇ Mining, in consideration for a claim against ~~the Company~~ ▇▇▇▇▇▇ Mining in an amount determined and payable in accordance with Article 4 4, and the name of such ~~Dissenting Shareholder shall~~ holder will be removed from the central securities register as a holder of ~~holders~~ Lexam VG Gold Shares and ▇▇▇▇▇▇ Mining shall be recorded as the registered holder of ~~Company~~ the Lexam VG Gold Shares so transferred and shall be deemed to be the legal owner of such Lexam VG Gold Shares; (fb) ~~concurrently with~~ each Lexam VG Gold Share outstanding immediately prior to the ~~surrender~~ Effective Time held by a Lexam VG Gold Shareholder (other than any Excess Controlled VG Gold Shares and ~~cancellation of Company~~ other than any Lexam VG Gold Shares held by ▇▇▇▇▇▇ Mining or any Lexam VG Gold Dissenting ~~Shareholders pursuant~~ Shareholder) shall be transferred by the holder thereof to ~~Section 3.02(e)~~▇▇▇▇▇▇ Mining in exchange for the Arrangement Consideration, and ▇▇▇▇▇▇ Mining shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances, subject to Article 5; (c) each Excess Controlled VG Gold Share outstanding immediately prior to the Effective Time shall be transferred by the holder thereof to ▇▇▇▇▇▇ Mining: (i) if the ▇▇▇▇▇▇ Mining Meeting occurs prior to the Effective Time and the ▇▇▇▇▇▇ Mining Shareholder Approval is obtained, in exchange for the Arrangement Consideration; (ii) if the ▇▇▇▇▇▇ Mining Meeting occurs prior to the Effective Time and the ▇▇▇▇▇▇ Mining Shareholder Approval is not obtained, in exchange for an amount in cash equal to the Arrangement Consideration Factor multiplied by the closing price of ▇▇▇▇▇▇ Mining Shares on the NYSE on the last trading day prior to the Effective Time; or (iii) if the ▇▇▇▇▇▇ Mining Meeting has not occurred prior to the Effective Time, in exchange for the fraction of one (1) Subscription Receipt equal to one (1) multiplied by the Arrangement Consideration Factor; and in each case ▇▇▇▇▇▇ Mining shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances, subject to Article 5; (d) each Lexam VG Gold Option outstanding immediately prior to the Effective Time, whether or not vested, shall be exchanged by the holder thereof, without any further act or formality and free and clear of any liens, claims or encumbrances, for an option (each a “Replacement ▇▇▇▇▇▇ Mining Option”) to acquire from ▇▇▇▇▇▇ Mining, subject to adjustment as provided herein, the ~~stated capital account maintained by the Company in respect~~ number of ~~the Company~~ ▇▇▇▇▇▇ Mining 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~~ number of ~~all the issued and outstanding Company~~ Lexam VG Gold Shares subject to such Lexam VG Gold Option immediately prior to the ~~step in Section 3.02(e)~~Effective Time, is multiplied by (B) the Arrangement Consideration Factor, provided that if the foregoing would result in the issuance of a ~~fraction~~fraction of an ▇▇▇▇▇▇ Mining Share on any particular exercise of Replacement ▇▇▇▇▇▇ Mining Options, ~~the numerator of which is~~ then the number of ~~Company~~ ▇▇▇▇▇▇ Mining Shares ~~surrendered and cancelled pursuant~~ otherwise issuable shall be rounded down to ~~Section 3.02(e)~~the nearest whole number of ▇▇▇▇▇▇ Mining Shares. The exercise price per ▇▇▇▇▇▇ Mining Share subject to a Replacement ▇▇▇▇▇▇ Mining Option shall be an amount in Canadian dollars equal to the quotient obtained when (A) the exercise price in Canadian dollars per Lexam VG Gold Share subject to each such Lexam VG Gold Option immediately before the Effective Time is divided by (B) the Arrangement Consideration Factor, ~~and~~ provided that if the ~~denominator~~ foregoing would result in the aggregate exercise price of a Replacement ▇▇▇▇▇▇ Mining Option being a fraction of a whole cent, then the exercise price of the Replacement ▇▇▇▇▇▇ Mining Option 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 Lexam VG Gold Option for a Replacement ▇▇▇▇▇▇ Mining Option. Therefore, in the event that the Replacement ▇▇▇▇▇▇ Mining Option In-The-Money Amount in respect of a Replacement ▇▇▇▇▇▇ Mining Option exceeds the Lexam VG Gold Option In-The-Money Amount in respect of the Lexam VG Gold Option for which it is exchanged, the number of ~~issued~~ ▇▇▇▇▇▇ Mining Shares which may be acquired on exercise of the Replacement ▇▇▇▇▇▇ Mining Option at and ~~outstanding Company Shares immediately prior~~ after the Effective Time will be adjusted accordingly, with effect at and from the Effective Time, to ensure that 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 nonReplacement ▇▇▇▇▇▇ Mining Option In-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 The-Money Amount in respect of ~~which Dissenting Shareholders have exercised Dissent Rights~~the Replacement ▇▇▇▇▇▇ Mining Option does not exceed the Lexam VG Gold Option In-The-Money Amount in respect of the Lexam VG Gold Option and the ratio of the amount payable to acquire such ▇▇▇▇▇▇ Mining Shares to the value of such shares to be acquired shall be unchanged. Except as set out above, the term to expiry, conditions to and manner of exercise (except that any Replacement ▇▇▇▇▇▇ Mining Option shall be exercisable at the offices of ▇▇▇▇▇▇ Mining), ~~all in accordance with~~ vesting requirements and other terms and conditions of each of the Replacement ▇▇▇▇▇▇ Mining Options shall be the same as the terms and conditions of the Lexam VG Gold Option for which it is exchanged and, for greater certainty, each Replacement ▇▇▇▇▇▇ Mining Option shall continue to be governed by and be subject to 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 Lexam VG Gold Stock Option 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~~ agreement evidencing the grant 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 Lexam VG Gold Option with respect ~~of the Class A Shares issued~~ to such ~~holder; (C) the Company~~ terms and conditions. Any document previously evidencing a Lexam VG Gold Option 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), thereafter evidence 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to ~~have transferred, to Acquireco, without any further act or formality by~~ evidence such ~~Participating Former Securityholder, free~~ Replacement ▇▇▇▇▇▇ Mining Option and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder no certificates evidencing Replacement ▇▇▇▇▇▇ Mining Options shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shissued.

Appears in 1 contract

Sources: Arrangement Agreement (McEwen Mining Inc.)

Arrangement. At Commencing 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 order without any further act or formality: (a) each of the outstanding shares of Company Common Stock that is not held by a holder who has exercised its Dissent Rights and is ultimately entitled to be 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 Purchaser in exchange for US $1.05 per share of Company Common Stock, payable 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 ~~subscribe for that~~ the number of ~~Acquireco~~ shares of Company Common ~~Shares,~~ Stock outstanding at ~~a price~~ the Effective Time exceed 15,235,903 shares 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)Company Common Stock, and in ~~connection~~ no event shall the aggregate Cash Consideration exceed US $16,000,000; (b) each share of Company Common Stock in respect of which Dissent Rights have been exercised shall be and shall be deemed to be transferred to the Purchaser with ~~such~~ the Purchaser and the Parent being jointly and severally obligated to pay therefor the amount determined in accordance with Article 3 of this Plan of Arrangement; (c) with respect to each share ~~subscription:~~of Company Common Stock acquired or transferred in accordance with Section 2.2(a) or Section 2.2(b): (i) the ~~Purchaser~~ 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 Company Common Stock; (ii) the certificate representing such share of Company Common Stock 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 been canceled as of the ~~subscription price payable by the Purchaser for such Acquireco Common Shares; and~~Effective Time; (iiiii) ~~Acquireco~~ the holder thereof shall be deemed to have ~~issued~~ executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to acquire or transfer such ~~fully paid and non-assessable Acquireco Common Shares to~~ shares in accordance with Section 2.2(a) or Section 2.2(b); and (iv) the ~~Purchaser, and the stated capital account maintained by Acquireco in respect of the Acquireco Common Shares~~ Purchaser 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 immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such In-the- Money Option, shall be deemed to be ~~fully vested~~ 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 holder of such shares of Company Common Stock. (d) each outstanding Company 2007 Warrant (other than Company 2007 Warrants held ▇▇ ▇▇▇▇▇▇ ▇r the Purchaser or any affiliate thereof) will 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 Warrant 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; (iiie) with respect to each Company ~~Option:~~2007 Warrant acquired or transferred in accordance ▇▇▇▇ ▇▇▇▇▇▇▇ 2.2(d): (Ai) the holder thereof shall cease to be the holder of such Company ~~Option,~~ 2007 Warrant and ~~shall cease to have any rights as a holder in respect~~ the name of such ~~Company Option under the applicable Company Option Plan, (B) such holder’s name shall be removed~~ holder s▇▇▇▇ ▇▇ ▇▇▇▇ved from the register of holders 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 Consideration2007 Warrants; (ii) ~~with respect~~ the certificate representing such Company 2007 Warrant shall be deemed to ~~each Company RSU:~~have been cancelled as of the Effective Time; (Aiii) the holder thereof shall ~~cease~~ be deemed to ~~be the holder of~~ have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to acquire or transfer such Company ~~RSU, and shall cease to have any rights as a holder~~ 2007 Warrant in ~~respect of such Company RSU under the applicable Company Option Plan,~~accordance with Section 2.▇(▇); ▇▇▇ (~~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~~iv) the Company ~~Option Plans~~ shall be ~~terminated; (e) each Company Share held by a Dissenting Shareholder shall be,~~ and shall be deemed to ~~be, surrendered to~~ be the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 transferee 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 2007 Warrants transferred in accordance with Section ~~3.02(e)~~2.2(d) ~~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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 2007 Warrants 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company ~~DSU equal to the Company Sh~~2007 Warrants.

Appears in 1 contract

Sources: Arrangement Agreement (L-1 Identity Solutions, Inc.)

Arrangement. 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 ~~order~~ sequence without any further act or ~~formality~~formality by the Company, the Parent, USCo, the Purchaser, US New Opco or any other person: (a) At 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 subscriptionEffective Time: (i) the Purchaser shall ~~be deemed~~ subscribe for such number of Shares as is equal to ~~have directed~~ the ~~Depositary to hold~~aggregate Option Consideration payable for all Options for which Dissent Rights are not exercised divided by US$16.00, for US$16.00 per Share, 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 securities register of the ~~subscription price payable by the Purchaser for such Acquireco Common Shares; and~~Company shall be updated accordingly; (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 each 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 granted and outstanding immediately prior to the Effective Time ~~shall, without any further action~~ (excluding the Options held by ~~or on behalf~~ Dissenting Optionholders who are ultimately determined to be enabled to be paid the fair value of ~~any holder~~ the Option in respect of ~~such In-the- Money Option,~~ which they have exercised their Dissent Rights) shall be deemed to be ~~fully vested and shall be transferred and disposed by~~ cancelled, without the ~~holder thereof to the Company (free and clear of all Encumbrances) and cancelled~~ need for any further act or formality, in exchange for a cash payment from the Company equal to the Option ~~Consideration, and the holder~~ Consideration (if any) in respect 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~~ such Option~~: (A)~~ , the holder thereof ~~shall~~ will cease to be the holder ~~of such Company Option, and shall cease~~ thereof or to have any rights as a holder in respect of such ~~Company~~ Option or under the applicable Company Stock Option ~~Plan, (B) such holder’s~~ Plan and the name ~~shall~~ of the holder thereof will be removed from the applicable securities register of the Company ~~Options,~~ with respect to such Option; and (Civ) ~~all option agreements, Award Agreements, grants~~ each of the Company Stock Option Plans and ~~similar instruments relating thereto shall~~ each of the Options contemplated in this Section 3.1(a) will be cancelled; (cb) ~~notwithstanding any vesting provisions~~ Each of (i) the outstanding Shares held by Dissenting Shareholders who are ultimately determined to be entitled to be paid by the Purchaser the fair value of the Shares in respect of which ~~a Company RSU might otherwise~~ they have exercised their Dissent Rights shall be ~~subject~~ deemed to be irrevocably transferred to the Purchaser (~~whether by contract, the terms~~ free and ~~conditions~~ clear of any ~~Award Agreement or grant, the terms~~ Liens) and ~~conditions~~ such Dissenting Shareholders shall cease to have any rights as shareholders of the Company ~~2013 Share Incentive Plan or~~ other than the right to be paid the fair value of their Shares in accordance with Article 4; and (ii) the outstanding Options held by Dissenting Optionholders who are ultimately determined to be entitled to be paid by the Purchaser the fair value of the Options in respect of which they have exercised their Dissent Rights shall be deemed to be irrevocably transferred to the Purchaser, and to the extent necessary to effect the transfer of such Options by a Dissenting Optionholder to the Purchaser, the Company ~~2016~~ Stock Option ~~Plan~~Plans and the options agreements with respect to such Options shall be amended to permit such transfer to the Purchaser without the need for any further act or formality, and such Dissenting Optionholders shall cease to have any rights as optionholders of the Company other than the right to be paid the fair value of their Options in accordance with Article 4; (c) At the same time as the step contemplated by Section 3.1(b), with respect to each Share or ~~applicable law):~~Option: (i) ~~each Company RSU issued and outstanding~~ the Dissenting Shareholder or Dissenting Optionholder who was the registered holder of such Share or Option 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 will 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~~ Share or 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder ~~shall~~ or Dissenting Optionholder will be removed from the securities register of ~~holders~~ the Company with respect to such Share or Option; and (ii) legal and beneficial title to such Share will vest in the Purchaser and the Purchaser will be, and be deemed to be, the transferee and the legal and beneficial owner (free and clear of any Liens) of such Share and will be entered in the securities register of the Company ~~Shares~~as the sole holder of such Share; (d) Each of the outstanding Shares (excluding the Shares held by Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of the Shares in respect of which they have exercised their Dissent Rights and any Shares held, directly or indirectly, by the Purchaser immediately prior to the Effective Time) will be, and be deemed to be, irrevocably transferred to the Purchaser in exchange for Parent Shares from or on behalf of the Purchaser in an amount equal to the Share Consideration; (e) At the same time as the step contemplated by Section 3.1(d), with respect to each Share transferred to the Purchaser: (i) the Shareholder who was the registered holder of such Share immediately prior to the Effective Time will cease to be the holder of such Share and the name of such Shareholder will be removed from the securities register of the Company with respect to such Share; and (ii) legal and beneficial title to such Share will vest in the Purchaser and the Purchaser will be, and be deemed to be, the transferee and the legal and beneficial owner (free and clear of any Liens) of such Share and will be entered in the securities register of the Company as the sole holder of such Share; (f) ~~concurrently with the surrender and cancellation of Company Shares~~ each Option held by ~~Dissenting Shareholders~~ the Purchaser pursuant to the operation of Section ~~3.02(e),~~ 3.1(b) above (if any) shall be transferred to the Company and cancelled in exchange for such number of Shares having a fair market value equal to the Option Consideration in respect of such Options; (g) the stated capital ~~account~~ maintained by the Company in respect of the ~~Company~~ issued and outstanding Shares shall be ~~reduced,~~ reduced to an aggregate of CAD$1.00 without any repayment of capital 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 Agreementthereof; (h) The Purchaser and the Company shall amalgamate to form Amalco and shall continue as an unlimited liability company under the BCBCA and unless and until otherwise determined in the ~~course of a reorganization of~~ manner permitted or required by the ~~Company’s authorized and issued share capital~~BCBCA or otherwise by law, by Amalco or by its directors or shareholders with the following effects: (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~~ Shares 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 capital in respect ~~of all of such Participating Former Securityholder’s Company Shares~~thereof; (ii) ~~has not completed and delivered~~ the ~~applicable Election Form(s) by~~ articles of amalgamation of Amalco shall be the ~~Election Deadline or who has otherwise failed to make a valid election to receive~~ same as the ~~Cash Consideration or~~ articles of incorporation of the ~~Purchaser Share Consideration is respect of all of such Participating Former Securityholder’s Company Shares; or~~Purchaser; (iii) ~~exercises Dissent Rights~~ the issued and ~~is ultimately not entitled, for any reason, to be paid fair value for its Company Shares, shall transfer,~~ outstanding share capital and the stated capital of Amalco shall be ~~deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free~~ the same as the issued and ~~clear~~ outstanding share capital and stated capital of ~~all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to~~ the ~~exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange:~~Purchaser; (iv) ~~each such Participating Former Securityholder~~ the name of Amalco shall be ~~removed from the Company’s securities register of holders of Class A Shares,~~“▇▇▇▇▇▇▇▇ Financial, ULC”; (v) ~~Acquireco~~ the property of the Company and the Purchaser will continue to be the property of Amalco; (vi) the first directors of Amalco shall be ~~entered~~ same as the directors of the Purchaser as shown in the ~~Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrances~~Amalgamation Application; and (vivii) ~~each such Participating Former Securityholder shall, subject to~~ the ~~provisions~~ registered and records offices of ~~Section 3.06,~~ Amalco shall be ~~entered in~~ the ~~Purchaser’s securities register of holders of Purchaser Shares in respect~~ same as the registered and records offices of the Purchaser ~~Shares payable to such Participating Former Securityholder pursuant to this Section 3.02(k)~~as shown in the Amalgamation Application; (lviii) ~~each Participating Former Securityholder receiving Class A Shares pursuant~~ Amalco will continue to ~~Section 3.02(h)(ii) who duly~~ be liable for the obligations of the Company and ~~validly completes and delivers the applicable 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~~ including, but not limited to: a. any change of control obligations; b. all costs and expenses associated with the cessation of ~~such Participating Former Securityholder’s Company Shares shall transfer~~business by the Company; c. any brokerage fees payable by the Company; and d. any expenses associated with the transactions contemplated herein; (ix) An existing cause of action, ~~and shall be deemed~~ claim or liability to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior prosecution relating to the ~~exchange in this Section 3.02(l) in exchange for: (i) in~~ Company and the ~~case of a Participating Former Securityholder validly electing to receive~~ Purchaser will be unaffected by the ~~Cash Consideration, the Cash Consideration, subject to the provisions of Section 3.02(m)~~Amalgamation; and (iix) in A civil, criminal or administrative action or proceeding pending by or against the ~~case of a Participating Former Securityholder validly electing to receive~~ Company or the Purchaser ~~Share Consideration, the Purchaser Share Consideration, subject to the provisions of Section 3.02(n), and upon such exchange: (iii) each such Participating Former Securityholder shall~~ may be removed from the Company’s securities register of holders of 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 Encumbrancescontinued or prosecuted by or against Amalco; and (v) each such Participating Former Securityholder shall, 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 provided that none of the ~~Purchaser Shares, if any, payable~~ foregoing in Sections 3.1(a) to ~~such Participating Former Securityholder;~~ (mh) 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 above will occur or be deemed to ~~be effective immediately following the transfers~~ occur unless all of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shforegoing occurs.

Appears in 1 contract

Sources: Arrangement Agreement (Nicholas Financial Inc)

Arrangement. At Commencing 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 order without any further act or formality: , in each case, effective at the Effective Time: (a) the ~~Purchaser~~ Rights Plan shall ~~subscribe for that number of Acquireco Common Shares~~be terminated; (b) each outstanding Option, ~~at a price of $1.00 per share~~SAR and SPAU (whether vested or unvested), ~~equal to~~ notwithstanding the ~~quotient obtained when (A) the fair market value~~ terms of the ~~Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00~~applicable Company Stock Plan, 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~~be unconditionally vested and exercisable, and ~~the Depositary shall hold~~such Option, 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 SAR 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): SPAU: (i) ~~each In-the-Money Option issued and outstanding immediately prior to the Effective Time~~ shall, without any further action by or on behalf of ~~any~~ the holder ~~of such In-the- Money Option~~thereof, be ~~deemed to be fully vested and shall be~~ transferred ~~and disposed~~ by ~~the~~ such 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~~ a cash payment from the Company ~~Shares comprising such Option Consideration~~ equal to the amount (if any) by which the Purchase Price exceeds the exercise price thereof, less applicable withholdings; 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~~ shall 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)~~ and all agreements related thereto shall be terminated and the holder thereof shall ~~cease~~ thereafter have only the right to be receive 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 consideration 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 such 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 is 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~2.03(b) at the time and in the manner specified in Article IV; and (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: (Ac) each ~~such exchanged Company Share shall~~ outstanding PSU and DSU will 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 cancelled 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective Time shall be cancelled in exchange for a cash payment by the Company in the amount of the Purchase Price per PSU or DSU, as applicable, less applicable withholdings; (d) each Common Share outstanding at the Effective Time other than a Common Share held by (i) a Dissenting Holder who is ultimately entitled to be paid the fair value of the Common Shares held by such Dissenting Holder, or (ii) Parent, Acquisition Sub or any Affiliate thereof (which shall not be exchanged under the Arrangement and shall remain outstanding as a Common Share held by Parent, Acquisition Sub or any Affiliate thereof), shall be transferred to Acquisition Sub in exchange for the Purchase Price per Common Share in cash; (e) the names of the holders of the Common Shares transferred to Acquisition Sub shall be removed from the applicable registers of holders of Common Shares and Acquisition Sub shall be recorded as the registered holder of ~~such Company DSU equal to~~ the ~~Company Sh~~Common Shares so acquired and shall be deemed the legal and beneficial owner thereof free and clear of any liens or encumbrances;

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At Commencing and effective as at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the ~~following~~ events ~~or transactions~~ set out below shall occur and shall be deemed to occur sequentially in the following order without any further act or ~~formality~~formality required on the part of any person, except as otherwise expressly provided herein: (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 each 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 RSU outstanding immediately prior to the Effective ~~Time shall~~Time, ~~without any further action by~~ whether vested or ~~on behalf of any holder of such In-the- Money Option~~unvested, shall be deemed to be ~~fully~~ immediately vested ~~and~~ to the fullest extent, shall settle in Company Shares (provided that no share certificates or DRS statements 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~~Shares) (subject to any applicable withholdings pursuant to Section 5.4), and shall cease to represent a restricted share unit or other right to acquire Company Shares. Such Company Shares shall be exchanged for the Consideration pursuant to Section 3.1(e), and each such Company RSU shall be immediately cancelled by the Company and the holders of such Company RSUs shall cease to be holders thereof and to have any rights as ~~a holder in respect of such~~ Company ~~Option under the applicable~~ RSU Holders. Each Company ~~Option Plan, (B) such holder’s~~ RSU Holder's name shall be removed from the register of Company ~~Options, and (C)~~ RSUs maintained by or on behalf of Company and all ~~option agreements, Award Agreements, grants and similar instruments~~ agreements relating ~~thereto~~ to the Company RSUs shall be ~~cancelled~~terminated and shall be of no further force and effect; (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): (ib) each Company ~~RSU issued and~~ PSU outstanding immediately prior to the Effective ~~Time shall~~Time, ~~without any further action by~~ whether vested or ~~on behalf of any holder of such Company RSU~~unvested, shall be deemed to be ~~fully~~ immediately vested ~~and~~ to the fullest extent, shall settle in Company Shares (provided that no share certificates or DRS statements 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) issued with respect to ~~each Company RSU: (A) the holder thereof shall cease to be the holder of~~ such Company ~~RSU~~Shares) (subject to any applicable withholdings pursuant to Section 5.4), and shall cease to represent a performance share unit or other right to acquire Company Shares. Such Company Shares shall be exchanged for the Consideration pursuant to Section 3.1(e), and each such Company PSU shall be immediately cancelled by the Company and the holders of such Company PSUs shall cease to be holders thereof and to have any rights as ~~a holder in respect of such~~ Company ~~RSU under the applicable~~ PSU Holders. Each Company ~~Option Plan, (B) such holder’s~~ PSU Holder's name shall be removed from the register of Company ~~RSUs, and (C)~~ PSUs maintained by or on behalf of Company and all ~~Award Agreements, grants~~ agreements relating to the Company PSUs shall be terminated and ~~similar instruments relating thereto will~~ shall be ~~cancelled~~of no further force and effect; (~~d) the Company Option Plans shall be terminated; (e~~c) each Company SAR outstanding immediately prior to the Effective Time, whether vested or unvested, will be transferred by the holder thereof to the Company and cancelled by the Company in exchange for a cash payment by the Company (using Company's own funds not funds directly or indirectly provided by Acquiror or its affiliates) equal to the amount of the fair market value of the Company Share ~~held by a Dissenting Shareholder~~ immediately before the Effective Time (calculated in accordance with the requirements of the Company SAR Plan), less any required withholding taxes. (d) immediately prior to the exchange set forth in Section 3.1(e) below, each Dissent Share shall ~~be,~~ be and shall be deemed to ~~be, surrendered to the Company~~ have been transferred by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder~~on its part, to Company (free and clear of ~~all Encumbrances~~any Liens of any nature whatsoever) and cancelled, and ~~each such~~ Company ~~Share so surrendered~~ shall thereupon be ~~cancelled and thereupon each Dissenting Shareholder shall cease~~ obligated to ~~have any rights as a holder of such Company Shares other than a claim against~~ pay the ~~Company in an~~ amount therefore determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders pursuant to Section 3.02(e)5, 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 capitaland: (i) ~~the notice of articles and articles of the Company~~ such Dissenting Shareholder shall ~~be amended~~ cease 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 transferbe, and shall be deemed to ~~have transferred~~cease to be, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner holder of such ~~Class A Shares, free~~ Dissent Share and to have any rights as a Company Shareholder other than the right to be paid the fair value by the Company for such Dissent Share as set out in Section 5.1 out of ~~all Encumbrances~~reserves established by the Company therefore; and (viii) ~~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 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 Dissenting Shareholder's names shall ~~transfer~~be, and shall be deemed to ~~have transferred~~be, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the ~~Company’s securities~~ register of ~~holders~~ Company Shareholders maintained by or on behalf of ~~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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Arrangement Agreement (Equinox Gold Corp.)

Arrangement. At Commencing 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 order without any further act or formality: (a) each independent contractor agreement or employment agreement between the ~~Purchaser shall subscribe for that number~~ Company or any of ~~Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when (A) the fair market value~~ its subsidiaries and each of the ~~Maximum Purchaser Shares and Maximum Cash Consideration is divided by~~ Terminated Persons, as applicable, shall terminate (~~B) $1.00,~~ and for greater ~~certainty for~~ certainty, without limiting the ~~purposes~~ generality of ~~determining variable (A) in relation to~~ the ~~quotient under this Section 3.02(a)~~foregoing, the ~~fair market value~~ positions of each employee or individual that provided the ~~Maximum Purchaser Shares and the Maximum Cash Consideration will be no less than the fair market value~~ services of ~~the Class A Shares immediately prior to the acquisition of the Class A Shares by Acquireco pursuant to Section 3.02(k~~such Terminated Person under an independent contractor agreements, as applicable, shall also terminate), and ~~in connection with such share subscription: (i) the Purchaser~~ Highlander shall deliver or arrange to 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~~ terms of the ~~subscription price payable by~~ Arrangement Agreement to each Terminated Person 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 portion of the ~~Acquireco Common Shares shall be increased, in respect of the Acquireco Common Shares issued pursuant~~ Termination Obligations to ~~this Section 3.02(a), by an amount equal to the fair market value of the Purchaser Consideration~~which they are entitled; (b) ~~notwithstanding any vesting~~ Highlander shall deliver or ~~exercise provisions~~ arrange to be delivered in accordance with the terms of the Arrangement Agreement to each Bear Creek Financial Advisor and to each Service Provider the portion of the Service Obligations 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):they are entitled; (ic) each InBear Creek 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 Bear Creek Optionholder, be cancelled without any payment in respect thereof, and thereafter: (i) each 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~~ Bear Creek Out-of-the-Money Option ~~issued~~ shall cease to be a holder of such Bear Creek Out-of-the-Money Option and to have any rights as a Bear Creek Optionholder, (ii) all agreements relating to the Bear Creek Out-of-the-Money Options shall be terminated and shall be of no force and effect, and (iii) the name of each holder of a Bear Creek Out-of-the-Money Option shall be removed from the register of Bear Creek Options maintained by or on behalf of Bear Creek; (d) each Bear Creek In-the-Money Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall immediately and unconditionally vest, notwithstanding the terms of the Bear Creek Stock Option Plan or any agreement in respect thereof, and shall, without any further action by or on behalf of any Bear Creek Optionholder, be deemed to be assigned and transferred by such Bear Creek Optionholder (free and clear of all Liens) to Bear Creek for cancellation in exchange for the Option Consideration (net of any withholding of Bear Creek Shares made under Section 4.4), and thereafter: (i) each holder of ~~such Out-of~~a Bear Creek In-the-Money ~~Option, be cancelled without any payment therefor; (iii) with respect to each Company Option: (A) the holder thereof~~ Option shall cease to be ~~the~~ a holder of such ~~Company Option,~~ Bear Creek In-the-Money Options and ~~shall cease~~ to have any rights as a ~~holder in respect of~~ Bear Creek Optionholder and such ~~Company Option under the applicable Company Option Plan~~Bear Creek -In-the-Money Options shall be immediately cancelled, (Bii) ~~such holder’s~~ all agreements relating to the Bear Creek In-the-Money Options shall be terminated and shall be of no force and effect, (iii) the name of each holder of a Bear Creek In-the-Money Option shall be removed from the register of ~~Company Options~~Bear Creek Options maintained by or on behalf of Bear Creek, and (Civ) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto~~ each such former holder of the Bear Creek In-the-Money Options shall be ~~cancelled~~deemed to be the holder of the Bear Creek Shares comprising the Option Consideration, net of any withholding pursuant to Section 4.4 (notwithstanding that no certificates or DRS Advice shall be issued with respect to such Bear Creek Shares) and the name of such former holder of such Bear Creek In-the-Money Options shall be entered into the register of Bear Creek Shares maintained by or on behalf of Bear Creek; (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): (ie) each ~~Company RSU issued and~~ Bear Creek DSU outstanding immediately prior to the Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the Bear Creek LTIP or any agreement in respect of such Bear Creek DSUs, and shall, without any further action by or on behalf of ~~any holder of such Company RSU~~the Bear Creek DSU Holder thereof, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by ~~the holder thereof~~ such Bear Creek DSU Holder to ~~the Company~~ Bear Creek (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled~~ in exchange for the ~~applicable RSU~~ number of Bear Creek Shares equal to the number of Bear Creek Shares such Bear Creek DSU Holder is entitled to under each Bear Creek DSU (the “DSU Consideration”) (net of any withholding of Bear Creek Shares made under Section 4.4), ~~and~~ the ~~holder of such Company RSU shall become the holder of the Company~~ Bear Creek Shares comprising the DSU Consideration will be issued to such ~~RSU Consideration~~ Bear Creek DSU Holder as fully paid and non- assessable shares in the ~~central securities register~~ capital 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 RSUBear Creek and thereafter: (Ai) ~~the holder thereof~~ each Bear Creek DSU Holder shall cease to be ~~the~~ a holder of ~~such Company RSU,~~ any Bear Creek DSUs and ~~shall cease~~ to have any rights as a ~~holder in respect of~~ Bear Creek DSU Holder and such ~~Company RSU under the applicable Company Option Plan~~Bear Creek DSUs shall be immediately cancelled, (Bii) all agreements relating to such ~~holder~~Bear Creek DSUs shall be terminated and shall be of no further force and effect, (iii) each such Bear Creek DSU Holder’s name shall be removed from the register of ~~Company RSUs~~Bear Creek DSUs maintained by or on behalf of Bear Creek, and (~~C) all Award Agreements, grants and similar instruments relating thereto will be cancelled; (d) the Company Option Plans shall be terminated; (e~~iv) each ~~Company Share held by a Dissenting Shareholder shall be, and~~ such former holder of such Bear Creek DSUs shall be deemed to bebe the holder of the Bear Creek Shares comprising the DSU Consideration, ~~surrendered~~ net of any withholding pursuant to Section 4.4 (notwithstanding that no certificates or direct registration system advices shall be issued with respect to such Bear Creek Shares) and the name of such former holder of such Bear Creek DSUs shall be entered into the register of Bear Creek Shares maintained by or on behalf of Bear Creek; (f) each Bear Creek RSU outstanding immediately prior to the ~~Company~~ Effective Time, shall immediately and unconditionally vest, notwithstanding the terms of the Bear Creek LTIP or any agreement in respect of such Bear Creek RSUs, and shall, without any further action by or on behalf of the Bear Creek RSU Holder thereof, be deemed to be assigned and transferred by such Bear Creek RSU Holder to Bear Creek (free and clear of all Liens) in exchange for the number of Bear Creek Shares equal to the number of Bear Creek Shares a holder is entitled to under each Bear Creek RSU (the “RSU Consideration”) (net of any withholding of Bear Creek Shares made under Section 4.4) the Bear Creek Shares comprising the RSU Consideration will be issued to such Bear Creek RSU Holder as fully paid and non-assessable shares in the capital of Bear Creek, and thereafter: (i) each Bear Creek RSU Holder shall cease to be a holder of any Bear Creek RSUs and to have any rights as a Bear Creek RSU Holder and such Bear Creek RSUs shall be immediately cancelled, (ii) all agreements relating to the Bear Creek RSUs shall be terminated and shall be of no further force and effect, (iii) each such Bear Creek RSU Holder’s name shall be removed from the register of Bear Creek RSUs maintained by or on behalf of Bear Creek, and (iv) each such former holder of such Bear Creek RSUs shall be deemed to be the holder ~~thereof~~of the Bear Creek Shares comprising the RSU Consideration, net of any withholding pursuant to Section 4.4 (notwithstanding that no certificates or direct registration system advices shall be issued with respect to such Bear Creek Shares) and the name of such former holder of such Bear Creek RSUs shall be entered into the register of Bear Creek Shares maintained by or on behalf of Bear Creek; (g) each Dissent Share in respect of which Dissent Rights have been validly exercised by Dissenting Shareholders shall be deemed to have been transferred to Highlander (free and clear of all Liens) without any further act or formality ~~by such Dissenting Shareholder~~on its part, ~~free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as~~ in exchange for a ~~holder of such Company Shares other than a~~ debt claim against Highlander to be paid the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 aggregate fair value in respect of the ~~Company~~ Dissent Shares ~~shall be reduced~~as determined pursuant to Section 5.1, and in respect of the ~~Company~~ Dissent 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 capitalso transferred: (i) the ~~notice of articles and articles~~ Dissenting Shareholders shall cease to be holders of the ~~Company shall~~ Dissent Shares and to have any rights as holders of such Dissent Shares other than the right to be ~~amended~~ paid the fair value for such Dissent Shares pursuant 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;Section 5.1, (ii) ~~each Company Share issued and outstanding immediately before~~ the ~~reorganization~~ names 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 Dissenting Shareholders shall be removed from the ~~Company’s~~ register maintained by or on behalf 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~~ Bear Creek in respect of the ~~Class A~~ Bear Creek Shares, (iii) the Dissenting Shareholders 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) Highlander shall be and shall be deemed to be the holder of all of the outstanding Dissent Shares (free and clear of all Liens), and Highlander shall be added to the register of Bear Creek Shares maintained by or on behalf of Bear Creek in respect of the Bear Creek Shares as the holder of such Dissent Shares; and (h) each Bear Creek Shareholder shall transfer to Highlander (free and clear of all Liens) each whole Bear Creek Share held (other than any Bear Creek Shares held by Highlander immediately before the Effective Time or acquired by Highlander from a Dissenting Shareholder under Section 3.1(g)), including the Bear Creek Shares issued pursuant to ~~such holder;~~Section 3.1(e) or Section 3.1(f) in exchange for the Share Consideration for each Bear Creek Share held, and (Ci) such Bear Creek Shareholders shall cease to be the holders of the Bear Creek Shares and to have any rights as holders of such Bear Creek Shares, (ii) the ~~Company~~ names of such Bear Creek Shareholders shall be removed from the ~~Spinco’s~~ register maintained by or on behalf of ~~holders of Spinco Shares~~ Bear Creek in respect of the ~~Distribution Spinco~~ Bear Creek 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~~ such Bear Creek Shareholders shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the ~~exchange in Section 3.02(h)(ii)~~transfer thereof, and (iv) Highlander shall be and shall be deemed to be the ~~stated capital account in respect~~ holder of all of the ~~Company~~ outstanding Bear Creek 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~~ Highlander shall be added to the ~~stated capital account~~ register of Bear Creek Shares maintained by ~~the Company~~ or on behalf of Bear Creek in respect of the ~~Class A~~ Bear Creek Shares, it being expressly provided that the events provided for 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 3.1 will be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to occur on the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 shallEffective Date, notwithstanding ~~Section 3.02(l)(i): (i) only~~ that certain procedures related thereto may not 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to completed until after the Effective ~~Time shall be cancelled in exchange for a cash payment by the Company to the holder of such Company DSU equal to the Company Sh~~Date.

Appears in 1 contract

Sources: Arrangement Agreement (Highlander Silver Corp.)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ consecutively in the following ~~order~~ order, except where noted, without any further authorization, act or formality: (a) the ~~Purchaser~~ Ample Shareholders Agreement and the Ample Voting Agreement shall ~~subscribe for that number~~ each be deemed to be terminated and of ~~Acquireco Common Shares~~no further force or effect; (b) each Ample Shareholder (other than Dissenting Shareholders) shall be deemed to have irrevocably appointed the Shareholder Representative to act on its behalf in accordance with Section 2.1, ~~at a price~~ and to have authorized the Shareholder Representative to enter into the Escrow Agreement and the Rights Indenture on behalf of ~~$1.00 per share~~such Ample Shareholder and, ~~equal to~~ upon the ~~quotient obtained when (A) the fair market value~~ execution and delivery of the ~~Maximum~~ Escrow Agreement and the Rights Indenture, the Escrow Agreement and the Rights Indenture shall each be binding upon each Ample Shareholder (other than Dissenting Shareholders) as if it had been entered into by each such Ample Shareholder directly; (c) each Dissent Share shall, as of the Effective Time, be deemed to be transferred and assigned by such Dissenting Shareholder, without any further act of formality on its part, to Purchaser ~~Shares~~ (free and ~~Maximum Cash Consideration is divided by (B~~clear of all Liens) ~~$1.00~~in accordance with, and for ~~greater certainty for~~ the ~~purposes of determining variable (A) in relation to the quotient under this Section 3.02(a)~~consideration contemplated in, 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 subscriptionARTICLE 5 and: (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 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 registered holder thereof shall cease to ~~be the holder of such Company Option~~be, 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~~ cease to be, the registered holder ~~thereof to the Company (free and clear~~ of ~~all Encumbrances) and cancelled in exchange for the applicable RSU Consideration,~~ each such Dissent Share and the ~~holder~~ name of such ~~Company RSU shall become the~~ registered 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, ~~surrendered~~ removed from the central securities register maintained by or on behalf of Ample in respect of each such Dissent Share, and at such time each Dissenting Shareholder will have the rights set out in Section 5.1; (ii) the registered holder thereof shall be deemed to ~~the Company by~~ have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Dissent Share; and (iii) Purchaser shall be and shall be deemed to be the holder ~~thereof~~of all of the outstanding Dissent Shares and the central securities register of Purchaser shall be, and shall be deemed to be, revised accordingly; (d) each Ample Share (other than any Ample Share held by Akerna, Purchaser or any of their respective Affiliates and any Dissent Share) shall be transferred and assigned, without any further act or formality ~~by such Dissenting Shareholder~~on its part, to Purchaser (free and clear of all ~~Encumbrances~~Liens) in exchange for the Up-front Consideration, ~~and each such Company Share so surrendered shall~~ which shall, subject Section 4.4, be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders delivered pursuant to Section ~~3.02(e)~~6.1, 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 capitaland: (i) the ~~notice of articles and articles of the Company~~ registered holder thereof shall ~~be amended~~ cease 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 transferbe, and shall be deemed to ~~have transferred~~cease to be, ~~to Acquireco, without any further act or formality by~~ the registered holder of each such ~~Participating Former Securityholder, free and clear of all Encumbrances, each Class A~~ Ample Share ~~held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash~~ and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner name 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 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 registered holder shall ~~transfer~~be, and shall be deemed to ~~have transferred~~be, ~~to Acquireco, without any further act~~ removed from the central securities register maintained by or ~~formality by such Participating Former Securityholder, free and clear~~ on behalf of ~~all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for:~~Ample; (iii) in the ~~case of a Participating Former Securityholder validly electing~~ registered holder thereof shall be deemed to ~~receive the Cash Consideration~~have executed and delivered all consents, ~~the Cash Consideration~~releases, ~~subject~~ assignments and waivers, statutory or otherwise, required to ~~the provisions of Section 3.02(m)~~transfer and assign each such Ample Share; 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 upon such exchange: (iii) ~~each such Participating Former Securityholder~~ Purchaser shall be ~~removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 ~~such Company DSU equal~~ all of the outstanding Ample Shares and the central securities register maintained by or on behalf of Ample shall be, and shall be deemed to be, revised accordingly; and (e) concurrently with the ~~Company Sh~~preceding step: (i) Akerna, Callco, Purchaser and the Shareholder Representative shall execute the Exchangeable Share Support Agreement; and (ii) Akerna, Purchaser, Callco, the Trustee and the Shareholder Representative shall execute the Voting and Exchange Trust Agreement; it being expressly provided that the events provided for in this Section 4.1 will be deemed to occur on the Effective Date, notwithstanding that certain procedures related thereto may not be completed until after the Effective Date.

Appears in 1 contract

Sources: Arrangement Agreement (Akerna Corp.)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall occur and shall be deemed to occur sequentially ~~in the following order~~ 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, except as indicated otherwise: (a) the ~~Purchaser~~ Company shall ~~subscribe for that number~~ reduce its issued share capital maintained in respect of ~~Acquireco~~ the Common ~~Shares, at a price of $1.00 per share,~~ Shares by an aggregate amount equal to the ~~quotient obtained when~~ aggregate Cash Amount payable to the Shareholders plus the Incentive Securities Cash Balance and distribute to the Shareholders an amount per Common Share equal to the sum of (i) the Cash Amount, plus (ii) (A) the ~~fair market value of the Maximum Purchaser Shares and Maximum~~ Incentive Securities Cash ~~Consideration is~~ Balance divided by (B) ~~$1.00,~~ the number of issued 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~~ outstanding Common Shares ~~and the Maximum Cash Consideration will be no less than the fair market value of the Class A Shares~~ as at 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 ConsiderationEffective Time; (b) ~~notwithstanding any vesting or exercise provisions to which a Company~~ concurrently with step (a) above, each 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 immediately prior to the Effective Time (whether vested or unvested) shall, notwithstanding the terms of the Equity Incentive Plan or the Option Plan governing such Option or any award or similar agreement pursuant to which any Options were granted or awarded, as applicable, be deemed to be unconditionally vested and exercisable and, without any further action by or on behalf of ~~any~~ the holder thereof, shall be deemed to be assigned and surrendered by such holder to the Company in exchange for, in respect of each Option for which the Cash Amount exceeds the applicable exercise price in respect of such ~~In-the- Money~~ Option, (i) an amount in cash from the Company equal to the Cash Amount less the applicable exercise price in respect of such Option, with such amount to be paid to the applicable holders in accordance with Section 4.1(d), and (ii) one CVR, and such Option shall immediately be cancelled and all of the Company’s obligations with respect to each such Option shall be deemed to be fully ~~vested and~~ satisfied. For greater certainty, where the exercise price of any Option is greater than or equal to the Cash Amount, neither the Company nor the Purchaser shall be ~~transferred and disposed by the holder thereof~~ obligated 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 pay the holder of such Option the Incentive Securities Consideration ~~shall not be entitled to receive a share certificate~~ or any other ~~document representing~~ amount in respect of such Option, and the Option ~~Consideration~~shall be immediately cancelled without any payment therefor; (iic) concurrently with step (a) above, each ~~Out-of-the-Money Option issued and~~ RSU outstanding immediately prior to the Effective Time (whether vested or unvested) shall, notwithstanding the terms of the Equity Incentive Plan governing such RSU or any award or similar agreement pursuant to which any RSUs were granted or awarded, as applicable, be deemed to be unconditionally vested and, without any further action by or on behalf of ~~any~~ the holder of thereof, shall be deemed to be assigned and surrendered by such ~~Out-of-the-Money Option~~holder to the Company in exchange for (i) an amount in cash from the Company equal to the Cash Amount, with such amount to be paid to the applicable holders in accordance with Section 4.1(d), and (ii) one CVR, and such RSU shall immediately be cancelled ~~without any payment therefor; (iii)~~ and all of the Company’s obligations with respect to each ~~Company Option:~~such RSU shall be deemed to be fully satisfied; (Ad) ~~the~~ concurrently with step (a) above, (i) each holder ~~thereof~~ of Incentive Securities shall cease to be ~~the~~ a holder of such ~~Company Option~~Incentive Securities, (ii) such holder’s name shall be removed from each applicable register, (iii) the Equity Incentive Plan, Option Plan and any and all award or similar agreements relating to the Incentive Securities shall be terminated and shall be of no further force and effect, and (iv) such holder shall cease to have any rights as a holder in respect of such ~~Company Option under~~ Incentive Securities and thereafter have only the ~~applicable Company Option Plan,~~right to receive the Incentive Securities Consideration to which they are entitled pursuant to Section 2.3(b) and Section 2.3(c), as applicable, at the time and in the manner specified in Section 2.3(b), Section 2.3(c) and Section 4.1, as applicable; (Be) concurrently with step (a) above, the Warrant outstanding immediately prior to the Effective Time shall, notwithstanding the terms of such Warrant and any subscription or similar agreement pursuant to which such Warrant was issued, be deemed to be transferred and surrendered by such holder to the Company, and such Warrant shall immediately be cancelled and all of the Company’s obligations with respect to such Warrant shall be deemed to be fully satisfied. For greater certainty, because the exercise price in respect of such Warrant is greater than the Cash Amount, neither the Company nor the Purchaser shall be obligated to pay the holder of such Warrant the Consideration or any other amount in respect of such Warrant, and such Warrant shall be immediately cancelled and surrendered for no consideration. In addition, (i) the former holder of the Warrant shall cease to be a holder of such Warrant, (ii) such holder’s name shall be removed from the register of ~~Company Options~~Warrants, ~~and~~ (Ciii) the Warrant agreement and any and all ~~option agreements, Award Agreements, grants and~~ subscription or similar ~~instruments~~ agreements relating ~~thereto~~ to the Warrant 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 terminated and shall be ~~transferred~~ of no further force and ~~disposed by the~~ effect; and (iv) such 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 cancelledWarrant; (~~d) the Company Option Plans shall be terminated; (e~~f) each ~~Company~~ Common Share outstanding immediately prior to the Effective Time held by a Dissenting Shareholder shall ~~be, and shall~~ be deemed to ~~be, surrendered to the Company by the holder thereof~~have been transferred (free and clear of all Encumbrances), without any further act or formality by ~~such~~ or on behalf of any Dissenting Shareholder, ~~free and clear of all Encumbrances~~to the Purchaser, ~~and each~~ in consideration for a debt claim against the Purchaser for an amount determined under Article 3, and: (i) such ~~Company Share so surrendered shall be cancelled and thereupon each~~ Dissenting Shareholder shall cease to be the registered holder of such Common Share and to have any rights as a ~~holder of such Company Shares~~ Shareholder other than ~~a claim against~~ the ~~Company~~ right to be paid the Fair Value by the Purchaser for such Common Share set out in ~~an amount determined and payable in accordance with Article 4 and the name of~~ Section 3.1; (ii) such Dissenting ~~Shareholder~~ Shareholder’s name shall be removed as the registered holder of Common Shares from the ~~securities~~ applicable register of ~~holders~~ Shareholders maintained by or on behalf of ~~Company Shares;~~the Company; and (fiii) ~~concurrently with~~ the ~~surrender~~ Purchaser shall be deemed to be the transferee of such Common Shares free and ~~cancellation~~ clear of ~~Company Shares held by Dissenting~~ all Encumbrances and shall be entered in the register of the Shareholders ~~pursuant to Section 3.02(e), the stated capital account~~ maintained by ~~the Company in respect~~ or on behalf 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)Company; (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~~ Common 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective Time (other than a Common Share held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised under Section 2.3(f), the Purchaser or any affiliate of the Purchaser) shall be ~~cancelled~~ deemed to be assigned and transferred by the holder thereof to the Purchaser in exchange for ~~a cash payment~~ the issuance by the ~~Company to the~~ Purchaser of one CVR per Common Share, and: (i) each registered holder of such ~~Company DSU equal~~ Common Shares shall cease to be the ~~Company Sh~~registered holder thereof and to have any rights as a Shareholder other than the right to be paid one CVR per Common Share; (ii) the name of each such registered holder shall be removed from the register of the Shareholders 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 Encumbrances and shall be entered in the register of the Shareholders maintained by or on behalf of the Company; and (h) the exchanges and cancellations provided for in this Section 2.3 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 (Repare Therapeutics Inc.)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided~~ in ~~this Section 3.02,~~ five minute increments each of the following events ~~or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ consecutively in the following ~~order~~ order, except where noted, without any further authorization, act or formality: (a) ~~the Purchaser~~ Pan American shall ~~subscribe for that number of Acquireco Common Shares, at~~ lend to Yamana on 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~~interest bearing demand basis, 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~~ Dissent and RSU Loan Amount (the ~~Purchaser Consideration; (b) notwithstanding any vesting or exercise provisions to which a Company Option might otherwise be subject (whether by contract, the terms~~ “Dissent 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 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 ConsiderationRSU Loan”), 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 Dissent Share held by a Dissenting Shareholder shall be, and shall be deemed to be, ~~surrendered to the Company~~ transferred and assigned by the holder ~~thereof, without any further act or formality by such Dissenting Shareholder,~~ thereof (free and clear of all ~~Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease~~ Liens) to ~~have any rights as~~ Yamana for a ~~holder of such Company Shares other than a~~ debt claim against Yamana for the ~~Company in an~~ amount therefor determined ~~and payable in accordance with~~ under Article ~~4 and~~ 4, and (i) the name of such Dissenting Shareholder shall be removed from the ~~securities~~ register of ~~holders~~ Yamana Shareholders maintained by or on behalf of ~~Company~~ Yamana and such Dissent Share shall be cancelled and cease to be outstanding, and (ii) such Dissenting Shareholder shall cease to be the holder of such Dissent Share or to have any rights as a Yamana Shareholder other than the right to be paid the fair value for such Dissent Share as set out in Article 4; (b) the transactions contemplated by the Conveyance Agreement shall become effective and pursuant thereto, Yamana shall assign and transfer to Agnico, and Agnico shall accept, a 100% legal and beneficial interest in, and good and marketable title to, all Canadian Assets, free and clear of all Liens other than Permitted Liens, and as consideration for the Canadian Assets, Agnico shall assume the Canadian Liabilities, issue the Agnico Payment Shares, and pay cash equal to the aggregate of the Cash Consideration multiplied by the number of Y▇▇▇▇▇ ▇▇▇▇▇▇ (other than Dissent Shares), the Fractional Share Amount and the Dissent Amount to Yamana; and (i) Yamana shall be, and shall be deemed to be, the holder of the Agnico Shares so issued (free and clear of all Liens) and the register of shareholders of Agnico maintained by or on behalf of Agnico shall be, and shall be deemed to be, revised accordingly, and (ii) Agnico shall add an amount to the stated capital in respect of the Agnico Shares equal to the aggregate Agnico Share Value multiplied by the number of Agnico Payment 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; (hc) in the course of a reorganization of Yamana’s share capital in accordance with section 86 of the ~~Company’s~~ Tax Act, the authorized share capital of Yamana shall be amended by the creation of an unlimited number of Class A Shares, and ~~issued share capital~~immediately thereafter each Yamana Share held by a Yamana Shareholder (other than a Dissenting Shareholder) shall be exchanged for: (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 “~~one 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~~Share; (ii) ~~each Company~~ the Agnico Share ~~issued and outstanding immediately before~~ Consideration delivered by Y▇▇▇▇▇; and (iii) an amount of cash delivered by Y▇▇▇▇▇ equal to the Cash Consideration; (d) in connection with the reorganization of the ~~Company’s~~ share capital ~~pursuant~~ and the share exchanges in Section 3.1(c), (i) each Yamana Shareholder shall cease to ~~this Section 3.02(h) (including~~be, ~~without limitation~~and shall be deemed to cease to be, the ~~Company~~ holder of each such Yamana Share and the name of such Yamana Shareholder shall be, and shall be deemed to be, removed from the register of Yamana Shareholders maintained by or on behalf of Y▇▇▇▇▇, (ii) the Yamana Shares ~~issued~~ exchanged shall be cancelled and the stated capital in respect of the Yamana Shares shall be nil, (iii) Yamana shall cease to ~~former holders~~ be, and shall be deemed to cease to be, the holder of ~~In-the-Money Options~~ the Agnico Shares and ~~Company RSUs pursuant~~ the name of Yamana shall be, and shall be deemed to ~~Section 3.02(b~~be, removed from the register of shareholders of Agnico maintained by or on behalf of Agnico, (iv) Y▇▇▇▇▇ shall, and ~~Section 3.02(c)~~shall be deemed to have executed and delivered all consents, ~~respectively~~releases, ~~but excluding any Company~~ assignments and waivers, statutory or otherwise, required to transfer and assign each such Agnico Share, (v) each Yamana Shareholder shall be deemed to be the holder of the Class A Shares ~~surrendered and cancelled~~ for which the Yamana Shareholder’s Yamana Shares were exchanged in accordance with Section ~~3.02(e)~~3.1(c) ~~shall be exchanged with the Company~~(in each case, free and clear of any ~~Encumbrances, for one Class A Share~~ Liens) and ~~one Distribution Spinco Share~~such Yamana Shareholder shall be, and ~~upon such exchange: (A) each such exchanged Company Share~~ shall be ~~cancelled~~deemed to be, ~~and~~ entered in the ~~holders of such exchanged Company Shares shall be removed from the Company’s~~ register of ~~holders~~ Yamana Shareholders maintained by or on behalf of ~~Company Shares; (B) each~~ Y▇▇▇▇▇, as the holder of such ~~exchanged Company Shares~~ Class A Shares, (vi) each Yamana Shareholder shall be deemed to be the holder of the Agnico Shares for which the Yamana Shareholder’s Yamana Shares were exchanged in accordance with Section 3.1(c) (in each case, free and clear of any Liens) and such Yamana Shareholder shall be, and shall be deemed to be, entered in the ~~Company’s~~ register of ~~holders~~ shareholders of ~~Class A Shares in respect~~ Agnico maintained by or on behalf of Agnico, as the ~~Class A Shares issued to~~ holder of such ~~holder; (C) the Company shall be removed from the Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco~~ Agnico Shares; , and (Dvii) 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~~ an amount equal to the Pan American Share Value multiplied by the number of Pan American Shares that the Yamana Shareholders are entitled to receive pursuant to Section ~~3.02(h)(ii~~3.1(e)~~, the amount by which~~ ; (Ae) ~~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~~ each Class A Share shall be transferred to Pan American (free and clear of any Liens) in exchange for the ~~former holders of Company Shares pursuant to Section 3.02(h)(ii);~~Pan American Share Consideration delivered by Pan American, and (i) the ~~Initial Spinco Share held by~~ holders of the ~~Company~~ Class A Shares shall cease to be, and shall be ~~cancelled without any repayment thereon~~deemed to cease to be, the holder of each such Class A Share and the name of such holder shall be, and ~~the Company~~ shall be deemed to be, removed from the ~~Spinco~~ register of ~~holders~~ Yamana Shareholders maintained by or on behalf 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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;Y▇▇▇▇▇, (ii) ~~has not completed and delivered~~ the ~~applicable Election Form(s) by~~ holders of the Election Deadline or who has otherwise failed to make a valid election to receive the Cash Consideration or the Purchaser Share 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 transferClass A Shares shall, and shall be deemed to have ~~transferred~~executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to ~~Acquireco, without any further act or formality by~~ transfer and assign each such ~~Participating Former Securityholder, free and clear of all Encumbrances, each~~ Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A SharesShare, (viii) ~~Acquireco~~ Pan American shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transferbe, and shall be deemed to ~~have transferred~~be, ~~to Acquireco, without any further act or formality by such Participating Former Securityholder,~~ the holder of the Class A Shares (free and clear of all ~~Encumbrances, each Class A Share held~~ Liens) and the register of Yamana Shareholders maintained by ~~such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case~~ or on behalf of a 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)Yamana shall be, and ~~upon such exchange: (iii) each such Participating Former Securityholder~~ shall be ~~removed from the Company’s securities register of holders of Class A Shares~~deemed to be, revised accordingly, (iv) ~~Acquireco shall be entered in~~ the ~~Company’s securities register of~~ holders of the Class A Shares as shall be, and shall be deemed to be, the ~~sole legal~~ holders of the Pan American Shares so issued (free and ~~beneficial owner of such Class A Shares, free~~ clear of all ~~Encumbrances;~~ Liens) and the register of shareholders of Pan American maintained by or on behalf of Pan American shall be, and shall be deemed to be, revised accordingly, and (v) ~~each such Participating Former Securityholder shall, subject~~ Pan American shall add an amount 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~~ its share capital in respect of the ~~Purchaser Shares, if any, payable~~ Pan American Shares equal to ~~such Participating Former Securityholder~~the aggregate Pan American Share Value multiplied by the number of Pan American Shares so issued; (mf) ~~in the event~~ each Yamana RSU (whether vested or unvested) 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective Time shall vest in accordance with the terms of the Yamana RSU Plan and shall be, and shall be ~~cancelled~~ deemed to be, transferred by the holder thereof to Yamana in exchange for a cash payment ~~by the Company to the holder of such Company DSU~~ from Yamana equal to the ~~Company Sh~~volume weighted average trading price of one Yamana Share on the TSX during the five trading days ending on the last trading day prior to the Effective Date less any withholding required by applicable Law using the remaining funds from the Dissent and RSU Loan not paid to Dissenting Shareholders in accordance with Section 3.1(a), and each such Yamana RSU shall be immediately cancelled, and (i) the holders of such Yamana RSUs shall cease to be holders thereof and to have any rights as holders of such Yamana RSUs, other than the right to receive the consideration to which they are entitled under this Section 3.1(f), (ii) such holders’ names shall be, and shall be deemed to be, removed from the register of Yamana RSUs maintained by or on behalf of Yamana, and (iii) all agreements relating to the Yamana RSUs shall be terminated and shall be of no further force and effect; (g) each Yamana PSU that is outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to Yamana in exchange for a cash payment from Yamana equal to the volume weighted average trading price of one Yamana Share on the TSX during the five trading days ending on the last trading day prior to the Effective Date multiplied by the applicable Multiplier (as defined in the Yamana PSU Plan), to be determined on the Effective Date, less any withholding required by applicable Law, and each such Yamana PSU shall be immediately cancelled and (i) the holders of such Yamana PSU shall cease to be holders thereof and to have any rights as holders of such Yamana PSUs, other than the right to receive the consideration to which they are entitled under this Section 3.1(g), (ii) such holders’ names shall be, and shall be deemed to be, removed from the register of Yamana PSUs maintained by or on behalf of Yamana, and (iii) all agreements relating to the Yamana PSUs shall be terminated and shall be of no further force and effect; (h) each Yamana DSU that is outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to Yamana in exchange for a cash payment from Yamana equal to the volume weighted average trading price of one Yamana Share on the TSX during the five trading days ending on the last trading day prior to the Effective Date, less any withholding required by applicable Law and each such Yamana DSU shall be immediately cancelled and (i) the holders of such Yamana DSUs shall cease to be holders thereof and to have any rights as holders of such Yamana DSUs, other than the right to receive the consideration to which they are entitled under this Section 3.1(h), (ii) such holders’ names shall be, and shall be deemed to be, removed from the register of Yamana DSUs maintained by or on behalf of Yamana, and (iii) all agreements relating to the Yamana DSUs shall be terminated and shall be of no further force and effect; and (i) the authorized share capital of Yamana shall be amended by (i) eliminating the Y▇▇▇▇▇ ▇▇▇▇▇▇, (ii) changing the identifying name of the issued and unissued Class A Shares from “Class A common shares” to “common shares” and amending the special rights and restrictions attached to those shares to provide the holders thereof with one vote in respect of each share held, and the articles of Y▇▇▇▇▇ shall be deemed to be amended accordingly; and (j) Pan American shall make, and shall be deemed to have made, a capital contribution to Yamana by capitalizing the Dissent and RSU Loan, and the Dissent and RSU Loan shall be, and shall be deemed to be, cancelled and extinguished. The events provided for in this Section 3.1 shall be deemed to occur on the Effective Date, notwithstanding that certain procedures related thereto may not be completed until after the Effective Date.

Appears in 1 contract

Sources: Arrangement Agreement (Agnico Eagle Mines LTD)

Arrangement. At the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ the following ~~events or transactions~~ other steps shall occur and shall be deemed to occur ~~sequentially~~ in the following order without any further act or ~~formality:~~formality (except as specified herein): (a) the ~~Purchaser~~ Mountain Lake Rights Plan shall ~~subscribe~~ be terminated (and all rights thereunder shall expire) and shall be of no further force or effect; (b) the Mountain Lake Option Plan and any predecessor stock option plan will be terminated and all outstanding Mountain Lake Options will be cancelled. (c) all of the Spin-out Assets and Liabilities shall be transferred to Spinco by Mountain Lake in consideration for ~~that~~ the issuance of such 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 fully-paid and non-assessable ~~Acquireco~~ Spinco Shares to Mountain Lake such that immediately after the foregoing issuance Mountain Lake shall hold in the aggregate (together with the Spinco Shares held immediately prior to the foregoing issuance) that number of Spinco Shares that is equal to 40% of the total number of Mountain Lake 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 immediately prior to the Effective Time and after giving effect to this Subsection 3.1(c) (adjusted as provided in Section 3.4 below) less the number of Mountain Lake Shares held by Dissenting Shareholders; (d) Spinco shall issue to each of Marathon Gold and to the directors and officers of Spinco the number of Spinco Units agreed to be purchased by each such party on such terms and for such consideration described in the Arrangement Agreement; (e) Mountain Lake shall undertake a reorganization of capital within the meaning of Section 86 of the Tax Act as follows, and in the following order: (i) the authorized capital of Mountain Lake shall be amended by: (A) re-designating the Mountain Lake Common Shares as Class B Shares and each certificate representing an outstanding Mountain Lake Common Share shall, ~~without any further action by or on behalf~~ as and from the time such re- designation is effective, represent a Class B Share; and (B) creating an unlimited number of ~~any holder~~ Class A Shares; and the articles and notice of ~~such In-the- Money Option,~~ articles of Mountain Lake shall be deemed to be ~~fully vested~~ amended accordingly; (ii) each issued and outstanding Class B Share, other than those held by Dissenting Shareholders, shall be exchanged free and clear of all Encumbrances for one Class A Share and 0.40 of a Spinco Share; and (iii) the capital of Mountain Lake for the outstanding Class A Shares shall be an amount equal to the paid-up capital (within the meaning of the Tax Act) of the Mountain Lake Class B Shares, less the paid-up capital (within the meaning of the Tax Act) of the Mountain Lake Class B Shares that is attributable to each issued Class B Share held by Dissenting Shareholders and described in paragraph 3(f) hereof, and less the fair market value of the Spinco Shares distributed to Mountain Lake Shareholders; (f) the following steps shall be effected contemporaneously: (i) each issued and outstanding Class A Share held by a Former Mountain Lake Securityholder (other than a Mountain Lake Shareholder who has validly exercised its Dissent Rights and other than Mountain Lake Common Shares beneficially owned by Marathon Gold immediately prior to the Effective Time) shall be deemed to be transferred ~~and disposed~~ by the holder thereof to ~~the Company~~ Marathon Gold (free and clear of all ~~Encumbrances) and cancelled~~ Encumbrances of whatsoever nature), in exchange for 0.40 Marathon Gold Common Shares (the ~~Option Consideration~~“Exchange Share Ratio”) (subject to Section 3.4 and Article V hereof) and each such former Mountain Lake Securityholder shall cease to be a holder of such Class A Share, and Marathon Gold shall be the holder of ~~such In-the-Money Option shall become the holder~~ all of the ~~Company~~ issued and outstanding Class A Shares ~~comprising such Option Consideration~~ and the central securities register of ~~the Company~~ Mountain Lake 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~~ Class B Share held by a Dissenting Shareholder shall be deemed to be transferred by the ~~Effective Time shall~~holder thereof to Marathon Gold (free and clear of all Encumbrances of whatsoever nature), ~~without any further action~~ and Marathon Gold shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article IV hereof, and each such Dissenting Shareholder shall cease to be a holder of such Class B Share, and Marathon Gold shall be the holder of such Class B Share and the central securities register of Mountain Lake shall be revised accordingly; and (iii) each Class B Share (other than Class B Shares held by Dissenting Shareholders and acquired by Marathon Gold) shall be cancelled; (iv) each Former Mountain Lake Securityholder shall cease to be a registered or beneficial holder of Mountain Lake Common Shares and the name of such holder shall be removed from the securities register maintained by or on behalf of ~~any holder~~ Mountain Lake in respect 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,~~ Mountain Lake Common Shares and shall cease to have any rights as ~~a holder in respect~~ holders 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Mountain Lake Common Shares other than ~~a claim against~~ the ~~Company in an amount determined and payable~~ right to receive the Marathon Gold Common Shares in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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; (iiv) each ~~Company Share issued~~ Former Mountain Lake Securityholder that was the registered holder thereof immediately prior to such assignment 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)) transfer shall be ~~exchanged with the Company~~deemed to have executed and delivered all consents, ~~free~~ releases, assignments and ~~clear of any Encumbrances~~waivers, ~~for one Class A Share~~ statutory or otherwise, required to transfer and ~~one Distribution Spinco Share, and upon~~ assign such ~~exchange: (A) each such exchanged Company Share shall be cancelled, and the holders of such exchanged Company~~ Mountain Lake Common Shares ~~shall be removed from the Company’s register of holders of Company Shares~~to Marathon Gold; (Bvi) Marathon Gold shall issue and cause to be delivered to each Former Mountain Lake Securityholder the Marathon Gold Common Shares to which such holder is entitled as aforesaid and the name 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~~ securities register maintained by ~~the Company~~ or on behalf of Marathon Gold in respect of the ~~Class A Shares,~~ Marathon Gold Common Shares showing such holder as the registered holder of the Marathon Gold Common Shares so issued; and (vii) Marathon Gold shall be added to the securities register maintained by or on behalf of Mountain Lake in respect of the ~~Class A~~ Mountain Lake Common 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (iv) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares showing Marathon Gold as the sole legal and beneficial owner of ~~such Class A Shares,~~ Mountain Lake Common Shares free and clear of all ~~Encumbrances~~Liens; no fractional Marathon Gold Common Shares shall be issued by Marathon Gold to any Mountain Lake Shareholder on the exchange contemplated herein and the number of Marathon Gold Common Shares issued to a Mountain Lake Shareholder shall be rounded down to the next whole number of Marathon Gold Common Shares with no compensation for any fractional interest; and (v) each such Participating Former Securityholder shall, 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 (Ag) the ~~sum of (I) the aggregate Combination Consideration Cash payable pursuant to~~ exchanges, cancellations and steps provided for in this 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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, 3.1 shall be deemed to ~~be effective immediately following~~ occur on the ~~transfers~~ Effective Date, notwithstanding that certain of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to procedures related thereto are not completed until after the Effective ~~Time shall be cancelled in exchange for a cash payment by the Company to the holder of such Company DSU equal to the Company Sh~~Time.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At 3.1 Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ the ~~following~~ events ~~or transactions~~ set out below shall occur and shall be deemed to occur ~~sequentially~~ in the following ~~order~~ sequence without any further act or ~~formality~~formality except as otherwise provided herein: (a) the ~~Purchaser shall subscribe for that number of Acquireco Common Shares~~QAT Shares held by Dissenting Shareholders shall, ~~at a price of $1.00 per share, equal to the quotient obtained when (A) the fair market value~~ as of the ~~Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00~~Effective Time, be transferred to, and ~~for greater certainty for the purposes of determining variable (A) in relation to the quotient under this Section 3.02(a)~~acquired by, 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)QAT, 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 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~~ cancelled 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,~~ outstanding 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a ~~holder of such Company Shares~~ QAT Shareholder other than ~~a claim against~~ the ~~Company in an amount determined and payable~~ right to be paid the fair value of their QAT Shares in accordance with Article ~~4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares~~5; (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; (jb) all of the issued and outstanding ~~Spinco~~ QAT Shares will be exchanged with Newco for Purchaser Shares on the basis that each QAT Shareholder (other than Dissenting Shareholders at the Effective Time) shall receive for each QAT Share registered in the QAT Shareholder’s name immediately prior the Effective Time, 0.2222 of a Purchaser Share, provided that the Purchaser Shares received by each QAT Shareholder shall be Restricted Shares as set out in Article 4; (c) the Amalgamating Corporations shall amalgamate pursuant to the provisions of the OBCA to form Amalco and shall continue as one corporation on the terms prescribed in this Plan of Arrangement, and: (i) the property of each Amalgamating Corporation shall continue to be the property of Amalco; (ii) Amalco shall continue to be liable for the obligations of each Amalgamating Corporation; (iii) any existing cause of action, claim or liability to prosecution shall be unaffected; (iv) any civil, criminal or administrative action or proceeding pending by or against an Amalgamating Corporation may be continued to be prosecuted by or against Amalco; (v) any conviction against, or ruling, order or judgment in favour of or against, an Amalgamating Corporation may be enforced by or against Amalco; (vi) except as may be prescribed, the articles of amalgamation shall be the same as the articles of Newco and the articles of amalgamation are deemed to be the articles of incorporation of Amalco and the certificate of amalgamation is deemed to be the certificate of incorporation of Amalco; and (vii) the by-laws of Amalco shall be the same as the by-laws of Newco; (d) on the Amalgamation: (i) all Newco Shares shall be ~~consolidated (the “Spinco Share Consolidation”)~~ converted on a share for share basis into fully paid and non-assessable Amalco Shares on the basis of one ~~post~~fully paid and non-~~consolidation Spinco~~ assessable Amalco Share for each ~~eight~~ one Newco Share; (~~8) pre- consolidation Spinco~~ ii) all QAT Shares ~~held by a holder of Spinco Shares, and any fractional Spinco Shares resulting from such Spinco Share Consolidation~~ shall be cancelled without ~~payment or compensation therefor~~any repayment of capital in respect thereof; (iii) the paid-up capital of the Amalco Shares shall, for the purposes of the Income Tax Act (Canada), be the paid-up capital of the Newco Shares immediately before the Amalgamation; and (iv) the stated capital of the Amalco Shares shall, for the purposes of the Income Tax Act (Canada), be equal to the paid-up capital of the Newco Shares immediately before the Amalgamation. 3.2 In connection with the exchanges described in subsection 3.1(b), each QAT Shareholder shall cease to be a holder of QAT Shares and ~~upon~~ shall be a holder of the number of Purchaser Shares to which such ~~Spinco Share Consolidation~~ holder is entitled and, if a registered holder, such holder's name shall be removed from the register of QAT Shareholders and shall be added to the register of holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh.

Appears in 1 contract

Sources: Arrangement Agreement (Mobile Integrated Systems, Inc.)

Arrangement. At Commencing at the Effective Time~~, unless otherwise specifically provided in this Section 3.02~~, the following events or transactions shall occur sequentially in the order set out below and ~~shall~~ will be deemed to occur ~~sequentially in the following order~~ without any further act or ~~formality~~formality required on the part of any Person, except as otherwise provided herein: (a) the ~~Purchaser~~ Company shall ~~subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal~~ pay all accrued and unpaid interest under the Brookfield Existing Loan in cash 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 ConsiderationBrookfield; (b) ~~notwithstanding any vesting or exercise provisions~~ all amounts owing 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 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 Brookfield 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 Brookfield Existing Loan shall be, and shall be deemed to be, ~~surrendered~~ irrevocably, finally and fully settled and extinguished by the issuance by the Company to Brookfield of 18,214,401,868 Common Shares. The Common Shares issued pursuant to this Section 2.2(b) shall be, and shall be deemed to be, received in full and final settlement, extinguishment, discharge and release of the Brookfield Existing Loan and all Claims relating thereto; (c) the Company shall pay the Debentures Interest in cash to the applicable Indenture Trustee or its nominee, as registered holder of the global notes and on behalf of all Debentureholders, and such Indenture Trustee shall pay (or cause to be paid) the Debentures Interest to the Debentureholders pursuant to standing instructions and customary practices, without abatement or rights of setoff or counterclaim of any nature; (d) the Debentures shall be, and shall be deemed to be, irrevocably, finally and fully settled and extinguished by the issuance by the Company to the Debentureholders of 1,187,895,774 Common Shares, with each Debentureholder being entitled to receive its Debentureholder’s Pro Rata Share of such Common Shares in full and final settlement of and in exchange for the Debentures. The Common Shares issued pursuant to this Section 2.2(d) shall be, and shall be deemed to be, received in full and final settlement, extinguishment, discharge and release of the Debentures, the Indentures, all Entitlements relating to the Debentures and the Indentures and all other Debentureholders’ Claims; (e) notwithstanding any vesting provisions to which an RSU might otherwise be subject, (i) each RSU issued and outstanding at the Effective Time, whether or not vested, will be transferred to the Company ~~by the holder thereof,~~ without any ~~further act or formality by such Dissenting Shareholder~~action on behalf of the respective holders thereof, free and clear of all ~~Encumbrances~~liens, charges, encumbrances and any other rights of others, and ~~each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against~~ in exchange therefor, the Company ~~in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder~~ shall be removed from the securities register of holders of 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 issue to the ~~product obtained when (A)~~ holder such number of Common Shares as were subject to the ~~stated capital of all the issued and outstanding Company Shares~~ RSU 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a Participating Former Securityholder validly electing to receive the Cash Consideration, the Cash Consideration, subject to the provisions of Section 3.02(m)Effective Time; and (ii) in the ~~case of a Participating Former Securityholder validly electing to receive~~ RSU Plan will be terminated and the ~~Purchaser Share Consideration, the Purchaser Share Consideration, subject~~ Company will have no liabilities or obligations with respect to the provisions of Section 3.02(n), and upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 SecurityholderRSU Plan; (~~m) in the event that (A~~f) the ~~sum of (I) the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k)~~ Common Shares then issued and ~~(II) the Aggregate Elected Cash~~outstanding will be consolidated, ~~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~~ that every 400 Common Shares shall, ~~notwithstanding Section 3.02(l)(i): (i) only be entitled to receive~~ automatically and without any action on 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion part of the ~~Purchaser Share Consideration for any fractional Class A Share included in such remaining portion)~~respective holders thereof, be combined and converted into one new Common Share; (n) in the event that (A) the sum of (I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Recapitalization Agreement (North American Palladium LTD)

Arrangement. At Commencing at the Effective ~~Time, unless otherwise specifically provided in this Section 3.02,~~ Time the following ~~events or~~ transactions ~~shall~~ will occur and ~~shall~~ be deemed to occur ~~sequentially~~ in the following ~~order~~ sequence without ~~any~~ further act or formality: (a) the ~~Purchaser~~ BMG Shareholder Rights Plan shall ~~subscribe for that~~ be terminated and all rights issued thereunder shall be extinguished; (b) each Dissenter shall dispose of all of the Dissent Shares held by the Dissenter to GSV and in consideration therefor, GSV shall issue to the Dissenter a debt-claim to be paid by GSV the aggregate fair market value of those Dissent Shares, and in respect thereof: (i) the Dissenter shall cease to hold the Dissent Shares and the name of the Dissenter shall be removed from the central securities register of BMG; and (ii) GSV shall become the registered holder of the Dissent Shares and the name of GSV shall be entered in the central securities register of BMG; (c) all June Options which have not been cancelled, exercised or otherwise terminated prior to the Effective Time shall be terminated and cancelled without any payment or consideration in respect thereof; (d) each BMG Employee Optionholder shall dispose of each outstanding BMG Employee Option (other than a June Option) held by the BMG Employee Optionholder to GSV, and in sole consideration therefor, GSV shall issue to the BMG Employee Optionholder a number of ~~Acquireco Common Shares~~Replacement Options having the same terms as the BMG Employee Option disposed of equal to the product obtained by multiplying: (i) the number of BMG Shares issuable on the exercise of the BMG Employee Option immediately prior to the Effective Time by (ii) the Exchange Ratio, ~~at a price of $1.00 per share~~and having an exercise price, rounded up to the nearest whole cent, equal to the quotient obtained ~~when~~ by dividing: (Aiii) the ~~fair market value~~ exercise price per BMG Share issuable on the exercise 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 BMG Employee Option immediately prior to the ~~acquisition~~ Effective Time by (iv) the Exchange Ratio, except that the aggregate number of Replacement Options having a common exercise date and price which are issuable hereunder to a BMG Employee Optionholder shall be rounded down to the ~~Class A~~ nearest whole number; (e) each outstanding BMG Option, other than a BMG Employee Option and a June Option, held by a BMG Optionholder shall remain outstanding in accordance with its terms and shall, in lieu of being exercisable for BMG Shares, be exercisable for the number of GSV Shares equal to the product obtained by ~~Acquireco pursuant to Section 3.02(k), and in connection with such share subscription~~multiplying: (i) the ~~Purchaser~~ number of BMG Shares issuable on the exercise of the BMG Option immediately prior to the Effective Time by (ii) the Exchange Ratio, and shall have an exercise price per GSV Share, rounded up to the nearest whole cent, equal to the quotient obtained by dividing: (iii) the exercise price per BMG Share issuable on the exercise of the BMG Option immediately prior to the Effective Time by (iv) the Exchange Ratio, except that the aggregate number of GSV Shares issuable to a BMG Optionholder on the exercise of a BMG Option 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~~ rounded down to the ~~Depositary~~ nearest whole number; (f) each outstanding BMG Warrant held by a BMG Warrantholder shall remain outstanding in accordance with ~~Section 3.05(a)(i) (such cash~~ its terms and ~~Purchaser Shares, collectively, the “Purchaser Consideration”) for and on behalf of Acquireco~~shall, in ~~satisfaction~~ lieu of being exercisable for one (1) BMG Share, be exercisable for the number of GSV Shares equal to the Exchange Ratio and shall have an exercise price equal to the exercise price of the ~~subscription~~ BMG Warrant immediately prior to the Effective Time, except that the aggregate number of GSV Shares issuable to a BMG Warrantholder on the exercise of BMG Warrants having a common exercise date and price ~~payable~~ shall be rounded down to the nearest whole number; and (g) each BMG Shareholder, other than GSV (and other than a Dissenter), shall (i) dispose of 8/59 of each BMG Share held by the ~~Purchaser~~ BMG Shareholder to GSV, and in sole consideration for such ~~Acquireco Common Shares;~~ fraction of each BMG Share, GSV shall pay to the BMG Shareholder $0.08, and (ii) ~~Acquireco~~ dispose of 51/59 of each BMG Share held by the BMG Shareholder to GSV, and in sole consideration for such fraction of each BMG Share, GSV shall ~~be deemed to have issued such fully paid and non-assessable Acquireco Common Shares~~ issue to the ~~Purchaser~~BMG Shareholder, 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 for an ~~amount~~ aggregate issue price equal to the fair market value thereof, that number 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 Infully-~~the-Money Option issued and outstanding immediately prior~~ paid GSV Shares equal to the ~~Effective Time shall~~Share Exchange Ratio, ~~without any further action by or~~ except that the aggregate number of GSV Shares issuable to a BMG Shareholder on ~~behalf~~ the exchange of ~~any holder of such In-the- Money Option, be deemed to be fully vested and~~ BMG Shares shall be ~~transferred and disposed by the holder thereof~~ rounded down to the ~~Company (free and clear of all Encumbrances) and cancelled in exchange for the Option Consideration~~nearest whole number, 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;in respect thereof: (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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting BMG Shareholder shall cease to ~~have any rights as a holder of such Company~~ hold the BMG Shares ~~other than a claim against the Company in an amount determined and payable in accordance with Article 4~~ and the name of ~~such Dissenting~~ the BMG Shareholder shall be removed from the securities register of ~~holders of Company Shares~~BMG; (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) ~~each such Participating Former Securityholder~~ the BMG Shareholder shall ~~be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as~~ become 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~~ GSV Shares and the ~~Purchaser’s securities register of holders of Purchaser Shares in respect~~ name 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (iv) Acquireco BMG Shareholder 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~~GSV; and (v) each such Participating Former Securityholder shall, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU an amount equal to the ~~Company Sh~~issue price of the GSV Shares so issued shall be added to the capital of the GSV Shares.

Appears in 1 contract

Sources: Arrangement Agreement (Battle Mountain Gold Inc.)

Arrangement. At the Effective Time, ~~unless~~ except as otherwise ~~specifically provided in this Section 3.02~~noted herein, the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ sequentially, in the following ~~order~~ order, without any further act or ~~formality~~formality required on the part of any Person, in each case effective as at the Effective Time: (a) ~~the Purchaser~~ each Liquid Share (other than any Liquid Shares held by LBIX and any Liquid Shares in respect of which any Liquid Shareholder has validly exercised his, her or its Dissent Right) shall ~~subscribe for that number~~ be deemed to be transferred to LBIX (free and clear of ~~Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when (A~~any Encumbrances) ~~the fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00, and for greater certainty~~ in exchange for the ~~purposes~~ Consideration, subject to Article 4 hereof; (b) each Liquid Share in respect of ~~determining variable~~ which any Liquid Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to LBIX (Afree and clear of any Encumbrances) in ~~relation~~ accordance with Article 4 hereof; (c) with respect to ~~the quotient under this~~ each Liquid Share transferred and assigned in accordance with 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 3.1(a) or Section ~~3.02(k), and in connection with such share subscription~~3.1(b) hereto: (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 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 registered holder thereof shall cease to be the registered holder of such ~~Company Option,~~ Liquid Share and ~~shall cease to have any rights as a holder in respect~~ the name of such ~~Company Option under the applicable Company Option Plan, (B) such holder’s name~~ registered holder shall be removed from the register of ~~Company Options~~Liquid 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 Liquid Shares in accordance with Section 3.1(a) or Section 3.1(b) hereto, as applicable; and (Ciii) LBIX will be the holder of all ~~option agreements, Award Agreements, grants~~ of the outstanding Liquid Shares and ~~similar instruments relating thereto~~ the register of Liquid Shareholders shall be ~~cancelled~~revised accordingly; (cd) ~~notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract,~~ in accordance with the ~~terms and conditions of any Award Agreement or grant,~~ certificates governing the terms and conditions of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan~~Liquid Warrants, 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU Liquid Warrant outstanding immediately prior to the Effective Time shall be ~~cancelled in exchange for a cash payment by~~ entitled to receive (and such holder shall accept), upon the ~~Company to the holder~~ exercise of such ~~Company DSU~~ holder's Liquid Warrants, in lieu of each Liquid Share to which such holder was theretofore entitled, upon such exercise and for the same aggregate consideration payable therefor, the number of LBIX Shares equal to the ~~Company Sh~~product of: (i) the number of Liquid Shares subject to such Liquid Warrant immediately prior to the Effective Time; and (ii) 0.6979. Each liquid Warrant shall continue to be governed by and be subject to the terms of the certificate governing the terms and conditions of such Liquid Warrant; and (e) the exchanges, cancellations and transactions 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 (Leading Brands Inc)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall ~~occur and shall be deemed to~~ occur sequentially in the ~~following~~ order 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 (provided that none of the following shall occur unless all of the following occur): (1) notwithstanding the terms of the DSU Plan, the KEP Plan, the ESU Plan or the TI Plan or any applicable award agreements in relation thereto, simultaneously: (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 DSU Plan shall be ~~deemed to have directed the Depositary to hold,~~ terminated 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~~ DSU outstanding immediately prior to the Effective Time shall, without any further action by or formality on behalf of ~~any~~ the holder ~~of such In-the- Money Option~~thereof and the Company, be deemed to be ~~fully vested and shall be transferred and disposed by the holder thereof~~ surrendered to the Company ~~(free and clear of all Encumbrances) and cancelled~~ in exchange ~~for~~ for, subject to Section 4.4, an amount equal to the ~~Option~~ Consideration, ~~and~~ payable in cash to the holder ~~of such In-the-Money Option shall become the holder~~ in accordance with Section 4.1(5), in full satisfaction of the ~~Company Shares comprising~~ Company’s obligations under 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 Considerationsurrendered DSU; (iib) the KEP and TI Plan shall be terminated and each ~~Out-of-the-Money Option issued~~ RSU granted under the KEP Plan or the TI Plan and outstanding immediately prior to the Effective Time (whether then vested or unvested) shall, without any further action by or formality 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~~ and the Company, be deemed to be surrendered to the Company in exchange for, subject to Section 4.4, an amount equal to the Consideration, payable in cash to the holder in accordance with Section 4.1(5), in full satisfaction of the Company’s obligations under 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 cancelledsurrendered RSU; (c) ~~notwithstanding any vesting provisions to which a Company~~ the ESU Plan shall be terminated and each RSU ~~might otherwise be subject (whether by contract,~~ or PSU granted under the ~~terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013 Share Incentive~~ ESU Plan ~~or Company 2016 Stock Option Plan, or applicable law): (i) each Company RSU issued~~ and outstanding immediately prior to the Effective Time (whether then vested or unvested) shall, without any further action by or formality on behalf of ~~any~~ the holder ~~of such Company RSU~~thereof and the Company, be deemed to be ~~fully vested and shall be transferred and disposed by the holder thereof~~ surrendered to the Company ~~(free and clear of all Encumbrances) and cancelled~~ in exchange ~~for~~ for, subject to Section 4.4, an amount equal to, (i) in the ~~applicable RSU Consideration~~case of each RSU, the Consideration multiplied by the number of Shares covered by such RSU, 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~~ in the case of each ~~Company RSU:~~ PSU, the Consideration multiplied by the number of Shares covered by such PSU assuming 100% performance vesting, multiplied by a factor, being the ratio of (Ax) the ~~holder thereof shall cease~~ period of time from the grant date of the PSU to be the Effective Date, to (y) the term of the PSU, in each case payable in cash to the holder in accordance with Section 4.1(5), in full satisfaction of the Company’s obligations under such ~~Company RSU~~surrendered RSU or PSU (as applicable); whereupon all DSUs, RSUs 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 PSUs shall be, and shall be deemed to be, ~~surrendered to the Company~~ cancelled by the ~~holder thereof~~Company, ~~without any further act or formality by such Dissenting Shareholder~~all obligations in respect of the DSUs, ~~free~~ RSUs and ~~clear of all Encumbrances, and each such Company Share so surrendered~~ PSUs shall be ~~cancelled~~ deemed to be fully satisfied and ~~thereupon each Dissenting Shareholder~~ the holders thereof shall cease to have any rights ~~as a holder of such Company Shares~~ in respect thereof other than ~~a claim against~~ the ~~Company in an amount determined and payable in accordance with Article 4 and~~ right to receive the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 contemplated under this Plan of Arrangement; (ii2) notwithstanding the terms of the Stock Option Plan or any applicable award agreements in relation thereto, the Stock Option Plan shall be cancelled and each Company ~~Share issued and outstanding immediately before~~ Option (other than Rollover Options) whether vested or unvested, that has not, prior to the ~~reorganization of the Company’s share capital pursuant to this Section 3.02(h) (including~~Effective Time, ~~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~~ been exercised or surrendered ~~and cancelled~~ in accordance with ~~Section 3.02(e)) shall~~ its terms shall, without any further action or formality on behalf of the holder thereof and the Company and without any payment by such Company Optionholder, be ~~exchanged with~~ deemed to be transferred to the ~~Company, free and clear of any Encumbrances, for one Class A Share and one Distribution Spinco Share, and upon such exchange~~Company as follows: (Aa) 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 each Company Option outstanding at the ~~Class A Shares issued~~ Effective Time (other than Rollover Options) whether vested or unvested, that has an exercise price that is less than the Consideration, the applicable Company Option shall be deemed to ~~such holder; (C)~~ be surrendered to 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 for, subject to Section ~~3.02(h)(ii)~~4.4, ~~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~~ Consideration exceeds the exercise price thereof, payable in cash to 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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) Optionholder in accordance with Section ~~3.03 and Section 3.04 electing to receive~~ 4.1(5) in full satisfaction of the ~~Combination Consideration~~ Company's obligations under such surrendered Company Option; and (b) in respect of ~~all of such Participating Former Securityholder’s~~ each Company ~~Shares; (ii)~~ Option outstanding at the Effective Time whether vested or unvested, that has ~~not completed and delivered~~ an exercise price that is equal to or greater than the Consideration, 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 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,~~ Option shall be deemed to be ~~paid fair value for its~~ surrendered to the Company ~~Shares~~in exchange for, subject to Section 4.4, an amount equal to $0.05, payable in cash to the Company Optionholder in accordance with Section 4.1(5) in full satisfaction of the Company's obligations under such surrendered Company Option; whereupon all Company Options (other than Rollover Options) shall ~~transfer~~be, and shall be deemed to ~~have transferred~~be, ~~to Acquireco, without any further act or formality~~ cancelled by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 obligations in respect of the ~~Purchaser Shares payable to such Participating Former Securityholder pursuant to this Section 3.02(k);~~ Company Options (lother than Rollover Options) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers the applicable 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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~~ fully satisfied, and the ~~transfers~~ 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. (3) each Share held by a Dissenting Holder described in Section 3.1 shall be transferred by the ~~Class A Shares~~ holder thereof to ~~Acquireco pursuant to~~ the Company in exchange for a debt claim against the Company for the amount determined in accordance with Section ~~3.02(k) and Section 3.02(l~~3.1(a); (p4) ~~upon the resignation of the Existing Company Directors becoming effective,~~ each ~~Company DSU outstanding immediately prior to the Effective Time~~ Rollover Share shall be ~~cancelled~~ transferred by the holder thereof to Midco in exchange for such number of Midco Shares as set out in the applicable Rollover Agreement on the terms and conditions set out in the applicable Rollover Agreement. (5) simultaneous with the transactions set out in Section 2.3(4), each outstanding Share (other than a Share held by a Dissenting Holder described in Section 2.3(1) or a Rollover Share) shall be transferred to the Purchaser in exchange for, subject to Section 4.4, a cash payment ~~by the Company~~ to the holder ~~of such Company DSU~~ equal to the ~~Company Sh~~Consideration; (6) each Rollover Option (whether then vested or unvested) shall be exchanged for such number of Midco Options as set out in the applicable Rollover Agreement on the terms and conditions set out in the applicable Rollover Agreement; and (7) each Rollover Share shall be transferred by Midco to the Purchaser in exchange for common shares of the Purchaser on the terms and conditions set out in the Midco Transfer Agreement.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At Commencing 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~~ occur, except to the extent otherwise indicated, in the following 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 Notwithstanding any vesting or exercise provisions to which ~~a Company~~ an ICC Plan 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~~ ICC Stock Option ~~Plan,~~ Plan or applicable law): (i) each In-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 In-~~the-~~ the-Money Option, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to ~~the Company~~ ICC (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~~ ICC Shares comprising such Option Consideration and the central securities register of ~~the Company~~ ICC 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~~ ICC Plan Option: (A) the holder thereof shall cease to be the holder of such ~~Company~~ ICC Plan Option, and shall cease to have any rights as a holder in respect of such ~~Company~~ ICC Plan Option under the ~~applicable Company~~ ICC Stock Option Plan,; (B) such holder’s name shall be removed from the register of ~~Company~~ ICC Plan Options, and (C) all option agreements, Award Agreements, grants and similar instruments relating thereto shall be cancelled; (cb) ~~notwithstanding any vesting provisions to which~~ Each ICC Share held by 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 Dissenting ICC Shareholder shall, without any further action or formality by or on behalf of ~~any holder of~~ such ~~Company RSU~~Dissenting ICC Shareholder, be deemed to have been irrevocably transferred and assigned to Aurora (free and clear of all Encumbrances) and; (i) such Dissenting ICC Shareholder shall cease to be ~~fully vested~~ the holder of such ICC Shares so transferred and to have any rights as holder of such ICC Shares other than the right to be paid fair value for such ICC Shares by Aurora as set out in Section 3.1; (ii) such Dissenting ICC Shareholder's name shall be ~~transferred and disposed by~~ removed as the holder ~~thereof to~~ of such ICC Shares from the ~~Company~~ central securities register of holders of ICC Shares maintained by or on behalf of ICC; and (iii) Aurora shall become the sole legal and beneficial holder of such ICC Shares so transferred (free and clear of all Encumbrances) and ~~cancelled~~ shall be entered 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~~ holders of ~~such RSU Consideration shall not be entitled to receive a share certificate~~ ICC Shares maintained by or ~~other document representing the RSU Consideration; (ii) with respect to each Company RSU: (A) the holder thereof shall cease to be the holder~~ on behalf 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, ICC; and (Cc) ~~all Award Agreements~~Concurrently with the step described in Section 2.3(b), ~~grants and similar instruments relating thereto will be cancelled;~~ each ICC Share (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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (f) concurrently with the surrender and cancellation of Company those ICC Shares held by Dissenting ICC 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 but including ICC 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~~2.3(a)) ~~shall~~ shall, without any further action by or on behalf of the holder, be ~~exchanged with~~ deemed to be assigned and irrevocably transferred by the ~~Company,~~ holder thereof to Aurora (free and clear of ~~any~~ all Encumbrances, ) and the holder thereof shall be entitled to receive from Aurora the Share Consideration for ~~one Class A~~ such ICC Share and ~~one Distribution Spinco Share, and~~ upon the transfer of each such ~~exchange:~~ICC Share from such holder to Aurora pursuant to this Section 2.3(c); (Ai) each ~~such exchanged Company Share shall be cancelled, and the holders~~ holder of such ~~exchanged Company~~ ICC Shares shall cease to be the holder of the ICC Shares so transferred and cease to have any rights as a ICC Shareholder other than the right to be paid the Share Consideration for such ICC Shares in accordance with this Plan of Arrangement; (ii) the name of each such holder of ICC Shares shall be removed from the ~~Company’s~~ register of ~~holders~~ the ICC Shares maintained by or on behalf 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 SharesICC; and (Diii) ~~each~~ Aurora shall be deemed the sole legal and beneficial holder of such ~~exchanged Company~~ ICC 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;~~ so transferred (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances~~, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k~~) ~~in exchange for the Combination Consideration Cash~~ and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the ~~Company’s securities~~ register of ~~holders~~ the ICC Shares maintained by or on behalf of ~~Class A Shares as the legal and beneficial owner~~ ICC. Each holder of ~~such Class A Shares~~each ICC Share, ~~free of all Encumbrances; and (vi)~~ with respect to 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 step set out above applicable to such ~~Participating Former Securityholder pursuant~~ holder, shall be deemed, at the time such step occurs, to ~~this Section 3.02(k); (l) each Participating Former Securityholder receiving Class A Shares pursuant~~ have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to ~~Section 3.02(h)(ii) who duly and validly completes and delivers the applicable Election Form(s)~~ transfer such ICC Share 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shstep.

Appears in 1 contract

Sources: Arrangement Agreement (Aurora Cannabis Inc)

Arrangement. At On and after the Effective ~~Time, unless otherwise specifically provided in this Section 3.02~~Date and at the times provided, the following events ~~or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ consecutively in the ~~following~~ order set out in this Section 2.3 without any further authorization, act or formality: (a) At the ~~Purchaser~~ Effective Time, each INSINC Shareholder that has not duly completed, executed and delivered a Participation Notice that has been accepted by INSINC shall ~~subscribe for that~~ be deemed to be a Non-Participating INSINC Shareholder; (b) At the Effective Time, INSINC shall pay $********* (“Fee”) to Alexander Capital Group Inc. and shall pay the amount set forth in the Costs Certificate (the “Advisor Costs”) to the advisors specified therein; (c) At five minutes following the Effective Time, the authorized capital of INSINC shall be amended to create and authorize an unlimited 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~~ S1 Preferred Shares and ~~Maximum Cash Consideration is divided by~~ S2 Preferred Shares; (Bd) ~~$1.00, and for greater certainty for~~ At ten minutes following 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:Effective Time, (i) ~~the Purchaser~~ each INSINC Share held by a Non-Participating INSINC Shareholder shall be ~~deemed~~ transferred by such Non-Participating INSINC Shareholder to ~~have directed the Depositary~~ INSINC in exchange for one (1) S1 Preferred Share, on a one-for-one basis. which S1 Preferred Shares shall be issued to ~~hold,~~ such Non-Participating INSINC Shareholder as fully paid 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 Sharesnon-assessable shares free from any encumbrances; 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~~ each INSINC Share transferred 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; paragraph (bd)(i) 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 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; (ce) ~~notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract,~~ At fifteen minutes following 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):~~Effective Time, (i) ~~each Company RSU~~ INSINC shall declare a dividend of $1,480,000 on its 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;INSINC Shares. (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~~ dividend shall be ~~removed from~~ paid by the ~~register~~ issuance to Participating INSINC Shareholders on a pro-rata basis of ~~Company RSUs,~~ 1,480,000 S2 Preferred Shares having an aggregate redemption amount equal to the amount of the dividend referred to in paragraph (e)(i); and (Ciii) ~~all Award Agreements, grants and similar instruments relating thereto will be cancelled; (d)~~ INSINC shall add the ~~Company Option Plans shall be terminated; (e) each Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered~~ full amount of the dividend to the ~~Company by~~ stated capital account maintained for the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company S2 Preferred Shares; (f) ~~concurrently with~~ INSINC is authorized to make an election, before or after the ~~surrender and cancellation~~ Effective Date, under subsection 83(2) of ~~Company Shares held by Dissenting Shareholders pursuant to Section 3.02(e),~~ the ~~stated capital account maintained by the Company~~ Tax Act in respect of the ~~Company Shares shall be reduced, in respect~~ full amount of the ~~Company Shares cancelled~~ dividend paid pursuant to ~~Section 3.02(e), by an amount equal to the product obtained when~~ paragraph (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(ee); (g) At five minutes following the ~~Company~~ D2 Effective Time, a portion of the S1 Preferred Shares held by each Non-Participating INSINC Shareholder, equal to Percentage 1 of such holder’s S1 Preferred Shares, shall ~~transfer all of its entire legal and beneficial right, title and interest in and~~ be transferred to ~~the Spinco Property to Spinco~~ NeuLion 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 following 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 capitaleach S1 Preferred Share: (i) ~~the notice of articles and articles of the Company shall be amended~~ a cash payment equal 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: /B where (A) ~~each such exchanged Company Share shall be cancelled,~~ is the Cash Consideration 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~~ is 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 Total INSINC Shares; (ii) ~~has not completed~~ a number of Series I Warrants determined as follows: A/B where (A) is 1,000,000 and ~~delivered~~ (B) is 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 Consideration is respect of all of such Participating Former Securityholder’s Company Total INSINC Shares~~; or~~; (iii) ~~exercises Dissent Rights~~ a number of Series II Warrants determined as follows: A/B where (A) is 500,000 and (B) is ~~ultimately not entitled~~the Total INSINC Shares; and (iv) the number of Series I Warrants and Series II Warrants shall be rounded up or down (where an interest of 0.5 or more rounds up) to the nearest whole warrant; (h) At ten minutes following the D2 Effective Time, ~~for any reason~~a portion of the S1 Preferred Shares held by each Non-Participating INSINC Shareholder, equal to ~~be paid fair value for its Company~~ Percentage 2 of such holder’s S1 Preferred Shares, shall ~~transfer~~be transferred to NeuLion in consideration for a number of NeuLion Shares in respect of each S1 Preferred Share determined as A/B: where (A) is 6,000,000 and (B) is the Total INSINC Shares. The number of NeuLion Shares shall be rounded up or down (where an interest of 0.5 or more rounds up) to the nearest whole share, except that each Non-Participating INSINC Shareholder shall receive no less than one NeuLion Share; (i) At fifteen minutes following the D2 Effective Time, each S2 Preferred Share held by a Participating INSINC Shareholder shall be transferred to NeuLion in consideration for a cash payment equal to A/B where (A) is $1,480,000 and (B) is the number of S2 Preferred Shares issued and outstanding at fifteen minutes following the D2 Effective Time; (j) At twenty minutes following the D2 Effective Time, a portion of the INSINC Shares held by each Participating INSINC Shareholder, equal to Percentage 3 of such holder’s INSINC Shares, shall be transferred to NeuLion in consideration for the following in respect of each INSINC Share: (i) a cash payment equal to [(A x B/C) — D] / B where (A) is the Cash Consideration, (B) is the INSINC Shares issued and outstanding at twenty minutes following the D2 Effective Time, (C) is the Total INSINC Shares, and (D) is $1,480,000; (ii) a number of Series I Warrants determined as follows: A/B where (A) is 1,000,000 and (B) is the Total INSINC Shares; (iii) a number of Series II Warrants determined as follows: A/B where (A) is 500,000 and (B) is the Total INSINC Shares; and (iv) the number of Series I Warrants and Series II Warrants shall be ~~deemed~~ rounded up or down (where an interest of 0.5 or more rounds up) to ~~have transferred~~the nearest whole warrant; (k) At twenty-five minutes following the D2 Effective Time, a portion of the INSINC Shares held by each Participating INSINC Shareholder, equal to ~~Acquireco~~Percentage 4 of such holder’s INSINC Shares, ~~without any further act~~ shall be transferred to NeuLion in consideration for a number of NeuLion Shares in respect of each INSINC Share determined as A/B: where (A) is 6,000,000 and (B) is the Total INSINC Shares. The number of NeuLion Shares shall be rounded up or ~~formality~~ down (where an interest of 0.5 or more rounds up) to the nearest whole share, except that each Participating INSINC Shareholder shall receive no less than one NeuLion Share; (l) All INSINC Shares, S1 Preferred Shares, and S2 Preferred Shares acquired hereunder by ~~such Participating Former Securityholder,~~ NeuLion shall be transferred to NeuLion free and clear of all ~~Encumbrances~~Liens, ~~each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash~~ claims and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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)encumbrances; (lm) ~~each Participating Former Securityholder receiving Class A~~ At thirty minutes following the D2 Effective Time, the NeuLion Shares ~~pursuant~~ issued in the Arrangement to ~~Section 3.02(h)(ii) who duly~~ Dobbie shall become eligible for resale, in compliance with Laws and ~~validly completes and delivers the applicable Election Form(s)~~ Regulations, 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior two instalments according to the ~~exchange in this Section 3.02(l) in exchange for~~following schedule: (i) ~~in the case of a Participating Former Securityholder validly electing to receive the Cash Consideration, the Cash Consideration, subject~~ 50% (rounded down to the ~~provisions of Section 3.02(m)~~nearest whole NeuLion Share) on the 180th day after the Effective Date; and (ii) the balance on the one-year anniversary of the Effective Date; provided, however, that in the ~~case of a Participating Former Securityholder validly electing to receive the Purchaser Share Consideration, the Purchaser Share Consideration, subject~~ event Dobbie’s employment with NeuLion is terminated (other than by his resignation) prior to the ~~provisions~~ one-year anniversary of ~~Section 3.02(n)~~the Effective Date, ~~and upon such exchange: (iii) each such Participating Former Securityholder shall be removed from~~ 100% of the ~~Company’s securities register of holders of Class A Shares, (iv) Acquireco shall be entered~~ NeuLion Shares issued to Dobbie in the ~~Company’s securities register of holders of Class A Shares as~~ Arrangement will be eligible for resale, in compliance with Applicable Law, on the ~~sole legal and beneficial owner of such Class A Shares, free of all Encumbrances~~120th day after the Effective Date; and (vn) ~~each such Participating Former Securityholder shall, subject to~~ At thirty-five minutes following 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 placesD2 Effective Time, the ~~numerator~~ directors of ~~which is the Maximum Cash Consideration minus the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k),~~ INSINC will resign and the denominator of which is the Aggregate Elected Cash; and (ii) be entitled to receive the Purchaser Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 Directorspersons whose names appear below, shall ~~be deemed to be effective immediately following~~ hold office until the ~~transfers~~ next annual meeting of ~~the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation~~ shareholders of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShINSINC or until their successors are elected or appointed:

Appears in 1 contract

Sources: Acquisition Agreement (Neulion, Inc.)

Arrangement. At the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ the Arrangement shall become effective and the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially in the following order~~ without any further act or formality:, as further described in the Plan of Arrangement, and in accordance with the terms of the Plan of Arrangement. (a) ~~the Purchaser shall subscribe for that number of Acquireco~~ Each GW 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 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, surrendered~~ be transferred to ~~the Company~~ FN by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder~~on its part, free and clear of all Encumbrances, and ~~each such Company Share so surrendered~~ FN shall thereupon be ~~cancelled and thereupon each Dissenting Shareholder shall cease~~ obliged to ~~have any rights as a holder of such Company Shares other than a claim against~~ pay the ~~Company in an~~ amount therefor determined and payable in accordance with ~~Article 4~~ the Plan of Arrangement, and the name of such ~~Dissenting Shareholder~~ holder shall be removed from the central securities register of ~~holders~~ GW as a holder of ~~Company~~ GW Common Shares and FN shall be recorded as the registered holder of the GW Common Shares so transferred and shall be the legal owner of such GW Common Shares;. (fb) ~~concurrently with the surrender and cancellation of Company~~ Each GW Common Share (other than GW Common 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 FN 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), its affiliates 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)Shareholders) 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 transferred 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquirecothereof, without any further act or formality ~~by such Participating Former Securityholder~~on its part, to FN (free and clear of ~~all Encumbrances~~any Encumbrances of whatsoever nature), and each ~~Class A Share held by such Participating~~ Former ~~Securityholder immediately prior~~ GW Shareholder (other than FN and its affiliates and the Dissenting Shareholders) shall be entitled to ~~the exchange in this Section 3.02(k)~~ receive, in exchange ~~for the Combination Consideration Cash~~ therefor and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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~~Sections 2.03(b), ~~be entered~~ 2.03(c) and 4.01(d) of the Plan of Arrangement, consideration comprised of, in accordance with the election or deemed election of such Former GW Shareholder contemplated in the ~~Purchaser’s securities register~~ Plan of ~~holders of Purchaser Shares in respect of the Purchaser Shares payable to such Participating Former Securityholder pursuant to this Section 3.02(k);~~Arrangement: (li) Share Consideration — 0.1556 of an FN Common Share for each ~~Participating~~ GW Common Share held; or (ii) Cash Consideration — $5.20 for each GW Common Share held, subject to pro-ration in accordance with the Plan of Arrangement. (c) Any Former ~~Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii~~GW Shareholder (other than FN and its affiliates and the Dissenting Shareholders) who has not duly and validly ~~completes~~ completed and ~~delivers~~ delivered the ~~applicable~~ Letter of Transmittal by the 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 transfer, and Deadline shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 elected to receive the Cash Consideration for ~~that portion~~ 100% of ~~their Class A Shares equal~~ his or her GW Common Shares, subject to ~~a fraction, rounded to six decimal places,~~ pro-ration in accordance with the ~~numerator~~ Plan 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~~Arrangement. (iid) ~~be entitled~~ GW and Subco shall amalgamate to ~~receive the Purchaser Share Consideration for the remaining portion of their Class A Shares~~ form one corporate entity (~~including, for the avoidance of doubt, a corresponding portion of the Purchaser Share Consideration for any fractional Class A Share included in such remaining portion); (n~~“Amalco”) in accordance with the ~~event that~~ Plan of Arrangement (A) the sum of (I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares minus the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k“Amalgamation”), 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh.

Appears in 1 contract

Sources: Arrangement Agreement (FRANCO NEVADA Corp)

Arrangement. 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 order without any further authorization, act or ~~formality~~formality on the part of any person: (a) the ~~Purchaser~~ Longhi LTIP Shares held in the Executive Long Term Incentive Plan Trust shall ~~subscribe~~ 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 ~~Acquireco Common Shares, at a price of $1.00 per share,~~ ADSs equal to the ~~quotient obtained when~~ 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; (Ab) the ~~fair market value~~ Common Shares held by each Dissenting Shareholder shall be deemed to be transferred (free and clear of ~~the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B~~any Liens) ~~$1.00, and for greater certainty for the purposes of determining variable (A) in relation~~ to the ~~quotient under this Section 3.02(a)~~Acquiror, 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 subscriptionand: (i) the ~~Purchaser~~ Acquiror shall be ~~deemed~~ obligated to ~~have directed~~ pay such Dissenting Shareholder the ~~Depositary to hold, and the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser to the Depositary~~ amount determined 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~~ 4.1 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 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~~ Dissenting Shareholder shall cease to be the holder of such ~~Company Option,~~ Common Shares 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such ~~Company Shares~~ Common Shares, other than ~~a claim against~~ the ~~Company in an~~ right to be paid the amount determined ~~and payable~~ in accordance with ~~Article 4 and the name of~~ Section 4.1 for such ~~Dissenting Shareholder shall be removed from the securities register of holders of Company~~ Common Shares; (fiii) ~~concurrently with~~ such Dissenting Shareholder’s name shall be removed as the ~~surrender~~ 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 ~~cancellation~~ clear of ~~Company~~ 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 ~~pursuant to Section 3.02(e), the stated capital account maintained~~ and (ii) Gerdau and its subsidiaries) shall be transferred (free and clear of all Liens) 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~~ holder thereof 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 capitalAcquiror and: (i) the ~~notice~~ Acquiror shall, subject to Article 5, be obligated to pay such holder an amount of ~~articles and articles of~~ cash equal to 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 Acquisition Price in ~~Schedule “A” to this Plan of Arrangement~~exchange for each Common Share transferred; (ii) ~~each Company Share issued~~ such holder shall cease to be the holder of such Common Shares and ~~outstanding immediately before~~ shall cease to have any rights as a holder of such Common Shares, other than the ~~reorganization~~ right, subject to Article 5, to receive the amount of ~~the Company’s share capital pursuant~~ cash that such holder is entitled to ~~this Section 3.02(h) (including, without limitation, the Company~~ receive in exchange for such Common 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~~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 ~~exchanged with~~ 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 ~~Encumbrances, for one Class A Share~~ Liens) and ~~one Distribution Spinco Share, and upon such exchange: (A) each such exchanged Company Share~~ shall be ~~cancelled, and~~ entered as 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~~ Common Shares ~~shall be entered~~ in the ~~Company’s~~ register of ~~holders~~ Common Shares maintained by or on behalf 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~~d) ~~concurrently~~ new equity based compensation plans shall be adopted by Gerdau with terms in all respects the ~~exchange in Section 3.02(h)(ii),~~ same as the ~~stated capital account~~ 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 ~~Company~~ 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 ~~reduced by an amount equal~~ amended to ~~the stated capital of the Company Shares immediately prior to the reorganization in Section 3.02(h), and there shall~~ provide that such SARs will be ~~added to the stated capital account maintained by the Company~~ in respect of ADSs with both the ~~Class A Shares~~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 ~~Class A~~ number of such PSUs, RSUs and Phantom Shares ~~issued pursuant to Section 3.02(h)(ii),~~ adjusted using 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)Exchange Ratio; (i) each outstanding Option and SAR (other than the ~~Initial Spinco Share~~ SARs held by Canadian Awardholders under the ~~Company~~ SAR Plan, the SIS Plan and the LTIP) shall be cancelled ~~without any repayment thereon~~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 ~~Company shall be removed from~~ exercise price or base price of the ~~Spinco register of holders of Spinco Shares~~Options and SARs adjusted using the Exchange Ratio; (j) ~~all of~~ the ~~issued~~ Co-Steel Share Loan Plan, the Company Equity Plans other than the LTIP, the SAR Plan and ~~outstanding Spinco Shares~~ the SIS Plan 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 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 amended to reflect the Spinco Share Consolidationcancelled; (k) the Directors Plan shall be cancelled and the Company shall redeem each ~~Participating Former Securityholder receiving Class A~~ outstanding DSU for consideration equal to the Acquisition 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 ~~pursuant~~ contained therein are amended to ~~Section 3.02(h)(ii~~refer to ADSs with the number of Common Shares adjusted using the Exchange Ratio; (m) ~~who~~each participant in the Co-Steel Share Loan Plan shall have his or her employee loan under the Co-Steel Share Loan Plan become immediately due and payable and shall be entitled to: (i) ~~duly and validly completes and delivers~~ if such participant’s Co-Steel Indebtedness Amount is less than such participant’s Co-Steel Cash Amount as at the ~~applicable Election Form(s~~Effective Time, receive a cash amount equal to (A) ~~in accordance with Section 3.03 and Section 3.04 electing to receive~~ the ~~Combination Consideration in respect of all of~~ Co-Steel Cash Amount for such ~~Participating Former Securityholder’s Company Shares;~~participant less (B) the Co-Steel Indebtedness Amount for such participant; or (ii) ~~has not completed and delivered~~ if such participant’s Co-Steel Indebtedness Amount is greater than the ~~applicable Election Form(s) by~~ participant’s Co-Steel Cash Amount as at the ~~Election Deadline or who has otherwise failed to make~~ Effective Time, a ~~valid election to receive~~ reduction of the Co-Steel Indebtedness Amount for such participant in the amount of the Co-Steel Cash ~~Consideration or the Purchaser Share Consideration is respect of all of~~ Amount for such ~~Participating Former Securityholder’s Company Shares~~participant; orand (~~iii~~n) ~~exercises Dissent Rights~~ the exchanges, payments and ~~is ultimately not entitled, for any reason, to be paid fair value for its Company Shares, shall transfer, and~~ cancellations contemplated by this Section 3.1 shall be deemed to ~~have transferred~~occur on the Effective Date, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 notwithstanding that certain 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to procedures related thereto are not completed until after the Effective Time ~~shall be cancelled in exchange for a cash payment by~~ or after the ~~Company to the holder of such Company DSU equal to the Company Sh~~Effective Date.

Appears in 1 contract

Sources: Arrangement Agreement (Gerdau S.A.)

Arrangement. At Commencing 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 ~~order~~ order, without any further authorization, act or formality: (a) each Debenture Holder shall receive payment of applicable interests accrued on the ~~Purchaser~~ Debentures in Common Shares and shall ~~subscribe for that~~ be issued such number of ~~Acquireco~~ Common ~~Shares~~Shares as is provided under the terms of the Debentures without presentment, at demand, protest or further notice; (b) all of the Debentures then outstanding shall immediately become due and payable in cash without presentment, demand, protest or further notice; (c) the Corporation shall pay to each Debenture Holder a ~~price of $1.00 per share,~~ cash amount equal to the ~~quotient obtained when (A) the fair market value of the Maximum Purchaser Shares and Maximum~~ Debenture Cash Consideration ~~is divided~~ in respect of each Debenture held by ~~(B) $1.00~~such Debenture Holder, 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:and; (i) the ~~Purchaser~~ Debenture Holder shall cease to be ~~deemed~~ the holder of such Debenture and shall cease 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~~ any rights in ~~accordance with Section 3.05(a)(i) (~~respect of 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 SharesDebenture; and (ii) ~~Acquireco~~ each Debenture and all agreements, certificates and similar instruments relating thereto shall be ~~deemed to have issued~~ cancelled as of 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 Considerationtime; (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): (id) each ~~In-the-Money~~ Option ~~issued~~ granted and outstanding immediately prior to the Effective Time shall, without any further ~~action~~ act or formality by or on behalf of any holder of such ~~In-the- Money~~ Option, be deemed to be ~~fully~~ vested and ~~shall be~~ transferred (free and ~~disposed~~ clear of any Encumbrances) by the holder thereof to the ~~Company (free and clear of all Encumbrances) and cancelled~~ Corporation in exchange for a cash amount equal to the ~~Option Consideration, and~~ Common Share Cash Consideration less 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 exercise price in respect 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~~ and, for greater certainty, to the ~~Effective Time shall~~extent such amount is a negative number, ~~without any further action by or on behalf of any holder~~ the consideration in respect of such ~~Out-of-the-Money Option~~Option shall be nil, ~~be cancelled without any payment therefor; (iii) with respect to each Company Option~~and: (Ai) the holder thereof shall cease to be the holder of such ~~Company Option,~~ Option and shall cease to have any rights as a holder in respect of such ~~Company~~ Option or under the ~~applicable Company~~ Stock Option Plan,; (Bii) such holder’s name shall be removed from the register of ~~Company~~ Options, ~~and (C)~~ as of such time, and all option agreements~~, Award Agreements~~, grants and similar instruments relating thereto shall be cancelled; and (iii) each Option and the Stock Option Plan shall be cancelled as of such time; (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): (ie) each ~~Company RSU issued and~~ Private Placement Warrant outstanding immediately prior to the Effective Time shall, without any further ~~action~~ act or formality by or on behalf of any holder of such ~~Company RSU~~Private Placement Warrant, be deemed to ~~be fully vested~~ transferred (free and ~~shall be transferred and disposed~~ clear of any Encumbrances) by the holder thereof to the ~~Company (free and clear of all Encumbrances) and cancelled~~ Corporation in exchange for a cash amount equal to the ~~applicable RSU Consideration, and~~ Common Share Cash Consideration less the ~~holder~~ exercise price in respect of such ~~Company RSU shall become~~ Private Placement Warrant and, for greater certainty, to the ~~holder~~ extent such amount is a negative number, the consideration in respect of ~~the Company Shares comprising~~ such ~~RSU Consideration and the central securities register of the Company~~ Private Placement Warrant shall be ~~revised accordingly~~nil, ~~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~~and: (Ai) the holder thereof shall cease to be the holder of such ~~Company RSU,~~ Private Placement Warrant and shall cease to have any rights as a holder in respect of such ~~Company RSU under the applicable Company Option Plan,~~Private Placement Warrant; (Bii) such holder’s name shall be removed from the register of ~~Company RSUs~~Private Placement Warrant, ~~and (C)~~ as of such time, and all ~~Award Agreements~~agreements, ~~grants~~ certificates and similar instruments relating thereto ~~will~~ shall be cancelled; and (iii) each Private Placement Warrant shall be cancelled as of such time; (df) each Common Share outstanding immediately prior to the ~~Company Option Plans~~ Effective Time (other than Common Shares held by the Dissenting Shareholders) and each Common Share issued under Section 3.1(a) shall be ~~terminated;~~ transferred (efree and clear of any Encumbrances) ~~each Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof,~~ without any further act or formality by the holder thereof to the Purchaser in exchange for a cash amount equal to the Common Share Cash Consideration, and; (i) the holder thereof shall cease to be the holder of such ~~Dissenting Shareholder, free~~ Common Share and ~~clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder~~ shall cease to have any rights as a ~~holder~~ Shareholder in respect of such ~~Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the~~ Common Share; (ii) such holder’s name ~~of such Dissenting Shareholder~~ shall be removed from the ~~securities~~ register of ~~holders~~ Shareholders (as holder of ~~Company~~ Common Shares), as of such time; and (iii) the certificate representing such Common Shares shall be deemed to have been cancelled as of such time; (fg) concurrently with ~~the surrender and cancellation of Company~~ step (f), all Common 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~~ deemed to ~~Section 3.02(e), by an amount equal to the product obtained when~~ have been transferred (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by ~~such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior~~ the holders thereto to the ~~exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash~~ Purchaser and ~~the Combination Consideration Purchaser Shares, and upon~~ such ~~exchange: (iv) each such Participating Former Securityholder~~ Dissenting Shareholders shall ~~be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares~~ cease to have any rights 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 Shareholders in respect of such Common Shares other than the ~~Purchaser~~ right to be paid the fair value of their Common Shares ~~payable to such Participating Former Securityholder pursuant to this~~ as set out in 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~~ 4.1; provided that none of the ~~applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive either the Cash Consideration~~ foregoing will occur or ~~the Purchaser Share Consideration in respect of all of such Participating Former Securityholder’s Company Shares shall transfer, and shall~~ will be deemed to ~~have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of~~ occur unless all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shforegoing occurs.

Appears in 1 contract

Sources: Plan of Arrangement (Sand Technology Inc)

Arrangement. At 3.1 Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the ~~following~~ events or and transactions set out below shall occur and shall be deemed to occur ~~sequentially~~ in the following order without any further act or formality: (a) the ~~Purchaser~~ Renewables Shares held by Dissenting Shareholders shall ~~subscribe for that number~~ be deemed to be, without any further act or formality by the holders thereof, transferred to TransAlta (free and clear 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(aall Liens), 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 subscriptionand: (i) such Dissenting Shareholders shall cease to be the ~~Purchaser~~ holders of such Renewables Shares and to have any rights as holders of such Renewables Shares other than the right to be paid fair value for such Renewables Shares as set out in Article 4; (ii) such Dissenting Shareholders’ names shall be removed as the holders of such Renewables Shares from the registers of Renewables Shares maintained by or on behalf of Renewables; and (iii) TransAlta shall be deemed to ~~have directed~~ be the ~~Depositary to hold,~~ transferee of such Renewables Shares (free and clear of all Liens) and shall be entered into the ~~Depositary shall hold, the cash and certificates representing the Purchaser~~ register of Renewables Shares ~~delivered~~ maintained 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~~ or 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 ConsiderationRenewables; (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~~ Renewables DSU Plan, any resolutions of the Renewables directors or ~~applicable law):~~any agreement, certificate or other instrument granting or confirming the grant of Renewables DSUs or representing Renewables DSUs: (i) with respect to each ~~In-the-Money Option issued and~~ Renewables DSU outstanding immediately prior to the Effective Time ~~shall~~and held by a Non-US Renewables DSU Holder: (A) the “Redemption Date” (as defined in the Renewables DSU Plan) of each such Renewables DSU shall be, and shall be deemed to be, the effective time of this Section 3.1(b); (B) each such Renewables DSU, shall be, and shall be deemed to be, without any further action by or on behalf of ~~any holder of such In~~a Non-~~the- Money Option~~US Renewables DSU Holder, ~~be deemed to be fully vested and shall be~~ assigned, transferred and ~~disposed~~ surrendered by ~~the holder thereof~~ such Non-US Renewables DSU Holder to ~~the Company~~ Renewables (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled~~ in exchange ~~for~~ for, as elected or deemed to be elected in writing by each Non-US Renewables DSU Holder prior to the ~~Option Consideration~~Effective Time: (1) a number of Renewables Shares equal to that number of Renewables Shares subject to each Renewables DSU immediately prior to the Effective Time, and such Non-US Renewables DSU Holder shall be entered into 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~~Renewables Shares maintained by or on behalf of Renewables, but the ~~holder of such Option Consideration~~ Non-US Renewables DSU Holder shall not be entitled to ~~receive~~ a ~~share~~ certificate or other document representing the ~~Option~~ Renewables Shares issued in exchange for its Renewables DSUs and such Non-US Renewables DSU Holder shall be deemed for purposes of Section 3.2 to have elected to receive, in respect of each such Renewables Share received, the Renewables Share Consideration;, subject to Sections 5.9 and 6.1; or (2) a cash payment from Renewables equal to the Renewables Cash Consideration multiplied by that number of Renewables Shares subject to each Renewables DSU immediately prior to the Effective Time, less any amounts withheld pursuant to Article 6 and the Renewables DSU Plan; and (ii) with respect to each ~~Out-of-the-Money Option issued and~~ Renewables DSU outstanding immediately prior to the Effective Time and held by a US Renewables DSU Holder: (A) the “Redemption Date” (as defined in the Renewables DSU Plan) of each such Renewables DSU shall be, and shall be deemed to be, the date that is one day following the six month anniversary of the Effective Date; (B) from and after the Effective Time, each such Renewables DSU shall, and shall be deemed to, without any further action by or on behalf of ~~any holder of such Out-of-the-Money Option~~a US Renewables DSU Holder, ~~be cancelled without any payment therefor; (iii) with respect~~ represent a right to ~~each Company Option: (A) the holder thereof shall cease~~ receive, as elected or deemed to be elected in writing by each US Renewables DSU Holder prior to the ~~holder of such Company Option~~Effective Time, ~~and shall cease to have any rights~~ from Renewables on the Redemption Date as ~~a holder~~ set forth 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 lawSection 3.1(b)(ii)(A): (i1) a number of Renewables Shares equal to that number of Renewables Shares subject to each ~~Company RSU issued and outstanding~~ such Renewables DSU immediately prior to the Effective Time ~~shall, without any further action by or on behalf of any holder of~~ and such ~~Company RSU,~~ US Renewables DSU Holder shall thereafter 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 have elected to receive ~~a share certificate or other document representing~~ on the ~~RSU Consideration; (ii) with respect to each Company RSU: (A) the holder thereof shall cease to be the holder of such Company RSU~~Redemption Date as set forth in Section 3.1(b)(ii)(A), ~~and shall cease to have any rights as a holder~~ in respect of the right to receive each such ~~Company RSU under~~ Renewables Share, the ~~applicable Company Option Plan,~~Renewables Share Consideration, subject to Sections 5.9 and 6.1; or (B2) a cash payment equal to the Renewables Cash Consideration multiplied by that number of Renewables Shares subject to each such ~~holder’s name shall be removed from~~ Renewables DSU immediately prior to the ~~register of Company RSUs~~Effective Time, less any amounts withheld pursuant to Article 6 and the Renewables DSU Plan; and (~~C) all Award Agreements, grants and similar instruments relating thereto will be cancelled; (d) the Company Option Plans shall be terminated; (e~~c) each ~~Company~~ Renewables Share held by a Renewables Shareholder (other than Renewables Shares held by TransAlta or any of its affiliates and other than Renewables Shares held by Dissenting ~~Shareholder~~ Shareholders) shall ~~be,~~ be and shall be deemed to be~~, surrendered to the Company by the holder thereof~~, without any further act or formality by ~~such Dissenting Shareholder,~~ or on behalf of the Renewables Shareholder transferred to TransAlta (free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (fLiens) 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~~ election or deemed election of such Renewables Shareholder pursuant to Section 3.2, as adjusted by Section 3.3, if applicable, in exchange for the ~~Spinco Contribution Agreement; (h) in~~ Renewables Cash Consideration or the ~~course of a reorganization of the Company’s authorized~~ Renewables Share Consideration, and ~~issued share capital~~upon such exchange: (i) the ~~notice~~ holders of ~~articles~~ such Renewables Shares shall cease to be the holders thereof and ~~articles~~ to have any rights as holders of such Renewables Shares other than the ~~Company shall be amended~~ right to ~~create a new class of shares without par value~~receive Renewables Share Consideration or Renewables Cash Consideration, ~~of which an unlimited number may be issued and which shall be designated the “Class A Shares” (the “Class A Shares”)~~as applicable, ~~which shall have the special rights and restrictions set forth~~ for each such Renewables Share in ~~Schedule “A” to~~ accordance with this Plan of Arrangement; (ii) ~~each Company Share issued and outstanding immediately before the reorganization~~ such holders’ names shall, in respect of the ~~Company’s share capital pursuant to this Section 3.02(h) (including~~Renewables Shares, 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~~ Renewables Shares maintained by or on behalf 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 CompanyRenewables; (iii) ~~concurrently with~~ TransAlta shall be deemed to be the ~~exchange in Section 3.02(h)(ii)~~transferee of such Renewables Shares (free and clear of all Liens) and shall, ~~the stated capital account~~ in respect of such Renewables Shares, be entered into the ~~Company Shares shall be reduced by an amount equal to the stated capital~~ register of the ~~Company~~ Renewables Shares ~~immediately prior~~ maintained by or on behalf of Renewables; and (iv) for each Renewables Share transferred to TransAlta in respect of which a holder has elected (or is deemed to have elected) to receive the ~~reorganization~~ Renewables Share Consideration, TransAlta shall allot and issue to such holder, in ~~Section 3.02(h)~~respect of each Renewables Share so transferred, the Renewables Share Consideration, as fully paid and non-assessable TransAlta Shares, and ~~there~~ the name of such holder shall be added to the ~~stated capital account maintained by the Company in respect~~ register of the ~~Class A Shares~~holders of TransAlta Shares on the Effective Date. 3.2 With respect to the exchange of Renewables Shares effected pursuant to Section 3.1(c): (a) each Renewables Shareholder may elect to receive, in respect of ~~the Class A Shares issued pursuant to Section 3.02(h)(ii)~~each Renewables Share held, the ~~amount by which (A)~~ Renewables Cash Consideration or the ~~amount by which the stated capital account of the Company Shares is reduced pursuant~~ Renewables Share Consideration, subject to ~~this Section 3.02(h)(iii)~~Sections 3.3, ~~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)~~5.9, and 6.1; (ib) the ~~Initial Spinco Share held by the Company~~ election provided for in Section 3.2(a) shall be ~~cancelled without~~ made by each Renewables Shareholder by depositing with the Depositary, prior to the Election Deadline, a duly completed Letter of Transmittal indicating such holder’s election, together with any ~~repayment thereon, and~~ certificates representing the ~~Company shall be removed from the Spinco register of holders of Spinco~~ holder’s Renewables Shares; (jc) ~~all~~ any Letter of Transmittal, once deposited with the ~~issued and outstanding Spinco Shares~~ Depositary, 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~~ irrevocable and may not be withdrawn by a holder of Spinco Shares, and any fractional Spinco Shares resulting from such 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 amended to reflect the Spinco Share Consolidation;Renewables Shareholder; and (kd) ~~each Participating Former Securityholder receiving Class A Shares pursuant~~ any Renewables Shareholder who does not deposit with the Depositary a duly completed Letter of Transmittal prior 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~~ Deadline, or otherwise fails to comply with the requirements of this Section 3.2 and the Letter of Transmittal (including Renewables Shareholders who has otherwise failed to make a valid election to receive the Cash Consideration or the Purchaser Share Consideration is respect of all of such Participating Former Securityholder’s Company Shares; or (iii) exercises duly exercise Dissent Rights ~~and is~~ but are ultimately not entitled, for any reason, to be paid fair value for ~~its Company Shares~~Renewables Shares in respect of which they have exercised Dissent Rights), ~~shall transfer, and~~ shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 Election Form(s) in accordance with Section 3.03 and Section 3.04 electing elected to receive ~~either~~ the ~~Cash Consideration or the Purchaser~~ Renewables Share Consideration in respect of all of such ~~Participating Former Securityholder~~holder’s ~~Company Shares shall transfer~~Renewables Shares. 3.3 Notwithstanding Section 3.2 or any provision herein contrary to, ~~and~~ (i) the maximum amount of cash that may, in the aggregate, be paid by TransAlta to the Renewables Shareholders pursuant to Section 3.1(c) shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior equal to the ~~exchange in this Section 3.02(l~~Maximum Cash Consideration; and (ii) the maximum number of TransAlta Shares (excluding any TransAlta Shares to be issued to a Renewables Shareholder in exchange ~~for~~for a Renewables DSU Share) that may, in the aggregate, be issued by TransAlta to the Renewables Shareholders pursuant to Section 3.1(c) shall be equal to the Maximum Share Consideration. In the event that: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 (Ia) the aggregate ~~Combination Consideration Cash payable~~ amount of cash that would, but for this Section 3.3(a), be paid to Renewables Shareholders in accordance with the elections or deemed elections of such Renewables Shareholders pursuant to Section ~~3.02(k~~3.2 (the “Total Elected Cash Consideration”) ~~and (II) the Aggregate Elected Cash,~~ exceeds ~~(B)~~ the Maximum Cash Consideration, ~~each Participating Former Securityholder who validly elects~~ then the aggregate amount of cash to ~~receive~~ be paid to any Renewables Shareholder (other than a Dissenting Shareholder) shall be determined by multiplying the ~~Cash Consideration in respect~~ aggregate amount of ~~all of~~ cash that would, but for this Section 3.3(a), be paid to 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 Renewables Shareholder by 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~~ Total Elected ~~Cash~~Cash Consideration; ~~and (ii)~~ and such holder shall be ~~entitled~~ deemed to have elected to receive the ~~Purchaser~~ Renewables Cash Consideration for such number of its Renewables Shares, rounded down to the nearest whole value, as is equal to the aggregate amount of cash received by such holder, as adjusted in accordance with this Section 3.3(a), divided by the Renewables Cash Consideration, and the Renewables Share Consideration for the ~~remaining portion~~ remainder of ~~their Class A~~ its Renewables Shares ~~(including~~for which, but for this Section 3.3(a), such holder would otherwise have received the ~~avoidance of doubt, a corresponding portion of the Purchaser Share Consideration for any fractional Class A Share included in such remaining portion);~~Renewables Cash Consideration; or (~~n) in the event that (A) the sum of (I~~b) the aggregate ~~Combination Consideration Purchaser~~ number of TransAlta Shares ~~payable~~ (excluding any TransAlta Shares to be issued to a Renewables Shareholder in exchange for a Renewables DSU Share) that would, but for this Section 3.3(b), be issued or issuable to Renewables Shareholders in accordance with the elections or deemed elections of such Renewables Shareholders pursuant to Section ~~3.02(k~~3.2 (the “Total Elected Share Consideration”) ~~and (II) the Aggregate Elected Purchaser Shares,~~ exceeds ~~(B)~~ the Maximum ~~Purchaser Shares~~Share Consideration, ~~each Participating Former Securityholder who validly elects~~ then the aggregate number of TransAlta Shares to ~~receive~~ be issued or issuable to any Renewables Shareholder (other than TransAlta Shares issued or issuable in exchange for a Renewables DSU Share) shall be determined by multiplying the ~~Purchaser Share Consideration shall~~aggregate number of TransAlta Shares (excluding any TransAlta Shares to be issued in exchange for a Renewables DSU Share) that would, ~~notwithstanding~~ but for this Section ~~3.02(l)(ii): (i) only~~ 3.3(b), be ~~entitled~~ issued to ~~receive the Purchaser Share Consideration for that portion of their Class A Shares equal to~~ such Renewables Shareholder by a fraction, rounded to six decimal places, the numerator of which is the Maximum ~~Purchaser Shares minus the aggregate Combination~~ Share Consideration ~~Purchaser Shares payable pursuant to Section 3.02(k),~~ and the denominator of which is the ~~Aggregate~~ Total Elected ~~Purchaser~~ Share Consideration; and such holder shall be deemed to have elected to receive the Renewables Share Consideration for such number of its Renewables Shares (other than Renewables DSU Shares), rounded down to the nearest whole number, as is equal to the aggregate number of TransAlta Shares (excluding any TransAlta Shares to be issued in exchange for a Renewables DSU Share) received by such holder, as adjusted pursuant to this Section 3.3(b), divided by the Renewables Share Consideration, and the Renewables Cash Consideration for the remainder of its Renewables Shares (other than Renewables DSU Shares) for which, but for this Section 3.3(b), such holder would otherwise have received the Renewables Share Consideration. 3.4 With respect to the Renewables DSUs to be dealt with pursuant to Section 3.1(b): (a) the election provided for in Section 3.1(b)(i)(B) or 3.1(b)(ii)(B) shall be made by each Renewables DSU Holder by notice in writing to TransAlta, prior to the Effective Time, indicating such Renewables DSU Holder’s election; (b) each Renewables DSU Holder shall be entitled to elect a combination of the consideration described in Section 3.1(b)(i)(B) or 3.1(b)(ii)(B) (as the case may be) in respect of its aggregate Renewables DSUs; and (iic) ~~be entitled~~ any Renewables DSU Holder who does not provide written notice to ~~receive~~ TransAlta prior to the ~~Cash Consideration for~~ Effective Time, or otherwise fails to comply with the ~~remaining portion~~ requirements 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 Directorsthis Section 3.4, shall be deemed to ~~be effective immediately following~~ have elected to receive a cash payment equal to the ~~transfers~~ Renewables Cash Consideration multiplied by that number of Renewables Shares subject to each Renewables DSU held by the ~~Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company~~ Renewables DSU ~~outstanding~~ Holder immediately prior to the Effective ~~Time shall~~ Time. 3.5 Notwithstanding any provision herein to the contrary, TransAlta and Renewables agree that this Plan of Arrangement will be ~~cancelled~~ carried out with the intention that all the Persons to whom the TransAlta Shares are issued on completion of this Plan of Arrangement will be issued by TransAlta in reliance on the exemption from the registration requirements of the United States Securities Act of 1933, as provided by section 3(a)(10) thereof and pursuant to exemptions from registration under any Applicable U.S. Securities Laws. 3.6 Each Renewables Shareholder who receives a combination of Renewables Share Consideration and Renewables Cash Consideration in exchange for Renewables Shares as a ~~cash payment~~ result of elections made (or deemed to be made) or as a result of the Maximum Share Consideration or Maximum Cash Consideration being exceeded as set forth in Section 3.3 shall be deemed for the purposes of the Tax Act and otherwise to receive only the Renewables Share Consideration for the number of Renewables Shares exchanged for the Renewables Share Consideration and only the Renewables Cash Consideration for the number of Renewables Shares exchanged for the Renewables Cash Consideration, provided, however, that a Renewables Shareholder who receives a combination of Renewables Share Consideration and Renewables Cash Consideration and makes a valid joint tax election with TransAlta in accordance with Subsection 3.7 to have the transfer of Renewables Shares to TransAlta under this Plan of Arrangement take place pursuant to the provisions of subsection 85(1) or (2) of the Tax Act (and the analogous provisions of any provincial tax laws), shall be deemed for purposes of the Tax Act and otherwise to have exchanged all of the holder’s Renewables Shares transferred to TransAlta as a single transaction for consideration consisting of the combination of the aggregate Renewables Share Consideration and Renewables Cash Consideration received by such holder under this Plan of Arrangement. 3.7 An Eligible Holder who transfers Renewables Shares to TransAlta pursuant to Section 3.1(c) and receives TransAlta Shares as all or part of the consideration received by such holder under this Plan of Arrangement shall be entitled to make a joint election with TransAlta (the “Joint Tax Election”) under subsection 85(1) or subsection 85(2) of the Tax Act (and the corresponding provisions of any applicable provincial tax legislation). A Joint Tax Election shall be made jointly by the ~~Company~~ Eligible Holder and TransAlta. To make a Joint Tax Election, an Eligible Holder must provide the relevant information, including the Joint Tax Election, to TransAlta through a website that will be made available for this purpose. This relevant information must be submitted to TransAlta through the website on or before the day that is 90 days following the Effective Date (the “Tax Election Deadline”). TransAlta may not make a Joint Tax Election with Eligible Holders who do not provide the relevant information through the website, including the Joint Tax Election, on or before the Tax Election Deadline. After receipt of all of the relevant information through the website, and provided that the information provided complies with the rules under the Tax Act regarding the Joint Tax Election, within 90 days from the Tax Election Deadline and in any case prior to March 31, 2024, TransAlta will deliver an executed copy of the Joint Tax Election containing the relevant information to the ~~holder~~ Eligible Holder. The Eligible Holder will be solely responsible for executing its portion of ~~such Company DSU equal~~ the Joint Tax Election and submitting it to the ~~Company Sh~~Canada Revenue Agency (and, where applicable, to any provincial tax authority) within the required time. TransAlta will have no responsibility, or liability, in respect of any Joint Tax Election other than the specific requirements contemplated in this Section 3.7. 3.8 From and after the Effective Time, this Plan of Arrangement shall take precedence and priority over any and all Renewables DSUs issued or outstanding prior to the Effective Time and the applicable terms and conditions thereof, including the terms and conditions of the Renewables DSU Plan and any agreement, certificate or o

Appears in 1 contract

Sources: Arrangement Agreement (Transalta Corp)

Appears in 1 contract

Sources: Arrangement Agreement (Sandstorm Gold LTD)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02~~except as noted below, the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ in the following ~~order~~ order, without any further act or formality: (a) ~~the Purchaser shall subscribe for that number of Acquireco~~ All 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~~ held 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 Dissenting Shareholders shall be deemed to have ~~directed the Depositary to hold,~~ been transferred (free and ~~the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser~~ clear of all Liens) 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 SharesCompany; and (i) such Dissenting Shareholders shall cease to be the holders of such Common Shares and to have any rights as Shareholders other than the right to be paid the fair value for such Common Shares as set out in Article 4; (ii) ~~Acquireco~~ the name of each such Dissenting Shareholder shall be removed as a Shareholder from the registers of Shareholders maintained on or on behalf of the Company; and (iii) such tranferred Common Shares will be then be redeemed and cancelled by the Company. (b) Subject to Section 3.3, each outstanding Common Share (other than those held by Dissenting Shareholders) shall be deemed to ~~have issued such fully paid~~ be assigned and ~~non-assessable Acquireco Common Shares~~ transferred (free and clear of all Liens) to Mirati in exchange for 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; (bc) ~~notwithstanding~~ In accordance with the terms of the Company Stock Option Plan, any ~~vesting or exercise provisions to which a~~ Company Option ~~might otherwise be subject~~ that has not been duly exercised prior to the Effective Time, whether vested or unvested, shall, by virtue of this Plan of Arrangement and without any further action of the Company or Mirati, represent an option (~~whether~~ a “Mirati Option”) to purchase that number of Mirati Shares equal to the number of Common Shares the Company Option was exerciseable for immediately prior to the Effective Date divided by ~~contract~~50 for an exercise price per Mirati Share equal to the exercise price per share of such Company Option immediately prior to the Effective Date multiplied by 50, or such other proportionate adjustments to ultimately reflect the Consideration as are required, given the discretion of the Board to determine the Consideration. The term to expiry, conditions to and manner of exercising, vesting schedule and all other terms and conditions of such Company Option will otherwise be unchanged, and any ~~Award Agreement~~ document or ~~grant,~~ agreement previously evidencing a Company Option shall thereafter evidence and be deemed to evidence such Mirati Option; (d) In accordance with the terms ~~and conditions~~ of the Company ~~2013 Share Incentive Plan or~~ Warrants, any Company ~~2016 Stock Option Plan, or applicable law): (i) each In-the-Money Option issued and outstanding immediately~~ Warrant that has not been duly exercised prior to the Effective Time shall, by virtue of this Plan of Arrangement and 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 or Mirati, represent a warrant (a “Mirati Warrant”) to purchase that number of Mirati Shares ~~comprising such Option Consideration and~~ equal to the ~~central securities register~~ number of Common Shares 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 Warrant was exerciseable for immediately prior to the Effective ~~Time shall~~Date divided by 50 for an exercise price per Mirati Share equal to the exercise price per share of such Company Warrant immediately prior to the Effective Date multiplied by 50, or such other proportionate adjustments to ultimately reflect the Consideration as are required, given the discretion of the Board to determine the Consideration. The term to expiry, conditions to and manner of exercising, vesting schedule and all other terms and conditions of such Company Warrant will otherwise be unchanged, and any document or agreement previously evidencing a Company Warrant shall thereafter evidence and be deemed to evidence such Mirati Warrant; (e) The 2011 Securities Purchase Agreements shall be deemed to be amended such that by virtue of the Plan of Arrangement and without any further action by of the Company, Mirati or ~~on behalf of any holder of~~ the investor that is a party to such ~~Out-of-the-Money Option, be cancelled without any payment therefor;~~ agreement: (~~iii) with respect to each Company Option: (A~~i) the ~~holder thereof~~ 2011 Pre-Emptive Rights shall ~~cease~~ represent a pre-emptive right (the “2011 Mirati Pre-Emptive Right”) to acquire securities of Mirati; (ii) all references to the Company and Common Shares in the 2011 Securities Purchase Agreement in relation to the 2011 Pre-Emptive Rights shall be deemed to be ~~the holder of such Company Option,~~ references to Mirati and ~~shall cease to have any rights as a holder in respect of such Company Option under the applicable Company Option Plan,~~ Mirati Shares (~~B) such holder’s name shall be removed from the register of Company Options, and (C)~~ but 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 other terms and conditions of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan~~2011 Pre-Emptive Rights shall otherwise be unchanged), ~~or applicable law):~~and (iii) any 2011 Securities Purchase Agreement previously evidencing such 2011 Pre-Emptive Rights shall thereafter evidence and be deemed to evidence 2011 Mirati Pre-Emptive Rights; and (if) ~~each Company RSU issued~~ The Securities Purchase Agreements shall be deemed to be amended such that by virtue of this Plan of Arrangement 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~, Mirati or the investor that is a party to such agreement: (i) the ~~notice~~ Pre-Emptive Rights shall represent a pre-emptive right (“Mirati Pre-Emptive Right”) to acquire securities 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 ArrangementMirati; (ii) ~~each Company Share issued and outstanding immediately before~~ the ~~reorganization~~ Additional Rights shall represent a right (“Mirati Additional Right”) to acquire the securities of ~~the Company’s share capital~~ Mirati not otherwise purchased pursuant to ~~this Section 3.02(h) (including, without limitation,~~ the ~~Company Shares issued to former holders of In~~2011 Mirati Pre-~~the~~Emptive Rights or Mirati Pre-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 CompanyEmptive Rights; (iii) ~~concurrently with~~ the ~~exchange~~ right of Tavistock Life Sciences and ▇▇▇▇▇ Brothers Life Sciences, L.P contained in ~~Section 3.02(h)(ii),~~ the ~~stated capital account in respect~~ Securities Purchase Agreement to each appoint an observer and nominate one director to the board of the Company ~~Shares~~ (collectively, the “Board Rights”) shall ~~be reduced by~~ represent a right for each to appoint an ~~amount equal~~ observer and nominate one director to the ~~stated capital~~ board of Mirati (“Mirati Board Rights”); and all references to the Company and Common Shares ~~immediately prior~~ in the Securities Purchase Agreement applicable to the ~~reorganization in Section 3.02(h)~~Pre-Emptive Rights, 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 Consideration is respect of all of such Participating Former Securityholder’s Company Shares; or (iii) exercises Dissent Additional Rights and is ultimately not entitled, for any reason, to be paid fair value for its Company Shares, shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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, Board Rights shall be deemed to be ~~effective immediately following the transfers~~ references to Mirati and Mirati Shares (but all other terms and conditions of the ~~Class A Shares~~ Pre-Emptive Rights, Additional Rights and Board Rights shall otherwise be unchanged), respectively, and any Securities Purchase Agreement previously evidencing such rights shall thereafter evidence and be deemed to ~~Acquireco pursuant to Section 3.02(k)~~ evidence Mirati Pre-Emptive Rights, Mirati Additional Rights and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShMirati Board Rights.

Appears in 1 contract

Sources: Arrangement Agreement (Mirati Therapeutics, Inc.)

Arrangement. At Commencing 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 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~~ Target 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 outstanding immediately prior to the ~~acquisition~~ Effective Time held by each holder thereof shall be transferred by the holder thereof to, and acquired by, Purchaser without any act or formality on the part of such holder or Purchaser, free and clear of any Liens, in exchange for such number of duly authorized, fully-paid and non-assessable Purchaser Shares equal to the product of the ~~Class A~~ number of such Target Shares held by ~~Acquireco~~ such holder multiplied by the Exchange Ratio; (b) with respect to each Target Share transferred to Purchaser pursuant to Section ~~3.02(k), and in connection with such share subscription:~~3.1(a): (i) the ~~Purchaser~~ holder of each such Target Share shall cease to be the holder of such Target Share and such holder's name shall be ~~deemed~~ removed from the register of Target Shares with respect 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~~ Target Shares; and (ii) ~~Acquireco~~ Purchaser shall be deemed to ~~have~~ be the transferee of such Target Share (free and clear of any Liens) and shall be entered in the register of Target Shares as the registered holder thereof; with respect to each Purchaser Share issued to a former holder of Target Shares pursuant to Section 3.1(a), the name of such ~~fully paid and non-assessable Acquireco Common~~ holder shall be entered in the register of holders of Purchaser Shares as the registered holder thereof; (c) each outstanding Target Option that is not exercised prior to the ~~Purchaser~~Effective Time ("Unexercised Options") shall, ~~and~~ without any further action or formality on the ~~stated capital account maintained~~ part of any holder of such Unexercised Option, be transferred by ~~Acquireco~~ the holder thereof to Target in ~~respect~~ exchange for an option (a "Replacement Option") to purchase that number of ~~the Acquireco Common~~ Purchaser 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 number of Target Shares issuable upon exercise of such Unexercised Option multiplied by the Exchange Ratio. Such Replacement Option shall provide for an exercise price per Purchaser Share equal to the exercise price per Target Share of such Unexercised Option immediately prior to the Effective Time divided by the Exchange Ratio; provided, however, that in no circumstance shall the exercise price per Purchaser Share be less than $.01 and if the calculation results in an exercise price of less than $.01, the exercise price shall be deemed to be $.01 per Purchaser Share. If the foregoing calculation results in a Replacement Option (A) being exercisable for a fraction of a Purchaser Share, then the number of Purchaser Shares subject to such Replacement Option shall be rounded down to the next whole number of Purchaser Shares, or (B) having an exercise price per Purchaser Share that is a fraction of a cent, then the exercise price per Purchaser Share under such Replacement Option shall be rounded up to the next whole cent. In addition, if required, the exercise price of each Replacement Option will be increased such that the excess, if any, of the aggregate fair market value of the Purchaser ~~Consideration; (b) notwithstanding any~~ Shares subject to such Replacement Option immediately after the exchange over the aggregate exercise price under the Replacement Option does not exceed the excess, if any, of the aggregate fair market value of the Target Shares subject to the Target Stock Option Plan immediately before the exchange over the aggregate exercise price under such Target Stock Option Plan, where all amounts are computed on the Effective Date. The term to expiry, conditions to and manner of exercising, vesting ~~or exercise provisions to which a Company~~ schedule and all other terms and conditions of such Replacement Option ~~might otherwise~~ will be ~~subject (whether by contract,~~ the same as the terms and conditions of ~~any Award Agreement~~ such Unexercised Option. Any document or ~~grant,~~ agreement previously evidencing such Unexercised Option shall thereafter evidence and be deemed to evidence such Replacement Options; (d) the ~~terms and conditions of the Company 2013 Share Incentive Plan or Company 2016~~ Target Stock Option ~~Plan, or applicable law):~~Plan shall be cancelled; (ie) effective from and after the Effective Time, each ~~In-the-Money Option issued and~~ Target Warrant outstanding immediately prior to the Effective Time shall, ~~without any further action by or on behalf of any holder of such In-the- Money Option~~in accordance with the Target Warrant Indenture, ~~be deemed to be fully vested and shall be transferred and disposed by~~ entitle the holder thereof to at any time until the ~~Company (free~~ time of expiry 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~~ upon payment 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, surrendered to the Company by the holder exercise price thereof, ~~without any further act or formality by~~ to purchase such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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)~~duly authorized, 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 fully-paid and non-assessable ~~Spinco~~ Purchaser Shares ~~(the “Distribution Spinco Shares”)~~ equal to the product of the number of ~~Company~~ Target Shares ~~issued~~ issuable upon exercise of such Target Warrant, multiplied by the Exchange Ratio. The term to expiry, conditions to and ~~outstanding immediately prior~~ manner of exercising, vesting schedule and all other terms and conditions of such Target Warrant will continue 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~~ be governed by 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 conditions 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 SharesTarget Warrant Indenture; and (Df) ~~each holder of such exchanged Company Shares~~ the Shareholder Rights Plan 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shcancelled.

Appears in 1 contract

Sources: Acquisition Agreement (Cambior Inc)

Arrangement. At the Effective ~~Time, unless otherwise specifically provided in this Section 3.02,~~ Time each of the following events ~~or transactions~~ shall occur and shall be deemed to occur sequentially ~~in the following order~~ as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at two-minute intervals starting at the Effective Time: (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 each Company Option outstanding immediately prior to the ~~acquisition~~ Effective Time (whether vested or unvested), notwithstanding the terms of the ~~Class A Shares by Acquireco pursuant to Section 3.02(k)~~Company Stock Option Plan or the Omnibus Incentive Plan, ~~and in connection with such share subscription: (i) the Purchaser~~ as applicable, shall be deemed to ~~have directed the Depositary to hold~~be unconditionally vested and exercisable, and ~~the Depositary shall hold~~such Company Option shall, ~~the cash and certificates representing the Purchaser Shares delivered~~ without any further action 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~~ or on behalf of ~~Acquireco~~a holder of Company Options, ~~in satisfaction of the subscription price payable~~ be surrendered 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~~ holder to the ~~Purchaser, and~~ Company in exchange for a cash payment from 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 Company equal to the ~~fair market value~~ amount by which the Consideration exceeds the exercise price per Common Share of such Company Option, less withholdings required to be made under applicable Laws, and each such Company Option shall immediately be cancelled and, for greater certainty, where the ~~Purchaser Consideration~~Consideration is equal to or less than the exercise price per Common Share, the relevant Company Option will be cancelled for no consideration; (b) ~~notwithstanding any vesting or exercise provisions~~ each RSU outstanding immediately prior to ~~which a Company Option might otherwise be subject~~ the Effective Time (whether ~~by contract~~vested or unvested), notwithstanding the terms ~~and conditions of any Award Agreement or grant, the terms and conditions~~ of the ~~Company 2013 Share~~ Omnibus Incentive ~~Plan or Company 2016 Stock Option~~ Plan, shall be deemed to be unconditionally vested and redeemable, and such RSU shall, without any further action by or on behalf of a holder of RSUs, be surrendered by such holder to the Company in exchange for a cash payment from the Company equal to the Consideration per RSU, less applicable ~~law):~~withholdings, and each such RSU shall thereafter immediately be cancelled; (ic) each ~~In-the-Money Option issued~~ Company Warrant outstanding and ~~outstanding~~ unexercised immediately prior to the Effective Time shall, without any further action by or on behalf of a holder of Company Warrants, be surrendered by such holder to the Company in exchange for a cash payment from the Company equal to the amount by which the Consideration exceeds the exercise price per Common Share of such Company Warrant, less withholdings required to be made under applicable Laws, and each such Company Warrant shall immediately be cancelled and, for greater certainty, where the Consideration is equal to or less than the exercise price per Common Share, the relevant Company Warrant will be cancelled for no consideration; (d) the Fairhaven Second Milestone Share Entitlement shall be extinguished and the Fairhaven Covenants shall be of no further force or effect, in each case without any further action by or on behalf of the Fairhaven Vendors, the Company and the Purchasers, in exchange for a right by the Fairhaven Vendors to receive $3,069,265 in cash in lieu of Common Shares from the Company, at such times and upon the completion of such conditions as described in Section 3.4 of the Fairhaven SPA; (e) with respect to each Company Option, RSU and Company Warrant that is surrendered pursuant to Section 2.3(a), Section 2.3(b) or Section 2.3(c), as applicable, each holder of Company Options, Company Warrants and RSUs (i) shall cease to be a holder of such ~~In-the- Money Option~~Company Options, Company Warrants and RSUs, (ii) such holder’s name shall be removed from each applicable register, (iii) the Omnibus Incentive Plan and Company Stock Option Plan and all agreements, grants and similar instruments relating to the Company Options, Company Warrants and RSUs 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(a), Section 2.3(b) and Section 2.3(c), as applicable, at the time and in the manner specified in Section 2.3(a), Section 2.3(b) and Section 2.3(c), respectively; (f) each of the Common Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall be deemed to ~~be fully vested and shall be~~ have been transferred ~~and disposed by the holder thereof~~ without any further act or formality to the ~~Company~~ Purchaser (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled~~ in ~~exchange~~ consideration for a debt claim against the Purchaser for the ~~Option Consideration~~amount determined under Article 3, ~~and~~ and: (i) such Dissenting Holders shall cease to be the ~~holder~~ holders of such ~~In-the-Money Option shall become the holder of the Company~~ Common Shares ~~comprising such Option Consideration~~ and ~~the central securities register of the Company shall be revised accordingly, but the holder~~ to have any rights as holders of such ~~Option Consideration shall not~~ Common Shares other than the right to be ~~entitled to receive a share certificate or other document representing the Option Consideration~~paid 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 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 of such Common Shares free and clear of all Liens, and shall be entered in the register of Common Shares maintained by or on behalf of the Company; and (g) concurrently with the step in Section 2.3(f), each ~~Out-of-the-Money Option issued and~~ Common Share outstanding immediately prior to the Effective ~~Time~~ Time, other than Common Shares held by (i) the Purchaser and its affiliates, and (ii) Dissenting Holders who have validly exercised their Dissent Rights in accordance with Article 3 and who are ultimately entitled to be paid the fair value for such Common Shares, shall, without any further action by or on behalf of ~~any~~ a 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 RSUCommon Shares, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to the ~~Company~~ Purchaser (free and clear of all ~~Encumbrances~~Liens) ~~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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 cash payment equal to the ~~product obtained when (A) the stated capital of all the issued and outstanding Company Shares immediately prior~~ Consideration, less withholdings required to ~~the step in Section 3.02(e)~~be made under applicable Laws, 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 capitaland: (i) the ~~notice~~ holders of ~~articles~~ such Common Shares shall cease to be the holders of such Common Shares and ~~articles~~ to have any rights as holders of such Common Shares other than the ~~Company shall~~ right to 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~~ paid the ~~“Class A Shares” (the “Class A Shares”), which shall have the special rights and restrictions set forth~~ Consideration in ~~Schedule “A” to~~ accordance with 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~~ holders’ names shall be removed from the ~~Company’s~~ register of ~~holders~~ the Common Shares maintained by or on behalf of ~~Company Shares;~~the Company; and (Biii) ~~each holder~~ the Purchaser shall be deemed to be the transferee of such ~~exchanged Company~~ Common Shares (free and clear of all Liens) and shall be entered in the ~~Company’s~~ register of ~~holders of Class A~~ the Common Shares ~~in respect~~ maintained by or on behalf 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh.

Appears in 1 contract

Sources: Arrangement Agreement (Liminal BioSciences Inc.)

Arrangement. At Commencing at the Effective Time~~, unless otherwise specifically provided in this Section 3.02~~, the following events or transactions shall occur sequentially in the order set out below and ~~shall~~ will be deemed to occur ~~sequentially in the following order~~ without any further act or ~~formality~~formality required on the part of any Person, except as otherwise provided herein: (a) the ~~Purchaser~~ Company shall ~~subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal~~ pay all accrued and unpaid interest under the Brookfield Existing Loan in cash 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 ConsiderationBrookfield; (b) ~~notwithstanding any vesting or exercise provisions~~ all amounts owing 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 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 Brookfield 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 Brookfield Existing Loan shall be, and shall be deemed to be, ~~surrendered~~ irrevocably, finally and fully settled and extinguished by the issuance by the Company to Brookfield of 18,214,401,868 Common Shares. The Common Shares issued pursuant to this Section 2.2(b) shall be, and shall be deemed to be, received in full and final settlement, extinguishment, discharge and release of the Brookfield Existing Loan and all Claims relating thereto; (c) the Company shall pay the Debentures Interest in cash to the applicable Indenture Trustee or its nominee, as registered holder of the global notes and on behalf of all Debentureholders, and such Indenture Trustee shall pay (or cause to be paid) the Debentures Interest to the Debentureholders pursuant to standing instructions and customary practices, without abatement or rights of setoff or counterclaim of any nature; (d) the Debentures shall be, and shall be deemed to be, irrevocably, finally and fully settled and extinguished by the issuance by the Company to the Debentureholders of 1,187,895,774 Common Shares, with each Debentureholder being entitled to receive its Debentureholder’s Pro Rata Share of such Common Shares in full and final settlement of and in exchange for the Debentures. The Common Shares issued pursuant to this Section 2.2(d) shall be, and shall be deemed to be, received in full and final settlement, extinguishment, discharge and release of the Debentures, the Indentures, all Entitlements relating to the Debentures and the Indentures and all other Debentureholders’ Claims; (e) notwithstanding any vesting provisions to which an RSU might otherwise be subject, (i) each RSU issued and outstanding at the Effective Time, whether or not vested, will be transferred to the Company ~~by the holder thereof,~~ without any ~~further act or formality by such Dissenting Shareholder~~action on behalf of the respective holders thereof, free and clear of all ~~Encumbrances~~liens, charges, encumbrances and any other rights of others, and ~~each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against~~ in exchange therefor, the Company ~~in an amount determined and payable in accordance with Article 4~~ shall issue to the holder such number of Common Shares as were subject to the RSU immediately prior to the Effective Time; and (ii) the RSU Plan will be terminated and the ~~name of such Dissenting Shareholder shall be removed from~~ Company will have no liabilities or obligations with respect to the ~~securities register of holders of Company Shares~~RSU Plan; (f) ~~concurrently with~~ the ~~surrender and cancellation of Company~~ Common 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 then issued and outstanding ~~Company~~ will be consolidated, such that every 400 Common Shares ~~immediately prior to~~ shall, automatically and without any action on the ~~step in Section 3.02(e)~~part of the respective holders thereof, ~~is multiplied by (B) a fraction, the numerator of which is the number of Company Shares surrendered~~ be combined 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)~~converted into one new Common Share; (g) ~~the Company shall transfer all of its entire legal and beneficial right, title and interest in and~~ notwithstanding any vesting or exercise provisions 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 capitalan Option might otherwise be subject: (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~~ Option issued and outstanding ~~immediately before~~ at the ~~reorganization of the Company’s share capital pursuant to this Section 3.02(h) (including~~Effective Time, ~~without limitation~~whether or not vested, 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 will 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~~ action on behalf 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 Spinco Share Consolidation shall be cancelled without payment or compensation therefor, and upon such Spinco Share Consolidation the register of respective holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholderthereof, free and clear of all ~~Encumbrances~~liens, ~~each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash~~ charges, encumbrances and ~~the Combination Consideration Purchaser Shares~~any other rights of others, and ~~upon~~ such ~~exchange: (iv) each such Participating Former Securityholder shall~~ Option will be ~~removed from~~ cancelled by the ~~Company’s securities register~~ Company without payment of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrancesany consideration; and (viii) ~~each such Participating Former Securityholder shall, subject~~ the Stock Option Plan will be terminated and the Company will have no liabilities or obligations with respect 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)Stock Option Plan; (lh) each ~~Participating Former Securityholder receiving Class A Shares pursuant~~ outstanding Warrant held by a Warrantholder will be transferred to ~~Section 3.02(h)(ii) who duly and validly completes and delivers~~ the applicable 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 transfer, and shall be deemed to have transferred, to Acquireco,~~ without any ~~further act or formality by such Participating Former Securityholder~~action on behalf of the respective Warrantholders, free and clear of all ~~Encumbrances~~liens, ~~each Class A Share held~~ charges, encumbrances and any other rights of others, and such Warrant will be cancelled by ~~such Participating Former Securityholder immediately prior to~~ the ~~exchange in this Section 3.02(l) in exchange for:~~Company without payment of any consideration; (i) Newco shall assign, transfer and convey all of its right, title and interest of Newco in and to all of its undertaking, property and assets to its sole shareholder and its sole shareholder shall assume all debts, obligations and liabilities of Newco and Newco shall then be dissolved; (j) on the ~~case of a Participating Former Securityholder validly electing to receive the Cash Consideration~~Rights Issuance Date, the ~~Cash Consideration~~Company shall issue to each holder of record of Common Shares in an Eligible Jurisdiction as of the close of business on the Rights Offering Record Date 1 Right for each Common Share held; (k) on the Rights Expiry Date, ~~subject~~ the Company shall issue Common Shares to each holder of Rights in respect of the ~~provisions~~ due exercise of ~~Section 3.02(m)~~the Rights and receipt of payment therefor; and (iil) in if any of the ~~case of a Participating Former Securityholder validly electing to receive~~ Rights remain unexercised at the ~~Purchaser Share Consideration~~Rights Expiry Time, the ~~Purchaser Share Consideration, subject~~ Company shall issue the Backstopped Shares to Brookfield upon the purchase of Common Shares by Brookfield pursuant to the ~~provisions~~ Backstop Commitment and receipt of Section 3.02(n), and upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh~~therefor.

Appears in 1 contract

Sources: Arrangement Agreement (North American Palladium LTD)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the ~~following~~ events ~~or transactions~~ set out below shall occur and shall be deemed to occur ~~sequentially~~ in the following ~~order~~ sequence or as otherwise provided below or herein, without any further act or formality: (a) Each NGEx Common Share in respect of which a NGEx Shareholder has exercised Dissent Rights and for which the ~~Purchaser~~ NGEx Shareholder is ultimately entitled to be paid fair value (each a “Dissent Share”) shall ~~subscribe~~ be deemed to have been repurchased by NGEx for cancellation in consideration for a debt-claim against NGEx to be paid the fair value of such Dissent Share in accordance with Article 3 of this Plan of Arrangement, net of any applicable withholding tax, and such Dissent Share shall thereupon be cancelled; (b) NGEx will assign and transfer to Spinco: (i) all of its existing rights, title and interest to the Purchase and Sale Agreement (including without limitation, in connection with the Deemed Expenditures); (ii) all of the outstanding shares of Suramina Resources, NGEx Argentina and NGEx RioEx, and (iii) approximately CAD$7.3 million in cash in consideration for Spinco: (x) assuming all of NGEx’s existing obligations under the Purchase and Sale Agreement; and (y) issuing to NGEx that number of ~~Acquireco~~ Spinco Common ~~Shares, at a price of $1.00 per share,~~ Shares equal to one half (1/2) the ~~quotient obtained when~~ number of NGEx Common Shares outstanding at the time of the foregoing assignment and transfer; (c) Notwithstanding the terms of the NGEx Option Plan, including any agreement made thereunder: (A) each NGEx Option (whether vested or not) exercisable for an NGEx Common Share that is outstanding immediately before 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 Effective Time which has not been duly exercised or cancelled will be ~~no less than the fair market value of the Class A Shares immediately prior~~ and will be deemed to ~~the acquisition of the Class A Shares by Acquireco pursuant to Section 3.02(k), and in connection with such share subscription~~be exchanged for: (i) one fully-vested Replacement NGEx Option to purchase from NGEx one NGEx Common Share for every NGEx Common Share that could be purchased under the ~~Purchaser shall~~ NGEx Option. Each Replacement NGEx Option will be ~~deemed to have directed the Depositary to hold, and the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered~~ governed by the ~~Purchaser~~ terms of the NGEx Option Plan and will have: (1) an exercise price per NGEx Common Share (rounded up to the ~~Depositary in accordance with Section 3.05(a)(i~~nearest whole cent) equal to the exercise price of each NGEx Option so exchanged immediately before the Effective Time multiplied by the Valuation Factor; and (~~such cash and Purchaser Shares, collectively,~~ 2) the ~~“Purchaser Consideration”) for and on behalf of Acquireco, in satisfaction~~ same expiry date as the expiry date of the ~~subscription price payable by the Purchaser~~ NGEx Option for which such ~~Acquireco Common Shares~~Replacement NGEx Option was exchanged; and (ii) ~~Acquireco~~ one-half (0.5) of one fully-vested Spinco Option for every NGEx Option. Each Spinco Option will be exercisable to purchase from Spinco one Spinco Common Share, will be governed by the terms of the Spinco Option Plan and will have: (1) an exercise price per Spinco Common Share (rounded up to the nearest whole cent) equal to (two) (2) times the exercise price of each such NGEx Option so exchanged immediately before the Effective Time multiplied by the number which is equal to one minus the Valuation Factor; and (2) the same expiry date as the expiry date of the NGEx Option for which such Spinco Option was exchanged, provided that the exercise prices of each Replacement NGEx Option and each Spinco Option issued pursuant to the step above shall be and be deemed to ~~have issued~~ be automatically adjusted such ~~fully paid and non-assessable Acquireco Common Shares to~~ that 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 aggregate In-the-Money ~~Option issued and outstanding~~ Amounts thereof immediately ~~prior to~~ after 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~~ steps above does not exceed 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~~ Amount of the ~~Company Shares comprising such~~ exchanged NGEx Option ~~Consideration and~~ determined immediately before the ~~central securities register~~ exchange, with the intention that subsection 7(1.4) 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 Tax Act will apply 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 cancelledexchange; (d) NGEx will distribute the ~~Company Option Plans shall be terminated;~~Spinco Common Shares to the holders of NGEx Common Shares (other than a Dissenting Shareholder) on the basis one-half (0.5) of one Spinco Common Share for each NGEx Common Share then held as a return of stated capital, and reduction of paid-up capital for purposes of the Tax Act; and (e) ~~each Company Share held by a Dissenting Shareholder shall be, and shall be deemed~~ NGEx will change its name to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~▇▇▇▇▇▇▇▇▇ Resources Inc.”) 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. ~~At the Effective Time, unless otherwise specifically provided in this Section 3.02, the~~ The following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ in the following order without any further authorization, act or formality: (a) at the ~~Purchaser shall subscribe for that number of Acquireco Common Shares~~Effective Time, 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~~ DRAXIS Option might otherwise be subject (whether by contract, the ~~terms and~~ conditions of ~~any Award Agreement or~~ a grant, Applicable Law or the terms ~~and conditions~~ of the ~~Company 2013 Share Incentive Plan or Company 2016~~ DRAXIS Stock Option ~~Plan, or applicable law~~Plans): (i) each ~~In-the-Money~~ DRAXIS Option issued and outstanding ~~immediately prior~~ at the time referred to ~~the Effective Time~~ in this Section 2.3(a) shall, without any further action by or on behalf of any holder of such ~~In-the- Money~~ DRAXIS Option, be deemed to be fully vested and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to ~~the Company~~ DRAXIS (free and clear of ~~all Encumbrances~~any Liens) 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 a cash amount equal to ~~receive a share certificate or other document representing~~ the Option Consideration; (ii) with respect to each ~~Out-of-the-Money~~ DRAXIS Option, the holder thereof will cease to be the holder of such DRAXIS Option, will cease to have any rights as a holder in respect of such DRAXIS Option or under the DRAXIS Stock Option Plans, such holder’s name shall be removed from the register of DRAXIS Options, and all option agreements, grants and similar instruments relating thereto shall be cancelled; and (iii) the DRAXIS Stock Option Plans shall be terminated; (b) at 5 minutes following the Effective Time, notwithstanding any vesting provisions to which a DSU might otherwise be subject (whether by contract, the conditions of a grant, Applicable Law or the terms of the Deferred Share Unit Plan): (i) each DSU issued and outstanding ~~immediately prior~~ at the time referred to ~~the Effective Time~~ in this Section 2.3(b) shall, without any further action by or on behalf of any holder of such ~~Out-of-the-Money Option~~DSU, be deemed to be fully vested and transferred by the holder thereof to DRAXIS (free and clear of all Liens) and cancelled ~~without any payment therefor~~in exchange for a cash amount equal to the Consideration; (~~iii~~ii) with respect to each ~~Company Option: (A)~~ DSU, the holder thereof ~~shall~~ will cease to be the holder of such ~~Company Option~~DSU, ~~and shall~~ will cease to have any rights as a holder in respect of such ~~Company Option~~ DSU or under the ~~applicable Company Option~~ Deferred Share Unit Plan~~, (B)~~ , such holder’s name shall be removed from the register of ~~Company Options~~DSUs, ~~and (C)~~ and all ~~option~~ agreements~~, Award Agreements~~, grants and similar instruments relating thereto shall be cancelled; (iii) the Deferred Share Unit Plan shall be terminated; (c) ~~notwithstanding~~ at 10 minutes following the Effective Time, DSPI will make a payment to DRAXIS to reimburse DRAXIS for the payments made by DRAXIS pursuant to Section 2.3(a)(i) to the holders of DRAXIS Options that are employees of DSPI; (d) at 15 minutes following the Effective Time, DSPI will transfer the CM Business to DP Partnership pursuant to the CM Business Transfer Agreement; (e) at 20 minutes following the Effective Time, each of DSPI and 427 Canco will reduce the stated capital accounts maintained in respect of each class of shares of each of DSPI and 427 Canco to $1, respectively, without any ~~vesting provisions~~ distribution of assets or property therefor; (f) at 25 minutes following the Effective Time, DRAXIS, DSPI and 427 Canco will Amalgamate to ~~which a Company RSU might otherwise be subject (whether by contract,~~ form DHI Amalco with the ~~terms and conditions of any Award Agreement or grant, the terms and conditions~~ same effect as if Section 186 of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan~~CBCA were applicable to the amalgamation, ~~or applicable law):~~and in connection with the amalgamation: (i) each ~~Company RSU~~ DRAXIS Share will be converted into one DHI Amalco Share; (ii) each outstanding share of DSPI and 427 Canco will be cancelled without any repayment of capital with respect thereto; (iii) DHI Amalco will possess all the property, rights, privileges and franchises and will be subject to all liabilities, including civil, criminal and quasi-criminal suits, and debts (except those owing between such amalgamating entities) of each of DRAXIS, DSPI and 427 Canco and all contracts of each of DRAXIS, DSPI and 427 Canco will become those of DHI Amalco; (iv) a conviction against, or ruling, order or judgment in favour or against DRAXIS, DSPI or 427 Canco may be enforced by or against DHI Amalco; (v) the Articles of Arrangement will be deemed to be the articles of incorporation of DHI Amalco and the certificate issued by the Director will be deemed to be the certificate of incorporation of DHI Amalco; (vi) the name of DHI Amalco shall be “DRAXIS Health Inc.”; (vii) the registered office of DHI Amalco shall be in the City of Montréal in the Province of Québec; (viii) there shall be no restrictions on the business which DHI Amalco is authorized to carry on or on the powers DHI Amalco may exercise; (ix) the authorized capital of DHI Amalco shall consist of an unlimited number of common shares and ~~outstanding~~ an unlimited number of preferred shares, issuable in series; (x) the rights, privileges, restrictions and conditions attaching to each class of shares of Amalco shall be as set forth in the articles of amalgamation of DRAXIS in effect immediately prior to the Effective ~~Time shall~~Date; (xi) the number of directors of DHI Amalco shall be such number, ~~without any further action~~ not less than one (1) and not more than ten (10), as the board of directors of DHI Amalco may from time to time determine; (xii) the directors of DHI Amalco may appoint one or more directors who shall hold office for a term expiring not later than the close of the next annual meeting of DHI 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 DHI Amalco; (xiii) the initial directors of DHI Amalco shall be those persons that are directors of DRAXIS immediately prior to the Effective Date; and (xiv) the by-laws of DHI Amalco shall be the by-laws of DRAXIS immediately prior to the Effective Date until repealed, amended, altered or added to; (g) at 30 minutes following the Effective Time: (i) all DRAXIS Shares held by ~~or on behalf~~ the Dissenting Shareholders in respect of ~~any holder~~ which such Dissenting Shareholders have exercised Dissent Rights and have not withdrawn their notice of ~~such Company RSU,~~ dissent will be deemed to have been transferred to the Purchaser and such holders will cease to have any rights as shareholders other than the right to be ~~fully vested and~~ paid the fair value of their DRAXIS Shares as set out in Article 3; (ii) each DRAXIS Share held by a DRAXIS Shareholder (other than a Dissenting Shareholder described in Section 2.3(g)(i)) immediately prior to the time referred to in this Section 2.3(g) shall be transferred ~~and disposed~~ by the holder thereof to the ~~Company~~ Purchaser (free and clear of ~~all Encumbrances~~any Liens) ~~and cancelled~~ in exchange for a cash amount equal to the ~~applicable RSU Consideration~~Consideration and the name of such holder will be removed from the register of holders of DRAXIS Shares, and the Purchaser will be recorded as the registered holder of such ~~Company RSU shall become~~ DRAXIS Share and will be deemed to be the ~~holder~~ legal and beneficial owner of ~~the Company Shares comprising~~ such ~~RSU Consideration~~ DRAXIS Share free of any Liens, and the ~~central securities register of the Company shall be revised accordingly, but the~~ former holder and beneficial 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 DRAXIS Shares will cease to have any rights as a ~~holder~~ shareholder in respect of such ~~Company RSU under the applicable Company Option Plan, (B) such holder’s name shall be removed from the register~~ DRAXIS Shares and any other securities of ~~Company RSUs~~DRAXIS, 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, surrendered to the Company by the holder thereof, without any further act DHI Amalco or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 Sharessubsidiaries; 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~~ directors of DHI Amalco shall resign, the number of the directors of DHI Amalco 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~~fixed at four and Shyam ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇▇ and ~~any fractional Spinco Shares resulting from such Spinco Share Consolidation~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be ~~cancelled without payment~~ the directors of DHI Amalco to hold office until the next annual meeting of DHI Amalco or ~~compensation therefor, and upon such Spinco Share Consolidation~~ until their successors are elected or appointed; provided that none of the register of holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation; (k) each 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 foregoing will occur or who has otherwise failed to make a valid election to receive the Cash Consideration or the Purchaser Share 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 will be deemed to ~~have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of~~ occur unless all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shforegoing occurs.

Appears in 1 contract

Sources: Arrangement Agreement (Draxis Health Inc /Cn/)

Arrangement. At the Effective Time, ~~unless~~ except as otherwise ~~specifically provided in this Section 3.02~~noted herein, the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ sequentially, in the following ~~order~~ order, without any further act or formality, in each case, effective at the Effective Time: (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 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 UNE Share held by a Dissenting Shareholder shall bebe transferred by the Dissenting Shareholder to UNE, and ~~shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by~~ such ~~Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each~~ Dissenting Shareholder shall cease to have any rights as a ~~holder of such Company Shares~~ UNE Shareholder, other than the right to be paid the fair value of their UNE Shares as set out in Section 4.01; (b) each UNE Share held by a ~~claim against~~ Former UNE Shareholder, other than (i) UNE Shares held by a Dissenting Shareholder (who is entitled to be paid the ~~Company in an amount~~ fair value of its UNE Share, as determined ~~and payable~~ in accordance with ~~Article 4~~ Section 4.01) and ~~the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares;~~ (fii) ~~concurrently with the surrender and cancellation of Company~~ UNE Shares held by ~~Dissenting Shareholders pursuant to Section 3.02(e)~~Altima, ~~the stated capital account maintained~~ shall be transferred by the ~~Company in respect of the Company Shares shall be reduced~~Former UNE Shareholder to Altima and, in ~~respect of the Company Shares cancelled pursuant to Section 3.02(e)~~consideration therefor, ~~by an amount equal~~ Altima shall issue to the ~~product obtained when (A)~~ Former UNE Shareholder Altima Shares on the ~~stated capital~~ basis 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 one fully paid and non-assessable ~~Spinco~~ Altima Share for each UNE Share, subject to Section 3.03 and Article 5 hereof; (c) with respect to each UNE Share transferred pursuant to Sections 3.01(a) or 3.01(b): (i) such Former UNE Shareholder shall cease to be the holder of such UNE Share; (ii) such Former UNE Shareholder’s name will be removed from the central securities register for UNE Shares with respect to such UNE Share; and (iii) legal and beneficial title to such UNE Share will vest in Altima, and Altima will be and be deemed to be the ~~“Distribution Spinco Shares”) equal to~~ transferee and legal and beneficial owner of all such UNE Shares and will be entered in the ~~number of Company Shares issued and outstanding immediately prior to the transfer in this Section 3.02(g) (~~central securities register for the ~~avoidance of doubt, excluding any Company~~ UNE Shares ~~in respect of which Dissenting Shareholders have exercised Dissent Rights), all~~ as the sole holder thereof; and (d) 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 UNE Options and ~~Company RSUs pursuant to Section 3.02(b) and Section 3.02(c)~~the UNE Stock Option Plan, 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU UNE Option outstanding immediately prior to the Effective Time shall ~~be cancelled~~ receive one Altima Share upon the subsequent exercise of such UNE Option in ~~exchange for a cash payment by the Company~~ accordance with its terms, in lieu of each UNE Share to which the holder of was theretofore entitled upon such ~~Company DSU equal to~~ exercise and for the ~~Company Sh~~same aggregate consideration payable theretofore.

Appears in 1 contract

Sources: Combination Agreement (Unbridled Energy CORP)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following ~~events or transactions~~ shall occur and shall be deemed to occur sequentially on the Effective Date, in the following ~~order~~ order, without any further act or ~~formality~~formality required on the part of any person: (a) each outstanding Company Share held by a Dissenting Shareholder shall be deemed to have been transferred by the holder thereof to Purchaser ~~shall subscribe for that number~~ free and clear of ~~Acquireco Common Shares~~any Liens of any kind whatsoever, 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 subscriptionand: (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) (each 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 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 Dissenting Shareholder shall cease to be the holder of such Company ~~Option,~~ Shares and ~~shall cease~~ to have any rights as a ~~holder in respect~~ Company Shareholder other than the right to be paid the fair value of such Company ~~Option under the applicable Company Option Plan,~~Shares in accordance with Article 4 hereof; (Bii) each such ~~holder~~Dissenting Shareholder’s name shall be removed as the holder of such Company Shares from the register of Company ~~Options~~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 (Civ) Purchaser will be the registered holder of all ~~option agreements, Award Agreements, grants and similar instruments relating thereto~~ of the outstanding Company Shares. (b) each outstanding Company Share (other than any Company Shares held by a Dissenting Shareholder) shall be ~~cancelled;~~ and be deemed to be assigned and transferred by the holder thereof to Purchaser (~~c) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms~~ free and ~~conditions~~ clear of any ~~Award Agreement or grant~~Liens of any kind whatsoever) in exchange for the Consideration, ~~the terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):~~and: (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,~~ thereof and ~~shall cease~~ to have any rights as a ~~holder in respect of such~~ Company ~~RSU under~~ Shareholder other than the ~~applicable Company Option Plan, (B) such holder’s name shall~~ right to be ~~removed from~~ paid 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~~ Consideration per Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~ name 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~~ holder shall be removed from the ~~Company’s~~ register of ~~holders~~ the Company Shares maintained by or on behalf of ~~Company Shares;~~Company; and (Biii) ~~each holder~~ Purchaser shall be deemed to be the transferee of such ~~exchanged~~ Company Shares free and clear of all Liens of any kind whatsoever and shall be entered in the ~~Company’s~~ register of ~~holders~~ Company Shares maintained by or on behalf 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 SharesCompany; and (Dc) each ~~holder~~ Company Option outstanding at the Effective Time (whether vested or unvested) will be exchanged for a Replacement Option to acquire such number of ~~such exchanged Company~~ Purchaser 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 as is 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 to: (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 that number 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 Spinco Share Consolidation shall be cancelled without payment or compensation therefor, and that were issuable upon such Spinco Share Consolidation the register of holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation; (k) each 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 exercise 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding Option immediately prior to the Effective ~~Time shall be cancelled in exchange for a cash payment~~ Time, multiplied by (B) the ~~Company~~ Exchange Ratio, rounded down to the ~~holder~~ nearest whole number of ~~such Company DSU~~ Purchaser Shares, at an exercise price per Purchaser Share equal to the greater of (i) the quotient determined by dividing: (X) the exercise price per Company ShShare 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, and (ii) such 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 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.

Appears in 1 contract

Sources: Arrangement Agreement (HEXO Corp.)

Arrangement. At the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall occur and shall be deemed to occur sequentially in the ~~following~~ order set out below without any further authorization, act or formality, in each case, effective as at one minute intervals starting at the Effective Time, except as indicated otherwise: (a) each Cash-Out RSU shall, by virtue of the Arrangement in accordance with the terms of the applicable Equity Plan and without any required action on the part of the Company or the holder of such Cash-Out RSU, be cancelled and the holder of such Cash-Out RSU shall be paid the RSU Consideration; (b) each Cash-Out PRSU shall, by virtue of the Arrangement in accordance with the terms of the applicable Equity Plan and without any required action on the part of the Company or any holder of such Cash-Out PRSU, be cancelled and the holder of such Cash-Out PRSU shall be paid the PRSU Consideration. For the avoidance of doubt, any portion of a PRSU that is forfeited at or prior to the Effective Time due to the failure to achieve applicable performance goals shall not be considered outstanding as of the Effective Time and shall not be treated as a Rollover PRSU or entitled to any PRSU Consideration; (c) each SAR that is outstanding immediately prior to the Effective Time shall, by virtue of the Arrangement in accordance with the terms of the applicable Equity Plan and without any required action on the part of the Company or any holder of such SAR, shall be cancelled and the holder of such SAR shall be paid the SAR Consideration, provided that in the case of a SAR that has an exercise price per Common Share that equals or exceeds the Consideration, such SAR shall be canceled upon the Effective Time for no consideration; (d) the Employee Share Purchase Plan will terminate, in accordance with its terms, no later than immediately prior to and effective as of the Effective Time (but subject to the consummation of the Arrangement); (e) all RSU Consideration, PRSU Consideration and SAR Consideration shall be paid, without interest and subject to withholding of all Taxes required by Applicable Law in accordance with Section 4.3, on behalf of the Company and each applicable Affiliate by the Depositary as promptly as practicable following, but in no event later than ten (10) Business Days after, the Effective Time (or such later time as may be required to comply with the provisions of Section 409A of the U.S. Tax Code); (f) each Common Share outstanding immediately prior to the Effective Time held by a Dissenting Shareholder shall be deemed to have been assigned and transferred (free and clear of all Liens), without any further act or ~~formality: (a)~~ formality by or on behalf of any Dissenting Shareholder, to the Purchaser, in consideration for a debt claim against the Purchaser ~~shall subscribe~~ for ~~that number of Acquireco Common Shares~~an amount determined under Article 3, 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 subscriptionand: (i) such Dissenting Shareholder shall cease to be the registered holder of such Common Share(s) and to have any rights as a Company Shareholder other than the right to be paid the amount determined under Article 3; (ii) such Dissenting Shareholder’s name shall be removed as the registered holder of such Common Share(s) from the applicable register of Company Shareholders maintained by or on behalf of the Company; (iii) such Dissenting Shareholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Common Shares transferred pursuant to Section 2.3(f); and (iv) the Purchaser shall be deemed to ~~have directed~~ be the ~~Depositary to hold,~~ transferee of such Common Shares free and clear of all Liens and shall be entered in the ~~Depositary shall hold,~~ register of the ~~cash and certificates representing the Purchaser Shares delivered~~ Company Shareholders maintained 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~~ or 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 ConsiderationCompany; (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): (ig) each ~~In-the-Money Option~~ Common Share that is issued and outstanding immediately prior to the Effective Time ~~shall~~(other than a Common Share held by a Dissenting Shareholder in respect of which Dissent Rights have been duly and validly exercised under Section 2.3(f), ~~without~~ the Company or any ~~further action by~~ of its Subsidiaries, the Purchaser, the Parent or ~~on behalf~~ any Subsidiary of ~~any holder of such In-the- Money Option,~~ the Parent) shall be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to the ~~Company (free and clear of all Encumbrances) and cancelled~~ Purchaser in exchange for the ~~Option~~ Consideration, ~~and the~~ and: (i) each registered holder of such ~~In-the-Money Option shall become the holder of the Company~~ Common 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 registered holder ~~of such Company Option,~~ thereof and ~~shall cease~~ to have any rights as a ~~holder~~ Company Shareholder other than the right to be paid the Consideration pursuant to this Section 2.3(g) and in ~~respect~~ accordance with this Plan of ~~such Company Option under the applicable Company Option Plan,~~Arrangement; and (Bii) the name of each such ~~holder’s name~~ registered holder 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~~ Shareholders maintained by or on behalf of ~~any holder of such Company RSU,~~ the Company; and (iii) the Purchaser shall be deemed to be ~~fully vested and shall be transferred and disposed by~~ the ~~holder thereof to the Company (~~transferee of such Common Shares free and clear of all ~~Encumbrances)~~ Liens and ~~cancelled~~ shall be entered 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~~ Shareholders maintained by or on behalf of 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, Company; and (~~C) all Award Agreements, grants and similar instruments relating thereto will be cancelled; (d) the Company Option Plans shall be terminated; (e~~h) each ~~Company Share held~~ Rollover RSU shall, by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 virtue 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 Arrangement in accordance with the terms of the ~~Spinco Contribution Agreement; (h) in~~ applicable Equity Plan and the ~~course of a reorganization~~ Arrangement Agreement and without any required action on the part of the ~~Company’s authorized and issued~~ Company or the holder of such Rollover RSU, be exchanged for a Parent RSU in respect of that number of shares of Parent Common Stock (rounded to the nearest whole share ~~capital:~~ in accordance with Section 2.7 of the Company Disclosure Letter) equal to the product of (i) the ~~notice~~ total number of ~~articles and articles of~~ Common Shares subject to such Rollover RSU immediately prior to the Effective Time, multiplied by (ii) the Equity Award Exchange Ratio. Except as expressly provided in this Section 2.3(h), the Arrangement Agreement or the Company Disclosure Letter, each Parent RSU shall be ~~amended~~ subject to ~~create a new class~~ substantially the same terms and conditions as applied to the corresponding Rollover RSU immediately prior to the Effective Time, including any “double-trigger” vesting provisions applicable to the Rollover RSUs pursuant to their terms as in effect on the date 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; (iii) each ~~Company Share issued and outstanding immediately before the reorganization~~ Rollover PRSU shall, by virtue of the ~~Company’s share capital pursuant to this Section 3.02(h) (including,~~ Arrangement in accordance with the terms of the applicable Equity Plan and the Arrangement Agreement and without ~~limitation,~~ any required action on the part of the Company ~~Shares issued~~ or any holder of such Rollover PRSU, be exchanged for a Parent RSU in respect of that number of shares of Parent Common Stock (rounded 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~~ the nearest whole share 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 2.7 of the Company ~~Shares shall be reduced by an amount~~ Disclosure Letter) equal to the ~~stated capital~~ product 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~~ total number of ~~holders of Spinco Shares; (j) all of the issued and outstanding Spinco~~ Common 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding Rollover PRSU immediately prior to the Effective Time determined in accordance with Section 2.7 of the Company Disclosure Letter, multiplied by (ii) the Equity Award Exchange Ratio. After the Effective Time, each such Parent RSU shall only be subject to time-vesting through the remainder of the originally scheduled performance period (or any later scheduled vesting date). Except as expressly provided in this Section 2.3(i), the Arrangement Agreement or the Company Disclosure Letter, each such Parent RSU shall be ~~cancelled in exchange for a cash payment by~~ subject to substantially the ~~Company~~ same terms and conditions as applied to the ~~holder of such Company DSU equal~~ corresponding Rollover PRSU immediately prior to the ~~Company Sh~~Effective Time, including any “double-trigger” vesting provisions applicable to the Rollover PRSUs pursuant to their terms as in effect on the date of this Plan of Arrangement; (j) the transfers, exchanges, cancellations and payments provided for in this Section 2.3 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 (Masonite International Corp)

Arrangement. At Commencing 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 order without any further act or formality: (a) each Mogo Share held by a Dissenting Shareholder in respect of which the ~~Purchaser~~ Mogo Shareholder has validly exercised his, her or its Dissent Rights shall ~~subscribe for that number~~ be transferred and assigned by such Dissenting Shareholder to Mogo (free and clear of ~~Acquireco Common Shares~~any liens, ~~at a price~~ charges and encumbrances of ~~$1.00 per share, equal to the quotient obtained when (A~~any nature whatsoever) ~~the fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00~~in accordance with, and for ~~greater certainty for~~ the ~~purposes of determining variable~~ consideration set forth in, Section 3.1; (Ab) with respect to each Mogo Share transferred and assigned in ~~relation to the quotient under this~~ accordance with 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:2.4(a): (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 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 registered holder thereof shall cease to be the registered holder of such ~~Company Option,~~ Mogo Share and ~~shall cease to have any rights as a holder in respect~~ the name of such ~~Company Option under the applicable Company Option Plan, (B) such holder’s name~~ registered holder shall be removed from the register of ~~Company Options~~Mogo 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 Mogo Share; and (Ciii) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto shall~~ such Mogo Shares will be ~~cancelled~~cancelled by Mogo for no consideration; (c) ~~notwithstanding any vesting provisions~~ Mogo and Difference SubCo shall merge to ~~which a Company RSU might otherwise be subject~~ form one corporate entity (~~whether by contract,~~ “Amalco”) with the ~~terms and conditions of any Award Agreement or grant, the terms and conditions~~ same effect as if they had amalgamated under Section 269 of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan~~Business Corporations Act, ~~or applicable law):~~and: (i) each ~~Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further action~~ Mogo Share (other than Mogo Shares held by ~~or on behalf of any holder of such Company RSU, be deemed to be fully vested and~~ Difference) shall be ~~transferred~~ cancelled 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 issued the ~~holder of such Company RSU, and shall cease to have any rights as a holder~~ Share Consideration 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~ Mogo Share ~~issued~~ held by Difference 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~~ Difference SubCo Share shall be ~~cancelled,~~ cancelled and the ~~holders of such exchanged Company Shares~~ holder thereof shall be ~~removed from the Company’s register of holders of Company Shares;~~ issued one (B1) ~~each holder of such exchanged Company Shares shall be entered~~ common share in the ~~Company’s register~~ capital of ~~holders of Class A Shares~~ Amalco in respect of ~~the Class A Shares issued to~~ each 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 Companyshare; (iii) ~~concurrently with~~ as consideration for the ~~exchange~~ issuance by Difference of the Share Consideration described in Section ~~3.02(h)(ii~~2.4(c)(i), Amalco shall issue to Difference one (1) common share in the capital of Amalco for each Difference Share issued pursuant to Section Section 2.4(c)(i); and (iv) each outstanding Mogo Warrant shall be and shall be deemed to be exchanged for a warrant (each, a “Replacement Warrant”) to purchase from Difference the number of Difference Shares equal to the number of Mogo Shares subject to such Mogo Warrant immediately prior to the Effective Time. All other terms and conditions of a Replacement Warrant, including the term to expiry, conditions to and manner of exercise, will be the same as the Mogo Warrant for which it was exchanged; (d) without limiting the generality of Section 2.4(c), Mogo and Difference SubCo shall continue as one company and, from and after the Effective Date: (i) Amalco will own and hold the property of Mogo and Difference SubCo and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamation, and all liabilities and obligations of Mogo and Difference SubCo, whether arising by contract or otherwise, may be enforced against Amalco to the same extent as if such obligations had been incurred or contracted by it; (ii) Amalco will continue to be liable for all of the liabilities and obligations of Mogo and Difference SubCo; (iii) other than the Mogo Warrants exchanged under Section 2.4(c), all rights, contracts, permits and interests of Mogo and Difference SubCo will continue as rights, contracts, permits and interests of Amalco as if Mogo and Difference SubCo continued and, for greater certainty, the amalgamation will not constitute a transfer or assignment of the rights or obligations of either of Mogo or Difference SubCo 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 or administrative action or proceeding pending by or against either Mogo or Difference SubCo may be continued by or against Amalco; (vi) a conviction against, or ruling, order or judgment in favour of or against either Mogo or Difference SubCo may be enforced by or against Amalco; (vii) the name of Amalco shall be “Mogo Finance Technology Inc.”; (viii) Amalco shall be authorised to issue an unlimited number of common shares without par value; (ix) the first directors of Amalco following the amalgamation shall be the same as the directors of Difference at the Effective Time; (x) the articles and notice of articles of Amalco shall otherwise be substantially in the form of the articles and notice of articles of Mogo; (xi) the stated capital ~~account in respect~~ of the ~~Company Shares shall~~ common shares of Amalco will be ~~reduced by~~ an amount equal to the ~~stated~~ total of: (A) the aggregate paid-up capital (as such term is defined in the ITA) of the ~~Company~~ Mogo Shares ~~immediately prior~~ described in Sections 2.4(c)(i) and 2.4(c)(ii) (which in each case, for greater certainty, does not include any paid-up capital attributable to the ~~reorganization~~ Mogo Shares described in Section ~~3.02(h~~2.4(a)), and (B) the aggregate paid-up capital (as such term is defined in the ITA) of the Difference SubCo Shares described in Section 2.4(c)(ii), in each case as of the time; and (xii) there shall be added to the stated capital ~~account maintained by the Company in respect~~ of the ~~Class A Shares,~~ Difference Shares an amount equal to the paid-up capital (as such term is defined in ~~respect~~ the ITA) of the ~~Class A~~ Mogo Shares ~~issued pursuant to~~ described in Section ~~3.02(h)(ii)~~2.4(c)(i) (which, ~~the amount by which (A) the amount by which the stated~~ for greater certainty, does not include any paid-up 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~~ attributable to the ~~former holders of Company~~ Mogo Shares ~~pursuant to~~ described in Section ~~3.02(h)(ii~~2.4(a); (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 (Ae) the ~~sum of (I) the aggregate Combination Consideration Cash payable pursuant to~~ exchanges and cancellations provided for in this 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 2.4 will be deemed to be effective immediately following the transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to occur on the Effective ~~Time shall~~ Date, notwithstanding certain procedures related thereto may not be ~~cancelled in exchange for a cash payment by~~ completed until after the ~~Company to the holder of such Company DSU equal to the Company Sh~~Effective Date.

Appears in 1 contract

Sources: Amending Agreement (Mogo Finance Technology Inc.)

Arrangement. At Pursuant to the ~~Effective Time, unless otherwise specifically provided in this Section 3.02~~Arrangement, the following ~~events or~~ transactions shall occur and shall be deemed to occur ~~sequentially~~ at the Effective Time (unless otherwise specified), in the following ~~order without any further act or formality~~order: (a) ~~the~~ Purchaser ~~shall subscribe for that number~~ (or one of ~~Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when (A~~its Affiliates) 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: provide (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) one or more loans (~~such cash and Purchaser Shares, collectively,~~ the “~~Purchaser Consideration~~Royal Third Party Debt Payoff Loans”) ~~for and on behalf of Acquireco,~~ to Royal 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 aggregate amount equal to the ~~fair market value~~ 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 ~~Consideration~~(or the applicable Affiliate of Purchaser); (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 immediately upon receipt of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan~~Royal Third Party Debt Payoff Loans, ~~or applicable law):~~Royal will repay in full all amounts owing under the Specified Third Party Debt; (ic) two minutes after the completion of the immediately preceding step, each ~~In-the-Money~~ Royal Share, other than a Royal Share held by a Dissenting Shareholder, will be acquired by Purchaser without any further authorization, act or formality, in exchange for a cash payment by Purchaser equal to the Purchase Price, less any required withholding taxes, and the Purchaser will be deemed to be the legal and beneficial owner thereof, free and clear of all liens, charges, claims and encumbrances. The names of the holders of the Royal Shares transferred to Purchaser shall be removed from the applicable registers of holders of Royal Shares and Purchaser shall be recorded as the registered holder of the Royal Shares so acquired and shall be deemed the legal and beneficial owner thereof; (d) two minutes after the completion of the immediately preceding step, each Royal Option issued and outstanding immediately prior to the Effective ~~Time shall~~Time, ~~without any further action by~~ whether vested or ~~on behalf of any holder of such In-the- Money Option~~unvested, will be cancelled and will be deemed to ~~be fully vested and shall be transferred and~~ have been disposed ~~by the holder thereof~~ of to ~~the Company (free and clear of all Encumbrances) and cancelled~~ Royal in exchange for a cash payment by Royal equal to the ~~Option Consideration~~amount, ~~and~~ if any, of 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~~ Amount of such ~~Option Consideration shall not be entitled to receive a share certificate or other document representing the Option Consideration~~Royal Option, less any required withholding taxes; (iie) at the same time as the preceding step, 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~~Time, ~~without any further action by~~ whether vested or ~~on behalf of any holder of such Company RSU~~unvested, 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU~~ Royal equal to $l per RSU, less any required withholding taxes; and (f) the ~~Company Sh~~Long-Term Incentive Plan and the Senior Management Incentive Plan shall be terminated.

Appears in 1 contract

Sources: Arrangement Agreement (Georgia Gulf Corp /De/)

Arrangement. At the Effective ~~Time, unless otherwise specifically provided in this Section 3.02,~~ Time each of the following events ~~or transactions~~ shall occur and shall be deemed to occur sequentially ~~in the following order~~ as set out below without any further authorization, 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 each SMART 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 immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the SMART Equity Incentive Plan, shall be deemed to be unconditionally vested and exercisable, and such SMART Option shall, without any further action by or on behalf of a holder of SMART Options, be deemed to be assigned and transferred by such holder to SMART in exchange for a cash payment from SMART to such holder equal to the amount (if any) by which the Cash Consideration exceeds the exercise price of such SMART Option, less applicable withholdings, and each such SMART Option for each Common Share subject to such SMART Option shall immediately be cancelled and, for greater certainty, where such amount is a negative, SMART shall pay the holder of such SMART Option $0.001 in respect of such SMART Option; (b) each SMART RSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the SMART Equity Incentive Plan, shall be deemed to be unconditionally vested, and such SMART RSU shall, without any further action by or on behalf of a holder of such SMART RSU, be deemed to be assigned and transferred by such holder to SMART in exchange for a cash payment from SMART equal to the Cash Consideration in respect of each SMART RSU, less applicable withholdings, and each such SMART RSU shall immediately be cancelled; (c) each SMART DSU outstanding immediately prior to the Effective Time, notwithstanding the terms of the SMART Equity Incentive Plan, shall, without any further action by or on behalf of a holder of such SMART DSU, be deemed to be assigned and transferred by such holder to SMART in exchange for a cash payment from SMART equal to the Cash Consideration in respect of each SMART DSU, less applicable withholdings, and each such SMART DSU shall immediately be cancelled; (d) each SMART PSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the SMART Equity Incentive Plan, shall, without any further action by or on behalf of a holder of such SMART PSU, immediately be cancelled and, for greater certainty, SMART shall pay the holder of such SMART PSU $0.001 in respect of such SMART PSU; (e) (i) each holder of SMART Options, SMART RSUs, SMART DSUs and SMART PSUs shall cease to be a holder of such SMART Options, SMART RSUs, SMART DSUs and SMART PSUs, (ii) such holder’s name shall be removed from each applicable register of holders maintained by or on behalf of SMART, (iii) the SMART Equity Incentive Plan and all agreements relating to the SMART Options, SMART RSUs, SMART DSUs and SMART PSUs 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 Sections 2.3(a), 2.3(b) and 2.3(c), at the time and in the manner specified in Sections 2.3(a), 2.3(b), 2.3(c) and Section 4.1(c); (f) each 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 AcquisitionCo (free and clear of all Liens) in consideration for a debt claim against AcquisitionCo 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; (ii) such Dissenting Holders’ names shall be removed as the holders of such Common Shares from the register of the Common Shares maintained by or on behalf of SMART; and (iii) AcquisitionCo shall be deemed to be the transferee of such Common Shares free and clear of all Liens, and shall be entered in the register of the Common Shares maintained by or on behalf of SMART; and (g) each Common Share outstanding immediately prior to the Effective Time (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 any holder of ~~such In-the- Money Option~~Common Shares, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to ~~the Company~~ AcquisitionCo (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled~~ in exchange for the ~~Option~~ Cash 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~ holders of ~~articles~~ such Common Shares shall cease to be the holders thereof and ~~articles~~ to have any rights as holders of such Common Shares other than the ~~Company shall~~ right to 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~~ paid the ~~“Class A Shares” (the “Class A Shares”), which shall have the special rights and restrictions set forth~~ Cash Consideration in ~~Schedule “A” to~~ accordance with 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~~ holders’ names shall be removed from the ~~Company’s~~ register of ~~holders~~ the Common Shares maintained by or on behalf of ~~Company Shares;~~SMART; and (Biii) ~~each holder~~ AcquisitionCo shall be deemed to be the transferee of such ~~exchanged Company~~ Common Shares (free and clear of all Liens) and shall be entered in the ~~Company’s~~ register of ~~holders of Class A~~ the Common 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~~ or on behalf 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShSMART.

Appears in 1 contract

Sources: Arrangement Agreement (SMART Technologies Inc.)

Arrangement. At On the terms and subject to the conditions hereof, the Parties shall proceed to effect the Arrangement under Part 9, Division 5 of the BCBCA immediately following the Effective Time (the “Arrangement Effective Time”), ~~unless otherwise specifically provided in this Section 3.02,~~ on the ~~following events or transactions shall occur~~ terms and ~~shall be deemed~~ subject to ~~occur sequentially~~ the conditions set forth in the ~~following order without any further act or formality:~~Plan of Arrangement. (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)As soon as reasonably practicable, and in ~~connection~~ any event within three (3) Business Days after the date that the Registration Statement is declared effective, the Company shall apply, pursuant to Part 9, Division 5 of the BCBCA and, in cooperation with ~~such share subscription~~Purchaser (which shall include the opportunity for the Purchaser and its Representatives to review all relevant documents and the incorporation of all reasonable comments from Purchaser and its Representatives thereon), prepare, file and diligently pursue an application to the Court for the Interim Order in respect of the Arrangement, which shall identify that the Voting Agreements have been executed by each of the Supporting Company Shareholders and shall provide, among other things: (i) for the ~~Purchaser shall~~ class(es) of persons to whom notice is to 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 provided 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 Arrangement 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~~Shareholders Meeting, ~~or applicable law): (i) each In-the-Money Option issued~~ and ~~outstanding immediately prior to~~ for the ~~Effective Time shall, without any further action by or on behalf of any holder of~~ manner in which such ~~In-the- Money Option, be deemed~~ notice is 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 Considerationprovided; (ii) ~~each Out-of-the-Money Option issued and outstanding immediately prior to~~ that the ~~Effective Time shall, without any further action by or on behalf~~ required level of ~~any holder of such Out-of-the-Money Option,~~ approval for the Company Arrangement Resolution shall be ~~cancelled without any payment therefor~~the Required Company Approval; (iii) ~~with respect~~ that, in all other respects and subject to ~~each Company Option: (A)~~ any variations set out in 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 contractInterim Order, the ~~terms and conditions of any Award Agreement or grant~~terms, ~~the terms~~ restrictions 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 Organizational Documents of the ~~Company Shares comprising such RSU Consideration~~ Company, including quorum requirements and ~~the central securities register of the Company~~ all other matters, 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 apply in respect of the Company ~~Shares shall be reduced, in respect~~ Shareholders Meeting; (iv) for the grant of the Arrangement Dissent Rights to Company Shareholders as contemplated by the Plan of Arrangement; (v) for the notice requirements regarding the presentation of the application to the Court for the Final Order; (vi) that it is the intention of the Parties to rely upon Section 3(a)(10) of the Securities Act in connection with the exchange of the Electing Company Shares ~~cancelled pursuant~~ for the Exchangeable Shares in accordance with the Plan of Arrangement, based on the Court’s approval of the Arrangement, which approval through the issuance of the Final Order will constitute its determination of the fairness of the Arrangement; (vii) that the Company Shareholders Meeting may be adjourned or postponed from time to ~~Section 3.02(e)~~time by the Company, ~~by an amount equal~~ with the consent of the Purchaser (such consent not 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)~~be unreasonably withheld, ~~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~~conditioned or delayed), 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 this Agreement or as otherwise agreed by the ~~Spinco Contribution Agreement~~Parties without the need for additional approval of the Court, and may be held virtually; (hviii) in that the ~~course of a reorganization of~~ record date for the ~~Company’s authorized and issued share capital: (i) the~~ Company Shareholders entitled to notice of ~~articles~~ and ~~articles~~ to vote at the Company Shareholders Meeting will not change in respect of any adjournment(s) or postponement(s) 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 ArrangementShareholders Meeting; (iiix) ~~each Company Share issued and outstanding immediately before the reorganization~~ confirmation of the ~~Company’s share capital pursuant to this Section 3.02(h) (including, without limitation,~~ record date for the purposes of determining the Company ~~Shares issued~~ Shareholders entitled to ~~former holders of In-the-Money Options~~ receive material and vote at the Company ~~RSUs pursuant to Section 3.02(b) and Section 3.02(c), respectively, but excluding any Company Shares surrendered and cancelled~~ Shareholders Meeting 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 SharesInterim Order; and (Dx) ~~each holder of~~ for 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares other matters as the ~~legal and beneficial owner of such Class A Shares, free of all Encumbrances; and (vi) each such Participating Former Securityholder shall, subject~~ Parties may agree are reasonably necessary to complete 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShTransactions.

Appears in 1 contract

Sources: Business Combination Agreement (Healthwell Acquisition Corp. I)

Arrangement. At 4.1 Commencing as of the Effective Time~~, unless otherwise specifically provided in this Section 3.02~~, the following events or transactions ~~shall~~ will occur sequentially in the order set out below unless otherwise noted and ~~shall~~ will be deemed to occur sequentially in the following 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 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, surrendered to the Company by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder~~required on the part of any Person, ~~free and clear of all Encumbrances, and each such Company Share so surrendered~~ except as expressly provided herein: (a) The Senior Bank Facility shall be ~~cancelled~~ amended to no less than Cdn$225.0 million and ~~thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other~~ no less than ~~a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall~~ Cdn$50.0 million will be ~~removed from the securities register of holders of Company Shares~~drawn thereunder by ▇▇▇▇▇▇▇; (fb) ~~concurrently with~~ ▇▇▇▇▇▇▇ Finance will determine, in its sole discretion, the ~~surrender~~ extent to which cash, New Notes and ~~cancellation~~ Mandatory Convertible Notes are to comprise the Cash Alternative and the New Note Alternative, subject to the terms thereof; (c) ▇▇▇▇▇▇▇ will loan to ▇▇▇▇▇▇▇ Finance the cash components required under the Cash Alternative and, if applicable, the New Note Alternative, as well as the aggregate amount of ~~Company Shares held by Dissenting Shareholders~~ the fees and expenses due to BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., the Indenture Trustee and counsel to the Parties pursuant to Section ~~3.02(e),~~ 4.1(f) and the ~~stated capital account maintained~~ accrued interest payable by ~~the Company in respect of the Company Shares shall be reduced, in respect of the Company Shares cancelled~~ ▇▇▇▇▇▇▇ Finance 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(e4.1(d); (gd) ▇▇▇▇▇▇▇ Finance shall pay the ~~Company~~ accrued interest to the Indenture Trustee or its nominee as registered holder of the global notes and on behalf of all Noteholders, and the Indenture Trustee shall pay (or cause to be paid) all such accrued interest to the Noteholders, without abatement or rights of setoff or counterclaim of any nature; (e) Each Noteholder shall irrevocably exchange and be deemed to transfer all of its ~~entire legal~~ Senior Notes and ~~beneficial right~~all of its rights under the Senior Notes and the Note Indenture to ▇▇▇▇▇▇▇ Finance in exchange for: (i) cash and, ~~title and interest in and~~ if applicable, New Notes under the New Note Indenture and/or Mandatory Convertible Notes under the Mandatory Convertible Note Indenture, all pursuant to the ~~Spinco Property to Spinco in consideration for~~ Cash Alternative; or (ii) New Notes under the ~~issuance by Spinco~~ New Note Indenture and, if applicable, cash and/or Mandatory Convertible Notes under the Mandatory Convertible Note Indenture, all pursuant to the ~~Company of that number of fully paid and non-assessable Spinco Shares (the “Distribution Spinco Shares”) equal~~ New Note Alternative, allocated 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 capitaleach Noteholder as follows: (i) Each Noteholder shall receive for each $1,000 of such Noteholder’s Principal Claim Amount, at the ~~notice~~ election of ~~articles~~ such Noteholder: (A) $940 in cash, to an aggregate maximum of $184.5 million; provided that, to the extent the aggregate elections for the Cash Alternative by Electing Noteholders exceed $184.5 million, then $940 consisting of a combination of: (I) cash, to an aggregate maximum of not less than $184.5 million and ~~articles~~ not more than $229.5 million; and, if applicable (II) Mandatory Convertible Notes, to a maximum aggregate principal amount of $45.0 million; and/or (III) New Notes, to a maximum aggregate principal amount of $45.0 million, for all Electing Noteholders electing to receive the Cash Alternative, with the relative allocation of cash, Mandatory Convertible Notes and New Notes to be determined by ▇▇▇▇▇▇▇ Finance in its sole discretion and applied in the same proportion to all Electing Noteholders electing the Cash Alternative; or (B) $940 of principal amount of New Notes for all Noteholders which have elected or are deemed to have elected to receive the New Note Alternative; provided that, to the extent the aggregate elections (including deemed elections) for the New Note Alternative exceed $193.5 million, then $940 consisting of a combination of: (I) New Notes, to a maximum aggregate principal amount of not less than $193.5 million and not more than $238.5 million; and, if applicable (II) Mandatory Convertible Notes, to a maximum aggregate principal amount of $45.0 million; and/or (III) cash, to an aggregate maximum of $45.0 million, for all Noteholders electing (or deemed to be electing) to receive the New Note Alternative, with the relative allocation of New Notes, Mandatory Convertible Notes and cash to be determined by ▇▇▇▇▇▇▇ Finance in its sole discretion and applied in the same proportion to all Noteholders electing (or deemed to be electing) the New Note Alternative; in exchange for such Senior Notes; provided that: (C) if the aggregate amount to be received by Electing Noteholders electing to receive the Cash Alternative is greater than the Maximum Cash/Note Consideration, then the consideration that will be paid to each such Noteholder for its Senior Notes will be equal to such Noteholder’s pro rata share (determined as a fraction of all Senior Notes for which a Cash Alternative election has been made) of: (I) the Maximum Cash/Note Consideration; and (II) such combination of New Notes and, if applicable, cash and/or Mandatory Convertible Notes as ▇▇▇▇▇▇▇ Finance has determined pursuant to Section 4.1(b) equal to the difference between (A) the Maximum Note Consideration; and (B) the amount of such combination of New Notes and, if a applicable, cash and/or Mandatory Convertible Notes as ▇▇▇▇▇▇▇ Finance has determined pursuant to Section 4.1(b) that is payable to Noteholders who have elected or are deemed to have elected the New Note Alternative; (D) if the aggregate principal amount to be received by Noteholders which have elected or are deemed to have elected to receive the New Note Alternative is greater than the Maximum Note Consideration, then the consideration to be issued to each such Noteholder for its Senior Notes will be equal to such Noteholder’s pro rata share (determined as a fraction of all Senior Notes for which a New Note Alternative election has been made or has been deemed to have been made) of: (I) the Maximum Note Consideration; and (II) such combination of cash and, if applicable, New Notes and/or Mandatory Convertible Notes as ▇▇▇▇▇▇▇ Finance has determined pursuant to Section 4.1(b) equal to the difference between (A) the Maximum Cash/Note Consideration; and (B) the amount of such combination of cash and, if applicable, New Notes and/or Mandatory Convertible Notes as ▇▇▇▇▇▇▇ Finance has determined pursuant to Section 4.1(b) that is payable to Electing Noteholders who have elected the Cash Alternative; and (E) any Noteholder who determines not to make an election, does not properly complete, execute and deliver the Form of Election or does not complete, execute and deliver the Form of Election prior to the Election Deadline, will automatically be deemed to have elected the New Note Alternative and to receive New Notes and, if applicable, cash and/or Mandatory Convertible Notes in an amount equal to $940 per $1,000 of such Noteholder’s Principal Claim Amount for all of their Senior Notes pursuant thereto; provided that New Notes and, if applicable, Mandatory Convertible Notes will be issued in $1.00 increments only, such that if the combined effects of the ~~Company shall~~ exchange of a Noteholder’s Senior Notes and proration, if applicable, would otherwise result in a fractional New Note or, if applicable, Mandatory Convertible Note being issued, the number of New Notes or Mandatory Convertible Notes, respectively, issued to such Noteholder will be ~~amended~~ decreased 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~~nearest $1.00 increment; (ii) ~~each Company Share issued and outstanding immediately before the reorganization of the Company’s share capital~~ Noteholders who receive: (i) cash and, if applicable, New Notes and/or Mandatory Convertible Notes, all pursuant to ~~this Section 3.02(h~~the Cash Alternative; or (ii) ~~(including~~New Notes and, ~~without limitation~~if applicable, ~~the Company Shares issued to former holders of In-the-Money Options and Company RSUs~~ cash and/or Mandatory Convertible Notes, all pursuant to ~~Section 3.02(b)~~ the New Note Alternative, shall receive cash, New Notes and ~~Section 3.02(c)~~Mandatory Convertible Notes, ~~respectively~~as applicable, ~~but excluding any Company Shares surrendered and cancelled~~ in ~~accordance with Section 3.02(e)) shall be exchanged with the Company, free and clear~~ a principal amount equal to $940 per $1,000 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 Companythat Noteholder’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~~ Principal Claim Amount 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 CompanySenior Notes; (iii) ~~concurrently with the exchange in Section 3.02(h)(ii), the stated capital account in respect~~ Each of the ~~Company Shares~~ New Note Indenture and the Mandatory Convertible Indenture shall be ~~reduced by an amount equal to the stated capital~~ executed and become effective as of the ~~Company Shares immediately prior to~~ time 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, New Notes 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 SharesMandatory Convertible Notes, ~~and any fractional Spinco Shares resulting from such Spinco Share Consolidation shall be cancelled without payment or compensation therefor~~respectively, and upon such Spinco Share Consolidation the register of holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrancesare issued; and (vif) ~~each such Participating Former Securityholder shall~~▇▇▇▇▇▇▇ Finance shall pay all fees and expenses due to BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., ~~subject~~ the Indenture Trustee and counsel to the ~~provisions of Section 3.06~~Parties reasonably incurred by, ~~be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect~~ and due to, any 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 foregoing in connection with the development, negotiation and validly completes and delivers the applicable 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 implementation 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShRecapitalization.

Appears in 1 contract

Sources: Arrangement Agreement (Compton Petroleum Corp)

Arrangement. At 3.1.1 The Pre-Arrangement Transactions shall occur prior to, and the completion of the Pre-Arrangement Transactions shall be conditions precedent to, the implementation of the Arrangement. 3.1.2 Commencing at the Arrangement Effective Time, unless otherwise specifically provided in this Section ~~3.02~~3.1.2, each of the following transactions and events ~~or transactions~~ in subsections (a) through (f) of this Section 3.1.2 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 one minute intervals following the ~~following order~~ immediately preceding transaction or event: (a) each TPCO Share outstanding immediately prior to the Arrangement Effective Time held by a TPCO Shareholder in respect of which TPCO Dissent Rights have been validly exercised shall be, and shall be deemed to be, transferred without any further act or ~~formality: (a)~~ formality to TPCO by the ~~Purchaser shall subscribe~~ holder thereof for ~~that number~~ cancellation, free and clear of ~~Acquireco Common Shares~~all Liens, 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 subscriptionand: (i) such TPCO Shareholder will cease to be the ~~Purchaser shall be deemed~~ holder of such TPCO Dissenting Shares and will cease to have ~~directed~~ any rights as a holder of such TPCO Dissenting Shares other than the ~~Depositary~~ right 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 be paid fair value for such ~~Acquireco Common Shares;~~ TPCO Dissenting Shares as set out in Section 4.1.2, and (ii) ~~Acquireco~~ such TPCO Shareholder's name will be removed as the registered holder of such TPCO Dissenting Shares from the central securities register of TPCO Shares maintained by or on behalf of TPCO, and the TPCO Dissenting Shares shall be cancelled; (b) each Stately Share outstanding immediately prior to the Arrangement Effective Time held by a Stately Shareholder in respect of which Stately Dissent Rights have been validly exercised shall be, and shall be deemed to be, transferred without any further act or formality to Stately by the holder thereof for cancellation, free and clear of all Liens, and: (i) such Stately Shareholder will cease to be the holder of such Stately Dissenting Shares and will cease to have ~~issued~~ any rights as a holder of such Stately Dissenting Shares other than the right to be paid fair value for such Stately Dissenting Shares as set out in Section 4.2.2, and (ii) such Stately Shareholder's name will be removed as the registered holder of such Stately Dissenting Shares from the central securities register of Stately Shares maintained by or on behalf of Stately, and the Stately Dissenting Shares shall be cancelled; (c) TPCO, Stately and Newco shall amalgamate (the "Amalgamation") to form one company ("Amalco") with the same effect as if they had amalgamated under Section 269 of the BCBCA and with the consequences set forth in Section 282(1) of the BCBCA (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), including: (i) all property, rights and interests of TPCO, Stately and Newco shall become the property, rights and interests of Amalco; (ii) the articles and notice of articles of Amalco shall be in the form of the articles and notice of articles of Newco; (iii) the Amalgamation shall not constitute an assignment by operation of law, a transfer or any other disposition of the property, rights and interests of any of Newco, Stately or TPCO to Amalco; (iv) all rights of creditors of Newco, Stately and TPCO will be unimpaired by the Amalgamation, and all liabilities and obligations of Newco, Stately and TPCO, whether arising by contract or otherwise, may be enforced against Amalco to the same extent as if such obligations had been incurred or contracted by Amalco; (v) Amalco will be liable for all of the liabilities and obligations of Newco, Stately and TPCO; (vi) all rights, contracts, permits and interests of Newco, Stately and TPCO will continue as rights, contracts, permits and interests of Amalco and, for greater certainty, the Amalgamation will not constitute a transfer or assignment of the rights or obligations of any of Newco, Stately or TPCO under any such rights, contracts, permits and interests; (vii) any existing cause of action, claim or liability to prosecution will be unaffected; (viii) a legal proceeding being prosecuted or pending by or against any of Newco, Stately or TPCO may be prosecuted or its prosecution may be continued, as the case may be, by or against Amalco; (ix) a conviction against, or ruling, order or judgment in favour of or against any of Newco, Stately or TPCO may be enforced by or against Amalco; (x) the name of Amalco shall be "Gold Flora Corporation"; (xi) Amalco shall be authorized to issue an unlimited number of common shares without par value; (xii) the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from the Arrangement Effective Date; (xiii) the first directors of Amalco following the Amalgamation shall be the then current Newco directors; (xiv) each Newco Share outstanding immediately prior to the Amalgamation shall be, and shall be deemed to be, cancelled and the name of the holder of such Newco Share shall be removed from Newco's central securities register in respect of such Newco Share, and in consideration therefor such holder will receive one fully paid and non-assessable ~~Acquireco Common Shares to the Purchaser~~Amalco Share, and ~~the stated capital account maintained by Acquireco in respect~~ upon such exchange each such former holder of ~~the Acquireco Common Shares~~ such exchanged Newco Share shall be ~~increased,~~ entered in ~~respect~~ Amalco's central securities register for the Amalco Shares as the owner 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~~such Amalco Share; (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): (ixv) each ~~In-the-Money Option issued and~~ TPCO Share outstanding immediately prior to the ~~Effective Time~~ Amalgamation (excluding, for the avoidance of doubt, any TPCO Dissenting Share which was previously transferred to TPCO and cancelled under Section 3.1.2(a)) shall, without any further action by or on behalf of any ~~holder of such In-the- Money Option~~TPCO Shareholder, be, and shall 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~~ be, cancelled in exchange for the ~~Option~~ TPCO Consideration, ~~and~~ and: (A) the name of the holder of such ~~In-the-Money Option~~ TPCO Share shall ~~become the holder of the Company Shares comprising such Option Consideration and the~~ be removed from TPCO's central securities register in respect of ~~the Company shall be revised accordingly, but the~~ such TPCO Share; (B) each holder of such ~~Option Consideration~~ TPCO Share shall ~~not~~ cease to be ~~entitled~~ the holder thereof and to have any rights as a TPCO Shareholder other than the right to receive ~~a share certificate or other document representing~~ the ~~Option~~ TPCO Consideration; and (C) each such former holder of such exchanged TPCO Share shall be entered in Amalco's central securities register for the Amalco Shares as the owner of the Amalco Shares constituting such TPCO Consideration; (iixvi) each ~~Out-of-the-Money Option issued and~~ Stately Share outstanding immediately prior to the ~~Effective Time~~ Amalgamation (excluding, for the avoidance of doubt, any Stately Dissenting Share which was previously transferred to Stately and cancelled under Section 3.1.2(b)) shall, without any further action by or on behalf of any ~~holder of such Out-of-the-Money Option~~Stately Shareholder, be, and shall be deemed to be, cancelled ~~without any payment therefor; (iii) with respect to each Company Option~~in exchange for the Stately Consideration, and: (A) the name of the holder ~~thereof~~ of such Stately Share shall be removed from Stately's central securities register in respect of such Stately Share; (B) each holder of such Stately Share shall cease to be the holder ~~of such Company Option,~~ thereof and ~~shall cease~~ to have any rights as a ~~holder in respect of such Company Option under~~ Stately Shareholder other than the ~~applicable Company Option Plan, (B) such holder’s name shall be removed from~~ right to receive the ~~register of Company Options,~~ Stately Consideration; and (C) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto~~ each such former holder of such exchanged Stately Share shall be ~~cancelled~~entered in Amalco's central securities register for the Amalco Shares as the owner of the Amalco Shares constituting such Stately Consideration; (cxvii) ~~notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract~~concurrently with the exchange of the Newco Shares, the ~~terms~~ TPCO Shares and ~~conditions of any Award Agreement or grant~~the Stately Shares under Section 3.1.2(c)(xiv), Section 3.1.2(c)(xv) and Section 3.1.2(c)(xvi), respectively: (A) for greater certainty, the ~~terms and conditions~~ capital of the ~~Company 2013 Share Incentive Plan or Company 2016~~ Newco Shares shall be reduced by an amount equal to the capital of such shares immediately prior to the Amalgamation; (B) for greater certainty, the capital of the TPCO Shares shall be reduced by an amount equal to the capital of such shares immediately prior to the Amalgamation; (C) for greater certainty, the capital of the Stately Shares shall be reduced by an amount equal to the capital of such shares immediately prior to the Amalgamation; and (D) there shall be added to the capital of the Amalco Shares, in respect of the Amalco Shares issued by Amalco to the former holders of such Newco Shares, TPCO Shares and Stately Shares, an amount equal to the aggregate paid-up capital of the Newco Shares, the TPCO Shares and the Stately Shares immediately prior to the Amalgamation; (xviii) each TPCO Stock Option ~~Plan, or applicable law): (i) each Company RSU issued and~~ that is outstanding immediately prior to the ~~Effective Time shall~~Amalgamation, ~~without any further action by~~ whether vested or ~~on behalf of any holder of~~ unvested (each such ~~Company RSU~~TPCO Stock 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 applicable RSU Considerationa "TPCO Replaced Option"), 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, ~~surrendered to the Company by~~ exchanged for an option (each, a "TPCO Replacement Option") entitling the holder ~~thereof, without any further act or formality by such Dissenting Shareholder, free and clear~~ to purchase that number of ~~all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company~~ Amalco Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~ number of ~~all the issued and outstanding Company~~ TPCO Shares subject to such TPCO Replaced Option immediately prior to the ~~step in Section 3.02(e),~~ Amalgamation is multiplied by the TPCO Exchange Ratio, which TPCO Replacement Option shall (A) continue to be governed by the TPCO Equity Incentive Plan or the Legacy Plans, as applicable, (B) ~~a fraction~~have an exercise price for each Amalco Share that may be purchased under such TPCO Replacement Option (the "TPCO Replacement Option Exercise Price") equal to the quotient obtained when the exercise price per TPCO Share under the TPCO Replaced Option is divided by the TPCO Exchange Ratio (provided that no fractional Amalco Shares will be issued upon any particular exercise or settlement of TPCO Replacement Options, and the ~~numerator of which is the~~ aggregate number of ~~Company~~ Amalco Shares ~~surrendered and cancelled pursuant~~ to ~~Section 3.02(e~~be issued upon exercise by a holder of one or more TPCO Replacement Options shall be rounded down to the nearest whole number (with all exercises that are effectuated concurrently by a holder of TPCO Replacement Options being aggregated before any such reduction is effectuated), and the ~~denominator~~ aggregate exercise price payable on any particular exercise of ~~which~~ TPCO Replacement Options shall be rounded up to the nearest whole cent (with all exercises that are effectuated concurrently by a holder of TPCO Replacement Options being aggregated before any such increase is effectuated)), and (C) otherwise have the ~~number of issued~~ same terms and ~~outstanding Company Shares~~ conditions (including vesting, exercisability terms and expiry date) as were applicable to such TPCO Replaced Option immediately prior to the ~~step~~ Amalgamation. Notwithstanding the foregoing: (1) if necessary to satisfy the requirements of subsection 7(1.4) of the Tax Act in respect of the exchange of a TPCO Replaced Option for a TPCO Replacement Option pursuant to this Section 3.1.2(c)(xviii), the TPCO Replacement Option Exercise Price shall automatically be adjusted, effective as of and from the effective time of such exchange, so that the In-The-Money Amount of the TPCO Replacement Option (as adjusted) immediately after such exchange does not exceed the In-The-Money Amount of the TPCO Replaced Option immediately before such exchange; (2) for any TPCO Replaced Option that is intended to qualify as an "incentive stock option" within the meaning of Section 422 of the U.S. Tax Code, it is intended that such adjustment described in Section ~~3.02(e~~3.1.2(c)(xviii)(1) above will comply with Treasury Regulation Section 1.424(1)(a); (g3) ~~the Company shall transfer all of its entire legal and beneficial right~~for any TPCO Replaced Option that is a nonqualified option held by a U.S. taxpayer, ~~title and interest~~ it is intended that such adjustment described in ~~and~~ Section 3.1.2(c)(xviii)(1) above will be implemented in a manner intended 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 comply with 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~~ 409A of the ~~Spinco Contribution Agreement~~Code; (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; (iixix) each ~~Company Share issued and outstanding immediately before the reorganization of the Company’s share capital pursuant to this Section 3.02(h)~~ TPCO Warrant (~~including~~each such TPCO Warrant, 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)a "TPCO Replaced Warrant") 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 transferbe, and shall be deemed to ~~have transferred~~be, exchanged for a warrant (each, a "TPCO Replacement Warrant") entitling the holder to ~~Acquireco, without any further act or formality by~~ purchase that number of Amalco Shares equal to the product obtained when the number of TPCO Shares subject to such ~~Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder~~ TPCO Replaced Warrant immediately prior to the ~~exchange in this Section 3.02(k~~Arrangement is multiplied by the TPCO Exchange Ratio, which TPCO Replacement Warrant shall (i) ~~in exchange~~ have an exercise price for each Amalco Share that may be purchased under such TPCO Replacement Warrant equal to the ~~Combination Consideration Cash~~ quotient obtained when the exercise price per TPCO Share under the TPCO Replaced Warrant is divided by the TPCO Exchange Ratio (provided that no fractional Amalco Shares will be issued upon any particular exercise or settlement of TPCO Replacement Warrants, and the ~~Combination Consideration Purchaser Shares~~aggregate number of Amalco Shares to be issued upon exercise by a holder of one or more TPCO Replacement Warrants shall be rounded down to the nearest whole number, and ~~upon such exchange: (iv) each such Participating Former Securityholder~~ the aggregate exercise price payable on any particular exercise of TPCO Replacement Warrants shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrances; and (vi) each such Participating Former Securityholder shall, subject rounded up to the ~~provisions of Section 3.06~~nearest whole cent), ~~be entered in~~ (ii) otherwise have the ~~Purchaser’s securities register of holders of Purchaser Shares in respect of the Purchaser Shares payable~~ same terms and conditions (including exercisability terms and expiry date) as were applicable to such ~~Participating Former Securityholder pursuant~~ TPCO Replaced Warrant immediately prior to ~~this Section 3.02(k)~~the Arrangement, and (iii) continue to be evidenced by the certificate or other instrument evidencing such TPCO Replaced Warrant immediately prior to the Arrangement; (lxx) each ~~Participating Former Securityholder receiving Class A Shares pursuant~~ TPCO PSU that is outstanding immediately prior to ~~Section 3.02(h)(ii) who duly and validly completes and delivers~~ the applicable 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 Amalgamation shall ~~transfer~~be, and shall be deemed to ~~have transferred~~be, exchanged for a TPCO Replacement PSU evidencing a right to ~~Acquireco~~acquire, ~~without any further act or formality by~~ for no additional consideration, such ~~Participating Former Securityholder, free and clear~~ number of ~~all Encumbrances, each Class A Share held by~~ Amalco Shares as is equal to: (A) that number of TPCO Shares that were issuable upon the vesting of such ~~Participating Former Securityholder~~ TPCO PSU immediately prior to the ~~exchange in this Section 3.02(l) in exchange for: (i) in the case of a Participating Former Securityholder validly electing to receive the Cash Consideration~~Amalgamation, 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 multiplied by (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 fractionTPCO Exchange Ratio, rounded down to ~~six decimal places~~the nearest whole number of Amalco Shares. All terms and conditions of a TPCO Replacement PSU, including the ~~numerator~~ term to expiry or vesting, conditions to and manner of exercising or settlement, shall be the same as set out in the certificate for which ~~is the Maximum Cash Consideration minus the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k)~~it was exchanged, and the ~~denominator of which is the Aggregate Elected Cash; and (ii)~~ certificate previously evidencing such TPCO PSU shall thereafter evidence and be ~~entitled~~ deemed to receive the Purchaser Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the Purchaser Share Consideration for any fractional Class A Share included in evidence such ~~remaining portion)~~TPCO Replacement PSU; (nxxi) ~~in the event~~ each TPCO Non-Vesting RSU that (A) the sum of (I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the ~~Effective Time~~ Amalgamation shall be, and shall be deemed to be, exchanged for a TPCO Replacement RSU evidencing a right to acquire, for no additional consideration, such number of Amalco Shares as is equal to: (A) that number of TPCO Shares that were issuable upon the vesting of such TPCO Non-Vesting RSU immediately prior to the Amalgamation, multiplied by (B) the TPCO Exchange Ratio, rounded down to the nearest whole number of ▇▇▇▇▇▇ ▇▇▇▇▇▇. All terms and conditions of a TPCO Replacement RSU, including the term to expiry or vesting, conditions to and manner of exercising or settlement, shall be the same as set out in the certificate for which it was exchanged, and the certificate previously evidencing such TPCO Non-Vesting RSU shall thereafter evidence and be deemed to evidence such TPCO Replacement RSU; (xxii) each Stately Warrant (each such Stately Warrant, a "Stately Replaced Warrant") shall be, and shall be deemed to be, exchanged for a warrant (each, a "Stately Replacement Warrant") entitling the holder to purchase that number of Amalco Shares equal to the product obtained when the number of Stately Shares subject to such Stately Replaced Warrant immediately prior to the Arrangement is multiplied by the Stately Exchange Ratio, which Stately Replacement Warrant shall (i) have an exercise price for each Amalco Share that may be purchased under such Stately Replacement Warrant equal to the quotient obtained when the exercise price per Stately Share under the Stately Replaced Warrant is divided by the Stately Exchange Ratio (provided that no fractional Amalco Shares will be issued upon any particular exercise or settlement of Stately Replacement Warrants, and the aggregate number of Amalco Shares to be issued upon exercise by a holder of one or more Stately Replacement Warrants shall be rounded down to the nearest whole number, and the aggregate exercise price payable on any particular exercise of Stately Replacement Warrants shall be rounded up to the nearest whole cent), (ii) otherwise have the same terms and conditions (including exercisability terms and expiry date) as were applicable to such Stately Replaced Warrant immediately prior to the Arrangement, and (iii) continue to be evidenced by the certificate or other instrument evidencing such Stately Replaced Warrant immediately prior to the Arrangement; (d) The number of Amalco Shares held by any Person shall be rounded down to the nearest whole Amalco Share, and any fractional Amalco Share issued under Section3.1.2(c) shall be, and shall be deemed to be, cancelled without any additional compensation; (e) the Amalco Share received by the Initial Newco Shareholder upon the Amalgamation under Section 3.1.2(c) in exchange for ~~a cash payment by~~ the ~~Company to the holder of such Company DSU equal to the Company Sh~~

Appears in 1 contract

Sources: Business Combination Agreement (TPCO Holding Corp.)

Arrangement. At the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ 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 order~~ Effective Time: (a) each of the Company Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall, without any further act or ~~formality: (a)~~ formality on the ~~Purchaser shall subscribe for that number~~ part of ~~Acquireco Common Shares~~the Company or such Dissenting Holders, ~~at a price of $1.00 per share, equal~~ be deemed to have been transferred to the ~~quotient obtained when (A)~~ Company and thereupon cancelled in consideration for a debt claim against the ~~fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00, and for greater certainty~~ Company for the ~~purposes of determining variable (A) in relation to the quotient~~ amount determined under ~~this Section 3.02(a)~~Article 3, 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 subscriptionand: (i) such Dissenting Holders shall cease to be the ~~Purchaser shall be deemed~~ holders of such Company Shares and to have ~~directed~~ any rights as holders of such Company Shares, other than the ~~Depositary~~ right to ~~hold, and the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered~~ be paid fair value by the ~~Purchaser to the Depositary in accordance with Section 3.05(a)(i) (~~Company for such ~~cash and Purchaser~~ Company Shares, ~~collectively, the “Purchaser Consideration”) for and on behalf of Acquireco,~~ as set out in ~~satisfaction of the subscription price payable by the Purchaser for such Acquireco Common Shares~~Section 3.1; and (ii) ~~Acquireco~~ such Dissenting Holders’ names shall be ~~deemed to have issued~~ removed as the holders of such ~~fully paid and non-assessable Acquireco Common~~ Company Shares to from the ~~Purchaser, and the stated capital account maintained by Acquireco in respect~~ central securities register 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 ConsiderationCompany; (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 each of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):~~following steps shall occur simultaneously: (i) (A) each ~~In-the-Money Option issued and~~ Company Share outstanding immediately prior to the Effective ~~Time~~ Time, other than Company Shares cancelled under (a) above, shall, without any further action by or on behalf of ~~any~~ a holder of ~~such In-the- Money Option~~Company Shares, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to ~~the Company (free and clear of all Encumbrances) and cancelled~~ AcquisitionCo in exchange for the ~~Option~~ Consideration~~, and~~ ; (B) the ~~holder~~ holders of such ~~In-the-Money Option shall become the holder of the~~ Company Shares ~~comprising~~ shall cease to be the holders of such ~~Option~~ Company Shares and to have any rights as holders of such Company Shares other than the right to be paid the Consideration ~~and~~ in accordance with this Plan of Arrangement; (C) such holders’ names shall be removed from 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~~ added 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 central securities register of ~~Company Options, and~~ Maxar U.S.; and (CD) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto~~ AcquisitionCo 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~~ transferee of such Company Shares (free and clear of all ~~Encumbrances~~Liens) and ~~cancelled~~ shall be entered 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~~ as the holder of such ~~RSU Consideration shall not be entitled to receive a share certificate or other document representing the RSU Consideration~~Company Shares; (ii) ~~with respect~~ Maxar U.S. will issue the Consideration to ~~each~~ the holders of Company ~~RSU: (A~~Shares referred to in Section 2.3(b)(i) ~~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~~ each Company ~~RSU under the applicable Company Option Plan, (B) such holder’s name shall be removed from the register of Company RSUs,~~ Share that is assigned and transferred to AcquisitionCo pursuant Section 2.3(b)(i); and (Ciii) ~~all Award Agreements~~in consideration for the issuance of the Consideration by Maxar U.S. described in Section 2.3(b)(ii), ~~grants and similar instruments relating thereto~~ AcquisitionCo will ~~be cancelled~~issue to Maxar U.S. one common share of AcquisitionCo in respect of each share of Maxar U.S. Common Stock that Maxar U.S. issues pursuant to Section 2.3(b)(ii); (dc) all Maxar U.S. Common Stock held by the Company ~~Option Plans shall be terminated; (e) each Company Share held by a Dissenting Shareholder shall be, and~~ shall be deemed to ~~be, surrendered to the Company~~ have been redeemed and cancelled by ~~the holder thereof,~~ Maxar U.S. without any further act or formality ~~by such Dissenting Shareholder, free and clear~~ on the part of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company Maxar U.S. in ~~an amount determined and payable~~ consideration for U.S.$1.00 in ~~accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares~~cash; (fd) ~~concurrently~~ each outstanding LTIP Unit shall be exchanged for a Replacement LTIP Unit, with the ~~surrender~~ terms and ~~cancellation~~ conditions of ~~Company Shares held~~ such Replacement LTIP Unit being substantially similar to such LTIP Unit for which it was exchanged (other than the currency of the strike price or base price, as applicable, which shall be denominated in U.S. dollars and converted, as necessary, into U.S. dollars using the rate of exchange quoted by ~~Dissenting Shareholders~~ the Bank of Canada for the closest preceding Business Day prior to the Effective Date), as adjusted to take into account the Arrangement pursuant to ~~Section 3.02(e),~~ the ~~stated capital account maintained by the Company in respect~~ terms of the applicable Company ~~Shares shall be reduced~~Equity Plan. For greater certainty, in respect of each LTIP Unit governed by section 7 of the ~~Company Shares cancelled pursuant~~ Income Tax Act (Canada) or Section 409A of the U.S. Internal Revenue Code, as applicable, each LTIP Unit outstanding shall be exchanged for a Replacement LTIP Unit (i) to ~~Section 3.02(e~~purchase one share of Maxar U.S. Common Stock (or, in the case of a U.S. taxpayer, to purchase one share of Maxar U.S. Common Stock or receive its cash equivalent, as applicable), ~~by an amount~~ and (ii) at a strike price or base price, as applicable, per Maxar U.S. Common Stock in U.S. dollars equal to the ~~product obtained when~~ greater of (Ai) the ~~stated capital~~ exercise price (in Canadian dollars converted into U.S. dollars using the rate of exchange quoted by the Bank of Canada for the closest preceding Business Day prior to the Effective Date) per Company Share subject to such LTIP Unit immediately prior to the Effective Time, and (ii) such minimum amount that meets the requirements of paragraph 7(1.4)(c) of the Income Tax Act (Canada) or U.S. Treasury Regulations Section 1.409A-1(b)(5)(v)(D), as applicable; and (e) the Company and AcquisitionCo shall be amalgamated to form one unlimited liability company (“Amalco”) with the same effect as if they had amalgamated under Section 273 of the BCBCA (the “Amalgamation”) and, with effect from the Amalgamation: (i) Maxar U.S. shall receive on the Amalgamation one Amalco common share in exchange for each AcquisitionCo common share previously held and all of the issued and outstanding Company Shares ~~immediately prior to the step in Section 3.02(e), is multiplied by (B) a fraction, the numerator~~ will be cancelled without any repayment 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 capital 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 Arrangementthereof; (ii) ~~each Company Share issued and outstanding immediately before~~ the ~~reorganization~~ name 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)) Amalco 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“Maxar Technologies Ltd.”; (iii) ~~concurrently with~~ Amalco shall be authorized to issue an unlimited number of common shares without par value; (iv) the ~~exchange~~ articles and notice of articles of Amalco shall be substantially in ~~Section 3.02(h)(ii),~~ the form of AcquisitionCo’s articles and notice of articles; (v) the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from the Effective Date; (vi) the first directors of Amalco following the Amalgamation shall be: ·; and (vii) the stated capital ~~account in respect~~ of the ~~Company Shares shall~~ common shares of Amalco will be ~~reduced by~~ an amount equal to the stated capital attributable to the common shares of ~~the Company Shares~~ AcquisitionCo 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShAmalgamation.

Appears in 1 contract

Sources: Arrangement Agreement (Maxar Technologies Ltd.)

Arrangement. At Commencing 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 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 each HighGold In-The-Money Option outstanding immediately prior to the ~~acquisition~~ Effective Time (whether vested or unvested) shall immediately and unconditionally vest, notwithstanding the terms of the ~~Class A Shares~~ HighGold Equity Incentive Plan and shall, without any further action by ~~Acquireco pursuant to Section 3.02(k)~~or on behalf of any HighGold Optionholder, ~~and in connection with such share subscription: (i) the Purchaser shall~~ be deemed to ~~have directed~~ be assigned and transferred by such HighGold Optionholder (free and clear of all Liens) to HighGold for cancellation in exchange for the ~~Depositary~~ Option Consideration. The HighGold Shares comprising the Option Consideration will be issued 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 HighGold Optionholder as fully paid and non-assessable ~~Acquireco Common Shares to~~ shares in 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 ConsiderationHighGold; (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 InHighGold 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 In-the- Money Option~~HighGold Optionholder, 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 OOTM Consideration; (iii) 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 HighGold Optionholder shall cease to be ~~the~~ a holder of such ~~Company Option~~HighGold Options, ~~and shall cease to have any rights as a holder in respect of such Company Option under the applicable Company Option Plan,~~ (Bii) each such holder’s name shall be removed from ~~the~~ each HighGold Option register ~~of Company Options~~maintained by HighGold, ~~and~~ and (Ciii) all ~~option agreements, Award Agreements, grants and similar instruments~~ agreements relating ~~thereto~~ to the HighGold Options shall be ~~cancelled~~terminated and shall be of no further force and effect; (cd) ~~notwithstanding any vesting provisions~~ each Dissenting Shareholder shall transfer 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~~ Purchaser all 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 Dissent Shares held (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, surrendered to the Company by the holder thereofLiens), without any further act or formality ~~by such Dissenting Shareholder, free and clear of all Encumbrances~~on its part, and ~~each such Company Share~~ in consideration therefor, the Purchaser shall issue to the Dissenting Shareholder a debt-claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so ~~surrendered shall be cancelled and thereupon each~~ transferred (a) the Dissenting Shareholder shall cease to ~~have any rights as a~~ be the holder ~~of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and~~ thereof, (b) the name of ~~such~~ the Dissenting Shareholder shall be removed from the ~~securities~~ register ~~of holders of 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~~ or on behalf of HighGold in respect of the ~~Company Shares~~ HighGold Shares, (c) the Dissenting Shareholder shall be ~~reduced~~deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and (d) the name of the Purchaser shall be added to the register maintained by or on behalf of HighGold in respect of the ~~Company~~ HighGold Shares ~~cancelled pursuant to Section 3.02(e), by an amount equal~~ as the holder thereof; and (e) each HighGold Shareholder shall transfer to the ~~product obtained when~~ Purchaser (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 all Liens) each whole HighGold Share held (other than any ~~Encumbrances~~HighGold Shares held by the Purchaser immediately before the Effective Time or acquired by the Purchaser from a Dissenting Shareholder under Section 3.1(d)), including the HighGold Shares issued pursuant to Section 3.1(a), in exchange for ~~one Class A~~ the Consideration for each HighGold Share ~~and one Distribution Spinco Share~~held, ~~and upon such exchange:~~and (Aa) ~~each such exchanged Company Share~~ the HighGold Shareholder shall cease to be ~~cancelled, and~~ the ~~holders~~ holder thereof, (b) the name of ~~such exchanged Company Shares~~ the HighGold Shareholder shall be removed from the ~~Company’s~~ register maintained by or on behalf 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~~ HighGold in respect of the ~~Class A Shares issued to such holder;~~HighGold Shares, (Cc) the ~~Company~~ HighGold Shareholder shall be ~~removed from~~ deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the ~~Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares;~~ transfer thereof, and (Dd) ~~each holder of such exchanged Company Shares shall be entered in Spinco’s register of holders of Spinco Shares in respect~~ the name 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 Purchaser shall be added to the ~~stated capital account~~ register maintained by ~~the Company~~ or on behalf of HighGold in respect of the ~~Class A Shares,~~ HighGold Shares as the holder thereof; it being expressly provided that the events provided for 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 3.1 will be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to occur on the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 shallEffective Date, notwithstanding ~~Section 3.02(l)(i): (i) only~~ that certain procedures related thereto may not 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to completed until after the Effective ~~Time shall be cancelled in exchange for a cash payment by the Company to the holder of such Company DSU equal to the Company Sh~~Date.

Appears in 1 contract

Sources: Arrangement Agreement (Contango ORE, Inc.)

Arrangement. At Commencing 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~~ consecutively in the following ~~order~~ order, each occurring five minutes following completion of the previous event without any further authorization, act or formality: (a) notwithstanding the ~~Purchaser~~ terms of the Shareholder Rights Plan, the Shareholder Rights Plan shall ~~subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal~~ be terminated and all rights issued pursuant to the ~~quotient obtained when~~ Shareholder Rights Plan shall be cancelled without any payment in respect thereof; (Ab) ~~the fair market value~~ each Dissent Share shall be transferred by such Dissenting Shareholder to Purchaser (free and clear of ~~the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B~~any Liens) ~~$1.00~~in accordance with, and for ~~greater certainty for~~ the ~~purposes of determining variable~~ consideration contemplated in, Article 4; (Ac) ~~in relation~~ all Company Options, 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 extent not exercised prior to the ~~acquisition~~ Effective Time, shall be deemed terminated without any payment in respect thereof; (d) the Effective Date shall be deemed to be the vesting date for all of the ~~Class A Shares by Acquireco pursuant to Section 3.02(k)~~then issued and outstanding Company RSUs, and ~~in connection with~~ the Company shall allot and issue to each Company RSU Holder such ~~share subscription:~~ number of Company Shares as are due to such holder under the terms of such RSUs and thereafter (i) the ~~Purchaser shall be deemed to have directed the Depositary to hold,~~ Company Incentive Plans will terminate 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 none of the ~~subscription price payable by the Purchaser for such Acquireco Common Shares; and (ii) Acquireco~~ former holders of Company RSUs or Company Options shall ~~be deemed to~~ have ~~issued such fully paid and non-assessable Acquireco Common Shares to the Purchaser~~any rights, ~~and the stated capital account maintained by Acquireco~~ liabilities or obligations in respect of the ~~Acquireco Common Shares shall~~ Company Incentive Plans and (ii) the Company RSU Holders will be ~~increased,~~ treated in all respects as Company Shareholders with respect of to the ~~Acquireco Common~~ Company Shares issued pursuant to this Section ~~3.02(a~~3.1(d), 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 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares (other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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)Share) shall be ~~exchanged with the Company,~~ transferred to Purchaser (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(lLiens) in exchange for: (i) in the ~~case of a Participating Former Securityholder validly electing to receive~~ Share Consideration; or (ii) the Cash Consideration, in each case in accordance with the ~~Cash Consideration~~election or deemed election of such Shareholder pursuant to Section 3.2, in each case, subject to ~~the provisions of~~ proration in accordance with Section ~~3.02(m); and~~3.3; (iif) with respect to each Company Share transferred 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~~ accordance with Section ~~3.02(n), and upon such exchange:~~3.1(b) or Section 3.1(e): (~~iii~~i) ~~each~~ the registered holder thereof shall cease to be the registered holder of such ~~Participating Former Securityholder~~ Company Share and shall cease to have any rights in respect of such Company Share and the name of such registered holder shall be removed from the ~~Company’s securities~~ register of ~~holders~~ Company Shareholders as of ~~Class A Shares,~~the time of transfer prescribed in Section 3.1(b) or Section 3.1(e), as applicable; (ivii) ~~Acquireco~~ the registered holder thereof shall be ~~entered in the Company’s securities register of holders of Class A Shares as the sole legal~~ deemed to have executed and ~~beneficial owner of~~ delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such ~~Class A Shares, free of all Encumbrances~~Company Share; and (viii) ~~each such Participating Former Securityholder shall, subject to~~ Purchaser will be the ~~provisions~~ holder of all of the outstanding Company Shares as of the time of transfer prescribed in Section ~~3.02(m~~3.1(b) or Section ~~3.02(n~~3.1(e), as ~~applicable,~~ applicable and ~~Section 3.06, be entered in~~ the ~~Purchaser’s~~ central securities register of ~~holders of~~ Company shall be revised accordingly and 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 shall be entitled to ~~receive~~ all of the ~~Cash Consideration for that portion of their Class A Shares equal~~ rights and privileges attached 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; andCompany Shares. (ii) be entitled to receive the Purchaser Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the Purchaser Share Consideration for any fractional Class A Share included in such remaining portion); (n) in the event that (Ag) the ~~sum of (I) the aggregate Combination Consideration Purchaser Shares payable pursuant to~~ transfers, exchanges, issuances and terminations provided for in this Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 3.1 will be deemed to be effective immediately following the transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to occur on the Effective ~~Time shall~~ Date, notwithstanding that certain procedures related thereto may not be ~~cancelled in exchange for a cash payment by~~ completed until after the ~~Company to the holder of such Company DSU equal to the Company Sh~~Effective Date.

Appears in 1 contract

Sources: Arrangement Agreement (Interoil Corp)

Arrangement. At 3.1 On the Effective ~~Time~~Date, ~~unless otherwise specifically provided in this Section 3.02~~subject to the provisions of Article 5 hereof, the following ~~events or transactions shall~~ will occur and ~~shall~~ will be deemed to occur ~~sequentially~~ in the ~~following~~ order and at the times set out below without any further authorization, act or formality: (a) ~~the Purchaser shall subscribe for that number of Acquireco Common Shares~~immediately thereafter, 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 each 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 Target Share ~~Incentive Plan or Company 2016 Stock Option Plan, or applicable law): (i) each In-the-Money Option issued and~~ outstanding immediately prior to the Effective Time ~~shall,~~ held by a Target Shareholder in respect of which Dissent Rights have been validly exercised will be deemed to have been transferred without any further ~~action by~~ act or ~~on behalf of any holder of such In-the- Money Option~~formality to Purchaser, ~~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)~~ any liens, claims and ~~cancelled in exchange for the Option Consideration~~encumbrances, 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 Optionand: (Ai) ~~the holder thereof shall~~ such Target Shareholder will cease to be the registered holder of such ~~Company Option,~~ Dissenting Shares and ~~shall~~ will cease to have any rights as a registered holders of such Target Shares other than the right to be paid fair value for such Dissenting Shares as set out in Section 5.2(a); (ii) such Target Shareholder's name will be removed as the registered holder of such Dissenting Shares from the registers of Target Shares maintained by or on behalf of Target; and (iii) Purchaser will be deemed to be the transferee of such Dissenting Shares, free and clear of any liens, claims and encumbrances, and will be entered in the registers of Target Shares maintained by or on behalf of Target; and (b) immediately thereafter, each issued and outstanding Target Share (other than any Target Share in respect of which the Target Shareholder has validly exercised his, her or its Dissent Right) will be transferred to, and acquired by Purchaser, without any act or formality on the part of the holder of such ~~Company Option under~~ Target Share or Purchaser, free and clear of all liens, claims and encumbrances, in exchange for 0.0195 of a Purchaser Share, provided that the ~~applicable Company Option Plan, (B)~~ aggregate number of Purchaser Shares payable to any Target Shareholder, if calculated to include a fraction of a Purchaser Share, will be rounded down to the nearest whole Purchaser Share, with no consideration being paid for the fractional share, and the name of each such ~~holder’s name shall~~ Target Shareholder will be removed from the register of ~~Company Options, and (C) all option agreements, Award Agreements, grants~~ holders of Target Shares 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 added to the ~~Effective Time shall~~register of holders of Purchaser Shares, ~~without any further action by or on behalf of any~~ and Purchaser will be recorded as the registered holder of such ~~Company RSU,~~ Target Shares so exchanged and will be deemed to be ~~fully vested~~ the legal and ~~shall be transferred and disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled~~ beneficial owner thereof; The transactions provided for 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 this Section 3.1 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, surrendered~~ occur on the Effective Date and at the time specified notwithstanding that certain of the procedures related hereto are not completed until after the Effective Date. 3.2 Notwithstanding that the transactions or events set out in Section 3.1 may occur or be deemed to occur in the ~~Company by the holder thereof,~~ order therein set out without any further act or ~~formality~~ formality, each of Target and Purchaser agree to make, do and execute or cause and procure to be made, done and executed all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may be required by ~~such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease~~ it in order to ~~have~~ further document or evidence any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 transactions or events set out 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) (3.1 including, without limitation, any resolution of directors authorizing the ~~Company Shares issued to former holders~~ issue, transfer or purchase for cancellation of ~~In-the-Money Options and Company RSUs pursuant to Section 3.02(b) and Section 3.02(c)~~shares, ~~respectively~~any share transfer powers evidencing the transfer of shares, ~~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, receipt therefor and any ~~fractional Spinco Shares resulting~~ necessary additions to or deletions from such 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shshare registers.

Appears in 1 contract

Sources: Arrangement Agreement (Uranium Energy Corp)

Arrangement. At the Effective Time, ~~unless~~ except as otherwise ~~specifically provided in this Section 3.02~~noted herein, the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ sequentially, in the following ~~order~~ order, without any further act or ~~formality~~formality required on the part of any Person, in each case effective as at the Effective Time: (a) ~~the Purchaser~~ each Liquid Share (other than any Liquid Shares held by LBIX and any Liquid Shares in respect of which any Liquid Shareholder has validly exercised his, her or its Dissent Right) shall ~~subscribe for that number~~ be deemed to be transferred to LBIX (free and clear of ~~Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when (A~~any Encumbrances) ~~the fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00, and for greater certainty~~ in exchange for the ~~purposes~~ Consideration, subject to Article 4 hereof; (b) each Liquid Share in respect of ~~determining variable~~ which any Liquid Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to LBIX (Afree and clear of any Encumbrances) in ~~relation~~ accordance with Article 4 hereof; (c) with respect to ~~the quotient under this~~ each Liquid Share transferred and assigned in accordance with 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 3.1(a) or Section ~~3.02(k), and in connection with such share subscription~~3.1(b) hereto: (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 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 registered holder thereof shall cease to be the registered holder of such ~~Company Option,~~ Liquid Share and ~~shall cease to have any rights as a holder in respect~~ the name of such ~~Company Option under the applicable Company Option Plan, (B) such holder’s name~~ registered holder shall be removed from the register of ~~Company Options~~Liquid 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 Liquid Shares in accordance with Section 3.1(a) or Section 3.1(b) hereto, as applicable; and (Ciii) LBIX will be the holder of all ~~option agreements, Award Agreements, grants~~ of the outstanding Liquid Shares and ~~similar instruments relating thereto~~ the register of Liquid Shareholders shall be ~~cancelled~~revised accordingly; (cd) ~~notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract,~~ in accordance with the ~~terms and conditions of any Award Agreement or grant,~~ certificates governing the terms and conditions of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan~~Liquid Warrants, 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU Liquid Warrant outstanding immediately prior to the Effective Time shall be ~~cancelled in exchange for a cash payment by~~ entitled to receive (and such holder shall accept), upon the ~~Company to the holder~~ exercise of such ~~Company DSU~~ holder's Liquid Warrants, in lieu of each Liquid Share to which such holder was theretofore entitled, upon such exercise and for the same aggregate consideration payable therefor, the number of LBIX Shares equal to the ~~Company Sh~~product of: (i) the number of Liquid Shares subject to such Liquid Warrant immediately prior to the Effective Time; and (ii) 0.5741. Each liquid Warrant shall continue to be governed by and be subject to the terms of the certificate governing the terms and conditions of such Liquid Warrant; and (e) the exchanges, cancellations and transactions 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 (Leading Brands Inc)

Arrangement. At Commencing at the Effective Time~~, unless otherwise specifically provided in this Section 3.02~~, the following events or transactions shall occur sequentially in the order set out below unless otherwise noted and shall be deemed to occur ~~sequentially in the following order~~ without any further act or ~~formality~~formality required on the part of any Person, except as expressly provided herein: (a) the ~~Purchaser shall subscribe for that number~~ Lincoln Shares in respect of ~~Acquireco Common Shares, at a price~~ which Lincoln Shareholders who have exercised Dissent Rights in accordance with Article 4 (and the right of ~~$1.00 per share, equal~~ such Shareholder to dissent with respect to such Lincoln Shares has not been terminated or ceased to apply to the ~~quotient obtained when (A~~Shareholder) will be deemed to have been transferred to Lincoln and such holders will cease to have any rights as Lincoln Shareholders other than the right to be paid the fair ~~market~~ value of their Lincoln Shares in accordance with Article 4; (b) at the ~~Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00, and for greater certainty for~~ time of the ~~purposes of determining variable (A)~~ step contemplated 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~~ with respect to ~~the acquisition of the Class A Shares by Acquireco~~ each Lincoln Share transferred pursuant to Section ~~3.02(k), and in connection with such share subscription:~~3.02(a): (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 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 Lincoln Share will 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,~~Share; (Bii) ~~such~~ the holder’s 's name ~~shall~~ will be removed from the central securities register of ~~Company Options, and~~Lincoln with respect to such Lincoln Share; (Ciii) ~~all option agreements, Award Agreements, grants~~ legal and ~~similar instruments relating thereto~~ beneficial title to such Lincoln Share will rest in Lincoln and Lincoln will be and be deemed to be the transferee of such Lincoln Share and such Lincoln Share shall be cancelled; (iv) the certificate representing such Lincoln Share shall be deemed to have been cancelled; and (v) the holder of such Lincoln Share shall be deemed to have executed and delivered all consents, assignments and waivers, statutory or otherwise, required to effect such transfer; (c) ~~notwithstanding any vesting provisions~~ after the step described in Section 3.02(a), Lincoln and LPT Sub will merge with the same effect as if they were amalgamated under Section 269 of the BCBCA, and the separate legal existence of Lincoln will not cease and Lincoln will survive the merger ("Lincoln" may be referred to ~~which a Company RSU might otherwise be subject~~ hereinafter as the "merged company"); (~~whether by contract~~d) without limiting the foregoing, at the time of the step described in Section 3.02(c), the ~~terms~~ separate legal existence of LPT Sub will cease without LPT Sub being liquidated or wound-up, Lincoln and ~~conditions of any Award Agreement or grant~~LPT Sub will continue as one company; and, as a result, the ~~terms~~ property and ~~conditions~~ liabilities of LPT Sub will become the property and liabilities of Lincoln; (e) at the time of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):~~step described in Section 3.02(c) and from and after this time: (i) Lincoln will own and hold all property of Lincoln and LPT Sub, and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such merger, and all obligations of Lincoln and LPT Sub, whether arising by contract or otherwise, may be enforced against Lincoln to the same extent as if such obligations had been incurred or contracted by it; (ii) Lincoln will continue to be liable for the obligations of Lincoln and LPT Sub; (iii) all rights, contracts, permits and interests of Lincoln and LPT Sub will continue as rights, contracts, permits and interests of Lincoln as if Lincoln and LPT Sub continued and, for greater certainty, the merger will not constitute a transfer or assignment of the rights or obligations of either of Lincoln or LPT Sub under any such rights, contracts, permits and interests; (iv) any existing cause of action, claim or liability to prosecution will be unaffected; (v) a legal proceeding being prosecuted or pending by or against either Lincoln or LPT Sub may be continued by or against Lincoln; (vi) a conviction against, or ruling, order or judgment in favour of or against either LPT Sub or Lincoln may be enforced by or against Lincoln; (vii) each ~~Company RSU issued~~ Lincoln Share shall be cancelled and ~~outstanding~~ the holder thereof shall receive, subject to Section 5.03, that number of Post Consolidation LPT Shares as is equal to the number of Lincoln Shares held by such Shareholder immediately prior to the Effective Time ~~shall, without any further action~~ multiplied by ~~or on behalf~~ the Exchange Ratio; (viii) each common share in the capital of ~~any holder of such Company RSU, be deemed to be fully vested and~~ LPT Sub shall be ~~transferred~~ cancelled and ~~disposed by~~ the holder thereof to shall receive, for each such share, one common share in 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~~ capital 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 Considerationmerged company; (iiix) ~~with respect~~ in consideration of the issuance of Post Consolidation LPT Shares, the merged company shall issue to LPT one common share in the capital of the merged company for each ~~Company RSU~~Post Consolidation LPT Share issued; (x) the capital of the common shares of the merged company and the capital of the shares of LPT issued by LPT pursuant to Section 3.02(e)(vii) will be as follows: (A) the ~~holder thereof shall cease to be~~ capital of 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 Post Consolidation LPT Shares issued by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders LPT pursuant to Section ~~3.02(e), the stated capital account maintained by the Company in respect of the Company Shares~~ 3.02(e)(vii) 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)~~ lesser of the ~~stated capital~~ fair market value of ~~all~~ the ~~issued and outstanding Company~~ Lincoln 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),~~ merger and the ~~denominator of which~~ paid up capital, as that term is defined in the ~~number of issued and outstanding Company~~ Tax Act, attributable to Lincoln Shares immediately prior to the ~~step in Section 3.02(e)~~merger; and (xi) the name of the merged company shall be "Lincoln Gold Corporation"; (gxii) 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 address of the ~~Spinco Contribution Agreement~~registered and records office shall be ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Vancouver, British Columbia, V6C 2T5; (hxiii) in the ~~course~~ merged company shall be authorized to issue an unlimited number of ~~a reorganization of the Company’s authorized and issued share capital:~~common shares; (ixiv) the notice of ~~articles and articles~~ amalgamation of the ~~Company~~ merged 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~~ substantially in the ~~“Class A Shares” (the “Class A Shares”), which shall have the special rights and restrictions set forth in Schedule “A”~~ form attached as Appendix I to this Plan of Arrangement; (iixv) ~~each Company Share issued and outstanding immediately before~~ the ~~reorganization~~ notice of articles of the ~~Company’s share capital pursuant~~ merged company shall be substantially in the form attached as Appendix II to this ~~Section 3.02(h) (including, without limitation, the Company Shares issued to former holders~~ Plan 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 SharesArrangement; (Bxvi) ~~each holder~~ the articles of ~~such exchanged Company Shares~~ the merged company shall be ~~entered~~ substantially in the ~~Company’s register~~ form attached as Appendix III to this Plan of ~~holders of Class A Shares in respect of the Class A Shares issued to such holder~~Arrangement; (Cxvii) the ~~Company shall~~ first annual meeting of the merged company will be ~~removed~~ held within 18 months from the ~~Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares~~Effective Date; and (Dxviii) ~~each holder~~ the first directors of ~~such exchanged Company Shares~~ the merged company following the merger shall be ~~entered~~ the persons set out in ~~Spinco’s register~~ the notice of ~~holders of Spinco Shares in respect of the Distribution Spinco Shares exchanged with such holder by the Company; (iii) concurrently with the exchange~~ articles referred to in Section ~~3.02(h)(ii~~3.02(e)(xv), 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Arrangement Agreement (Lincoln Gold Corp)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ consecutively in the following ~~order~~ order, except where noted, without any further ~~act~~ authorization, act, or formality: (a) ~~the Purchaser~~ each Dissent Share shall ~~subscribe for that number~~ be deemed to be transferred and assigned by such Dissenting Shareholder, without any further act of ~~Acquireco Common Shares~~formality on its part, ~~at a price~~ to MZKR (free and clear of ~~$1.00 per share, equal to the quotient obtained when (A~~any Liens) ~~the fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00~~in accordance with, and for ~~greater certainty for~~ the ~~purposes of determining variable (A) in relation to the quotient under this Section 3.02(a)~~consideration contemplated in, 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 subscriptionArticle 4 and: (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 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 registered holder thereof shall cease to ~~be the holder of such Company Option~~be, 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~~ cease to be, the registered holder ~~thereof to the Company (free and clear~~ of ~~all Encumbrances) and cancelled in exchange for the applicable RSU Consideration,~~ each such Dissent Share and the ~~holder~~ name of such ~~Company RSU shall become the~~ registered 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, ~~surrendered~~ removed from the register of Instadose Shareholders in respect of each such Dissent Share, and at such time each Dissenting Shareholder will have the rights set out in Section 4.1; (ii) the registered holder thereof shall be deemed to ~~the Company by~~ have executed and delivered all consents, releases, assignments, and waivers, statutory or otherwise, required to transfer and assign each such Dissent Share; and (iii) MZKR shall be and shall be deemed to be the holder ~~thereof~~of all of the outstanding Dissent Shares and the central securities register of Instadose shall be, and shall be deemed to be, revised accordingly; (b) immediately following the preceding step, each Instadose Share (other than any Instadose Share held by MZKR or any of its Affiliates and any Dissent Share) shall be transferred and assigned, without any further act or formality ~~by such Dissenting Shareholder~~on its part, to MZKR (free and clear of ~~all Encumbrances~~any liens, charges, and ~~each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have~~ encumbrances of any ~~rights as a holder of such Company Shares other than a claim against the Company~~ nature whatsoever) in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 exchange 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 doubtConsideration, 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:and (i) the ~~notice of articles and articles of the Company~~ registered holder thereof shall ~~be amended~~ cease 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 transferbe, and shall be deemed to ~~have transferred~~cease to be, ~~to Acquireco, without any further act or formality by~~ the registered holder of each such ~~Participating Former Securityholder, free and clear of all Encumbrances, each Class A~~ Instadose Share ~~held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash~~ and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner name 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 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 registered holder shall ~~transfer~~be, and shall be deemed to ~~have transferred~~be, ~~to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear~~ removed from the register of ~~all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for:~~Instadose Shareholders; (iii) in the ~~case of a Participating Former Securityholder validly electing~~ registered holder thereof shall be deemed to ~~receive the Cash Consideration~~have executed and delivered all consents, ~~the Cash Consideration~~releases, ~~subject~~ assignments, and waivers, statutory or otherwise, required to ~~the provisions of Section 3.02(m)~~transfer and assign each such Instadose Share; 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 upon such exchange: (iii) ~~each such Participating Former Securityholder~~ MZKR shall be ~~removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 ~~such Company DSU equal~~ all of the outstanding Instadose Shares and the central securities register of Instadose shall be, and shall be deemed to be, revised accordingly; and (c) it being expressly provided that the ~~Company Sh~~events provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding those certain procedures related thereto may not be completed until after the Effective Date.

Appears in 1 contract

Sources: Arrangement Agreement (Instadose Pharma Corp.)

Arrangement. 3.1 The Arrangement Commencing at the Effective Time, each of the events set out below shall occur and be deemed to occur at the times set out below, in each case without any further authorization, act or formality of the Company, any Holder, Acquisitionco or any other person. (a) 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 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 all 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 Options granted and outstanding 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~~ will be transferred ~~and disposed~~ by the ~~holder~~ holders thereof to the Company ~~(free and clear of all Encumbrances) and cancelled~~ in exchange for a cash payment equal to the Option Consideration, ~~and the holder~~ payable to each Optionholder in respect of each Option transferred by 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 ConsiderationOptionholder; (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~~ will cease to be the holder of such ~~Company~~ Option, ~~and shall~~ will cease to have any rights as a holder in respect of such ~~Company~~ Option or under the ~~applicable Company~~ Stock Option Plan~~, (B)~~ , and such holder’s name ~~shall~~ will be removed from the ~~register~~ registers of ~~Company~~ Options with respect to such Options~~, and~~; (Ciii) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto shall~~ the Stock Option Plan will be cancelled; (cb) ~~notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract,~~ Immediately after 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):~~steps in Section 3.1(a) occur: (i) ~~each Company RSU issued and~~ all Common Shares outstanding immediately prior to the Effective Time ~~shall, without~~ (including Dissenting Shares and any ~~further action by or on behalf~~ Common Shares issued pursuant to the exercise of any ~~holder~~ Option duly exercised prior to the Effective Time in accordance with the provisions of the Stock Option Plan and the option agreement evidencing any such ~~Company RSU~~Option), will be and be deemed to be ~~fully vested and shall be~~ transferred ~~and disposed~~ by the ~~holder thereof~~ Common Shareholders to ~~the Company~~ Acquisitionco (free and clear of ~~all Encumbrances~~any Liens) ~~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 a cash payment equal 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) Purchase Price for each ~~Company~~ Common Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than ~~a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such~~ Dissenting Shareholder shall be removed from the securities register of holders of 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~~ as set out in Section 4.1(a) for each Dissenting Share to ~~the former holders of Company Shares pursuant to~~ which Section ~~3.02(h)(ii); (i~~4.1(a) ~~the Initial Spinco Share held by the Company shall be cancelled without any repayment thereon~~applies, and ~~the Company shall be removed from the Spinco register of holders of Spinco Shares;~~ (jC) 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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~~ any Common Shareholder who has otherwise failed to make a valid election to receive the Cash Consideration or the Purchaser Share Consideration is respect of all of such Participating Former Securityholder’s Company Shares; or (iii) exercises Dissent Rights and who is ultimately not ~~entitled, for any reason,~~ entitled to be paid fair value for its Company Shares, shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 Common 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 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 transfer, and shall be deemed to which they have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a Participating Former Securityholder validly electing to receive the Cash Considerationexercised Dissent Rights, the ~~Cash Consideration, subject to the provisions of Section 3.02(m)~~Purchase Price for each such Common Share; 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Combination Agreement (Aspreva Pharmaceuticals CORP)

Arrangement. At Commencing at the Effective Time, ~~unless~~ except as otherwise ~~specifically provided in this Section 3.02~~noted herein, the following ~~events or transactions~~ shall occur and shall be deemed to occur ~~sequentially~~ sequentially, in the following ~~order~~ order, without any further act or ~~formality~~formality required on the part of any person, in each case effective as at the Effective Time: (a) the ~~Purchaser~~ Effective Date shall ~~subscribe~~ be deemed to be the vesting date for ~~that~~ all of the then issued and outstanding European Goldfields RSUs, and European Goldfields shall allot and issue to each holder of a European Goldfields RSU such number of ~~Acquireco Common Shares~~European Goldfields Shares as are due to such holder under the terms of the European Goldfields RSU Plan (less any amounts withheld pursuant to Section 5.4 of this Plan of Arrangement) and thereafter the European Goldfields RSU Plan will terminate and none of the former holders of European Goldfields RSUs, at European Goldfields, Eldorado or any of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the European Goldfields RSU Plan; (b) the Effective Date shall be deemed to be the Separation Date (as defined in the European Goldfields DPU Plan) for all of the then issued and outstanding European Goldfields DPUs, and European Goldfields shall pay to each holder of a ~~price~~ European Goldfields DPU such amounts as are due to such holder under the terms of ~~$1.00 per share~~the European Goldfields DPU Plan (less any amounts withheld pursuant to Section 5.4 of this Plan of Arrangement) and thereafter the European Goldfields DPU Plan will terminate and none of the former holders of European Goldfields DPUs, ~~equal~~ European Goldfields, Eldorado or any of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the European Goldfields DPU Plan; (c) each European Goldfields Share held by a Dissenting Shareholder in respect of which the European Goldfields Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to Eldorado (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with Article 4 hereof; (d) each European Goldfields Share (other than any European Goldfields Shares held by Eldorado and any Dissenting Shareholder) shall be deemed to be transferred to Eldorado (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Consideration; (e) each European Goldfields Option, which is outstanding and has not been duly exercised prior to the ~~quotient obtained when~~ Effective Date, shall be exchanged for an option (Aeach, a “Replacement Option”) to purchase from Eldorado the number of Eldorado Shares (rounded down to the nearest whole share) equal to: (i) the ~~fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided~~ Option Exchange Ratio multiplied by (Bii) ~~$1.00, and for greater certainty for~~ the ~~purposes~~ number of ~~determining variable (A) in relation~~ European Goldfields Shares subject 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~~ such European Goldfields Option immediately prior to the ~~acquisition~~ Effective Date. Such Replacement Option shall provide for an exercise price per Eldorado Share (rounded up to the nearest whole cent) equal to: (x) the exercise price per European Goldfields Share otherwise purchasable pursuant to such European Goldfields Option; divided by (y) the Option Exchange Ratio. 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 European Goldfields Option for which it was exchanged, and shall be governed by the terms of the ~~Class A Shares by Acquireco pursuant~~ applicable European Goldfields Option Plan and any certificate or option agreement previously evidencing the European Goldfields Option shall thereafter evidence and be deemed to ~~Section 3.02(k),~~ evidence such Replacement Option and such Replacement Options shall be designed to meet the requirements under Subsection 7(1.4) of the Tax Act; (f) with respect to each European Goldfields Share transferred and assigned in ~~connection~~ accordance with ~~such share subscription~~Subsection 3.1(c) or 3.1(d) hereto: (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 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 registered holder thereof shall cease to be the registered holder of such ~~Company Option,~~ European Goldfields Share and ~~shall cease to have any rights as a holder in respect~~ the name of such ~~Company Option under the applicable Company Option Plan, (B) such holder’s name~~ registered holder 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 European Goldfields Shareholders as 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 ConsiderationTime; (ii) ~~with respect to each Company RSU: (A)~~ the registered holder thereof shall ~~cease~~ be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such European Goldfields Share in accordance with Subsection 3.1(c) or 3.1(d) hereto, as applicable; and (iii) Eldorado will be the holder of ~~such Company RSU,~~ all of the outstanding European Goldfields Shares 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~~ European Goldfields Shareholders shall be ~~cancelled~~revised accordingly; (g) Eldorado will sell all of the European Goldfields Shares acquired under Subsection 3.1 (c) and (d) ~~the Company Option Plans shall be terminated~~hereto to Eldorado Holdco in exchange for 100,000 common shares of Eldorado Holdco; (e) each Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 (Ah) the stated capital of ~~all~~ the ~~issued and outstanding Company~~ European Goldfields Shares ~~immediately prior~~ shall be reduced to ~~the step~~ $1.00 without payment or distribution 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);respect thereof; and (gi) Eldorado Holdco and European Goldfields shall be amalgamated and continued as one corporation under the ~~Company shall transfer all of its entire legal and beneficial right, title and interest in and~~ YBCA 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 form Amalco 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~~following: (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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Arrangement Agreement (Eldorado Gold Corp /Fi)

Arrangement. At Commencing at the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the ~~following~~ events ~~or transactions~~ set out below shall occur and ~~shall~~ be deemed to occur ~~sequentially~~ in the following ~~order~~ sequence in each case, except where stated otherwise, without any further authorization, act or ~~formality~~formality of or by the Company, the Purchaser or any other Person: (a) at 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 subscriptionEffective Time: (i) pursuant to the ~~Purchaser~~ terms of the Company Stock Option Plan, the Board shall prior to the Effective Time: (i) approve the acceleration of the vesting of all outstanding Company Options, subject to receipt of requisite regulatory approval (if any), and upon such approval each Company Option shall be deemed to ~~have directed~~ be vested and exercisable prior to the ~~Depositary to hold~~Effective Time; and (ii) approve, ~~and~~ conditional upon completion of the ~~Depositary shall hold~~Arrangement, the ~~cash~~ termination and ~~certificates representing the Purchaser Shares delivered by the Purchaser~~ cancellation of all Company Options that have not been exercised prior to the ~~Depositary in accordance with Section 3.05(a)(i) (~~Effective Time without payment of any consideration to the holders of such ~~cash~~ terminated 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; andcancelled Company Options; (ii) ~~Acquireco~~ the Company Stock Option Plan and all agreements relating to Company Options shall be ~~deemed to~~ terminated and of no further force or effect and neither the Company nor the Purchaser shall have ~~issued such fully paid and non-assessable Acquireco Common Shares~~ any liability or obligations with respect 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~~ Company Option Plan or any agreements relating to ~~this Section 3.02(a), by an amount equal to the fair market value of the Purchaser Consideration~~Company Options; (biii) ~~notwithstanding any vesting or exercise provisions to which a Company Option might otherwise be subject (whether by contract,~~ in accordance with 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~~ Agent Compensation Options, each holder of an Agent Compensation Option ~~Plan, or applicable law): (i) each In-the-Money Option issued and~~ outstanding immediately prior to the Effective Time ~~shall~~shall receive upon the subsequent exercise of such holder’s Agent Compensation Option, ~~without any further action by~~ in accordance with its terms and for the same aggregate consideration therefor, and shall accept in lieu of each Company Common Share to which such holder was theretofore entitled upon such exercise, the Consideration; and (iv) each Company RSU outstanding immediately prior to the Effective Time (whether vested or ~~on behalf of any~~ unvested) shall immediately vest and the Company shall allot and issue to each holder of a Company RSU such ~~In-the- Money Option~~number of Company Common Shares (provided that no share certificates shall be issued with respect to such shares as are due to such holder) under the terms of the Company RSU Plan and thereafter the Company RSU Plan will terminate and none of the former holders of Company RSUs, the Company, the Purchaser or any of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the Company RSU Plan. (b) immediately after the steps in Section 2.3(a): (i) each Company Common Share held by a Dissenting Shareholder who is ultimately determined to be entitled to be paid the fair value of his, her or its Company Common Shares in accordance with Article 3 (a “Dissenting Share”) shall be and shall be deemed to ~~be fully vested and shall be~~ have been transferred ~~and disposed by the holder thereof~~ to the ~~Company~~ Purchaser (free and clear of all ~~Encumbrances~~Liens) in consideration for a debt claim against the Purchaser in an amount equal to the fair value of such Dissenting Share determined and payable in accordance with Article 3; and (ii) with respect to each Dissenting Share transferred to the Purchaser pursuant to Section 2.3(b)(i): (A) the registered holder of such Dissenting Share will cease to be the holder thereof or to have any rights as a holder thereof (other than the right to receive fair value of such Dissenting Share in accordance with Article 3) and ~~cancelled in exchange for~~ the ~~Option Consideration~~name of the registered holder thereof will be removed from the central securities register of the Company, ~~and~~ (B) the holder of such ~~In-the-Money Option~~ Dissenting Share shall ~~become~~ be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Company Common Shares and (C) the ~~holder~~ Purchaser shall be and shall be deemed to be the transferee of ~~the Company Shares comprising~~ such ~~Option Consideration~~ Dissenting Share (free and clear of all Liens) and will be entered in the central securities register of the Company ~~shall be revised accordingly, but~~ as the sole holder ~~of such Option Consideration shall not be entitled to receive a share certificate or other document representing the Option Consideration;~~thereof; and (iic) immediately after the steps in Section 2.3(b): (i) each ~~Out-of-the-Money Option issued and~~ Company Common Share outstanding immediately prior to the Effective Time ~~shall, without any further action~~ (including the Company Common Shares allotted and issued pursuant to Section 2.3(a)(iv) hereof but other than Dissenting Shares and Company Common Shares directly or indirectly owned by ~~or on behalf of any holder of such Out-of-the-Money Option,~~ the Purchaser) shall 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~~ Purchaser (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled~~ in exchange for the ~~applicable RSU~~ Consideration, ~~and~~ provided (A) that the ~~holder of such Company RSU shall become the holder of the Company~~ Purchaser Common Shares comprising ~~such RSU~~ the Consideration ~~and the central securities register of the Company~~ shall be ~~revised accordingly, but~~ subject to the ~~holder of such RSU~~ Transfer Restrictions and Exceptions and (B) the certificates or any “direct registration system” statements or advice representing the Purchaser Common Shares comprising the Consideration shall ~~not~~ bear (or, in the case of uncertificated Purchaser Common Shares, be ~~entitled~~ deemed to ~~receive a share certificate or other document representing~~ bear) the ~~RSU Consideration~~Restricted Legend until the Release Date; (ii) with respect to each Company ~~RSU:~~ Common Share transferred to the Purchaser pursuant to Section 2.3(c)(i), (A) the holder ~~thereof shall~~ of such Company Common Share will cease to be the holder ~~of such Company RSU, and shall cease~~ thereof or to have any rights as a holder ~~in respect~~ thereof (other than the right to receive the consideration such holder is entitled to receive pursuant to Section 2.3(c)(i)) and the name of ~~such Company RSU under~~ the ~~applicable Company Option Plan, (B) such holder’s name shall~~ holder thereof will be removed from the central securities register of the Company, (B) the holder of such Company ~~RSUs~~Common Share shall be deemed to have executed and delivered all consents, ~~and~~ releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Company Common Shares and (C) ~~all Award Agreements, grants and similar instruments relating thereto will be cancelled; (d)~~ the ~~Company Option Plans~~ Purchaser shall be ~~terminated; (e) each Company Share held by a Dissenting Shareholder shall be,~~ and shall be deemed to ~~be, surrendered to~~ be the transferee of such Company ~~by the holder thereof, without any further act or formality by such Dissenting Shareholder,~~ Common Share (free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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(bLiens) 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 will be entered in the ~~Company’s~~ central securities 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the ~~legal and beneficial owner of such Class A Shares, free of all Encumbrances~~sole holder thereof; 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each ~~such Participating Former Securityholder shall~~ Company Shareholder (other than a Dissenting Shareholder) will be ~~removed from~~ the ~~Company’s securities register~~ holder of ~~holders of 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, 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 aggregate number of Purchaser Common Shares ~~in respect~~ issued to such Company Shareholder pursuant to Section 2.3(c)(i) and the securities registers 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 will 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shrevised accordingly.

Appears in 1 contract

Sources: Arrangement Agreement (Flora Growth Corp.)

Arrangement. At the Effective Time, ~~unless otherwise specifically provided in this Section 3.02,~~ each of the following events ~~or transactions~~ shall occur and shall be deemed to occur sequentially ~~in the following order~~ as set out below without any further authorization, act or ~~formality:~~formality on the part of any Person (provided that none of the following shall occur unless all of the following occur): (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 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, ~~surrendered to the Company~~ transferred by the holder ~~thereof, without any further act or formality by such Dissenting Shareholder,~~ thereof (free and clear of all ~~Encumbrances~~Liens) to the Company for a debt claim against the Company (to be settled by the Company with its own available funds on hand and not funds directly or indirectly provided by the Purchaser or any affiliate of the Purchaser) for an amount determined in accordance with ARTICLE 3, ~~and each~~ and: (i) such ~~Company Share so surrendered shall be cancelled and thereupon each~~ Dissenting Shareholder shall cease to be the holder of such Share and to have any rights as a ~~holder of such Company Shares~~ Shareholder from and after the Effective Time, other than ~~a claim against~~ the ~~Company~~ right to be paid the fair value for such Share as set out in ~~an amount determined and payable in accordance with Article 4 and~~ ARTICLE 3, (ii) the name of such Dissenting Shareholder shall be removed from the ~~securities~~ register of ~~holders of 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~~ or on behalf 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such ~~Participating Former Securityholder~~ Share shall immediately be ~~removed from the Company’s securities register of holders of Class A Shares, (iv) Acquireco shall~~ cancelled and cease to 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, 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 Securityholderoutstanding; (mb) ~~in the event~~ each Option (whether vested or unvested) 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof (free and clear of all Liens) to the Company in exchange for the right to receive from the Company (net of applicable withholdings pursuant to Section 4.3) the Option Consideration (which Option Consideration may be paid by the Company to the holder on the Effective Date) and each such Option shall immediately be cancelled and cease to be outstanding, and (i) the holder of such Option shall cease to be the holder thereof and to have any rights as an Optionholder from and after the Effective Time, other than the right to receive the Option Consideration (net of applicable withholdings pursuant to Section 4.3) to which they are entitled under this Section 2.3(b), provided that where the Option Consideration is zero or a negative amount, such Option shall be cancelled without any consideration or payment therefor and neither the Company nor the Purchaser shall be obligated to pay the holder of such Option any amount in respect of such Option, (ii) such holder’s name shall be removed from the register of Optionholders maintained by or on behalf of the Company, and (iii) the Stock Option Plan and all agreements, certificates and similar instruments relating to each such Option shall be, and shall be deemed to be, terminated and of no further force and effect; (c) each Share outstanding immediately prior to the Effective Time (other than a Share held by a Dissenting Shareholder) shall be, and shall be deemed to be, transferred by the holder thereof (free and clear of all Liens) to the Purchaser in exchange for the right to receive the Consideration and (i) the holder of such Share shall cease to be the holder thereof and to have any rights as a Shareholder from and after the Effective Time, other than the right to receive the Consideration in accordance with this Plan of Arrangement; (ii) such holder’s name shall be removed from the register of Shareholders maintained by or on behalf of the Company; and (iii) the Purchaser shall be, and shall be deemed to be, the transferee and the legal and beneficial holder of such Shares (free and clear of all Liens) and shall be, and shall be deemed to be, entered as the registered holder of such Shares in the register of the Shareholders maintained by or on behalf of the Company; (d) each DSU (whether vested or unvested) that is outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof (free and clear of all Liens) to the Company in exchange for the right to receive a cash payment from the Company (net of applicable withholdings pursuant to Section 4.3) equal to the Consideration (which consideration may be paid by the Company to the holder one Business Day prior to the Effective Time) and each such DSU shall be immediately cancelled and cease to be outstanding, and (i) the holder of such DSU shall cease to be holder thereof and to have any rights as a holder of such DSU from and after the Effective Time, other than the right to receive the consideration to which they are entitled under this Section 2.3(d) (to the extent that such consideration is not paid by the Company to the holder one Business Day prior to the Effective Time), (ii) such holder’s name shall be removed from the register of DSUs maintained by or on behalf of the Company, and (iii) the DSU Plan and all agreements, certificates and similar instruments relating to each such DSU shall be, and shall be deemed to be, terminated and of no further force and effect; (e) each PSU (whether vested or unvested) that is outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof (free and clear of all Liens) to the Company in exchange for the right to receive a cash payment from the Company (net of applicable withholdings pursuant to Section 4.3) equal to the Consideration multiplied by the maximum applicable Multiplier (as defined in the PSU Plan) (which consideration may be paid by the Company to the holder one Business Day prior to the Effective Time), and each such PSU shall be immediately cancelled and cease to be outstanding, and (i) the holder of such PSU shall cease to be the holder thereof and to have any rights as a holder of such PSU from and after the Effective Time, other than the right to receive the consideration to which they are entitled under this Section 2.3(e) (to the extent that such consideration is not paid by the Company to the holder one Business Day prior to the Effective Time), (ii) such holder’s name shall be removed from the register of PSUs maintained by or on behalf of the Company, and (iii) the PSU Plan and all agreements, certificates and similar instruments relating to each such PSU shall be, and shall be deemed to be, terminated and of no further force and effect; (f) each RSU (whether vested or unvested) that is outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof (free and clear of all Liens) to the Company in exchange for the right to receive a cash payment from the Company (net of applicable withholdings pursuant to Section 4.3) equal to the Consideration (which consideration may be paid by the Company to the holder one Business Day prior to the Effective Time), and each such RSU shall be immediately cancelled and cease to be outstanding and (iii) the holder of such RSU shall cease to be the holder thereof and to have any rights as a holder of such RSU from and after the Effective Time, other than the right to receive the consideration to which they are entitled under this Section 2.3(f) (to the extent that such consideration is not paid by the Company to the holder one Business Day prior to the Effective Time), (iv) such holder’s name shall be removed from the register of RSUs maintained by or on behalf of the Company, and (v) the RSU Plan and all agreements, certificates and similar instruments relating to each such PSU shall be, and shall be deemed to be, terminated and of no further force and effect; and (g) each Convertible Debenture shall be, and shall be deemed to be, transferred by the holder thereof (free and clear of all Liens) to the Company in exchange for a cash payment by from the Company in an amount (the “Debenture Consideration”) equal to: (1) the product of (A) the Debenture Conversion Amount multiplied by (B) the Consideration; plus (2) all accrued and unpaid interest on such Convertible Debenture (as determined in accordance with terms of the Debenture Indenture) up to but excluding the Effective Date, and each such Convertible Debenture shall immediately be cancelled and cease to be outstanding, and (i) the holder of the Convertible Debenture shall cease to be the holder thereof and to have any rights as a holder of such ~~Company DSU equal~~ Convertible Debenture from and after the Effective Time, other than the right to receive the ~~Company Sh~~consideration to which they are entitled under this Section 2.3(g), (ii) such holder’s name shall be removed from the register of Convertible Debentures maintained by or on behalf of the Company; and (iii) the Debenture Indenture and all agreements, certificates and similar instruments relating to each such Convertible Debenture shall be, and shall be deemed to be, terminated and of no further force and effect.

Appears in 1 contract

Sources: Arrangement Agreement (Allied Gold Corp)

Arrangement. At Commencing 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 order without any further act or formality: (a) each independent contractor agreement or employment agreement between the ~~Purchaser shall subscribe for that number~~ Company or any of ~~Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when (A) the fair market value~~ its subsidiaries and each of the ~~Maximum Purchaser Shares and Maximum Cash Consideration is divided by~~ Terminated Persons, as applicable, shall terminate (~~B) $1.00,~~ and for greater ~~certainty for~~ certainty, without limiting the ~~purposes~~ generality of ~~determining variable (A) in relation to~~ the ~~quotient under this Section 3.02(a)~~foregoing, the ~~fair market value~~ positions of each employee or individual that provided the ~~Maximum Purchaser Shares and the Maximum Cash Consideration will be no less than the fair market value~~ services of ~~the Class A Shares immediately prior to the acquisition of the Class A Shares by Acquireco pursuant to Section 3.02(k~~such Terminated Person under an independent contractor agreements, as applicable, shall also terminate), and ~~in connection with such share subscription: (i) the Purchaser~~ Highlander shall deliver or arrange to 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~~ terms of the ~~subscription price payable by~~ Arrangement Agreement to each Terminated Person 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 portion of the ~~Acquireco Common Shares shall be increased, in respect of the Acquireco Common Shares issued pursuant~~ Termination Obligations to ~~this Section 3.02(a), by an amount equal to the fair market value of the Purchaser Consideration~~which they are entitled; (b) ~~notwithstanding any vesting~~ Highlander shall deliver or ~~exercise provisions~~ arrange to be delivered in accordance with the terms of the Arrangement Agreement to each Bear Creek Financial Advisor and to each Service Provider the portion of the Service Obligations 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):they are entitled; (ic) each InBear Creek 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 Bear Creek Optionholder, be cancelled without any payment in respect thereof, and thereafter: (i) each 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~~ Bear Creek Out-of-the-Money Option ~~issued~~ shall cease to be a holder of such Bear Creek Out-of-the-Money Option and to have any rights as a Bear Creek Optionholder, (ii) all agreements relating to the Bear Creek Out-of-the-Money Options shall be terminated and shall be of no force and effect, and (iii) the name of each holder of a Bear Creek Out-of-the-Money Option shall be removed from the register of Bear Creek Options maintained by or on behalf of Bear Creek; (d) each Bear Creek In-the-Money Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall immediately and unconditionally vest, notwithstanding the terms of the Bear Creek Stock Option Plan or any agreement in respect thereof, and shall, without any further action by or on behalf of any Bear Creek Optionholder, be deemed to be assigned and transferred by such Bear Creek Optionholder (free and clear of all Liens) to Bear Creek for cancellation in exchange for the Option Consideration (net of any withholding of Bear Creek Shares made under Section 4.4), and thereafter: (i) each holder of ~~such Out-of~~a Bear Creek In-the-Money ~~Option, be cancelled without any payment therefor; (iii) with respect to each Company Option: (A) the holder thereof~~ Option shall cease to be ~~the~~ a holder of such ~~Company Option,~~ Bear Creek In-the-Money Options and ~~shall cease~~ to have any rights as a ~~holder in respect of~~ Bear Creek Optionholder and such ~~Company Option under the applicable Company Option Plan~~Bear Creek -In-the-Money Options shall be immediately cancelled, (Bii) ~~such holder’s~~ all agreements relating to the Bear Creek In-the-Money Options shall be terminated and shall be of no force and effect, (iii) the name of each holder of a Bear Creek In-the-Money Option shall be removed from the register of ~~Company Options~~Bear Creek Options maintained by or on behalf of Bear Creek, and (Civ) ~~all option agreements, Award Agreements, grants and similar instruments relating thereto~~ each such former holder of the Bear Creek In-the-Money Options shall be ~~cancelled~~deemed to be the holder of the Bear Creek Shares comprising the Option Consideration, net of any withholding pursuant to Section 4.4 (notwithstanding that no certificates or DRS Advice shall be issued with respect to such Bear Creek Shares) and the name of such former holder of such Bear Creek In-the-Money Options shall be entered into the register of Bear Creek Shares maintained by or on behalf of Bear Creek; (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): (ie) each ~~Company RSU issued and~~ Bear Creek DSU outstanding immediately prior to the Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the Bear Creek LTIP or any agreement in respect of such Bear Creek DSUs, and shall, without any further action by or on behalf of ~~any holder of such Company RSU~~the Bear Creek DSU Holder thereof, be deemed to be ~~fully vested~~ assigned and ~~shall be~~ transferred ~~and disposed~~ by ~~the holder thereof~~ such Bear Creek DSU Holder to ~~the Company~~ Bear Creek (free and clear of all ~~Encumbrances~~Liens) ~~and cancelled~~ in exchange for the ~~applicable RSU~~ number of Bear Creek Shares equal to the number of Bear Creek Shares such Bear Creek DSU Holder is entitled to under each Bear Creek DSU (the “DSU Consideration”) (net of any withholding of Bear Creek Shares made under Section 4.4), ~~and~~ the ~~holder of such Company RSU shall become the holder of the Company~~ Bear Creek Shares comprising the DSU Consideration will be issued to such ~~RSU Consideration~~ Bear Creek DSU Holder as fully paid and non-assessable shares in the ~~central securities register~~ capital 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 RSUBear Creek and thereafter: (Ai) ~~the holder thereof~~ each Bear Creek DSU Holder shall cease to be ~~the~~ a holder of ~~such Company RSU,~~ any Bear Creek DSUs and ~~shall cease~~ to have any rights as a ~~holder in respect of~~ Bear Creek DSU Holder and such ~~Company RSU under the applicable Company Option Plan~~Bear Creek DSUs shall be immediately cancelled, (Bii) all agreements relating to such ~~holder~~Bear Creek DSUs shall be terminated and shall be of no further force and effect, (iii) each such Bear Creek DSU Holder’s name shall be removed from the register of ~~Company RSUs~~Bear Creek DSUs maintained by or on behalf of Bear Creek, and (~~C) all Award Agreements, grants and similar instruments relating thereto will be cancelled; (d) the Company Option Plans shall be terminated; (e~~iv) each ~~Company Share held by a Dissenting Shareholder shall be, and~~ such former holder of such Bear Creek DSUs shall be deemed to bebe the holder of the Bear Creek Shares comprising the DSU Consideration, ~~surrendered~~ net of any withholding pursuant to Section 4.4 (notwithstanding that no certificates or direct registration system advices shall be issued with respect to such Bear Creek Shares) and the name of such former holder of such Bear Creek DSUs shall be entered into the register of Bear Creek Shares maintained by or on behalf of Bear Creek; (f) each Bear Creek RSU outstanding immediately prior to the ~~Company~~ Effective Time, shall immediately and unconditionally vest, notwithstanding the terms of the Bear Creek LTIP or any agreement in respect of such Bear Creek RSUs, and shall, without any further action by or on behalf of the Bear Creek RSU Holder thereof, be deemed to be assigned and transferred by such Bear Creek RSU Holder to Bear Creek (free and clear of all Liens) in exchange for the number of Bear Creek Shares equal to the number of Bear Creek Shares a holder is entitled to under each Bear Creek RSU (the “RSU Consideration”) (net of any withholding of Bear Creek Shares made under Section 4.4) the Bear Creek Shares comprising the RSU Consideration will be issued to such Bear Creek RSU Holder as fully paid and non-assessable shares in the capital of Bear Creek, and thereafter: (i) each Bear Creek RSU Holder shall cease to be a holder of any Bear Creek RSUs and to have any rights as a Bear Creek RSU Holder and such Bear Creek RSUs shall be immediately cancelled, (ii) all agreements relating to the Bear Creek RSUs shall be terminated and shall be of no further force and effect, (iii) each such Bear Creek RSU Holder’s name shall be removed from the register of Bear Creek RSUs maintained by or on behalf of Bear Creek, and (iv) each such former holder of such Bear Creek RSUs shall be deemed to be the holder ~~thereof~~of the Bear Creek Shares comprising the RSU Consideration, net of any withholding pursuant to Section 4.4 (notwithstanding that no certificates or direct registration system advices shall be issued with respect to such Bear Creek Shares) and the name of such former holder of such Bear Creek RSUs shall be entered into the register of Bear Creek Shares maintained by or on behalf of Bear Creek; (g) each Dissent Share in respect of which Dissent Rights have been validly exercised by Dissenting Shareholders shall be deemed to have been transferred to Highlander (free and clear of all Liens) without any further act or formality ~~by such Dissenting Shareholder~~on its part, ~~free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as~~ in exchange for a ~~holder of such Company Shares other than a~~ debt claim against Highlander to be paid the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 aggregate fair value in respect of the ~~Company~~ Dissent Shares ~~shall be reduced~~as determined pursuant to Section 5.1, and in respect of the ~~Company~~ Dissent 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 capitalso transferred: (i) the ~~notice of articles and articles~~ Dissenting Shareholders shall cease to be holders of the ~~Company shall~~ Dissent Shares and to have any rights as holders of such Dissent Shares other than the right to be ~~amended~~ paid the fair value for such Dissent Shares pursuant 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;Section 5.1, (ii) ~~each Company Share issued and outstanding immediately before~~ the ~~reorganization~~ names 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 Dissenting Shareholders shall be removed from the ~~Company’s~~ register maintained by or on behalf 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~~ Bear Creek in respect of the ~~Class A~~ Bear Creek Shares, (iii) the Dissenting Shareholders 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) Highlander shall be and shall be deemed to be the holder of all of the outstanding Dissent Shares (free and clear of all Liens), and Highlander shall be added to the register of Bear Creek Shares maintained by or on behalf of Bear Creek in respect of the Bear Creek Shares as the holder of such Dissent Shares; and (h) each Bear Creek Shareholder shall transfer to Highlander (free and clear of all Liens) each whole Bear Creek Share held (other than any Bear Creek Shares held by Highlander immediately before the Effective Time or acquired by Highlander from a Dissenting Shareholder under Section 3.1(g)), including the Bear Creek Shares issued pursuant to ~~such holder;~~Section 3.1(e) or Section 3.1(f) in exchange for the Share Consideration for each Bear Creek Share held, and (Ci) such Bear Creek Shareholders shall cease to be the holders of the Bear Creek Shares and to have any rights as holders of such Bear Creek Shares, (ii) the ~~Company~~ names of such Bear Creek Shareholders shall be removed from the ~~Spinco’s~~ register maintained by or on behalf of ~~holders of Spinco Shares~~ Bear Creek in respect of the ~~Distribution Spinco~~ Bear Creek 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~~ such Bear Creek Shareholders shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the ~~exchange in Section 3.02(h)(ii)~~transfer thereof, and (iv) Highlander shall be and shall be deemed to be the ~~stated capital account in respect~~ holder of all of the ~~Company~~ outstanding Bear Creek 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~~ Highlander shall be added to the ~~stated capital account~~ register of Bear Creek Shares maintained by ~~the Company~~ or on behalf of Bear Creek in respect of the ~~Class A~~ Bear Creek Shares, it being expressly provided that the events provided for 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 3.1 will be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to occur on the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 shallEffective Date, notwithstanding ~~Section 3.02(l)(i): (i) only~~ that certain procedures related thereto may not 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to completed until after the Effective ~~Time shall be cancelled in exchange for a cash payment by the Company to the holder of such Company DSU equal to the Company Sh~~Date.

Appears in 1 contract

Sources: Arrangement Agreement (Highlander Silver Corp.)

Arrangement. 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 order~~ without any further act or formality, each of the events set out below shall occur and be deemed to occur in the following sequence and at the times specified below, unless specifically noted: (a) payment, in trust, of the Cash Consideration shall be made to the Company’s counsel; (b) concurrect with the payment of the Cash Consideration, each Share shall be transferred to the Purchaser; (c) effective in the moment immediately following the transfer of the Shares referred to in Section 2.3(a), the Purchaser shall ~~subscribe for that number of Acquireco Common Shares~~issue to the Company the Initial Share Consideration, such shares to be issued at a deemed issue price of USD $~~1.00~~ [●] per ~~share~~Purchaser Share, whereby such issue price is equal to the ~~quotient obtained when~~ Purchase Price; (Ad) effective in the ~~fair market value of~~ moment immediately following 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)~~ issuance referred to in ~~relation to the quotient under this~~ Section ~~3.02(a~~2.3(c), the ~~fair market value of~~ Purchaser shall issue to the ~~Maximum~~ Company the Holdback Share Consideration, such Purchaser Shares ~~and the Maximum Cash Consideration will~~ to be ~~no less than the fair market value~~ issued at a deemed issue price of ~~the Class A Shares immediately prior~~ USD $[●] per Purchaser Share, whereby such issue price is equal to the ~~acquisition of the Class A Shares by Acquireco pursuant to Section 3.02(k)~~Purchase Price, and ~~in connection with such share subscription: (i) the Purchaser shall~~ to be ~~deemed to have directed the Depositary to hold, and the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered~~ held 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 administered and released in accordance with the ~~stated capital account maintained by Acquireco~~ Holdback Terms; (e) each Company Share in respect of ~~the Acquireco Common Shares~~ which any registered Company Shareholder has validly exercised Dissent Rights shall be ~~increased~~directly transferred and assigned by such Dissenting Shareholder to the Company in accordance with ARTICLE 3 hereof; (f) effective in the moment immediately following the issuance referred to in Section 2.3(e), the Company shall by resolution and in ~~respect~~ compliance with Section 74 of the ~~Acquireco Common~~ Business Corporations Act (British Columbia) reduce the capital (and for income tax purposes the paid-up capital) of the Company 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 Initial Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law): (i) each In-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 In-the- Money Option, be deemed to be fully vested Consideration and shall ~~be transferred and disposed by~~ distribute the ~~holder thereof~~ Initial Share Consideration to the Company Shareholders (~~free and clear of all Encumbrances~~other than Dissenting Shareholders) ~~and cancelled~~ in ~~exchange for the Option Consideration, and the holder of such In-the-Money Option shall become the holder~~ payment of the ~~Company Shares comprising such Option Consideration and the central securities register~~ return of ~~the Company shall be revised accordingly~~capital, 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Shareholder receiving such number of Purchaser Shares comprising the Initial Share ~~so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease~~ Consideration in proportion to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 their pro rata share 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 total Company Shares issued and ~~outstanding immediately prior to the transfer in this Section 3.02(g) (for the avoidance of doubt~~outstanding, ~~excluding any Company Shares in respect of which Dissenting Shareholders have exercised Dissent Rights), all in accordance with the terms~~ provided that none 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~~ foregoing 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) occur unless 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shforegoing occur.

Appears in 1 contract

Sources: Arrangement Agreement (Marizyme Inc)

Arrangement. 2.2.1 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 order without any further act or formality, provided that none of the following will occur or be deemed to occur unless all of the following occurs: (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 Immediately prior to the ~~acquisition of~~ Effective Time, the ~~Class A~~ Wedge Shares held by ~~Acquireco pursuant to Section 3.02(k), and in connection with such share subscription: (i) the Purchaser~~ Dissenting Shareholders shall be deemed to have ~~directed the Depositary~~ been surrendered to ~~hold~~Wedge for cancellation, and such Dissenting Shareholders shall cease to be the ~~Depositary~~ holders of such Wedge Shares and to have any rights as holders of such Wedge Shares other than the right to be paid the fair value for such Wedge Shares as set out in Section 3.1, and such Dissenting Shareholders’ names shall ~~hold,~~ be removed as the ~~cash and certificates representing~~ holders of such Wedge Shares from the ~~Purchaser Shares delivered~~ central securities register of Wedge for the Wedge Shares; (b) Each outstanding Wedge Note shall be redeemed by ~~the Purchaser~~ Wedge at a redemption price equal to the ~~Depositary~~ principal amount owing under such Wedge Note and all applicable and unpaid interest thereon up to but excluding the Effective Date, such payment of the redemption price to be completed immediately upon completion of the Private Placement; (c) Each Wedge Note redeemed in accordance with ~~Section 3.05(a)(i~~the foregoing Paragraph 2.2.1(b) (shall be cancelled immediately following such ~~cash~~ redemption 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~~ holder thereof shall be deemed to have ~~issued~~ executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to cancel such ~~fully paid and non-assessable Acquireco Common Shares to the Purchaser, and the stated capital account maintained by Acquireco~~ Wedge Note in ~~respect of the Acquireco Common Shares shall be increased, in respect of the Acquireco Common Shares issued pursuant to~~ accordance with this ~~Section 3.02(a~~Paragraph 2.2.1(c), by including, for greater certainty, all consents and waivers regarding those negative covenants of Wedge contained in the Wedge Notes relating to, among others, a change in business, the redemption of securities, an ~~amount equal~~ amendment to ~~the fair market value of the Purchaser Consideration~~articles, any continuation under other jurisdictions and transactions with related parties; (bd) 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 immediately prior to the Effective Time shall, without any further action by or on behalf of any The 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 Wedge Note shall cease to be the holder ~~of such Company Option,~~ thereof and shall cease to have any rights as a holder ~~in respect~~ or a former holder of such ~~Company Option under the applicable Company Option Plan, (B) such holder’s name shall be removed from the register of Company Options~~Wedge Note, ~~and (C)~~ and all ~~option~~ agreements, ~~Award Agreements, grants~~ certificates and similar instruments relating ~~thereto~~ to such Wedge Note, including, for greater certainty, the intercreditor agreement and anti-dilution undertaking, each dated January 26, 2010, 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, shall be deemed to be ~~fully vested~~ cancelled and terminated and Wedge shall cease to have any liability in respect thereof; (e) Notwithstanding the terms of the Wedge Warrants, each Wedge Warrant shall be ~~transferred and disposed by the holder thereof~~ deemed to ~~the Company (free and clear of all Encumbrances)~~ be surrendered and cancelled immediately and Wedge shall cease to have any liability in ~~exchange for the applicable RSU Consideration~~respect thereof, 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~~ thereof shall be ~~revised accordingly~~deemed to have executed and delivered all consents, ~~but the holder of~~ releases, assignments and waivers, statutory or otherwise, required to cancel such ~~RSU Consideration shall not be entitled to receive a share certificate or other document representing the RSU Consideration~~Wedge Warrant in accordance with this Paragraph 2.2.1(e); (iif) ~~with respect to~~ The holder of each ~~Company RSU: (A) the holder thereof~~ Wedge Warrant shall cease to be the holder ~~of such Company RSU,~~ thereof and shall cease to have any rights as a holder ~~in respect~~ or a former holder of such ~~Company RSU under the applicable Company Option Plan, (B) such holder’s name shall be removed from the register of Company RSUs~~Wedge Warrant, ~~and (C)~~ and all ~~Award Agreements~~agreements, ~~grants~~ certificates and similar instruments relating ~~thereto will~~ to such Wedge Warrant shall be and shall be deemed to be cancelled; (dg) Notwithstanding the ~~Company~~ terms of the Wedge Stock Options and the Wedge Stock Option ~~Plans~~ Plan, each Wedge Stock Option shall be ~~terminated~~deemed to be cancelled immediately and Wedge shall cease to have any liability in respect thereof, and the holder thereof shall be deemed to have executed and delivered all covenants, releases, assignments and waivers, statutory or otherwise, required to cancel such Wedge Stock Options in accordance with this Paragraph 2.2.1(g); (eh) The holder of each ~~Company Share held by~~ Wedge Stock Option shall cease to be the holder thereof and shall cease to have any rights as a ~~Dissenting Shareholder~~ holder or a former holder of such Wedge Stock Option, and all agreements, certificates and similar instruments relating to such Wedge Stock Option shall ~~be,~~ be and shall be deemed to ~~be, surrendered~~ be cancelled; (i) The Wedge Stock Option Plan and any other agreements relating to the ~~Company~~ Wedge Stock Options shall be terminated and Wedge shall cease to have any liability in respect thereof; (j) The issued and outstanding Wedge Shares be consolidated by a ratio of 20:1, with any resulting fractional shares to be rounded down to the nearest whole Wedge Share (the “Consolidation”) and the central securities register of Wedge in respect of such shares shall be adjusted accordingly; (k) Each Corporation Share outstanding will be exchanged by the holder thereof, without any further act or formality ~~by such Dissenting Shareholder,~~ and free and clear of all ~~Encumbrances~~liens, claims and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders pursuant to Section 3.02(e)encumbrances, 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~~ one fully paid and non-assessable ~~Spinco~~ Wedge Share, and the name of each such holder of Corporation Shares will be removed from the central securities register of the Corporation for the Corporation Shares and added to the central securities register of Wedge for the Wedge Shares, and Wedge shall be added to the central securities register of the Corporation for the Corporation Shares; (l) All of the authorized and unissued Wedge Shares and Wedge Preference Shares shall be cancelled; (m) The Corporation, now a wholly-owned subsidiary of Wedge, and Wedge shall amalgamate to form one corporation (“~~Distribution Spinco Shares~~Amalco”) ~~equal to~~ with the ~~number~~ same effect as if they had amalgamated under Section 270 of ~~Company Shares issued and outstanding immediately prior to~~ the ~~transfer in this Section 3.02(g) (for the avoidance of doubt~~BCABC, ~~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~~following: (i) the notice of articles of amalgamation and articles of ~~the Company~~ Amalco shall be ~~amended to create a new class~~ substantially in the form of ~~shares without par value~~the notice of articles and articles of Wedge, ~~of which an unlimited number may be issued and which shall be designated~~ taking into account the ~~“Class A Shares” (the “Class A Shares”), which shall have the special rights and restrictions~~ transactions set forth ~~in Schedule “A” to this Plan of Arrangement~~herein; (ii) ~~each Company Share issued and outstanding immediately before~~ the ~~reorganization~~ Corporation Shares held by Wedge shall be cancelled without reimbursement of the ~~Company~~capital represented thereby and the capital of Amalco shall be the same as the capital of Wedge immediately prior to the Amalgamation; (iii) the property, rights and interests of Wedge and the Corporation will be the property, rights and interests of Amalco; (iv) Amalco shall be liable for the obligations of Wedge and the Corporation; (v) any existing cause of action, claim or liability to prosecution of Wedge or the Corporation shall be unaffected; (vi) any legal proceeding being prosecuted or pending by or against either Wedge or the Corporation may be prosecuted, or its prosecution may be continued, as the case may be, by or against Amalco; (vii) a conviction against, or ruling, order or judgment in favour or against either Wedge or the Corporation may be enforced by or against Amalco; (viii) Amalco’s ~~share capital~~ name shall be Undur Tolgoi Minerals Inc.; (ix) the board of directors of Amalco shall consist of the following persons: Name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ (x) the officers of Amalco shall consist of the following persons: Name Title ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ President and Chief Executive Officer ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Chief Financial Officer and Secretary (xi) the first auditors of Amalco shall be ▇▇▇▇▇ & Young LLP, who shall hold office until he first annual meeting of Amalco following the amalgamation or until their successors are elected or appointed, and for the purposes of Section 220 of the BCABC, the provisions of this section shall constitute the amalgamation agreement between Wedge and the Corporation. 2.2.2 Any transfer of securities pursuant to this ~~Section 3.02(h) (including, without limitation, the Company Shares issued to former holders~~ Plan 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))~~ Arrangement shall be ~~exchanged with the Company,~~ free and clear of any ~~Encumbrances~~liens, ~~for one Class A Share and one Distribution Spinco Share~~claims, ~~and upon such exchange: (A) each such exchanged Company Share shall be cancelled~~encumbrances, 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)charges, 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 Spinco Share Consolidation shall be cancelled without payment adverse interests or compensation therefor, and upon such Spinco Share Consolidation the register of holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Shsecurity interests.

Appears in 1 contract

Sources: Arrangement Agreement

Arrangement. At 3.1 On the Effective ~~Time~~Date, ~~unless otherwise specifically provided in this Section 3.02~~subject to the provisions of Article 5 hereof, the following ~~events or transactions shall~~ will occur and ~~shall~~ will be deemed to occur ~~sequentially~~ in the ~~following~~ order and at the times set out below without any further authorization, 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 each Target RSU outstanding immediately prior to the ~~acquisition~~ Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the ~~Class A~~ Target RSU Plan and shall, without any further action by or on behalf of the Target RSU Holder thereof, be deemed to have been settled and fully extinguished by the Target issuing to such Target RSU Holder the number of Target Shares the Target RSU Holder is entitled to under each Target RSU. The Target Shares will be issued to such Target RSU Holder as fully paid and non-assessable shares in the capital of Target; provided that no share certificates shall be issued with respect to such shares; (i) each Target RSU Holder shall cease to be a holder of such Target RSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by ~~Acquireco~~ Target, (iii) the Target RSU Plan and all agreements relating to the Target RSUs shall be terminated and shall be of no further force and effect, and (iv) each Target RSU Holder will thereafter have only the right to receive the consideration to which they are entitled pursuant to Section ~~3.02(k),~~ 3.1(a) at the time and in ~~connection with such share subscription~~the manner specified in Section 3.1(a); (c) immediately thereafter, each issued Target Share outstanding immediately prior to the Effective Time and held by a Target 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 Purchaser, free and clear of any liens, claims and encumbrances, and: (i) such Target Shareholder will cease to be the registered holder of such Dissenting Shares and will cease to have any rights as registered holders of such Target Shares other than the right to be paid fair value for such Dissenting Shares as set out in Article 5; (ii) such Target Shareholder’s name will be removed as the registered holder of such Dissenting Shares from the registers of Target Shares maintained by or on behalf of Target; and (iii) Purchaser will be deemed to be the transferee of such Dissenting Shares, free and clear of any liens, claims and encumbrances, and will be entered in the registers of Target Shares maintained by or on behalf of Target; and (d) immediately thereafter, each issued and outstanding Target Share (other than any Target Share in respect of which the Target Shareholder has validly exercised Dissent Rights) will be transferred to, and acquired by Purchaser, without any act or formality on the part of the holder of such Target Share or Purchaser, free and clear of all liens, claims and encumbrances, in exchange for 0.0831 of a Parent Share, provided that the aggregate number of Parent Shares payable to any Target Shareholder, if calculated to include a fraction of a Parent Share, will be rounded down to the nearest whole Parent Share, with no consideration being paid for the fractional share, and: (i) the registered holders of such Target Shares shall cease to be the registered holders thereof and to have any rights as holders of such Target Shares other than the right to receive the Consideration from the Purchaser in accordance with this Plan of Arrangement; (ii) such holders’ names shall be removed from the register of the Target Shares maintained by or on behalf of the Target; (iii) the Purchaser shall be deemed to ~~have directed~~ be the ~~Depositary to hold,~~ transferee and the ~~Depositary~~ legal and beneficial holder of such Target Shares (free and clear of all Liens) and shall ~~hold,~~ be entered as the ~~cash and certificates representing~~ registered holder of such Target Shares in the ~~Purchaser~~ register of the Target Shares ~~delivered~~ maintained 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~~ or on behalf of ~~Acquireco, in satisfaction of~~ the ~~subscription price payable by the Purchaser for such Acquireco Common Shares~~Target; and (iv) the Purchaser shall cause to be issued and delivered the Consideration issuable and deliverable to such Target Shareholder (other than Dissenting Target Shareholders) and such Target Shareholder’s name shall be added to the applicable register of holders of Parent Shares maintained by or on behalf of the Parent in respect of such Parent Shares; (e) immediately thereafter (the “Option Exchange Time”), each Target Option that is outstanding immediately prior to the Effective Time (whether vested or unvested) will be exchanged for an option (a “Replacement Option”) to purchase from Parent such number of Parent Shares, in each case equal to (A) that number of Target Shares that were issuable upon exercise of such Target Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number of Parent Shares at an exercise price per Parent Share equal to the quotient determined by dividing: (X) the exercise price per Target Share at which such Target 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 the term to expiry, vesting, conditions to and manner of exercising, will be the same as the Target Option for which it was exchanged except that, notwithstanding the foregoing, (i) if a Replacement Option holder (other than ▇▇▇▇▇ Lematire, ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇) ceases to be an “Eligible Participant” (as defined in the Parent Stock Option Plan) for any reason other than Disability (as defined in the Parent Stock Option Plan) or death, the vested Replacement Options held by such holder at the date of such cessation may be exercised, in whole or in part, by such holder up to the earlier of (A) three months after the cessation date and (B) the expiry date specified in the stock option certificate in respect of the Target Option for which such holder’s Replacement Option was exchanged, and (ii) ~~Acquireco~~ if any of ▇▇▇▇▇ Lematire, ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇ ceases to be an “Eligible Participant” (as defined in the Parent Stock Option Plan) for any reason other than Disability (as defined in the Parent Stock Option Plan) or death, the vested Replacement Options held by such holder at the date of such cessation may be exercised, in whole or in part, by such holder up to the earlier of (i) one year after the cessation date and (ii) the expiry date specified in the stock option certificate in respect of the Target Option for which such holder’s Replacement Option was exchanged, and the Replacement Options shall otherwise be subject to the terms and conditions of the Parent Stock Option Plan in effect at the applicable time but only to the extent that such terms and conditions of the Parent Stock Option Plan would not (i) prevent any Parent Share sold or issued under a Replacement Option from being a “prescribed share” at the time of its sale or issue within the meaning of section 6204 of the regulations to the Tax Act or (ii) prevent the Parent Stock Option Plan from being an agreement to sell or issue securities within the meaning of section 7 of the Tax Act in respect of a Replacement Option; and further, notwithstanding the foregoing, in the case of Target 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). It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of each Target Option for a Replacement option under this Section 3.1(e), therefore, notwithstanding the foregoing, in the event that: (I) the excess of the aggregate fair market value of the Parent Shares subject to a Replacement Option, determined immediately after the Option Exchange Time, over the aggregate option exercise price for such Parent Shares pursuant to such Replacement Option (such excess referred to as the “Replacement Option In the Money Amount”) would otherwise exceed (II) the excess of the aggregate fair market value of the Target Shares subject to the Target Option in exchange for which the Replacement Option was granted, determined immediately prior to the Option Exchange Time, over the aggregate option exercise price for the Target Shares pursuant to such Target Option (such excess referred to as the “Target Option In the Money Amount”), the option exercise price for Parent Shares subject to the Replacement Option shall be adjusted with effect at and from the Option Exchange Time so that the Replacement Option In the Money Amount of the Replacement Option does not exceed the Target Option In the Money Amount of the Target Option in accordance with subsection 7(1.4) of the Tax Act and to the extent applicable, Section 409A of the Code, 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 and Section 409A of the Code) adversely affect the holder of the Replacement Option; (f) In consideration for the issuance of Parent Shares by Parent to Target Shareholders pursuant to Section 3.1(d), Purchaser shall issue to Parent such number of Purchaser Shares equal to the number of Target Shares outstanding immediately prior to the Effective Time less the number of Dissenting Shares, if any, and upon the issuance of such Purchaser Shares in accordance with this Section 3.1(f), Purchaser shall be deemed to have issued such fully paid and non-assessable ~~Acquireco Common~~ Purchaser Shares to ~~the Purchaser~~Parent, and the stated capital account maintained by ~~Acquireco~~ Purchaser in respect of ~~the Acquireco Common~~ such Purchaser Shares shall be ~~increased, in respect of the Acquireco Common Shares issued pursuant to this Section 3.02(a),~~ increased by an amount equal to the Canadian dollar equivalent of the fair market value of the ~~Purchaser Consideration; (b) notwithstanding any vesting or exercise provisions~~ Parent Shares issued by Parent 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 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Target 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(e3.1(d); (g) the ~~Company~~ stated capital of the Target Shares shall ~~transfer all~~ be reduced to $1.00 without any repayment 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 capital in respect ~~of which Dissenting Shareholders have exercised Dissent Rights), all in accordance with the terms of the Spinco Contribution Agreement~~thereof; (h) in the ~~course of a reorganization~~ Target and the Purchaser shall amalgamate pursuant to section 182 of the ~~Company’s authorized~~ CBCA and ~~issued share capital~~continued as one corporation to form Amalco in accordance with the following: (i) ~~the notice~~ Name. The name of ~~articles and articles of the Company~~ Amalco 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~~UEX Corporation”~~), 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Arrangement Agreement (Uranium Energy Corp)

Arrangement. 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 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 immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such In-~~the-~~ 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 pursuant 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Arrangement Agreement (Hecla Mining Co/De/)

Arrangement. At Commencing 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 ~~order~~ sequence 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~~ an Option might otherwise be subject (whether by contract, the ~~terms and~~ conditions of ~~any Award Agreement or~~ a grant, applicable Laws or 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~~ right to acquire a Company Common Share pursuant to an Option that is issued and outstanding ~~immediately prior to~~ at 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 of by the holder thereof to ~~the Company~~ CanCo 1 (free and clear of all ~~Encumbrances~~liens, claims and encumbrances) and cancelled in exchange ~~for~~ for, subject to Section 3.4, (A) the delivery by Amalco (as successor to CanCo 1’s obligations and liabilities) of the portion of the Option ~~Consideration~~Consideration in respect of that right consisting of Therapeutics Common Shares pursuant to Section 3.1(l)(iii), and (B) the ~~holder~~ payment by IrishCo on behalf of ~~such In-the-Money Option shall become the holder~~ CanCo 1 of the ~~Company Shares comprising such~~ portion of the Option Consideration ~~and the central securities register~~ in respect of ~~the Company shall be revised accordingly, but the holder~~ that right consisting of ~~such Option Consideration shall not be entitled to receive a share certificate or other document representing the Option Consideration;~~IrishCo Shares; and (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~~ such Option~~: (A)~~ , the holder thereof ~~shall~~ will cease to be the holder of such ~~Company~~ Option, ~~and shall~~ will cease to have any rights as a holder in respect of such ~~Company~~ Option or under the ~~applicable Company~~ Stock Option Plan~~, (B)~~ , such holder’s name ~~shall~~ will be removed from the register of ~~Company~~ Options, ~~and (C)~~ and 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; (b) 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 Common 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 a cash amount equal to 25% of the aggregate number of shares purchased on behalf of that Participant under the Company Share Purchase Plan with the CSPP Participant’s contributions in respect of each of the 8 fiscal quarters ending immediately prior to the Effective Time (but excluding any Company Common Shares purchased with CSPP Participant’s contributions after November 5, 2013 that exceeded his or her rate of contribution before that date), multiplied by the Company Common Share Closing Price; 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; (c) 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; (d) ~~the~~ each outstanding Company ~~Option Plans~~ Common Share (other than those held by a Qualifying Holdco) shall be ~~terminated~~transferred and assigned to CanCo 1 in exchange for, subject to Section 3.4, (A) the payment by IrishCo on behalf of CanCo 1 of the Arrangement Cash Consideration; (B) the delivery by IrishCo on behalf of CanCo 1 of the Arrangement Stock Consideration; and (C) the delivery by Amalco (as successor to CanCo 1’s obligations and liabilities) of the Arrangement Therapeutics Consideration pursuant to Section 3.1(l)(i), 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 Company Shareholders as of the Effective Time; and (ii) CanCo 1 shall be recorded as the registered holder of such Company Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others); (e) all of the outstanding Qualifying Holdco Shares of each ~~Company~~ Qualifying Holdco shall be transferred and assigned to CanCo 1 in exchange for, subject to Section 3.4, (A) the payment by IrishCo on behalf of CanCo 1 of the Qualifying Holdco Cash Consideration in respect of each such Qualifying Holdco; (B) the delivery by IrishCo on behalf of CanCo 1 of the Qualifying Holdco Stock Consideration in respect of each such Qualifying Holdco, and (C) the delivery by Amalco (as successor to CanCo 1’s obligations and liabilities) of the Qualifying Holdco Therapeutics Consideration pursuant to Section 3.1(l)(ii), in respect of each such Qualifying Holdco, and in respect of each Qualifying Holdco Share ~~held by a Dissenting Shareholder~~ so transferred and assigned, (i) the registered holder thereof shall ~~be,~~ cease to be the registered holder of such Qualifying Holdco Share and the name of such registered holder shall be removed from the register of Qualifying Holdco Shareholders as of the Effective Time; and (ii) CanCo 1 shall be recorded as the registered holder of such Qualifying Holdco Share and shall be deemed to ~~be, surrendered to~~ be the ~~Company by the holder thereof, without any further act or formality by such Dissenting Shareholder,~~ legal and beneficial owner thereof (free and clear of all ~~Encumbrances~~liens, charges, encumbrances and ~~each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have~~ any other rights ~~as a holder~~ of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Sharesothers); (f) ~~concurrently with~~ in consideration for (A) IrishCo delivering, on behalf of CanCo 1, the ~~surrender~~ Arrangement Stock Consideration and ~~cancellation of Company Shares held by Dissenting~~ the Qualifying Holdco Stock Consideration directly to the Selling Shareholders pursuant to Section ~~3.02(e~~3.1(d) and Section 3.1(e), (B) IrishCo delivering on behalf of CanCo 1 the ~~stated capital account maintained by~~ Option Consideration consisting of IrishCo Shares directly to the ~~Company in respect of the Company Shares shall be reduced, in respect of the Company Shares cancelled~~ Optionholders pursuant to Section ~~3.02(e~~3.1(a), ~~by an amount equal~~ and (C) IrishCo paying, on behalf of CanCo 1, the Arrangement Cash Consideration and the Qualifying Holdco Cash Consideration 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 Selling Shareholders pursuant to Section ~~3.02(e~~3.1(d) and Section 3.1(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 [—] CanCo 1 Common Shares (the “~~Distribution Spinco~~ IrishCo CanCo 1 Common Shares”) ~~equal~~ shall be issued 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~~IrishCo, ~~excluding any Company Shares~~ and, in respect ~~of which Dissenting Shareholders have exercised Dissent Rights)~~thereof, 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 CanCo 1 for CanCo 1 Common Shares an amount equal to the Total Company Common Share Consideration; (g) each IrishCo CanCo 1 Common Share acquired pursuant to Section 3.1(f) shall be contributed by IrishCo to the capital of Interco and, in respect of each IrishCo CanCo 1 Common Share so contributed, IrishCo shall cease to be the ~~Class A Shares~~registered holder thereof and IrishCo’s name shall be removed from the register of shareholders of CanCo 1, and Interco shall be recorded as the registered holder of such IrishCo CanCo 1 Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others); (h) each outstanding CanCo 1 Common Share shall be transferred and assigned to CanCo 2 in exchange for (i) [—] CanCo 2 Common Shares and (ii) the payment by CanCo 2 of $[—] in cash (the “CanCo 2 Payment”), and (A) in respect of each CanCo 1 Common Share so transferred and assigned, Interco shall cease to be the registered holder thereof and Interco’s name shall be removed from the register of shareholders of CanCo 1, and CanCo 2 shall be recorded as the registered holder of such CanCo 1 Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others) and (B) there shall be added to the stated capital account maintained by CanCo 2 for CanCo 2 Common Shares an amount equal to the CanCo 2 Common Share Consideration, in respect of the ~~Class A~~ CanCo 2 Common 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~~ Interco 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~~3.1(h); (i) the ~~Initial Spinco~~ Company shall transfer one IrishCo Euro Share ~~held by~~ to Euro Purchaser, in exchange for €1, and in respect of such IrishCo Euro Share so delivered, the Company shall cease to be ~~cancelled without any repayment thereon,~~ the registered holder thereof and the ~~Company~~ Company’s name shall be removed from the ~~Spinco~~ register of ~~holders~~ shareholders of ~~Spinco Shares~~IrishCo, and the name of Euro Purchaser shall be recorded as the registered holder of such IrishCo Euro Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others); (j) ~~all~~ the Company shall file an election with the Canada Revenue Agency, to be effective prior to the amalgamation described in Section 3.1(k) below, to cease to be a public corporation for the purposes 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 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 amended to reflect the Spinco Share ConsolidationTax Act; (k) CanCo 1, CanCo 2, each ~~Participating Former Securityholder receiving Class A Shares pursuant~~ Qualifying Holdco and the Company shall amalgamate to form Amalco, as more fully described in Section ~~3.02(h)(ii~~3.2; and (l) ~~who~~concurrently: (i) ~~duly~~ Amalco (as successor to CanCo 1’s obligations and ~~validly completes~~ liabilities) shall deliver and ~~delivers~~ each Former Company Common Shareholder shall acquire the ~~applicable Election Form(s) in accordance with Section 3.03~~ Arrangement Therapeutics Consideration, and ~~Section 3.04 electing to receive the Combination Consideration~~ in respect of ~~all~~ each Therapeutics Common Share so delivered, Amalco shall cease to be the registered holder thereof and Amalco’s name shall be removed from the register of shareholders of Therapeutics, and the name of such ~~Participating~~ Former ~~Securityholder’s~~ Company ~~Shares~~Common Shareholder shall be recorded as the registered holder of such Therapeutics Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others); (ii) ~~has not completed~~ Amalco (as successor to CanCo 1’s obligations and ~~delivered~~ liabilities) shall deliver and each Former Qualifying Holdco Shareholder shall acquire 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 Consideration is~~ Qualifying Holdco Therapeutics Consideration, and in respect of ~~all~~ each Therapeutics Common Share so delivered, Amalco shall cease to be the registered holder thereof and Amalco’s name shall be removed from the register of shareholders of Therapeutics, and the name of such ~~Participating~~ Former ~~Securityholder’s Company Shares; or (iii) exercises Dissent Rights and is ultimately not entitled, for any reason, to~~ Qualifying Holdco Shareholder shall be ~~paid fair value for its Company Shares, shall transfer,~~ recorded as the registered holder of such Therapeutics Common Share and shall be deemed to ~~have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder,~~ be the legal and beneficial owner thereof (free and clear of all ~~Encumbrances~~liens, charges, encumbrances and any other rights of others); (iii) Amalco (as successor to CanCo 1’s obligations and liabilities) shall deliver and each ~~Class A Share held by such Participating~~ Former ~~Securityholder immediately prior to~~ Optionholder shall acquire the ~~exchange in this Section 3.02(k) in exchange for~~ portion of the ~~Combination~~ Option Consideration ~~Cash and the Combination Consideration Purchaser~~ consisting of Therapeutics Common Shares, and ~~upon such exchange: (iv)~~ in respect of each ~~such Participating Former Securityholder~~ Therapeutics Common Share so delivered, Amalco shall cease to be the registered holder thereof and Amalco’s name shall be removed from the ~~Company’s securities~~ register of ~~holders~~ shareholders of ~~Class A Shares, (v) Acquireco~~ Therapeutics, and the name of each Former Optionholder shall be ~~entered in~~ recorded as the ~~Company’s securities register~~ registered holder of ~~holders of Class A Shares as~~ such Therapeutics Common Share and shall be deemed to be the legal and beneficial owner ~~of such Class A Shares, free of all Encumbrances; and~~ thereof (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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all ~~Encumbrances~~liens, ~~each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case~~ charges, encumbrances and any other rights of ~~a Participating Former Securityholder validly electing to receive the Cash Consideration, the Cash Consideration, subject to the provisions of Section 3.02(m~~others); 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (iv) ~~Acquireco~~ unless Therapeutics determines otherwise, Therapeutics shall file an election with the Canada Revenue Agency to be ~~entered in~~ a public corporation for 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, 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 purposes of the ~~Purchaser Shares~~Tax Act, ~~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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 election to be effective ~~immediately following~~ concurrently with the ~~transfers~~ acquisition of the ~~Class A~~ Therapeutics Common Shares ~~to Acquireco~~ pursuant to this Section ~~3.02(k) and Section 3.02(l~~3.1(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh.

Appears in 1 contract

Sources: Arrangement Agreement (Endo Health Solutions Inc.)

Arrangement. At 3.1 Upon the filing of the Articles of Arrangement and the issue of the Certificate, this Plan of Arrangement will become effective at the Effective ~~Time~~Time and will be binding on and after the Effective Time on: (i) all legal and beneficial Golden Share Shareholders, ~~unless otherwise specifically provided in this Section 3.02~~(ii) Golden Share, and (iii) Spinco. 3.2 The Arrangement involves the following ~~events or transactions shall~~ steps that will occur and ~~shall~~ will be deemed to occur ~~sequentially~~ sequentially, in five minute increments, unless otherwise noted, starting at the ~~following order~~ Effective Time without any further act or formality: (a) the ~~Purchaser shall subscribe for~~ Golden Share Shares held by Dissenting Shareholders who have properly exercised Dissent Rights 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 remain valid immediately prior to the Effective Time shall, ~~without any further action by or on behalf~~ as of ~~any holder of such In-the- Money Option~~the Effective Time, be deemed to ~~be fully vested and shall be~~ have been transferred ~~and disposed by the holder thereof~~ to ~~the Company (~~Golden Share free and clear of all ~~Encumbrances)~~ liens, claims and 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 outstanding, and, as of the ~~holder of~~ Effective Time, such ~~Company Option, and~~ Dissenting Shareholders shall cease to have any rights as ~~a holder in respect of such Company Option under~~ Golden Share Shareholders, other than 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 right to be ~~fully vested and shall be transferred and disposed by~~ paid the ~~holder thereof to the Company (free and clear~~ fair value 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 their Golden Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (fb) ~~concurrently with the surrender~~ Golden Share shall transfer, assign and ~~cancellation of Company Shares held by Dissenting Shareholders pursuant~~ convey to ~~Section 3.02(e), the stated capital account maintained by the Company in respect~~ Spinco and Spinco shall accept and assume all 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 rightrights, title and interest of Golden Share in and to the ~~Spinco Property to Spinco~~ Spin-off Assets in consideration for the issuance by Spinco ~~to the Company~~ of ~~that number of~~ 3,850,134 fully paid and non-assessable Spinco Shares (the “~~Distribution~~ Arrangement Spinco Shares”) or such number as is equal to the 10% of the number of ~~Company~~ Golden Share Shares issued and outstanding immediately prior to the ~~transfer in this Section 3.02(g)~~ Effective Time (~~for the avoidance of doubt,~~ excluding any ~~Company~~ Golden Share Shares held by Dissenting Shareholders); (c) the authorized share structure of Golden Share shall be deemed to be altered by: (i) renaming and re-designating all of the issued and unissued Golden Share Shares as “Class A common shares without par value” and amending the special rights and restrictions attached to those shares to provide the holders thereof with two votes in respect of ~~which Dissenting Shareholders have exercised Dissent Rights)~~each share held, ~~all in accordance with~~ being the ~~terms of the Spinco Contribution Agreement~~“Golden Share Class A Shares”; (hii) creating a new class consisting of an unlimited number of “common shares without par value” with terms and special rights and restrictions identical to those of the Golden Share Shares immediately prior to the Effective Time, being the “New Golden Share Shares”; and (iii) the Articles of Golden Share shall be amended to reflect the alterations in Section 3.2(c)(i) and (ii); (d) in the course of a reorganization of Golden Share’s capital within the ~~Company’s authorized~~ meaning of section 86 of the Tax Act, the Golden Share Class A Shares (excluding any Golden Share Class A Shares held by Dissenting Shareholders) will be deemed to be exchanged by the Golden Share Shareholders (free and ~~issued share capital~~clear of all liens, claims and encumbrances) as follows: (i) for each Golden Share Class A Share, one New Golden Share Share; and (ii) for each 10 Golden Share Class A Shares, one Spinco Share (if the foregoing calculation would otherwise result in a Golden Share Shareholder receiving a fraction of a Spinco Share, the number of Spinco Shares received by such Golden Share Shareholder shall be rounded down to the nearest whole Spinco Share); (e) simultaneously: (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 aggregate amount ~~equal~~ added to the stated capital of the ~~Company~~ New Golden Share Shares will be equal to (a) aggregate paid-up capital (as that term is used for purposes of the Tax Act) of the Golden Share Class A Shares (excluding Golden Share Shares held by Dissenting Shareholders) 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~~ exchange effected pursuant to Section ~~3.02(h)(ii~~3.2(d), ~~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~~less(b) the fair market value of the ~~Distribution~~ Spinco Shares ~~transferred to the former holders of Company Shares~~ distributed pursuant to Section ~~3.02(h)(ii)~~3.2(d) at the time of distribution; (iii) the ~~Initial Spinco~~ Golden Share ~~held by~~ Class A Shares, none of which will be issued or outstanding once the ~~Company shall~~ exchange in Section 3.2(d) is completed, will be cancelled ~~without any repayment thereon,~~ with the appropriate entries being made in the central securities register of Golden Share and the ~~Company shall~~ authorized share structure of Golden Share will be ~~removed from~~ amended by eliminating the ~~Spinco register of holders of Spinco~~ Golden Share Class A Shares;; and (jiii) ~~all~~ the Articles of ~~the issued and outstanding Spinco Shares shall be consolidated (the “Spinco~~ Golden 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 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 amended to reflect the ~~Spinco Share Consolidation~~alterations in Section 3.2(e)(i) and (ii); (kf) ~~each Participating Former Securityholder receiving Class A~~ the Financing shall close and a number of Spinco Shares ~~pursuant to Section 3.02(h)(ii~~(the “Financing Spinco Shares”) 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior issued to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered subscribers therefor as set forth in the ~~Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrances~~Financing subscriptions; and (vig) ~~each such Participating Former Securityholder shall, subject to~~ any Spinco Shares still held by Golden Share following the ~~provisions of Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect~~ completion of the ~~Purchaser~~ foregoing steps would be redeemed for a price of US$1.00 each and cancelled. 3.3 Each of Golden Share, Spinco and the Transfer Agent shall be entitled to deduct and withhold from any cash payment or any issue, transfer or distribution of New Golden Share Shares ~~payable to such Participating Former Securityholder~~ or Spinco Shares, made pursuant to this ~~Section 3.02(k); (l) each Participating Former Securityholder receiving Class A Shares~~ Plan of Arrangement such amounts as may be required to be deducted and withheld pursuant to ~~Section 3.02(h)(ii) who duly and validly completes and delivers~~ the Tax Act or any other applicable 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 transferlaw, and ~~shall~~ any amount so deducted and withheld will be deemed for all purposes of this Plan of Arrangement to ~~have transferred~~be paid, ~~to Acquireco~~issued, ~~without any further act~~ transferred or ~~formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior~~ distributed to the ~~exchange in this Section 3.02(l) in exchange for: (i) in~~ person entitled thereto under the ~~case~~ Plan of ~~a Participating Former Securityholder validly electing to receive~~ Arrangement. Without limiting 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 generality of the ~~Purchaser Shares~~foregoing, ~~if any, payable to such Participating Former Securityholder; (m) in~~ any New Golden Share Shares or Spinco Shares so deducted and withheld may be sold on behalf of 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 person entitled to receive them for the ~~Cash Consideration for that portion~~ purpose of ~~their Class A Shares equal~~ generating cash proceeds, net of brokerage fees and other reasonable expenses, sufficient to ~~a fraction, rounded~~ satisfy all remittance obligations relating 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)~~required deduction and withholding, and ~~the denominator of which is the Aggregate Elected Cash; and (ii) be entitled to receive the Purchaser Share Consideration for the~~ any cash remaining ~~portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the Purchaser Share Consideration for any fractional Class A Share included in~~ after such remaining portion); (n) in the event that (A) the sum of (I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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, remittance shall be deemed to be effective immediately following the transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior paid to the ~~Effective Time shall be cancelled in exchange for a cash payment by the Company to the holder of such Company DSU equal to the Company Sh~~person forthwith

Appears in 1 contract

Sources: Arrangement Agreement (Harmony Energy Technologies Corp)

Arrangement. At Commencing on 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 order without any further authorization, act or ~~formality~~formality of or by the Company, Parent or any other Person: (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 Each Class A ~~Shares immediately prior to the acquisition of the~~ Convertible Preferred Share, Class ~~A Shares by Acquireco pursuant to Section 3.02(k)~~B Convertible Preferred Share, Class C Convertible Preferred Share 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 Company 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 immediately prior to the Effective Time ~~shall, without any further action by or on behalf of any holder of such In-the- Money Option,~~ shall be and be deemed to be ~~fully vested and shall be~~ irrevocably transferred ~~and disposed by~~ to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the ~~holder thereof to~~ formula set out on Exhibit A attached hereto. (b) Upon the ~~Company (free and clear~~ transfer of all ~~Encumbrances~~Company Shares to Parent: (i) ~~and cancelled in exchange for the Option Consideration, and the~~ each 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,~~ Shares 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (fii) ~~concurrently~~ legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof; (iii) no fractional shares of Parent Common Stock shall be issued in connection with the ~~surrender~~ Arrangement, and ~~cancellation~~ no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares ~~held by Dissenting Shareholders pursuant~~ who would otherwise be entitled to ~~Section 3.02(e~~receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), ~~the stated capital account maintained~~ without interest, determined by multiplying such fraction by the ~~Company in respect~~ closing price of a share of Parent Common Stock on the ~~Company Shares shall be reduced, in respect of~~ Nasdaq Market on 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~~ last trading day 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)Closing Date; (giv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof; (v) without any action on the part of Parent, the Company ~~shall transfer all~~ or the holders of ~~its entire legal~~ Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and ~~beneficial right, title and interest in and to the Spinco Property to Spinco in consideration for the issuance by Spinco to the~~ unexercised (a “Company ~~of that number of fully paid and non-assessable Spinco Shares (the “Distribution Spinco Shares~~Unexercised Option”) 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 shall be cancelled 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~~Option Plan and, 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the ~~Combination Consideration Cash~~ same terms and conditions (including the ~~Combination Consideration Purchaser Shares,~~ terms and ~~upon~~ conditions of any applicable stock option agreement or other document evidencing such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 SharesOption, if any~~, payable to such Participating Former Securityholder; (m~~) as were 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be ~~cancelled~~ vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in ~~exchange~~ accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for ~~a cash payment~~ which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law; (vi) The Company Option Plan shall be cancelled; and (vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company to (the ~~holder~~ “Warrant”), the Warrant shall be terminated as of ~~such Company DSU equal to~~ the ~~Company Sh~~Closing and shall be of no further force or effect.

Appears in 1 contract

Sources: Acquisition Agreement (Veraz Networks, Inc.)

Arrangement. 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 order without any further act or formality: (a) ~~the Purchaser~~ As soon as reasonably practicable, Avenor shall ~~subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal~~ apply to the ~~quotient obtained when (A) the fair market value~~ Court pursuant to section 192 of the ~~Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00~~CBCA for an order approving the Arrangement and, 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~~application, Avenor shall: (i) file, proceed with and diligently prosecute an application for an Interim Order providing for, among other things, the calling and holding of the Avenor Meeting for the purpose of considering and, if deemed advisable, approving the Arrangement, which meeting shall be held on the same date and at the same time, if practicable, or as near as may be, as the Bowater Meeting; and (ii) subject to obtaining the approvals as contemplated in the Interim Order and as may be directed by the Court in the Interim Order, take all steps necessary or desirable to submit the Arrangement to the Court and apply for the Final Order, and, subject to the fulfilment or waiver of the conditions set forth in Article 6, Avenor shall deliver Articles of Arrangement to the Director and such other documents as may be required to give effect to the Arrangement as soon as reasonably practicable. (b) The Articles of Arrangement shall, with such other matters as are necessary to effect the Arrangement, and all as subject to the provisions of the Plan of Arrangement, provide as follows: (i) the ~~Purchaser~~ authorized share capital of Avenor or the Subsidiary of Bowater, as the case may be, shall be ~~deemed to have directed the Depositary to hold, and the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered~~ increased or modified 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~~ creation 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 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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~~ of Avenor Exchangeable Shares having the rights, privileges, restrictions and ~~which shall be designated~~ conditions described in 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~~ shareholder of Avenor (other than shareholders who validly exercise Dissent Rights and ~~outstanding immediately before~~ who are ultimately entitled to be paid the ~~reorganization~~ fair value of the ~~Company’s share capital pursuant to this Section 3.02(h) (including, without limitation, the Company~~ Avenor Common 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)held by them) shall be ~~exchanged with the Company~~entitled to receive $35 for each Avenor Common Share held, ~~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~~ which shall be ~~cancelled~~payable in cash, Avenor Exchangeable Shares or Bowater Common Shares, or a combination thereof, on the terms and subject to 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~~ limitations and conditions set out in the ~~Company’s register~~ Plan 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 SharesArrangement; 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~~ Bowater shall become the ~~exchange in Section 3.02(h)(ii)~~holder, ~~the stated capital account in respect~~ directly or indirectly, 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~~ Avenor Common Shares ~~shall be consolidated~~ (~~the “Spinco Share Consolidation”) on the basis of one post-consolidation Spinco Share for each eight (8) pre- consolidation Spinco~~ other than those Avenor Common Shares held by a holder of Spinco Shares, and any fractional Spinco Shares resulting from such 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 amended to reflect the Spinco Share Consolidation; (k) each 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 Avenor Common Shareholders who has otherwise failed to make a valid election to receive the Cash Consideration or the Purchaser Share Consideration is respect of all of such Participating Former Securityholder’s Company Shares; or (iii) exercises have exercised Dissent Rights and is ultimately not entitled, for any reason, to be paid fair value for its Company Shares, shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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(kRights); (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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh.

Appears in 1 contract

Sources: Arrangement Agreement (Bowater Inc)

Arrangement. 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 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~~ GEO Option might otherwise be subject (whether by contract, the ~~terms and~~ conditions of ~~any Award Agreement or~~ a grant, applicable law or the terms ~~and conditions~~ of the ~~Company 2013 Share Incentive Plan or Company 2016 Stock~~ GEO Option Plan~~, or applicable law~~): (i) each ~~In-the-Money~~ GEO Option issued and outstanding ~~immediately prior~~ at the time referred to ~~the Effective Time shall~~in this subsection 3.01(a) will, without any further action by or on behalf of any holder of such ~~In-the- Money~~ GEO Option, be deemed to be fully vested and ~~shall be~~ transferred ~~and disposed~~ by the holder thereof to ~~the Company~~ GEO (free and clear of all ~~Encumbrances~~liens, claims and encumbrances of whatsoever nature) 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 less any amounts withheld pursuant to ~~receive a share certificate or other document representing the Option Consideration~~Section 5.03; (ii) with respect to each ~~Out-of-the-Money~~ GEO Option, the holder thereof will cease to be the holder of such GEO Option, will cease to have any rights as a holder in respect of such GEO Option or under the GEO Option Plan, such holder’s name will be removed from the register of GEO Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and (iii) the GEO Option Plan will be terminated; (b) contemporaneously with the steps contemplated in subsection 3.01(a), notwithstanding any exercise provisions to which a GEO Warrant might otherwise be subject (whether by contract, the conditions of a grant, or applicable law): (i) each GEO Warrant issued and outstanding ~~immediately prior~~ at the time referred to ~~the Effective Time shall~~in this subsection 3.01(b) (other than any GEO Warrants held by a Dissenting Warrantholder) will, without any further action by or on behalf of any holder of such ~~Out-of-the-Money Option~~GEO Warrant, be transferred by the holder thereof to GEO (free and clear of all liens, claims and encumbrances of whatsoever nature) and cancelled ~~without~~ in exchange for the Warrant Consideration, less any ~~payment therefor;~~amounts withheld pursuant to Section 5.03; and (~~iii~~ii) with respect to each ~~Company Option: (A)~~ GEO Warrant, the holder thereof ~~shall~~ will cease to be the holder of such ~~Company Option~~GEO Warrant, ~~and shall~~ will cease to have any rights as a holder in respect of such ~~Company Option under the applicable Company Option Plan, (B)~~ GEO Warrant, such holder’s name ~~shall~~ will 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 ConsiderationGEO Warrants, 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~~agreements, grants and similar instruments relating thereto will be cancelled;. (dc) ~~the Company Option Plans~~ all of Spin-out Assets and Liabilities shall be ~~terminated;~~ transferred to Spinco by GEO in exchange for the issuance of a particular number of fully-paid and non- assessable Spinco Shares to GEO such that immediately after the foregoing issuance GEO shall hold in aggregate (e) each Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares; (f) concurrently together with the ~~surrender and cancellation of Company~~ Spinco 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),~~ foregoing issuance) that number of Spinco Shares that is ~~multiplied by~~ equal to one fifteenth (B1/15th) ~~a fraction, the numerator~~ of ~~which is~~ the number of ~~Company~~ GEO Common 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~~ are issued and outstanding immediately prior to the ~~transfer~~ Effective Time (adjusted as provided in ~~this~~ Section ~~3.02(g~~3.03 below) ~~(for~~ less the ~~avoidance~~ number of ~~doubt, excluding any Company~~ GEO Shares ~~in respect of which~~ held by Dissenting ~~Shareholders have exercised Dissent Rights), all in accordance with the terms of the Spinco Contribution Agreement~~Shareholders; (hd) NEW GOLD shall loan to GEO an amount equal to the U.S. Tax Code Withholding, to be evidenced by a promissory note repayable on demand; (e) GEO shall make a capital contribution to Spinco in an amount equal to the ~~course~~ U.S. Tax Code Withholding, which Spinco shall use to satisfy the U.S. Tax Code Withholding; (f) NEW GOLD shall subscribe for that number of Spinco Shares that will result in NEW GOLD holding 13% of the issued and outstanding Spinco Shares for a total of $250,000 in cash; (g) GEO shall undertake a reorganization of capital within the ~~Company’s authorized~~ meaning of section 86 of the Tax Act as follows, and ~~issued share capital~~in the following order: ~~(i) the notice~~ i. The authorized capital of ~~articles and articles of the Company~~ GEO shall be amended ~~to create~~ by: A. re-designating the GEO Common Shares as Class B Shares and each certificate representing such an outstanding GEO Common Share shall, as and from the time such re- designation is effective, represent a ~~new class~~ Class B Share; and B. the creation of ~~shares without par value, of which~~ an unlimited number ~~may be issued and which shall be designated the “~~of Class A Shares~~” (~~; and the ~~“Class A Shares”), which~~ articles of GEO shall ~~have the special rights and restrictions set forth in Schedule “A”~~ be deemed to ~~this Plan of Arrangement~~be amended accordingly; (ii~~) each Company Share~~ . Each issued ~~and outstanding immediately before the reorganization of the Company’s share capital pursuant to this Section 3.02(h) (including~~Class B Share, ~~without limitation~~other than those held by Dissenting GEO Shareholders, 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,~~ GEO for one Class A Share and one ~~Distribution~~ fifteenth (1/15th) of a Spinco Share~~, and upon such exchange:~~; ~~(A) each such exchanged Company Share shall be cancelled, and~~ iii. The capital of GEO for the ~~holders of such exchanged Company~~ outstanding Class A 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~~ paid up capital (within the meaning of the ~~Company~~ Tax Act) of the GEO Class B Shares, less the paid up capital (within the meaning of the Tax Act) of the GEO Class B Shares ~~immediately prior~~ that is attributable to ~~the reorganization~~ each issued Class B Share held by Dissenting GEO Shareholders and described in ~~Section 3.02(h)~~paragraph 3(h) hereof, 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) less the fair market value of the ~~Distribution~~ Spinco Shares ~~transferred~~ distributed to ~~the former holders of Company Shares pursuant to Section 3.02(h)(ii);~~GEO Shareholders. (ih) the ~~Initial Spinco Share held by the Company~~ following steps 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 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 amended to reflect the Spinco Share Consolidation; (k) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) whoeffected contemporaneously: (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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company Sh

Appears in 1 contract

Sources: Business Combination Agreement

Arrangement. 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 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 immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such In-~~the-~~ 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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-~~ pre-consolidation Spinco Shares held by a holder of Spinco Shares, and any fractional Spinco Shares resulting from such 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShShar

Appears in 1 contract

Sources: Amending Agreement (Hecla Mining Co/De/)

Arrangement. At Commencing at the Effective Time, ~~unless~~ except as otherwise ~~specifically provided in this Section 3.02~~noted, each of the ~~following events or transactions~~ steps set out below shall occur ~~and shall be deemed to occur sequentially~~ in the following order without any further act or formality, with each step occurring two minutes after the completion of the immediately preceding step: (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~~ The articles 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 Company 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 subscriptionamended: (i) to create and authorize 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~~ issuance (in addition to the ~~Depositary in accordance with Section 3.05(a)(i~~shares that the Company is authorized to issue immediately before such amendment) ~~(such cash and Purchaser Shares, collectively, the “Purchaser Consideration”) for and on behalf of Acquireco, in satisfaction~~ of the ~~subscription price payable by~~ following: (A) an unlimited number of class A.1 exchangeable shares having the ~~Purchaser for such Acquireco Common Shares~~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) ~~Acquireco shall be deemed~~ to ~~have issued such fully paid~~ alter the special rights, privileges and ~~non-assessable Acquireco Common Shares to the Purchaser, and the stated capital account maintained by Acquireco in respect~~ restrictions of the ~~Acquireco Common Shares shall be increased,~~ class B shares to replace the voting rights therein with the voting rights set out in ~~respect of the Acquireco Common Shares issued pursuant~~ Exhibit II to this ~~Section 3.02(a), by an amount equal to the fair market value~~ Plan of ~~the Purchaser Consideration;~~Arrangement. (b) ~~notwithstanding any vesting~~ Each exchangeable share held by a Dissenting Shareholder in respect of which the Dissenting Shareholder has validly exercised his, her or ~~exercise provisions to which a Company Option might otherwise be subject (whether by contract, the terms~~ its Dissent Rights 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~~has not withdrawn, or ~~applicable law): (i) each In-the-Money Option issued~~ been deemed to have withdrawn, such exercise of Dissent Rights, shall be transferred and ~~outstanding immediately prior to the Effective Time shall~~assigned by such Dissenting Shareholder, without any further ~~action by~~ act or formality on ~~behalf of any holder of such In-the- Money Option~~his, ~~be deemed to be fully vested and shall be transferred and disposed by the holder thereof~~ her or its part, to the Company (free and clear of ~~all~~ any Encumbrances) in accordance with, and ~~cancelled in exchange~~ for the ~~Option Consideration~~consideration set forth in, 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;Section 4.1. (iic) 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 With respect to each ~~Company Option:~~exchangeable share transferred and assigned in accordance with Section 3.1(b): (Ai) the ~~holder thereof~~ Dissenting Shareholder shall cease to be the registered 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 exchangeable 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the ~~securities~~ register of holders of exchangeable shares of the Company ~~Shares~~as of the Effective Time; (fii) ~~concurrently with~~ the ~~surrender~~ Dissenting Shareholder shall be deemed to have executed and ~~cancellation of~~ 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 ~~Shares~~ 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 pursuant~~ Shareholders) will be transferred to ~~Section 3.02(e),~~ the New Corporation in exchange for one (1) New Exchangeable Share. The aggregate amount to be added by the New Corporation to the stated capital ~~account maintained by the Company in respect~~ of the ~~Company~~ New Exchangeable Shares ~~shall~~ so issued will be ~~reduced, in respect of the Company Shares cancelled pursuant to Section 3.02(e), by~~ an amount equal to the ~~product obtained when~~ aggregate stated capital of the exchangeable shares so transferred immediately prior to the Effective Time. (Ae) 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 ~~all~~ the class A.1 exchangeable shares so issued ~~and outstanding Company Shares~~ will be an amount equal to the aggregate stated capital of the exchangeable shares so transferred immediately prior to the ~~step~~ 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 ~~Section 3.02(e), is multiplied by~~ exchange for one (B1) ~~a fraction,~~ class A.2 exchangeable share of the ~~numerator of which is the number of Company Shares surrendered and cancelled pursuant to Section 3.02(e)~~Company, and such exchangeable shares will be cancelled. The aggregate amount to be added by the ~~denominator~~ Company to the stated capital of ~~which is~~ the ~~number~~ class A.2 exchangeable shares so issued will be an amount equal to the aggregate stated capital of ~~issued and outstanding Company Shares~~ the exchangeable shares so transferred immediately prior to the ~~step in Section 3.02(e); (g)~~ Effective Time and such amount will be deducted from 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 stated capital of the ~~Spinco Contribution Agreement;~~exchangeable shares. (h) Canada HoldCo will transfer one (1) class B share to the New Corporation 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, exchange for one (1) New Class ~~A Share and one Distribution Spinco~~ B Share~~, and upon such exchange: (A) each such exchanged Company Share shall~~ . The aggregate amount to 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 added by the ~~Company; (iii) concurrently with the exchange in Section 3.02(h)(ii),~~ New Corporation to the stated capital ~~account in respect~~ of the ~~Company Shares shall~~ New Class B Share so issued will be ~~reduced by~~ an amount equal to the stated capital of the ~~Company Shares~~ class B share so transferred immediately prior to the ~~reorganization~~ Effective Time. (i) The Specified Number of New Class B Shares will be issued to Canada HoldCo in ~~Section 3.02(h), and there shall~~ exchange for $1,000,000. The aggregate amount to be added by the New Corporation to the stated capital ~~account maintained by the Company in respect~~ of the New 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange: (iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares, (v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares 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 B Shares in respect of the ~~Purchaser~~ New Class B Shares ~~payable~~ so issued will be $1,000,000. (j) The articles of the Company will be amended to ~~such Participating Former Securityholder pursuant~~ (i) change the name of the Company to ~~this Section 3.02(k);~~“Brookfield Infrastructure Holdings Corporation” and (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 Infrastructure Corporation”. (l) ~~each Participating Former Securityholder receiving Class A Shares~~ Any Notice of Exchange (as defined in the articles of the Company) in respect of exchangeable shares exchanged pursuant to Section ~~3.02(h)(ii~~3.1(d) ~~who duly and validly completes and delivers~~ that is received by the applicable 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 transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for: (i) in the case of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately Transfer Agent prior to the Effective Time ~~shall~~ and for which the Transfer Agent has not yet delivered the “Exchange Consideration” (as defined in the articles of the Company) will be ~~cancelled~~ deemed to be a Notice of Exchange (as defined in ~~exchange for a cash payment~~ the articles of New Corporation) in respect of the corresponding number of New Exchangeable Shares and will be deemed to have been received by the ~~Company to~~ Transfer Agent on the ~~holder of such Company DSU equal to the Company Sh~~Effective Date.

Appears in 1 contract

Sources: Arrangement Agreement (Brookfield Infrastructure Corp)

Arrangement. 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 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,~~ The Arrangement and the ~~Depositary shall hold,~~ entry into of the ~~cash and certificates representing the Purchaser Shares delivered~~ Arrangement Agreement by the ~~Purchaser to~~ Corporation has been authorized by all necessary corporate action on 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~~ part of the ~~subscription price payable by the Purchaser for such Acquireco Common Shares; and~~Corporation. (ii) ~~Acquireco shall be deemed to have issued such fully paid and non-assessable Acquireco Common Shares to~~ To the ~~Purchaser, and the stated capital account maintained by Acquireco in respect~~ knowledge of the ~~Acquireco Common Shares shall be increased, in respect of~~ Corporation there are no facts or circumstances that would cause it to believe that 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 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 transactions contemplated under the ~~applicable Company Option Plan, (B) such holder’s name shall be removed from~~ heading “Recent Developments” in 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, Prospectus Supplement will not close on or before 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, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of 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 Escrow Release Deadline substantially in accordance with the terms of the ~~Spinco Contribution Agreement; (h) in~~ Arrangement Agreement and 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 disclosure 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;Prospectus Supplement. (iii) ~~concurrently with the exchange in Section 3.02(h)(ii), the stated capital account in respect~~ The representations and warranties of the ~~Company Shares shall be reduced~~ Corporation in the Arrangement Agreement are true and correct in all material respects, or in all respects if already qualified by ~~an amount equal to the stated capital~~ materiality, as of the ~~Company Shares immediately prior to the reorganization in Section 3.02(h)~~date hereof, ~~and there shall be added to the stated capital account maintained by the Company in respect~~ unless such a representation or warranty was provided as of ~~the Class A Shares~~a particular date, in ~~respect of the Class A Shares issued pursuant to Section 3.02(h)(ii)~~which case it shall have been true and correct in all material respects, ~~the amount~~ or in all respects if already qualified 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)~~materiality, 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 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 amended to reflect the Spinco Share Consolidation; (k) each 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 as 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 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 deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange:date. (iv) ~~each~~ To the knowledge of the Corporation, the representations and warranties of the Acquired Corporation provided in the Arrangement Agreement are true and correct in all material respects, or in all respects if already qualified by materiality, as of the date hereof, unless such ~~Participating Former Securityholder~~ a representation or warranty was provided as of a particular date, in which case it shall ~~be removed from the Company’s securities register~~ have been true and correct in all material respects, or in all respects if already qualified by materiality, as of ~~holders of Class A Shares,~~such date. (v) ~~Acquireco shall~~ The Arrangement Agreement has not been terminated or amended nor have any terms and conditions thereof been waived, in each case in a manner that would be ~~entered in~~ materially adverse to the ~~Company’s securities register of holders of Class A Shares as~~ terms and conditions upon which the ~~legal and beneficial owner of such Class A Shares, free of all Encumbrances; and~~Corporation or the Acquired Corporation is effecting the Arrangement. (vi) ~~each such Participating Former Securityholder shall~~The Arrangement Agreement is a valid and subsisting agreement in full force and effect, 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 Election Form(s) enforceable in accordance with ~~Section 3.03~~ its terms except where enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and ~~Section 3.04 electing~~ by general principles of equity where equitable remedies are sought. (vii) There are no Legal Proceedings in existence to ~~receive either~~ which the ~~Cash Consideration~~ Corporation is a party or to which the property of the Corporation is subject or, to the knowledge of the Corporation, contemplated or threatened against the Corporation, at law or in equity or before or by any Governmental Authority, which (i) could have a Material Adverse Effect on the business of the Corporation or its subsidiaries, the Acquired Corporation or its subsidiaries or the ~~Purchaser Share Consideration~~ Arrangement; or (ii) questions the validity of the creation, issuance, sale or delivery of the Offered Subscription Receipts, the Underlying Shares or the validity of any action taken or to be taken by the Corporation or the Acquired Corporation pursuant to or in ~~respect~~ connection with this Agreement, the Subscription Receipt Agreement or the Arrangement Agreement. (viii) The Corporation will use its commercially reasonable efforts to satisfy the Escrow Release Conditions related to the closing of ~~all of such Participating Former Securityholder’s Company Shares shall transfer~~the Arrangement as contemplated under the Arrangement Agreement following the date hereof, and shall keep the Agent promptly informed of the status of the Arrangement and the satisfaction of the conditions thereof; provided that the Corporation shall not be ~~deemed~~ obligated to ~~have transferred~~waive any conditions to closing for its benefit under the Arrangement Agreement, or otherwise perform or cause to ~~Acquireco~~be performed any of the obligations of the other parties to the Arrangement Agreement set forth therein or in any of the agreements contemplated by the Arrangement Agreement. (ix) Concurrently with delivering an escrow release notice to the Subscription Receipt Agent, ~~without any further act~~ the Corporation will deliver to the Agent a certificate signed by the Chief Executive Officer of the Corporation and the Chief Financial Officer of the Corporation (or ~~formality by~~ such ~~Participating Former Securityholder~~other officers as may be acceptable to R▇▇▇ acting reasonably), ~~free~~ in form and ~~clear~~ content satisfactory to R▇▇▇, acting reasonably, with respect to the satisfaction or waiver of all ~~Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior~~ conditions precedent to closing of the Arrangement pursuant to the ~~exchange in this Section 3.02(l) in exchange for: (i) in~~ Arrangement Agreement other than the ~~case~~ final condition precedent of a 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 upon such exchange: (iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of 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, 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 payment 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 Share Consideration purchase price for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the 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 payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, 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 Shares 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 transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l); (p) upon the resignation of the Existing Company Directors becoming effective, 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 such Company DSU equal to the Company ShArrangement thereunder.

Appears in 1 contract

Sources: Agency Agreement (Engine Gaming & Media, Inc.)

Common use of Arrangement Clause in Contracts