Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality: (a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration; (b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan): (c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor; (d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and (e) the Orko Stock Option Plan shall be terminated; (f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1; (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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration; (h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d): (i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time; (j) 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 Orko Share; and (k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly; (l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred; (m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco; (p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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; (r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof; (x) the name of Amalco shall be “Orko Silver Corp.”; (y) Amalco shall be authorised to issue an unlimited number of common shares without par value; (z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and (dd) the exchanges and cancellations provided for in this Section 2.3 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
Arrangement. Commencing at At the Effective Time, each of the following events shall occur and shall be deemed to occur in the following order 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 immediately following the Effective Time:
(a) each Company Share Option outstanding immediately prior to the Shareholder Rights Plan shall be cancelled and shall have no further force Effective Time (whether vested or effect and each unvested), notwithstanding the terms of the rights thereunder Company Share Option Plan, shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)unconditionally vested and exercisable, notwithstanding any vesting or exercise provisions to which an Orko and such Company Share Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willshall, without any further action by or on behalf of any the holder of such Orko Optionsthe Company Share Option, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, assigned and transferred by such holder will be removed from to the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Company (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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoeverall Encumbrances) in 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;
Consideration exceeds the exercise price per Company Common Share of such Company Share Option; and (hii) with 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 to each Orko of such Company Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):Option shall be $0.01, and:
(i) the registered each holder thereof of Company Share Options shall cease to be the registered a holder of such Orko Company Share and the Options;
(ii) such holder’s name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective TimeCompany Share Options;
(jiii) the registered Company Share Option Plan and all agreements relating to the Company Share Options shall be terminated and shall be of no further force and effect; and
(iv) such holder thereof shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Section 2.3(a);
(b) each Company Award outstanding immediately prior to the Effective Time (whether vested or unvested) shall be deemed to have executed be unconditionally vested, and delivered such Company Award shall, without any further action by or on behalf of the holder of the Company Award, be deemed to be assigned and transferred by such holder to the Company (free and clear of all consentsEncumbrances) in exchange for a cash payment from the Company equal to the Company Common Share Consideration, releases, assignments and:
(i) each 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 waivers, statutory or otherwise, required all agreements relating to transfer the Company Awards shall be terminated and assign such Orko Shareshall be of no further force and effect; and
(kiv) First Majestic will be such holder shall thereafter have only the holder of all of right to receive the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordinglyconsideration to which they are entitled pursuant to this Section 2.3(b);
(lc) five minutes after the steps contemplated in Section 2.3(d) and (e), each Company DSU outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added immediately prior to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f)Effective Time shall, the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 further 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 on behalf 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 Company DSU, be deemed to be assigned and transferred by such holder to the amalgamation one common share in the authorised share structure Company (free and clear of Amalco all Encumbrances) in exchange for a cash payment from the Company equal to the Company Common Share Consideration, and:
(i) each Subco Share previously held and all holder of the issued and outstanding Orko Shares will Company DSUs shall cease to be cancelled without repayment a holder of capital in respect thereofsuch Company DSUs;
(xii) the such holder’s name of Amalco shall be “Orko Silver Corp.”removed from the register of the Company DSUs;
(yiii) Amalco the Company DSUP and all agreements relating to the Company DSUs shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles terminated and notice of articles of Amalco shall be substantially in the form of the articles no further force 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇effect; and
(cciv) such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Section 2.3(c);
(d) each Company Common Share held by Dissenting Holders in respect of which Dissent Rights have been validly exercised and not withdrawn or deemed to have been withdrawn shall, without any further action by or on behalf of 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 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 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 stated capital Purchaser shall be deemed to be the legal and beneficial owner of such Company Common Shares (free and clear of all Encumbrances) and shall be entered in the register of Company Common Shares maintained by or on behalf of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares Company; and
(e) each Company Common Share outstanding immediately prior to the amalgamationEffective Time, other than Company Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised and not withdrawn or deemed to have been withdrawn, shall, without any further action by or on behalf of the holder of the Company Common Share, be deemed to be assigned and transferred by the holder thereof to the Purchaser (free and clear of all Encumbrances) in exchange for the Company Common Share Consideration for each Company Common Share held, and:
(i) the holders of such Company Common Shares shall cease to be the holders thereof and to have any rights as holders of such Company Common Shares other than the right to be paid the Company Common Share Consideration for each Company Common Share formerly held in accordance with this Plan of Arrangement;
(ii) such holders’ names shall be removed from the register of the Company Common Shares maintained by or on behalf of the Company; and
(ddiii) the exchanges and cancellations provided for in this Section 2.3 will Purchaser shall be deemed to occur be the legal and beneficial owner of such Company Common Shares (free and clear of all Encumbrances) and shall be entered in the register of the Company Common Shares maintained by or on behalf of the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateCompany.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur 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 NGEx Shareholder Rights Plan shall is ultimately entitled to be cancelled and shall have no further force or effect and paid fair value (each of the rights thereunder a “Dissent Share”) shall be deemed to have been repurchased by NGEx for cancellation in consideration for a debt-claim against NGEx to be cancelled for no considerationpaid 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) five minutes after NGEx will assign and transfer to Spinco: (i) all of its existing rights, title and interest to the steps contemplated Purchase and Sale Agreement (including without limitation, in Section 2.3(aconnection with the Deemed Expenditures); (ii) all of the outstanding shares of Suramina Resources, notwithstanding any vesting or exercise provisions 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 which an Orko Option might otherwise be subject NGEx that number of Spinco Common Shares equal to one half (whether by contract, 1/2) the conditions number of grant, applicable law or NGEx Common Shares outstanding at the time of the foregoing assignment and transfer;
(c) Notwithstanding the terms of the Orko Stock NGEx Option Plan):, including any agreement made thereunder:
(cA) each NGEx Option (whether vested or not) exercisable for an NGEx Common Share that is outstanding immediately before the outstanding Orko Options will, without any further action by Effective Time which has not been duly exercised or on behalf of any holder of such Orko Options, cancelled will be and will be deemed to be cancelled without any compensation thereforexchanged 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 NGEx Option. Each Replacement NGEx Option will be governed by the terms of the NGEx Option Plan and will have: (1) an exercise price per NGEx Common Share (rounded up to the 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 (2) the same expiry date as the expiry date of the NGEx Option for which such Replacement NGEx Option was exchanged; and
(ii) 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 be automatically adjusted such that the aggregate In-the-Money Amounts thereof immediately after the steps above does not exceed the In-the-Money Amount of the exchanged NGEx Option determined immediately before the exchange, with the intention that subsection 7(1.4) of the Tax Act will apply to each exchange;
(d) with respect NGEx will distribute the 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 Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights NGEx Common Share then held as a holder in respect return of such Orko Option, such holder will be removed from the register of Orko Optionsstated capital, and all option agreements, grants and similar instruments relating thereto will be cancelledreduction of paid-up capital for purposes of the Tax Act; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or NGEx will change its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder name 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date.Resources Inc.”
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at At the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further act or formalitysequence, unless specifically noted:
(a) the Shareholder Rights Plan shall be cancelled Notice of Articles and shall have no further force or effect Articles of Ignite CAN are amended to create the Ignite CAN Proportionate Voting Shares and each of redesignate the Ignite CAN Common Shares as Ignite CAN Subordinate Voting Shares and set out the rights thereunder shall be deemed to be cancelled for no considerationand restrictions of Ignite CAN Subordinate Voting Shares;
(b) five minutes after if the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions Financing is completed prior to which an Orko Option might otherwise be subject (whether by contractthe Effective Date, the conditions of grant, applicable law or Subscription Receipts are exchanged for no additional consideration into ▇▇▇▇▇ Shares in accordance with the terms of the Orko Stock Option Plan):Subscription Receipts;
(c) if the outstanding Orko Options willFinancing is completed prior to the Effective Date, without any further action by or on behalf ▇▇▇▇▇ and Merger Sub amalgamate under Section 269 of any holder of such Orko Options, be deemed the BCBCA to be cancelled without any compensation thereforform AmalCo;
(d) pursuant to the amalgamation described in Section 3.1(c), if applicable, each ▇▇▇▇▇ Share is cancelled and in exchange therefor Ignite CAN issues Ignite CAN Subordinate Voting Shares on a one-to-one basis;
(e) if applicable, with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko ▇▇▇▇▇ Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned cancelled in accordance with Section 2.3(c3.1(d) or Section 2.3(d):hereof:
(i) each of the registered holder holders thereof shall cease to be the registered or beneficial holder of such Orko ▇▇▇▇▇ Share and the name of such the registered holder holders shall be removed from the register registers of Orko ▇▇▇▇▇ Shareholders as of the Effective Time;
(jii) each of the holders thereof shall cease to have any rights as a shareholder other than the right to be issued the Ignite CAN Subordinate Voting Shares in accordance with this Plan of Arrangement; and
(iii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer effect such cancellation and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordinglyexchange;
(lf) five minutes after if applicable, the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share shares of Merger Sub will be transferred to Subco in consideration cancelled and exchanged for shares of the issue by Subco to First Majestic of AmalCo on a one-to-one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferredbasis;
(mg) concurrent with the step 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 Section 2.3(f), the stated capital in respect of the Orko consideration for Ignite CAN Subordinate Voting Shares shall be reduced on a one (1) Ignite US Share to an aggregate of $1.00 without any repayment of capital in respect thereof2.65 Ignite CAN Subordinate Voting Shares basis;
(nh) five minutes after the steps contemplated Ignite CAN shall accept for transfer from Ignite US Shareholders that are U.S. Residents their Ignite US Shares in Section 2.3(fconsideration for Ignite CAN Proportionate Voting Shares on a one (1) and (g), Orko and Subco shall merge Ignite US Share to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Act, except that the legal existence of Orko shall not cease and Orko shall survive the merger as Amalco0.01325 Ignite CAN Proportionate Voting Share basis;
(oi) without limiting 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 generality books of Section 2.3(h), Ignite US each of the separate legal existence holders thereof as registered or beneficial holder of Subco shall cease without Subco being liquidated or wound up and Orko and Subco shall continue as one company and the property of Subco shall become the property of Amalcosuch Ignite US Share;
(pj) from and after the Effective Date, if applicable, at the time of the step amalgamation contemplated in Section 2.3(h3.1(c):
(qi) Amalco will own the property, rights and hold interests of each of ▇▇▇▇▇ and Merger Sub shall continue to be the property property, rights and interests of Orko and 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 Orko and 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 itAmalCo;
(rii) Amalco will AmalCo shall continue to be liable for all of the liabilities and obligations of Orko each of ▇▇▇▇▇ and SubcoMerger Sub;
(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;
(tiii) any existing cause of action, claim or liability to prosecution will be unaffected;
(uiv) a civil, criminal criminal, quasi-criminal, administrative or administrative regulatory action or proceeding being prosecuted or pending by or against either Orko ▇▇▇▇▇ or Subco Merger Sub may be continued prosecuted, or its prosecution may be continued, as the case may be, by or against AmalcoAmalCo;
(v) a conviction against, or a ruling, order or judgment in favour of or against either Orko ▇▇▇▇▇ or Subco Merger Sub may be enforced by or against AmalcoAmalCo; and
(vi) the Notice of Articles and Articles of Merger Sub shall remain the Notice of Articles and Articles of AmalCo;
(wk) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇ Merger Sub, ▇▇▇▇▇▇▇▇ , AmalCo, Ignite CAN and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and
(cc) Ignite US shall make the stated capital of appropriate entries in their respective securities registers to reflect the common shares of Amalco will be an amount equal matters referred to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date3.1.
Appears in 1 contract
Sources: Business Combination Agreement
Arrangement. Commencing at the Effective Time, the following shall steps or transactions shall, unless specifically provided otherwise in this Section 3.1, 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 Shareholder Rights Plan shall be cancelled part of any holder thereof and shall have no further force or effect and each notwithstanding the terms of the rights thereunder Mandalay Omnibus Plan, be, and shall be deemed to be, settled and cancelled, and in consideration thereof, Mandalay shall allot and issue from treasury to the 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 this Plan of Arrangement) and the name of each such former holder of a settled and cancelled Mandalay DSU shall be cancelled for entered in Mandalay's central securities register of holders of Mandalay Shares as a holder of Mandalay Shares but no considerationsuch former holder shall be entitled to a certificate or DRS representing the Mandalay Shares issued upon the settlement and cancellation of such holder's Mandalay DSUs;
(b) five minutes after each Mandalay Share outstanding immediately prior to the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share Effective Time held by a Dissenting Shareholder in respect of which the Orko Shareholder has Dissent Rights have been validly exercised hisshall be, her or its Dissent Rights and shall be directly deemed to be, transferred and assigned by such Dissenting Shareholder to First Majestic (the holder thereof, without any further act or formality on its part, free and clear of any all liens, charges claims and encumbrances of any nature whatsoever) in accordance withencumbrances, to Mandalay for cancellation and for Mandalay shall thereupon be obliged to pay 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 transferred to First Majestic (free amount therefor determined and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned payable in accordance with Section 2.3(c) or Section 2.3(d):Article 4 hereof, and:
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the central securities register of Orko Shareholders Mandalay as a holder of the Effective Timesuch Mandalay Shares;
(jii) such Dissenting Shareholders will cease to be the registered holder thereof shall be deemed of such Mandalay Shares and will cease to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required any rights as Mandalay Shareholders other than the right to transfer and assign such Orko Sharebe paid the fair value for their Mandalay Shares as set out in Article 4 hereof; and
(kiii) First Majestic will such Mandalay Shares so transferred to Mandalay shall thereupon be the holder of all of the outstanding Orko Shares cancelled by Mandalay and the central securities register of Orko Shareholders Mandalay shall be revised accordingly;
(lc) five minutes after each Mandalay Share outstanding immediately prior to the steps contemplated in effective time of the transfer under this Section 2.3(d3.1(c) and (e)for the avoidance of doubt, each outstanding Orko Share will be not including Mandalay Shares held immediately before the Effective Time by a Dissenting Shareholder that were transferred to Subco in consideration 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 the issue by Subco Mandalay DSUs pursuant to First Majestic of one Subco Share for each Orko Share so transferredSection 3.1(a)) shall be, and shall be deemed to be, transferred by the amount added holder thereof, without any further act or formality by such Mandalay Shareholder, free and clear of all liens, claims and encumbrances, to the stated capital Acquireco in exchange (subject to Section 3.2) for that number of the Subco Alkane Shares will be equal to the value Exchange Ratio for each Mandalay Share, and each of Alkane and Acquireco shall be deemed to have directed the Orko Depositary to issue and 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 holder of such Mandalay Shares so transferredshall cease to be the holder thereof and to have any rights as a Mandalay Shareholder other than the right to be paid the Consideration pursuant to this Section 3.1(c) and in accordance with this Plan of Arrangement;
(mii) concurrent each Former Mandalay Shareholder shall be removed from Mandalay's central securities register of holders of Mandalay Shares;
(iii) Acquireco shall be entered in Mandalay's central securities register of holders of Mandalay Shares as the legal and beneficial owner of such Mandalay Shares, free of all liens, claims and encumbrances; and
(iv) each Former Mandalay Shareholder shall be entered in Alkane's register of holders of Alkane Shares in respect of Alkane Shares deliverable to such Former Mandalay Shareholder pursuant to this Section 3.1(c);
(d) each of the following shall, and shall be deemed to, occur concurrently with the step transfer in Section 2.3(f3.1(c):
(i) in consideration for the issuance by Alkane (on behalf of and for the benefit of Acquireco) of the Consideration issued to Mandalay Shareholders pursuant to Section 3.1(c), Acquireco shall, and shall be deemed to, issue to Alkane that number of Acquireco Common Shares having an aggregate fair market value equal to the stated aggregate Fair Market Value of the Alkane Shares issued pursuant to Section 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 Orko issuance of Acquireco Common 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 Alkane under Section 2.3(f) and (g3.1(d)(i), 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in aggregate Fair Market Value of the ITA, attributable Alkane Shares issued pursuant to the Subco Shares immediately prior to the amalgamationSection 3.1(c); and
(dde) all outstanding Mandalay Options, Mandalay PSUs and Mandalay RSUs that have not been duly exercised or settled prior to the Effective Time shall terminate without any further act or formality, the Mandalay Plans will terminate and none of (i) the exchanges and cancellations provided for 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 this Section 2.3 will be deemed to occur on respect of the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateMandalay Plans.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at Each of the Effective Time, the following events set out below shall occur as part of the Arrangement and shall be deemed to occur 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 Effective Time, each Broadway Common Share in respect of which a Broadway Dissenting Shareholder has exercised Dissent Rights Plan shall be, and shall be cancelled 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 no further force 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 effect and each on behalf of the rights thereunder Broadway; and
(iii) Broadway shall be deemed to be cancelled for no considerationthe 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) five 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 steps contemplated in Section 2.3(a)Consolidation, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):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 Spinco Common Shares (the “Spinco Distribution Shares”) as is equal to the number of Broadway Common Shares issued and outstanding Orko Options willimmediately prior to the Effective Time (for greater certainty, without any further action 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 any holder 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 such Orko Options, be deemed the Spinco Distribution Shares issued to be cancelled without any compensation thereforBroadway;
(d) with respect effective at five (5) minutes prior to each Orko Optionthe 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 Broadway Shareholders shall be added to (and Broadway removed from) the register of Spinco Common Shares maintained by or on behalf of Spinco, and in connection therewith;
(i) the 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 ceased to be, the holder thereof will cease to be of the holder of such Orko Option, will cease Spinco Incorporation Share and to have any rights as a holder in respect of such Orko Option, such holder will the Spinco Incorporation Share; and
(B) Broadway shall be removed as the holder of the Spinco Incorporation Share from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminatedSpinco Common Shares maintained by or on behalf of Spinco;
(fii) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 Broadway will be deemed to have reduced the stated capital of the Broadway Common Shares with the same effect as if reduced pursuant to Section 74 of the BCBCA, by an amount equal to the fair market value of the Spinco Distribution Shares, and Broadway will be transferred deemed to First Majestic 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 (free and clear for greater certainty, on a pre-Consolidation basis) as a return of any liens, charges and encumbrances of any nature whatsoever) capital distribution in-kind; provided that the aggregate reduction in exchange the stated capital for the Share Consideration;
Broadway Common Shares shall not exceed the aggregate paid-up capital (has that term is used for the purposes of the Tax Act) with respect of the Broadway Common Shares immediately prior to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(je) effective at the registered holder thereof Effective Time, Delaware Subco, in accordance with the Delaware General Corporation Law, shall be deemed merge with and into MindMed and MindMed shall continue as the surviving corporation under the laws of the State of Delaware in the manner set out in Appendix “II” attached to have executed this Plan of Arrangement, and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; andeach of the following will occur:
(ki) First Majestic will be in accordance with the holder constating documents of all MindMed, each issued and outstanding MindMed Class B Share, MindMed Class C Share and MindMed Class D Share shall automatically convert into one fully-paid, non-assessable share of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordinglyMindMed Class A Share;
(lii) five minutes after each issued and outstanding MindMed Class A Share (including all MindMed Class A Shares issued on automatic conversion of the steps contemplated MindMed Class B Shares, MindMed Class C Shares and MindMed Class D Shares set out in Section 2.3(dsubsection 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 (eMindMed), each outstanding Orko Share will be transferred to Subco in consideration of and thereafter the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko MindMed Class A Shares shall be reduced to an aggregate of $1.00 cancelled without any repayment of capital in respect thereof;
(niii) five minutes after the steps contemplated in Section 2.3(f) each issued and (g), Orko and Subco outstanding MindMed Warrant shall merge to form be exchanged for one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Act, except that the legal existence of Orko shall not cease and Orko shall survive the merger as AmalcoBroadway Replacement Warrant;
(oiv) without limiting each share of common stock, par value $0.001 per share, of Delaware Subco, issued and outstanding immediately prior to the generality Effective Time, shall be converted into and become one validly issued, fully paid and non-assessable MindMed Common Share of Section 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and MindMed after the 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 Merger; and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 againstin consideration of the Broadway Common Shares, or rulingBroadway Multiple Voting Shares (as the case may be) and Broadway Replacement Warrants issued pursuant to section 2.1(e)(ii) and (iii) above, order or judgment respectively, MindMed (as the surviving corporation in favour connection with the Merger) will issue 1,000 MindMed Common Shares to Broadway and, other than the MindMed Common Shares issued pursuant to Section 2.1(e)(iv) above, such shares shall constitute the only outstanding shares of or against either Orko or Subco may be enforced by or against Amalco;capital stock of MindMed after the Merger.
(wf) First Majestic as the holder All of the Subco Shares shall receive on the amalgamation foregoing events are intended to be completed, failing any one common share in the authorised share structure of Amalco in exchange for each Subco Share previously held and all which, none of the issued foregoing will occur and outstanding Orko Shares will be cancelled without repayment this Plan of capital in respect thereof;
(x) the name of Amalco Arrangement shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised null and void and of no further force and effect unless otherwise agreed to issue an unlimited number of common shares without par value;
(z) by the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateParties.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at 2.2.1 At the Effective Time, the following shall occur and shall be deemed to occur 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) Immediately prior to the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of Effective Time, the rights thereunder Wedge Shares held by Dissenting Shareholders shall be deemed to have been surrendered to Wedge for cancellation, and such Dissenting Shareholders shall cease to be cancelled the 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 no considerationsuch Wedge Shares as set out in Section 3.1, and such Dissenting Shareholders’ names shall be removed as the holders of such Wedge Shares from the central securities register of Wedge for the Wedge Shares;
(b) five minutes after Each outstanding Wedge Note shall be redeemed by Wedge at a redemption price equal to the steps contemplated in Section 2.3(a)principal amount owing under such Wedge Note and all applicable and unpaid interest thereon up to but excluding the Effective Date, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms such payment of the Orko Stock Option Plan):redemption price to be completed immediately upon completion of the Private Placement;
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) Each Wedge Note redeemed in accordance with, and for with 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 Shareholderforegoing Paragraph 2.2.1(b) shall be deemed to be transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of cancelled immediately following such Orko Share redemption and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer cancel such Wedge Note in accordance with this Paragraph 2.2.1(c), including, for greater certainty, all consents and assign such Orko Share; andwaivers regarding those negative covenants of Wedge contained in the Wedge Notes relating to, among others, a change in business, the redemption of securities, an amendment to articles, any continuation under other jurisdictions and transactions with related parties;
(kd) First Majestic will The holder of each Wedge Note shall cease to be the holder thereof and shall cease to have any rights as a holder or a former holder of such Wedge Note, and all of agreements, certificates and similar instruments relating to such Wedge Note, including, for greater certainty, the outstanding Orko Shares intercreditor agreement and the register of Orko Shareholders anti-dilution undertaking, each dated January 26, 2010, shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares shall be reduced deemed to an aggregate of $1.00 without be cancelled and terminated and Wedge shall cease to have any repayment of capital liability in respect thereof;
(ne) five minutes after Notwithstanding the steps contemplated terms of the Wedge Warrants, each Wedge Warrant shall be deemed to be surrendered and cancelled immediately and Wedge shall cease to have any liability in Section 2.3(frespect thereof, and the holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to cancel such Wedge Warrant in accordance with this Paragraph 2.2.1(e);
(f) The holder of each Wedge Warrant shall cease to be the holder thereof and shall cease to have any rights as a holder or a former holder of such Wedge Warrant, and all agreements, certificates and similar instruments relating to such Wedge Warrant shall be and shall be deemed to be cancelled;
(g) Notwithstanding the terms of the Wedge Stock Options and the Wedge Stock Option Plan, each Wedge Stock Option shall be 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);
(h) The holder of each Wedge Stock Option shall cease to be the holder thereof and shall cease to have any rights as a 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 and shall be deemed to be cancelled;
(i) The Wedge Stock Option Plan and any other agreements relating to the 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;
(g)k) Each Corporation Share outstanding will be exchanged by the holder thereof, Orko without any further act or formality and Subco free and clear of all liens, claims and encumbrances, for one fully paid and non-assessable 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 merge 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 corporate entity corporation (“Amalco”) with the same effect as if they had amalgamated under Section 269 270 of the Business Corporations ActBCABC, except that in accordance with the legal existence following:
(i) the notice of Orko articles of amalgamation and articles of Amalco shall not cease be substantially in the form of the notice of articles and Orko shall survive articles of Wedge, taking into account the merger as Amalcotransactions set forth herein;
(oii) the Corporation Shares held by Wedge shall be cancelled without limiting reimbursement of the generality of Section 2.3(h), the separate legal existence of Subco shall cease without Subco being liquidated or wound up and Orko and Subco shall continue as one company capital represented thereby and the property capital of Subco Amalco shall become be the property 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;
(p) from and after the Effective Date, at the time of the step contemplated in Section 2.3(h):
(qiv) Amalco will own and hold shall be liable for the property of Orko and 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 Orko Wedge and 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 itCorporation;
(r) 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;
(tv) any existing cause of action, claim or liability to prosecution will of Wedge or the Corporation shall be unaffected;
(uvi) a civil, criminal any legal proceeding being prosecuted or administrative action or proceeding pending by or against either Orko Wedge or Subco the Corporation may be continued prosecuted, or its prosecution may be continued, as the case may be, by or against Amalco;
(vvii) a conviction against, or ruling, order or judgment in favour of or against either Orko Wedge or Subco the Corporation may be enforced by or against Amalco;
(wviii) First Majestic as the holder of the Subco Shares Amalco’s name 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 Orko Shares will be cancelled without repayment of capital in respect thereofUndur Tolgoi Minerals Inc.;
(xix) the name board of directors of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be substantially in the form consist 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 persons: Name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
(x) the officers of Amalco shall consist of the following persons: Name Title ▇▇▇▇▇▇ ▇▇▇▇▇▇; and▇ President and Chief Executive Officer ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Chief Financial Officer and Secretary
(ccxi) the stated capital 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 common shares BCABC, the provisions of Amalco will this section shall constitute the amalgamation agreement between Wedge and the Corporation.
2.2.2 Any transfer of securities pursuant to this Plan of Arrangement shall be an amount equal to the paid-up capitalfree and clear of any liens, as that term is defined in the ITAclaims, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Dateencumbrances, notwithstanding certain procedures related thereto may not be completed until after the Effective Datecharges, adverse interests or security interests.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, except as noted below, the following shall occur and shall be deemed to occur in the following order order, without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder All Common Shares held by Dissenting Shareholders shall be deemed to be cancelled for no consideration;have been transferred (free and clear of all Liens) to the Company; and
(bi) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will Dissenting Shareholders shall cease to be the holder holders of such Orko Option, will cease Common Shares and to have any rights as a holder Shareholders other than the right to be paid the fair value for such Common Shares as set out in respect Article 4;
(ii) the name of each such Orko Option, such holder will Dissenting Shareholder shall be removed as a Shareholder from the register registers of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledShareholders maintained on or on behalf of the Company; and
(eiii) such tranferred Common Shares will be then be redeemed and cancelled by the Orko Stock Option Plan shall be terminated;Company.
(fb) five minutes after the steps contemplated in Subject to Section 2.3(b)3.3, each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(g) five minutes after the steps contemplated in Section 2.3(c), each Orko outstanding Common Share (other than any Orko Share those held by any Dissenting ShareholderShareholders) shall be deemed to be assigned and transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoeverall Liens) to Mirati in exchange for the Share Consideration;
(hc) with respect to each Orko Share transferred and assigned in In accordance with Section 2.3(cthe terms of the Company Stock Option Plan, any Company Option 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 (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 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 Section 2.3(d):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 document or agreement previously evidencing a Company Option shall thereafter evidence and be deemed to evidence such Mirati Option;
(d) In accordance with the terms of the Company Warrants, any Company 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 of the Company or Mirati, represent a warrant (a “Mirati Warrant”) to purchase that number of Mirati Shares equal to the number of Common Shares the Company Warrant was exerciseable for immediately prior to the Effective 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 of the Company, Mirati or the investor that is a party to such agreement: (i) the 2011 Pre-Emptive Rights shall 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 references to Mirati and Mirati Shares (but all other terms and conditions of the 2011 Pre-Emptive Rights shall otherwise be unchanged), 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
(f) The Securities Purchase Agreements shall be deemed to be amended such that by virtue of this Plan of Arrangement and without any further action of the Company, Mirati or the investor that is a party to such agreement:
(i) the registered holder thereof Pre-Emptive Rights shall cease represent a pre-emptive right (“Mirati Pre-Emptive Right”) to be the registered holder acquire securities of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective TimeMirati;
(jii) the registered holder thereof Additional Rights shall be deemed represent a right (“Mirati Additional Right”) to have executed and delivered all consents, releases, assignments and waivers, statutory acquire the securities of Mirati not otherwise purchased pursuant to the 2011 Mirati Pre-Emptive Rights or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordinglyMirati Pre-Emptive Rights;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xiii) the name right of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles Tavistock Life Sciences and notice of articles of Amalco shall be 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Brothers Life Sciences, L.P contained in the Securities Purchase Agreement to each appoint an observer and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and
(cc) nominate one director to the stated capital board of the common shares of Amalco will be Company (collectively, the “Board Rights”) shall represent a right for each to appoint an amount equal observer and nominate one director to the paid-up capital, as that term is defined board of Mirati (“Mirati Board Rights”); and all references to the Company and Common Shares in the ITA, attributable Securities Purchase Agreement applicable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges Pre-Emptive Rights, Additional Rights and cancellations provided for in this Section 2.3 will Board Rights shall be deemed to occur on be references to Mirati and Mirati Shares (but all other terms and conditions of the Effective DatePre-Emptive Rights, notwithstanding certain procedures related thereto may not Additional Rights and Board Rights shall otherwise be completed until after the Effective Dateunchanged), respectively, and any Securities Purchase Agreement previously evidencing such rights shall thereafter evidence and be deemed to evidence Mirati Pre-Emptive Rights, Mirati Additional Rights and Mirati Board Rights.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur sequentially in the order set out below and shall will be deemed to occur in the following order without any further act or formalityformality required on the part of any Person, except as otherwise provided herein:
(a) the Shareholder Rights Plan Company shall be cancelled pay all accrued and shall have no further force or effect and each of unpaid interest under the rights thereunder shall be deemed Brookfield Existing Loan in cash to be cancelled for no considerationBrookfield;
(b) five minutes after all amounts owing to Brookfield under the steps contemplated Brookfield Existing Loan shall be, and shall be deemed to be, 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 2.3(a)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 without any action on behalf of the respective holders thereof, free and clear of all liens, charges, encumbrances and any other rights of others, and in exchange therefor, the Company 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 Company will have no liabilities or obligations with respect to the RSU Plan;
(f) the Common Shares then issued and outstanding will be consolidated, such that every 400 Common Shares shall, automatically and without any action on the part of the respective holders thereof, be combined and converted into one new Common Share;
(g) notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):subject:
(ci) each Option issued and outstanding at the outstanding Orko Options willEffective Time, whether or not vested, will be transferred to the Company without any further action by or on behalf of the respective holders thereof, free and clear of all liens, charges, encumbrances and any holder other rights of others, and such Orko Options, be deemed to Option will be cancelled by the Company without payment of any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledconsideration; and
(eii) the Orko Stock Option Plan shall will be terminated;
(f) five minutes after terminated and the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in Company will have no liabilities or obligations with respect of which to the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share ConsiderationStock Option Plan;
(h) with respect each outstanding Warrant held by a Warrantholder will be transferred to each Orko Share transferred the Company without any action on behalf of the respective Warrantholders, free and assigned in accordance with Section 2.3(c) or Section 2.3(d):clear of all liens, charges, encumbrances and any other rights of others, and such Warrant will be cancelled by the Company without payment of any consideration;
(i) the registered holder thereof Newco shall cease 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 the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Timedissolved;
(j) on the registered Rights Issuance Date, the Company shall issue to each holder thereof 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, the Company shall be deemed issue Common Shares to have executed each holder of Rights in respect of the due exercise of the Rights and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Sharereceipt of payment therefor; and
(kl) First Majestic will be the holder of all if any of the outstanding Orko Rights remain unexercised at the Rights Expiry Time, the Company shall issue the Backstopped Shares and to Brookfield upon the register purchase of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue Common Shares by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added Brookfield pursuant to the stated capital Backstop Commitment and receipt of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datepayment therefor.
Appears in 1 contract
Sources: Arrangement Agreement (North American Palladium LTD)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence without any further act or formality:
(a) the each Lexam VG Gold Share held by a Lexam VG Gold Dissenting Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after transferred by the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willholder thereof, without any further action by act or formality on behalf its part, free and clear of any holder all liens, claims and encumbrances, to ▇▇▇▇▇▇ Mining, in consideration for a claim against ▇▇▇▇▇▇ Mining in an amount determined and payable in accordance with Article 4, and the name of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the central securities register as a holder of Orko Options, Lexam VG Gold Shares and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan ▇▇▇▇▇▇ Mining shall be terminatedrecorded as the registered holder of the Lexam VG Gold Shares so transferred and shall be deemed to be the legal owner of such Lexam VG Gold Shares;
(fb) five minutes after each Lexam VG Gold Share outstanding immediately prior to the steps contemplated in Section 2.3(b), each Orko Share Effective Time held by a Lexam VG Gold Shareholder (other than any Excess Controlled VG Gold Shares and other than any Lexam VG Gold Shares held by ▇▇▇▇▇▇ Mining or any Lexam VG Gold Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights Shareholder) shall be directly transferred by the holder thereof to ▇▇▇▇▇▇ Mining in exchange for the Arrangement Consideration, and assigned by such Dissenting Shareholder ▇▇▇▇▇▇ Mining shall be deemed to First Majestic (be the legal and beneficial owner thereof, free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance withclaims or encumbrances, and for the consideration set forth in, Section 3.1subject to Article 5;
(gc) five minutes after each Excess Controlled VG Gold Share outstanding immediately prior to the steps contemplated 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 Section 2.3(c)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 Orko Share (other than any Orko Share held by any Dissenting Shareholder) case ▇▇▇▇▇▇ Mining shall be deemed to be transferred to First Majestic (the legal and beneficial owner thereof, free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Considerationclaims or encumbrances, subject to Article 5;
(hd) with respect each Lexam VG Gold Option outstanding immediately prior to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of 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 (jeach a “Replacement ▇▇▇▇▇▇ Mining Option”) to acquire from ▇▇▇▇▇▇ Mining, subject to adjustment as provided herein, the number of ▇▇▇▇▇▇ Mining Shares equal to the product obtained when (A) the registered holder thereof number of Lexam VG Gold Shares subject to such Lexam VG Gold Option immediately prior to the Effective Time, is multiplied by (B) the Arrangement Consideration Factor, provided that if the foregoing would result in the issuance of a fraction of an ▇▇▇▇▇▇ Mining Share on any particular exercise of Replacement ▇▇▇▇▇▇ Mining Options, then the number of ▇▇▇▇▇▇ Mining Shares otherwise issuable shall be deemed rounded down to have executed 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, provided that if the 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 ▇▇▇▇▇▇ Mining Shares which may be acquired on exercise of the Replacement ▇▇▇▇▇▇ Mining Option at and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic after the Effective Time will be adjusted accordingly, with effect at and from the holder of all Effective Time, to ensure that the Replacement ▇▇▇▇▇▇ Mining Option In-The-Money Amount in respect of the outstanding Orko Shares 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 register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration ratio of the issue by Subco amount payable to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco acquire such ▇▇▇▇▇▇ Mining Shares will be equal to the value of such shares to be acquired shall be unchanged. Except as set out above, the Orko Shares so transferred;
term to expiry, conditions to and manner of exercise (m) concurrent with except that any Replacement ▇▇▇▇▇▇ Mining Option shall be exercisable at the step in Section 2.3(foffices of ▇▇▇▇▇▇ Mining), the stated capital in respect vesting requirements and other terms and conditions of each of the Orko Shares Replacement ▇▇▇▇▇▇ Mining Options 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 the terms and conditions of the 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) Amalco will continue to be liable Lexam VG Gold Option 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 which it is exchanged 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇ ▇▇Replacement ▇▇▇▇▇▇ Mining Option shall continue to be governed by and ▇be subject to the terms of the Lexam VG Gold Stock Option Plan and the agreement evidencing the grant of such Lexam VG Gold Option with respect to such terms and conditions. Any document previously evidencing a Lexam VG Gold Option shall thereafter evidence and be deemed to evidence such Replacement ▇▇▇▇▇▇ Mining Option and no certificates evidencing Replacement ▇▇▇▇▇▇; and
(cc) the stated capital of the common shares of Amalco will ▇ Mining Options shall be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateissued.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder 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 the number of shares of Company Common Stock outstanding at the Effective Time exceed 15,235,903 shares of Company Common Stock, and in no event shall the aggregate Cash Consideration exceed US $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 cancelled for no considerationtransferred to the Purchaser with 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;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, share of Company Common Stock acquired or transferred in accordance with Section 2.2(a) or Section 2.2(b):
(i) the holder thereof will shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect share of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Company Common Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders holders of Company Common Stock;
(ii) the certificate representing such share of Company Common Stock shall be deemed to have been canceled as of the Effective Time;
(jiii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to acquire or transfer and assign such Orko Shareshares in accordance with Section 2.2(a) or Section 2.2(b); and
(kiv) First Majestic will the Purchaser shall be and shall be deemed to be the holder transferee of all such share of the outstanding Orko Shares 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 Orko Shareholders shall 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 revised accordinglytransferred by the holder thereof to the Company in exchange for the Warrant Consideration;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the separate legal existence of Subco shall cease without Subco being liquidated respect to each Company 2007 Warrant acquired or wound up and Orko and Subco shall continue as one company and the property of Subco shall become the property of Amalco;
(p) from and after the Effective Date, at the time of the step contemplated transferred 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇accordance ▇▇▇▇ ▇▇▇▇▇▇▇▇ 2.2(d):
(i) the holder thereof shall cease to be the holder of such Company 2007 Warrant and the name of such holder s▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇; andved from the register of holders of Company 2007 Warrants;
(ccii) the stated capital of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will certificate representing such Company 2007 Warrant shall be deemed to occur on have been cancelled as of the Effective DateTime;
(iii) the holder thereof shall be deemed to have executed and delivered all consents, notwithstanding certain procedures related thereto may not releases, assignments and waivers, statutory or otherwise, required to acquire or transfer such Company 2007 Warrant in accordance with Section 2.▇(▇); ▇▇▇
(iv) the Company shall be completed until after and shall be deemed to be the Effective Datetransferee of the Company 2007 Warrants transferred in accordance with Section 2.2(d) and shall be entered in the register of holders of the Company 2007 Warrants as the legal holder of such Company 2007 Warrants.
Appears in 1 contract
Sources: Arrangement Agreement (L-1 Identity Solutions, Inc.)
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Mogo Share held by a Dissenting Shareholder in respect of which the Orko Mogo Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Mogo (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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(hb) with respect to each Orko Mogo Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d2.4(a):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Mogo Share and the name of such registered holder shall be removed from the register of Orko Mogo Shareholders as of the Effective Time;
(jii) 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 Orko Mogo Share; and
(kiii) First Majestic such Mogo Shares will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordinglycancelled by Mogo for no consideration;
(lc) five minutes after the steps contemplated in Section 2.3(d) Mogo and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 Difference SubCo shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Act, except that and:
(i) each Mogo Share (other than Mogo Shares held by Difference) shall be cancelled and the legal existence of Orko holder thereof shall not cease and Orko shall survive be issued the merger as AmalcoShare Consideration in respect thereof;
(oii) each Mogo Share held by Difference and each Difference SubCo Share shall be cancelled and the holder thereof shall be issued one (1) common share in the capital of Amalco in respect of each such share;
(iii) as consideration for the issuance by Difference of the Share Consideration described in Section 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 2.3(h2.4(c), the separate legal existence of Subco shall cease without Subco being liquidated or wound up Mogo and Orko and Subco Difference SubCo shall continue as one company and the property of Subco shall become the property of Amalco;
(p) and, from and after the Effective Date, at the time of the step contemplated in Section 2.3(h)::
(qi) Amalco will own and hold the property of Orko Mogo and Subco 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 Orko Mogo and SubcoDifference 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;
(rii) Amalco will continue to be liable for all of the liabilities and obligations of Orko Mogo and SubcoDifference SubCo;
(siii) other than the Mogo Warrants exchanged under Section 2.4(c), all rights, contracts, permits and interests of Orko Mogo and Subco Difference SubCo will continue as rights, contracts, permits and interests of Amalco as if Orko Mogo and Subco Difference SubCo continued and, for greater certainty, the amalgamation will not constitute a transfer or assignment of the rights or obligations of either of Orko Mogo or Subco Difference SubCo under any such rights, contracts, permits and interests;
(tiv) any existing cause of action, claim or liability to prosecution will be unaffected;
(uv) a civil, criminal or administrative action or proceeding pending by or against either Orko Mogo or Subco Difference SubCo may be continued by or against Amalco;
(vvi) a conviction against, or ruling, order or judgment in favour of or against either Orko Mogo or Subco Difference 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xvii) the name of Amalco shall be “Orko Silver Corp.Mogo Finance Technology Inc.”;
(yviii) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(zix) 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 OrkoMogo;
(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
(ccxi) the stated capital of the common shares of Amalco will be an amount equal to the total of: (A) the aggregate paid-up capital, capital (as that such term is defined in the ITA) of the Mogo Shares 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 Subco Mogo Shares immediately prior to described in Section 2.4(a)), and (B) the amalgamationaggregate 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
(ddxii) there shall be added to the stated capital of the Difference Shares an amount equal to the paid-up capital (as such term is defined in the ITA) of the Mogo Shares described in Section 2.4(c)(i) (which, for greater certainty, does not include any paid-up capital attributable to the Mogo Shares described in Section 2.4(a)); and
(e) the exchanges and cancellations provided for in this Section 2.3 2.4 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
Arrangement. Commencing at on the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formalityformality of or by the Company, Parent or any other Person:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Shareholder Rights Plan Effective Time shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) five minutes after Upon the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions transfer of all Company Shares to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):Parent:
(ci) the outstanding Orko Options will, without any further action by or on behalf of any each holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will Company Shares shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of Company Shares and such Orko Option, such holder will holder’s name shall be removed from the applicable securities register of Orko Company Shares;
(ii) 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 Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to 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), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) 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 or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and all unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option agreementsto purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, grants if any) as were in 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 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 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 instruments relating thereto will transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for 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
(evii) without any action on the Orko Stock Option Plan 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 (the “Warrant”), the Warrant shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders terminated as of the Effective Time;
(j) the registered holder thereof Closing and shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory of no further force or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateeffect.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, unless otherwise specifically provided in this Section 3.02, the following events or transactions shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) the Shareholder Rights Plan Purchaser shall be cancelled and shall have no further force or effect and each 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 rights thereunder 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 cancelled for no considerationdeemed 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) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko a Company 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 Orko Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(ci) each In-the-Money Option issued and outstanding immediately prior to the outstanding Orko Options willEffective Time shall, without any further action by or on behalf of any holder of such Orko OptionsIn-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 compensation payment therefor;
(diii) with respect to each Orko Company Option, :
(A) the holder thereof will shall cease to be the holder of such Orko Company Option, will and shall cease to have any rights as a holder in respect of such Orko Option, Company Option under the applicable Company Option Plan,
(B) such holder will holder’s name shall be removed from the register of Orko Company Options, and 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; and;
(ed) the Orko Stock Company Option Plan Plans shall be terminated;
(fe) five minutes after the steps contemplated in Section 2.3(b), each Orko 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 Orko Shareholder has validly exercised his, her or its Dissent Rights 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 directly transferred amended to create a new class of shares without par value, of which an unlimited number may be issued and assigned by such Dissenting Shareholder 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 First Majestic 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 liensEncumbrances, charges for one Class A Share and encumbrances of any nature whatsoever) in accordance withone Distribution Spinco Share, and for the consideration set forth in, Section 3.1;upon such exchange:
(gA) five minutes after the steps contemplated in Section 2.3(c), each Orko such exchanged Company Share (other than any Orko Share held by any Dissenting Shareholder) shall be deemed to be transferred to First Majestic (free cancelled, and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder holders of such Orko Share and the name of such registered holder exchanged Company Shares shall be removed from the Company’s register of Orko Shareholders as holders of the Effective TimeCompany Shares;
(jB) 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 registered holder thereof Company shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Shareremoved from the Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares; and
(kD) First Majestic will be the each holder of all of the outstanding Orko such exchanged Company Shares and the shall be entered in Spinco’s register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration holders of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Spinco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Distribution Spinco Shares shall be reduced to an aggregate of $1.00 without any repayment of capital in respect thereofexchanged with such holder by the Company;
(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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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
Arrangement. 3.1 Commencing at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further act or formalityformality except as otherwise provided herein:
(a) the Shareholder Rights Plan NAL GP shall be cancelled and shall have no further force or effect and each dissolved in accordance with the following:
(i) the stated capital of the rights thereunder shares of NAL GP shall be deemed reduced to $1.00 in aggregate;
(ii) all of the property of NAL GP shall be cancelled for no considerationdistributed to NAL; and
(iii) NAL shall assume all of the liabilities and obligations of NAL GP;
(b) five minutes after NAL Petroleum shall be dissolved in accordance with the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject following:
(whether by contract, i) the conditions of grant, applicable law or the terms stated capital of the Orko Stock Option Plan):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 outstanding Orko Options will, without any further action by or on behalf dissolution of any holder NAL Petroleum pursuant to Section 3.1(b) and:
(i) all of such Orko Options, the property of Addison LP shall be deemed distributed to be cancelled without any compensation thereforNAL; and
(ii) NAL shall assume all of the liabilities and obligations of Addison LP;
(d) with respect the NAL Shares held by Dissenting Shareholders who have exercised Dissent Rights which remain valid immediately prior to each Orko Optionthe Effective Time shall, as of the holder thereof will cease Effective Time, be deemed to be have been transferred to NAL (free and clear of any Liens) and, as of the holder of Effective Time, such Orko Option, will Dissenting Shareholders shall cease to have any rights as a holder NAL Shareholders other than the right to be paid the fair value of their NAL Shares in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; andaccordance with Article 4;
(e) the Orko Stock Option Plan each issued and outstanding NAL Share (other than those held by Dissenting Shareholders) shall be, and shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b)deemed to be, each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised histransferred to, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic acquired by, Pengrowth (free and clear of any liensLiens) and, charges subject to Sections 5.5, 5.6 and encumbrances 6.1, each Former NAL Shareholder shall be entitled to receive from Pengrowth in exchange for each such NAL Share, 0.86 of any nature whatsoevera Pengrowth Share;
(f) in accordance 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, and for the consideration set forth in, Section 3.1;Supplemental Indenture shall become effective; and
(g) five minutes after the steps contemplated Amended NAL DRIP shall become effective, all existing participants in Section 2.3(c), each Orko Share (other than any Orko Share held by any Dissenting Shareholder) shall the NAL DRIP will be deemed to be transferred participants in the Amended NAL DRIP and any dividends declared but not paid prior to First Majestic 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 (free and clear other than a Dissenting Shareholder) at the Effective Time, upon the exchange of any liens, charges and encumbrances NAL Shares for Pengrowth Shares pursuant to Section 3.1(e):
(a) such Former NAL Shareholder shall be added to the register of any nature whatsoever) in exchange for the Share Considerationholders of Pengrowth Shares;
(hb) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof such Former NAL Shareholder shall cease to be the registered a holder of such Orko Share the NAL Shares so exchanged and the name of such registered holder Former NAL Shareholder shall be removed from the register of Orko NAL Shareholders maintained by or on behalf of NAL as of it relates to the Effective Time;
(j) 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 Orko ShareNAL Shares so exchanged; and
(kc) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco Pengrowth shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 NAL Shares so exchanged and shall receive be added to the register of NAL Shareholders maintained by 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 amalgamation one common share in case may be, as and where required:
(a) any conveyance or other instrument which NAL deems necessary or appropriate to reflect the authorised share structure dissolution of Amalco in exchange for each Subco Share previously held NAL GP, NAL Petroleum and all Addison LP pursuant to the terms of the issued Section 3.1(a) (b) and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof(c);
(xb) any instrument required in connection with any election, designation or determination relating to NAL GP, NAL Petroleum or Addison LP under the name of Amalco shall be “Orko Silver Corp.”Income Tax Act (Canada) or other fiscal legislation;
(yc) Amalco shall any documents which NAL deems necessary or appropriate to be authorised to issue an unlimited number filed in connection with the dissolution of common shares without par valueNAL GP, NAL Petroleum or Addison LP or the transactions contemplated by this Plan of Arrangement;
(zd) any document required to be filed with any Governmental Authority in connection with the articles and notice dissolution of articles NAL GP, NAL Petroleum or Addison LP or the transactions contemplated by this Plan of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Arrangement; and
(cce) the stated capital any other document or instrument on behalf of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined and in the ITAname of NAL GP, attributable 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 survive the Subco Shares immediately prior dissolution of NAL GP, NAL Petroleum or Addison LP pursuant to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DatePlan of Arrangement.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) Parent agrees that the Shareholder Rights Plan Arrangement shall be cancelled implemented in accordance with and shall have no further force or effect subject to the terms and each conditions contained in this Agreement and the Plan of Arrangement, and the Domestication, which forms part of the rights thereunder Arrangement, shall be deemed to be cancelled for no consideration;implemented in accordance with Section 388 of the General Corporation Law of the State of Delaware (“GCL”).
(b) five minutes after The Arrangement shall become effective on the Arrangement Effective Date and the steps contemplated to be carried out pursuant to the Arrangement shall become effective on the Arrangement Effective Date in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions order set forth in the Plan of grant, applicable law or the terms of the Orko Stock Option Plan):Arrangement.
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights Parent agrees that as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes soon as reasonably practicable after the steps contemplated date hereof, Parent shall, in Section 2.3(b)a manner acceptable to the Company, each Orko Share held by acting reasonably, pursuant to section 192 of the CBCA and in cooperation with the Company, prepare, file and diligently pursue a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and motion for the consideration set forth inInterim Order, Section 3.1;
(g) five minutes after the steps contemplated in Section 2.3(c)which shall provide, each Orko Share (among other than any Orko Share held by any Dissenting Shareholder) shall be deemed to be transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):things:
(i) for the registered holder thereof shall cease to be the registered holder of such Orko Share calling, holding and the name of such registered holder shall be removed from the register of Orko Shareholders as conducting of the Effective TimeParent Shareholders’ Meeting;
(jii) for the registered holder thereof shall class of persons to whom notice is to be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital provided in respect of the Orko Shares shall Arrangement and the Parent Shareholders’ Meeting and for the manner in which such notice is to be reduced to an aggregate of $1.00 without any repayment of capital in respect thereofprovided;
(niii) five minutes after that the steps contemplated in Section 2.3(f) and (g), Orko and Subco only requisite approval for the Arrangement Resolution shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 be two-thirds of the Business Corporations Actvotes cast on the Arrangement Resolution by shareholders of Parent as of the record date, except that present in person or represented by proxy at the legal existence of Orko shall not cease Parent Shareholders’ Meeting and Orko shall survive the merger voting as Amalcoa single class;
(oiv) without limiting for the generality of Section 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the Effective Date, at the time grant of the step Dissent Rights as contemplated in Section 2.3(h):
(q) Amalco will own and hold the property Plan of Orko and 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 Orko and 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;
(r) 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 AmalcoArrangement;
(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 for the holder of notice requirements with respect to the Subco Shares shall receive on application to the amalgamation one common share in Court for the authorised share structure of Amalco in exchange for each Subco Share previously held and all of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Final Order; and
(ccvi) that the stated capital Parent Shareholders’ Meeting may be adjourned or postponed from time to time by Parent (with the prior written consent of the common shares Company, not to be unreasonably withheld) without the need for additional approval of Amalco will be an amount equal 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 paid-up capital, as that term is defined in the ITA, attributable Court and to apply to the Subco Shares immediately 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 material being filed with the amalgamation; and
Court, and all materials filed with the Court shall be subject to the prior review, comment and consent of Company. Parent shall also provide the Company’s legal counsel on a timely basis with copies of any appearance and evidence served on Parent or its legal counsel in respect of the proceedings for the Interim Order, the Final Order or any appeal therefrom and of any notice (ddwritten or oral) received by Parent indicating any intention to oppose the exchanges granting of the Interim Order or the 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 connection with the Arrangement or serve any such material, and cancellations provided for in this Section 2.3 will shall agree not to modify or amend materials so filed or served, except as contemplated hereby or with the Company’s prior written consent, such consent not to be deemed to occur on the Effective Dateunreasonably withheld, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateconditioned or delayed.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following events and transactions set out below shall occur and shall be deemed to occur consecutively in the following order without any further act or formality, in each case, unless stated otherwise, effective as at one (1) minute intervals starting at the Effective Time:
(a1) each Corporation DSU and Legacy Tervita DSU, whether vested or unvested, that is outstanding immediately prior to the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)Effective Time, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willapplicable Incentive Plan or any applicable DSU Agreement in relation thereto, without any further action by or on behalf of any the holder of such Orko OptionsCorporation DSU and/or Legacy Tervita DSU, shall be deemed to have vested and shall be cancelled and terminated in exchange for, subject to Section 6.3 and Section 6.5, a cash payment (without any compensation therefor;
interest) from the Corporation equal to (di) the Cash Value and (ii) the Mandatory Cash Amount, and with respect to each Orko Option, Corporation DSU and Legacy Tervita DSU cancelled and terminated pursuant to this Section 2.3(1): (A) the holder thereof will shall cease to be the holder of such Orko OptionCorporation DSU and/or Legacy Tervita DSU, will (B) the holder thereof shall cease to have any rights as a holder in respect of such Orko OptionCorporation DSU and/or Legacy Tervita DSU or under an Incentive Plan or the applicable DSU Agreement, other than the right to receive the consideration to which such holder will is entitled pursuant to this Section 2.3(1), (C) such holder’s name shall be removed from the register of Orko Optionsapplicable register, and (D) all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be cancelled and terminated;
(f2) five minutes after each Corporation RSU, whether vested or unvested, that is outstanding immediately prior to the steps contemplated Effective Time, notwithstanding the terms of the applicable Incentive Plan or any applicable RSU Agreement in relation thereto, without any further action by or on behalf of the holder of such Corporation RSU, shall be deemed to have vested and shall be cancelled and terminated in exchange for, subject to Section 2.3(b6.3, Section 6.5 and Section 6.6, (i) the Exchange Ratio of a Consideration Share and (ii) a cash payment (without interest) from the Corporation equal to the Mandatory Cash Amount for each such Corporation RSU, and with respect to each Corporation RSU cancelled and terminated pursuant to this Section 2.3(2): (A) the holder thereof shall cease to be the holder of such Corporation RSU, (B) the holder thereof shall cease to have any rights as a holder in respect of such Corporation RSU, or under an Incentive Plan or the applicable RSU Agreement, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(2), (C) such holder’s name shall be removed from the applicable register, and (D) all agreements, grants and similar instruments relating thereto shall be cancelled and terminated;
(3) each Corporation Phantom RSU, whether vested or unvested, that is outstanding immediately prior to the Effective Time, notwithstanding the terms of the applicable Incentive Plan or any applicable Phantom Unit Agreement in relation thereto, without any further action by or on behalf of the holder of such Corporation Phantom RSU, shall be deemed to have vested and shall be cancelled and terminated in exchange for, subject to Section 6.3 and Section 6.5, a cash payment (without interest) from the Corporation equal to (i) the Cash Value and (ii) the Mandatory Cash Amount, and with respect to each Corporation Phantom RSU cancelled and terminated pursuant to this Section 2.3(3): (A) the holder thereof shall cease to be the holder of such Corporation Phantom RSU, (B) the holder thereof shall cease to have any rights as a holder in respect of such Corporation Phantom RSU or under an Incentive Plan or the applicable Phantom Unit Agreement, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(3), (C) such holder’s name shall be removed from the applicable register, and (D) all agreements, grants and similar instruments relating thereto shall be cancelled and terminated;
(4) each Corporation PSU, whether vested or unvested, that is outstanding immediately prior to the Effective Time, notwithstanding the terms of the applicable Incentive Plan or any applicable PSU Agreement in relation thereto, without any further action by or on behalf of the holder of such Corporation PSU, shall be deemed to have vested and shall be cancelled and terminated in exchange for, subject to Section 6.3, Section 6.5 and Section 6.6, (i) the Exchange Ratio of a Consideration Share multiplied by the Adjustment Factor and (ii) a cash payment (without interest) from the Corporation equal to the Mandatory Cash Amount for each such Corporation PSU, and with respect to each Corporation PSU cancelled and terminated pursuant to this Section 2.3(4): (A) the holder thereof shall cease to be the holder of such Corporation PSU, (B) the holder thereof shall cease to have any rights as a holder in respect of such Corporation PSU, or under an Incentive Plan or the applicable PSU Agreement, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(4), (C) such holder’s name shall be removed from the applicable register, and (D) all agreements, grants and similar instruments relating thereto shall be cancelled and terminated;
(5) each Corporation Phantom PSU, whether vested or unvested, that is outstanding immediately prior to the Effective Time, notwithstanding the terms of the applicable Incentive Plan or any applicable Phantom Unit Agreement in relation thereto, without any further action by or on behalf of the holder of such Corporation Phantom PSU, shall be deemed to have vested and shall be cancelled and terminated in exchange for, subject to Section 6.3 and Section 6.5, a cash payment (without interest) from the Corporation equal to (i) the Cash Value multiplied by the Adjustment Factor, and (ii) the Mandatory Cash Amount, and with respect to each Corporation Phantom PSU cancelled and terminated pursuant to this Section 2.3(5): (A) the holder thereof shall cease to be the holder of such Corporation Phantom PSU, (B) the holder thereof shall cease to have any rights as a holder in respect of such Corporation Phantom PSU or under an Incentive Plan or the applicable Phantom Unit Agreement, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(5), (C) such holder’s name shall be removed from the applicable register, and (D) all agreements, grants and similar instruments relating thereto shall be cancelled and terminated;
(6) the Corporation shall make a payment to the Corporation’s transfer agent in an amount equal to any unpaid Permitted Dividend that has been declared by the Board prior to the Effective Date in accordance with the terms of the Arrangement Agreement on the Shares with a record date prior to the Effective Date, subject to Section 6.3 and Section 6.5;
(7) simultaneously with Section 2.3(9), each Orko outstanding Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has Dissent Rights have been validly exercised his, her or its Dissent Rights shall be directly deemed to have been transferred and assigned without any further act or formality by such Dissenting Shareholder the holder thereof to First Majestic the Purchaser (free and clear of any liens, charges and encumbrances of any nature whatsoeverall Liens) in accordance with, and consideration for a debt claim against the Purchaser for the consideration set forth inamount determined under Article 4, Section 3.1and:
(a) such Dissenting Shareholder shall cease to have any rights as a Shareholder other than the right to be paid the fair value of its Shares by the Purchaser in accordance with Article 4;
(gb) 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as holders of Shares maintained by or on behalf of the Effective TimeCorporation; and
(c) the Purchaser shall be recorded on the register of holders of Shares maintained by or on behalf of the Corporation as the holder of the Shares so transferred and shall be deemed to be the legal and beneficial owner thereof;
(j8) any Shareholder, other than a Dissenting Shareholder, who has not made a Consideration Election or fails to comply with the requirements of Section 3.1 or of the Letter of Transmittal and Election Form, shall be deemed, for all purposes, to be a Combination Electing Shareholder;
(9) simultaneously with Section 2.3(7), each outstanding Share (other than Shares held by any Dissenting Shareholder who has validly exercised such holder’s Dissent Rights) shall be transferred without any further act or formality by the holder thereof to the Purchaser (free and clear of all Liens), subject to Section 6.3, Section 6.5 and Section 6.6 and:
(a) in respect of the transfer of each such Share:
(i) each Combination Electing Shareholder shall receive the Combination Elected Consideration from the Purchaser plus the Mandatory Cash Amount;
(ii) subject to Section 2.4, each Cash Electing Shareholder shall receive the Cash Elected Consideration from the Purchaser plus the Mandatory Cash Amount; and
(iii) subject to Section 2.4, each Share Electing Shareholder shall receive the Share Elected Consideration from the Purchaser plus the Mandatory Cash Amount;
(b) the registered holder thereof of such Share shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko ShareShare to the Purchaser;
(c) the holder of such Share shall cease to have any rights as a holder of Shares other than the right to receive the Consideration for each such Share in accordance with this Plan of Arrangement;
(d) the name of such holder shall be removed from the register of holders of Shares maintained by or on behalf of the Corporation; and
(ke) First Majestic will the Purchaser shall be recorded on the register of holders of Shares maintained by or on behalf of the Corporation as the holder of all of the outstanding Orko Shares so transferred and the register of Orko Shareholders shall be revised accordinglydeemed to be the legal and beneficial owner thereof (free and clear of all Liens);
(l10) five minutes after the steps contemplated Corporation shall issue to the Purchaser, at a price per Share equal to the Cash Value, such number of Shares as is equal to the aggregate of: (i) the number of Corporation RSUs cancelled pursuant to Section 2.3(2), and (ii) the number of Corporation PSUs (multiplied by the Adjustment Factor) cancelled pursuant to Section 2.3(4);
(11) the Purchaser contributes each of the Shares acquired in Section 2.3(d2.3(7), Section 2.3(9) and Section 2.3(10) to AcquireCo in exchange for the issuance by AcquireCo to the Purchaser of (i) common shares of AcquireCo, and (ii) a promissory note in favour of the Purchaser, the aggregate value of (i) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be ii) being equal to the value of the Orko Shares so transferredcontributed by the Purchaser;
(m12) concurrent with the step in as soon as practicable following Section 2.3(f2.3(11), the stated capital in respect Purchaser and AcquireCo shall cause the delisting of the Orko Shares shall be reduced to an aggregate of $1.00 without any repayment of capital in respect thereofon the TSX;
(n13) five minutes after the steps contemplated in as soon as practicable following 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 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 2.3(h2.3(12), the separate legal existence of Subco shall cease without Subco being liquidated or wound up and Orko and Subco shall continue Corporation will elect in the manner prescribed by the Tax Act not to be a “public corporation” as one company and the property of Subco shall become the property of Amalco;
(pdefined in subsection 89(1) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Tax Act; and
(cc14) as soon as practicable following Section 2.3(13), the stated capital Purchaser will cause AcquireCo and the Corporation to amalgamate pursuant to section 184 of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateABCA.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, except as otherwise noted, each of the following steps set out below shall occur and shall be deemed to occur 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 Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each The articles of the Company will be amended:
(i) to create and authorize the issuance (in addition to the shares that the Company is authorized to issue immediately before such amendment) of the following:
(A) an unlimited number of class A.1 exchangeable shares having the special rights, privileges and restrictions set out in Exhibit I to this Plan of Arrangement;
(B) an unlimited number of class A.2 exchangeable shares having the special rights, privileges and restrictions set out in Exhibit I to this Plan of Arrangement; and
(ii) to alter the special rights, privileges and restrictions of the class B shares to replace the voting rights thereunder shall be deemed therein with the voting rights set out in Exhibit II to be cancelled for no consideration;this Plan of Arrangement.
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share Each exchangeable share held by a Dissenting Shareholder in respect of which the Orko Dissenting Shareholder has validly exercised his, her or its Dissent Rights and has not withdrawn, or been deemed to have withdrawn, such exercise of Dissent Rights, shall be directly transferred and assigned by such Dissenting Shareholder Shareholder, without any further act or formality on his, her or its part, to First Majestic the Company (free and clear of any liens, charges and encumbrances of any nature whatsoeverEncumbrances) in accordance with, and for the consideration set forth in, Section 3.1;4.1.
(gc) 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with With respect to each Orko Share exchangeable share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d3.1(b):
(i) the registered holder thereof Dissenting Shareholder shall cease to be the registered holder of such Orko Share exchangeable share and the name of such registered holder Dissenting Shareholder shall be removed from the register of Orko Shareholders holders of exchangeable shares of the Company as of the Effective Time;
(jii) the registered holder thereof Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Shareexchangeable share; and
(kiii) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders such exchangeable share shall be revised accordingly;cancelled by the Company for no consideration, other than as set forth in Section 4.1(a).
(ld) five minutes after Each issued and outstanding exchangeable share (other than exchangeable shares held by the steps contemplated in Section 2.3(dBrookfield Group or by Dissenting Shareholders) and (e), each outstanding Orko Share will be transferred to Subco the New Corporation in consideration of exchange for one (1) New Exchangeable Share. The aggregate amount to be added by the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added New Corporation to the stated capital of the Subco Shares will be equal to the value of the Orko New Exchangeable Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in aggregate stated capital of the ITA, attributable to the Subco Shares exchangeable shares so transferred immediately prior to the amalgamation; andEffective Time.
(dde) Concurrently with the exchanges transfer of exchangeable shares pursuant to Section 3.1(d), the New Exchangeable Shares will, outside of this Plan of Arrangement, be listed and cancellations provided posted for trading on the TSX and NYSE (subject to standard listing conditions imposed by the TSX and NYSE in this similar circumstances).
(f) The New Corporation will transfer each exchangeable share it received pursuant to Section 2.3 3.1(d) to the Company in exchange for one (1) class A.1 exchangeable share and such exchangeable shares will be cancelled. The aggregate amount to be added by the Company to the stated capital of the class A.1 exchangeable shares so issued will be an amount equal to the aggregate stated capital of the exchangeable shares so transferred immediately prior to the Effective Time and such amount will be deducted from the stated capital of the exchangeable shares.
(g) Each exchangeable share held by the Brookfield Group will be transferred to the Company in exchange for one (1) class A.2 exchangeable share of the Company, and such exchangeable shares will be cancelled. The aggregate amount to be added by the Company to the stated capital of the class A.2 exchangeable shares so issued will be an amount equal to the aggregate stated capital of the exchangeable shares so transferred immediately prior to the Effective Time and such amount will be deducted from the stated capital of the exchangeable shares.
(h) Canada HoldCo will transfer one (1) class B share to the New Corporation in exchange for one (1) New Class B Share. The aggregate amount to be added by the New Corporation to the stated capital of the New Class B Share so issued will be an amount equal to the stated capital of the class B share so transferred immediately prior to the Effective Time.
(i) The Specified Number of New Class B Shares will be issued to Canada HoldCo in exchange for $1,000,000. The aggregate amount to be added by the New Corporation to the stated capital of the New Class B Shares in respect of the New Class B Shares so issued will be $1,000,000.
(j) The articles of the Company will be amended to (i) change the name of the Company to “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) Any Notice of Exchange (as defined in the articles of the Company) in respect of exchangeable shares exchanged pursuant to Section 3.1(d) that is received by the Transfer Agent prior to the Effective Time and for which the Transfer Agent has not yet delivered the “Exchange Consideration” (as defined in the articles of the Company) will be deemed to occur be a Notice of Exchange (as defined in 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 Transfer Agent 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 (Brookfield Infrastructure Corp)
Arrangement. Commencing at As soon as practicable following the Effective Timedate hereof, the parties shall proceed to effect an arrangement under section 193 of the ABCA in accordance with and subject to the terms and conditions of this Agreement and the Plan of Arrangement, pursuant to which (among other things), the following transactions shall occur and shall be deemed to occur in the following order without set out in the Plan of Arrangement and with any further act or formalitynecessary modification for any exercise of Dissent Rights:
(a) the Shareholder Rights Plan Lone Pine corporate group and shareholdings shall be cancelled reorganized such that: (i) Newco shall become the direct or indirect parent of Lone Pine Delaware, as more particularly provided in the Lone Pine Delaware Agreement; and (ii) Newco shall have no further force or effect and each become the ultimate parent of the rights thereunder shall be deemed to be cancelled for no considerationLone Pine;
(b) five minutes after the steps contemplated in Section 2.3(a)Newco will, notwithstanding any vesting directly or exercise provisions to which an Orko Option might otherwise be subject (whether by contractindirectly, the conditions of grant, applicable law or the terms acquire all of the Orko Stock Option Plan):outstanding Arsenal Shares;
(c) Lone Pine and Arsenal (or an amalgamation successor thereto, as applicable) shall amalgamate to form Amalco, which shall be a direct and indirect wholly-owned subsidiary of Newco;
(d) in connection with the foregoing, and immediately upon completion of the Arrangement:
(i) Lone Pine Shareholders shall receive, in substitution for their Lone Pine Shares (including, for certainty, Lone Pine Shares issued pursuant to the exercise, conversion, exchange, settlement, redemption or surrender of Lone Pine Incentive Awards prior to the Effective Time), Newco Shares in such number as reflects the Lone Pine Proportionate Interest;
(ii) Arsenal Shareholders shall receive, in substitution for their Arsenal Shares (including, for certainty, Arsenal Shares issued pursuant to the exercise, conversion, exchange, settlement, redemption or surrender of Arsenal Share Awards or Arsenal Options prior to the Effective Time), Newco Shares in such number as reflects the Arsenal Proportionate Interest, all on a tax effective basis for the Lone Pine Shareholders and the Arsenal Shareholders;
(e) each Lone Pine Incentive Award that is outstanding Orko Options willat the Effective Time, shall be exchanged for an obligation of Newco (a "Replacement Lone Pine RSU") on substantially the same terms and conditions as are applicable to the Lone Pine Incentive Award (including with respect to vesting), except that:
(i) for each Lone Pine Common Share or each Lone Pine Preferred Share to which the holder would otherwise be entitled to be issued on settlement and redemption of the Lone Pine Incentive Award, the holder shall instead be entitled to be issued (from treasury), on settlement of the Replacement Lone Pine RSU after the Effective Time, Newco Shares according to the same ratios at which Newco Shares are issued at the Effective Time in consideration for then-outstanding Lone Pine Common Shares and Lone Pine Preferred Shares;
(ii) the holder of the Replacement Lone Pine RSU shall not be entitled to receive any shares in the capital stock of Lone Pine Delaware in connection with the settlement and redemption thereof;
(iii) each Replacement Lone Pine RSU issued in respect of a Lone Pine Incentive Award that vested in accordance with its terms prior to the Effective Time, shall be settled and redeemed, without any further action of the holder, on the 15th trading day following the Effective Date through the issuance by or Newco of the underlying Newco Shares based on behalf a fair market value of any holder the Newco Shares determined by the volume weighted average trading price of such Orko Options, be deemed to be cancelled without any compensation therefor;
the Newco Shares on the TSX for the preceding ten (d10) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledtrading days; and
(eiv) each Replacement Lone Pine RSU issued in respect of a Lone Pine Incentive Award that was not vested in accordance with its terms prior to the Orko Stock Option Plan Effective Time, shall be terminated;settled and redeemed within 15 days of the vesting date, through the issuance by Newco of the underlying Newco Shares based on a fair market value of the Newco Shares determined by the volume weighted average trading price of the Newco Shares on the TSX for the preceding ten (10) trading days; and
(f) five minutes after each Arsenal Option and each Arsenal Share Award that is outstanding at the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights Effective Time shall be directly transferred surrendered to Arsenal 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 terminated 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateno consideration.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, except as noted below, the following shall occur and shall be deemed to occur in the following order order, without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder all Common Shares held by Dissenting Shareholders shall be deemed to be cancelled for no consideration;have been transferred (free and clear of all Liens) to the Company; and
(bi) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will Dissenting Shareholders shall cease to be the holder holders of such Orko Option, will Common Shares and cease to have any rights as a holder Shareholders other than the right to be paid the fair value for such Common Shares as set out in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminatedArticle 4;
(fii) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share a Shareholder, and the name of such registered holder Dissenting Shareholder shall be removed from the register of Orko Shareholders as holders of Common Shares maintained by or on behalf of the Effective TimeCompany; and
(iii) such transferred Common Shares will then be deemed to be redeemed and cancelled by the Company;
(jb) subject to Section 3.3, each outstanding Common Share (other than those held by Dissenting Shareholders) shall be deemed to be assigned and transferred (free and clear of all Liens) to Teranga in exchange for the Consideration;
(c) the registered holder thereof replacement stock options that were issued by Teranga under the Roll-over Stock Option Agreements shall be deemed to have executed and delivered all consentsbeen issued under the Teranga Stock Option Plan, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be in accordance with the holder of all terms of the outstanding Orko Shares and Roll-over Stock Option Agreements, without any further action of the register of Orko Shareholders shall be revised accordinglyparties to the Roll-over Stock Option Agreements or the Company;
(ld) five minutes after the steps contemplated in Section 2.3(d) Oromin and (e), each outstanding Orko Share NewCo will be transferred to Subco in consideration of the issue by Subco to First Majestic of merge and continue as one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 company (“Amalco”) with the same effect as if they had amalgamated under Section 269 273 of the Business Corporations Act, except that BCBCA and with effect under Section 282 of the legal existence of Orko shall not cease and Orko shall survive the merger as Amalco;BCBCA; and
(o) without limiting the generality of Section 2.3(h), the 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 property of Subco shall become the property of Amalco;
(pe) from and after the Effective Date, at the time of the step contemplated in Section 2.3(h2.3(d):
(qi) Amalco will own and hold the property shares of Orko and Subco and, without limiting the provisions hereof, all rights of creditors or others will NewCo shall be unimpaired by such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 cancelled 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 Orko Shares will be cancelled without any repayment of capital in respect thereofof such shares;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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
(ccii) the stated capital of the Amalco common shares of Amalco will be an amount equal to the “paid-up capital”, as that term is defined in the ITATax Act, attributable to the Subco Common Shares immediately prior to the amalgamationAmalgamation; and
(ddiii) Amalco shall have, as its notice of articles and articles, the exchanges notice of articles and cancellations provided for articles of the Company.
5. Except as expressly amended herein, all other terms and conditions of the Arrangement Agreement and the Plan of Arrangement shall remain in this Section 2.3 full force and effect.
6. This Agreement will be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and 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 proceeding in such court or that such court provides an inconvenient forum. This Agreement may be executed in counterparts, each of which shall be deemed to occur be an original and all of which shall together constitute one and the same instrument. The Parties may rely on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datecopies of this Agreement which are delivered by telecopier or electronic mail as if such copies were originals.
Appears in 1 contract
Sources: Amending Agreement
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence at two-minute intervals without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko a Company Option or Company PSU might otherwise be subject (whether by contract, the conditions of a grant, applicable law Law or the terms of the Orko Stock Option Plan or PSU Plan):
(c) each Company Option and Company PSU issued and outstanding at the outstanding Orko Options Effective Time will, without any further action by or on behalf of any holder of such Orko OptionsCompany Option or Company PSU, be deemed to be cancelled fully vested and all of the outstanding Company Option or Company PSU, without any compensation therefor;
(d) with respect to each Orko Option, further action on behalf of the holder thereof and without any payment except as provided in this Plan of Arrangement and notwithstanding the terms of the Stock Option Plan or PSU Plan, as the case may be, shall be disposed of and surrendered by the holders thereof to the Company without any act or formality on its or their part in exchange for the Cash-Out Consideration (other than Company Options where the Cash- Out Consideration is nil, such Company Options to be disposed of and surrendered by the holders thereof to the Company without any act or formality on its or their part in exchange for no consideration), and the holder of such Company Option or Company PSU will cease to be the holder of such Orko OptionCompany Option or Company PSU, will cease to have any rights as a holder in respect of such Orko OptionCompany Option or Company PSU under the Stock Option Plan or PSU Plan, such holder holder’s name will be removed from the Company’s register of Orko OptionsCompany Options or Company PSUs, and all option agreements, grants and similar instruments relating thereto will be cancelled;
(b) each Dissent Share held by a Dissenting Shareholder entitled to be paid fair value for its Dissent Shares will be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, charges, encumbrances and any other rights of others, to the Purchaser in consideration for a debt claim against the Purchaser in an amount determined in accordance with Article 4 and thereupon each Dissenting Shareholder will have only the rights set out in Article 4 and each Dissenting Shareholder will cease to be the holder of such Common Shares;
(c) each outstanding Common Share (other than those Common Shares acquired by the Purchaser from Dissenting Shareholders under Section 3.1(b)), will be transferred to, and acquired by the Purchaser, free and clear of all liens, charges, encumbrances and any other rights of others, in exchange for a cash payment equal to the Consideration and, in respect of each Common Share:
(i) each former holder of Common Shares will cease to be the holder of such Common Shares so exchanged concurrently with the exchanges referred to in this Section 3.1(c) and such holder’s name will be removed from the register of holders of Common Shares at such time; and
(ii) the Purchaser will be deemed to be the holder of such Common Shares (free and clear of all liens, charges, encumbrances and any other rights of others) on the Effective Date and will be entered in the Company’s register of holders of Common Shares as the holder thereof;
(d) the PSU Plan and the Stock Option Plan shall be terminated (and all rights issued thereunder shall expire) and shall be of no further force or effect; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after Company issues to the steps contemplated Purchaser Common Shares of the Company in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and consideration for the cash consideration set forth indeposited by the Purchaser with the Depositary, Section 3.1;
(g) five minutes after on behalf and at 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as direction of the Effective Time;
(j) the registered holder thereof shall be deemed Company, pursuant to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e5.1(b), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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 (Merus Labs International Inc.)
Arrangement. Commencing at At the Effective Time, except as otherwise provided herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further act or formalityformality required on the part of any Person, in each case effective as at the Effective Time:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Alpha Share held by a Dissenting Shareholder in respect of which the Orko a Dissenting Shareholder has validly exercised his, her or its Dissent Rights shall be deemed to be directly transferred and assigned by such Dissenting Shareholder Shareholder, without any further act or formality on its part, to First Majestic Crystal (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in accordance with, and for the consideration set forth in, Section 3.1with Article 4 hereof;
(gb) five minutes after the steps contemplated in Section 2.3(c), each Orko Alpha Share (other than any Orko Share held by any Alpha Shares in respect of which a Dissenting ShareholderShareholder has validly exercised his, her or its Dissent Rights) shall be deemed to be transferred and assigned to First Majestic Crystal (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in exchange for the Share ConsiderationConsideration as follows, subject to Article 4 hereof;
(hi) for each Alpha Common Share held by an Alpha Shareholder that is not a U.S. Restricted Shareholder, Crystal shall issue one Crystal Post-Consolidated Share to such Alpha Shareholder;
(ii) for each Alpha Common Share held by an Alpha Shareholder that is a U.S. Restricted Shareholder, Crystal shall issue one Crystal Post-Consolidated Share or one Crystal Restricted Voting Share, as provided in the Arrangement Agreement, to such Alpha Shareholder; and
(iii) for each Alpha Class C Share held by an Alpha Shareholder, Crystal shall issue one Crystal Class B Preferred Share to such Alpha Shareholder;
(c) with respect to each Orko Alpha Share transferred and assigned in accordance with Section 2.3(cSections 3.1(a) or Section 2.3(d):3.1(b) hereof:
(i) the registered holder thereof shall cease to be the registered holder of such Orko Alpha Share and the name of such registered holder shall be removed from the central securities register of Orko Alpha Shareholders as of the Effective Time;
(jii) 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 Orko ShareAlpha Share in accordance with Sections 3.1(a) or 3.1(b) hereof, as applicable; and
(kiii) First Majestic Crystal will be the holder of all of the outstanding Orko Alpha Shares and the central securities register of Orko Alpha Shareholders shall be revised accordingly;
(ld) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share Alpha Shareholder will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 aggregate number of Crystal Post-Consolidated Shares, Crystal Restricted Voting Shares or Crystal Class B Preferred Shares issued to such Alpha Shareholder pursuant to Sections 3.1(b) hereof and the central securities register of Crystal will be revised accordingly;
(e) each Alpha Warrant outstanding shall receive on the amalgamation one common share in the authorised share structure be deemed to be transferred and assigned to Crystal (free and clear of Amalco any Liens) in exchange for each Subco Share previously held and all of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco one Consideration Warrant, which shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised exercisable to issue an unlimited purchase from Crystal the number of common shares without par value;
Crystal Post-Consolidated Shares (zrounded down to the nearest whole number) equal to the articles and notice Exchange Ratio, multiplied by the number of articles of Amalco shall be 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 Alpha Common Shares subject to such Alpha Warrant immediately prior to the Effective Date;
Time, at an exercise price per Crystal Post-Consolidated Share (bb) rounded up to the first directors of Amalco following the amalgamation shall be ▇▇▇▇▇ nearest whole ▇▇▇▇▇▇▇▇ ) equal to (i) the exercise price per Alpha Common Share otherwise purchasable pursuant to such Alpha Warrant immediately prior to the Effective Time, divided by (ii) the Exchange Ratio. The term to expiry and, subject to compliance with listing conditions of the TSX-V, the conditions to and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇manner of exercising and all other terms and conditions of such Consideration Warrants will be the same as the Alpha Warrants for which it was exchanged, and Crystal shall, thereafter, issue a certificate to each holder of a Consideration Warrant to evidence such Consideration Warrant;
(f) with respect to each Alpha Warrant exchanged in accordance with Section 3.1(e) hereof:
(i) the registered holder of such Alpha Warrant immediately prior to such exchange shall cease to be the registered holder thereof, the name of such registered holder shall be removed from the register maintained by or on behalf of Alpha in respect thereof and the Alpha Warrants shall be cancelled;
(ii) the registered holder of such Alpha Warrant immediately prior to such exchange shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to exchange such Alpha Warrant with Crystal for the Consideration Warrant; and
(cciii) the stated capital name of the common shares registered holder of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares such Alpha Warrant immediately prior to such exchange shall be added to the amalgamation; and
(dd) register maintained by or on behalf of Crystal in respect of the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateConsideration Warrants.
Appears in 1 contract
Arrangement. Commencing at On the Effective TimeDate, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further act or formalityformality required on the part of any Person, commencing as at the Effective Time:
(a) With respect to the Shareholder Rights Plan shall be cancelled Absolute Options:
(i) each Absolute Option granted and shall have no further force or effect and each of outstanding immediately prior to the rights thereunder shall Effective Time will be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)fully vested and exercisable, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willand shall, without any further action by or on behalf of any holder of such Orko Optionsaction, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, assigned and transferred by the holder thereof to 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, neither Absolute nor the Purchaser shall be obligated to pay the holder of such Absolute Option any amount in respect of such Absolute Option, and such Absolute Option shall be immediately cancelled; and
(ii) the holder of an Absolute Option will cease to be the holder of such Orko Option, will cease thereof or to have any rights as a holder in respect of such Orko OptionAbsolute Option or under the Absolute Option Plan, the Absolute Omnibus Plan or under any and all award or similar agreements relating to such Absolute Options and the name of the holder thereof will be removed from the applicable securities register of Orko OptionsAbsolute with respect to such Absolute Option;
(b) With respect to the Absolute PSUs;
(i) each award of Absolute PSUs granted and outstanding immediately prior to the Effective Time 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 applicable withholding tax, which withholding will be remitted to the appropriate Governmental Authority to the extent required by law, and all option agreements(2) the remaining 50% of such PSU Consideration will vest and be payable on the original vesting date of the Absolute PSUs, grants 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 similar instruments relating thereto (B) if the employment of any holder of such 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 cancelledpayable 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 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; and
(ii) the holder of an Absolute PSU will cease to be the holder thereof or to have any rights as a holder in respect of such Absolute PSU or under the Absolute PRSU Plan, the Absolute Omnibus Plan or under any and all award or similar agreements relating to such Absolute PSU and the name of the holder thereof will be removed from the applicable securities register of 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
(iii) the Absolute PRSU Plan and any and all awards or similar agreements relating to the Absolute RSUs will be cancelled;
(d) The Absolute Omnibus Plan, the Absolute PRSU Plan, the Absolute Option 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 take all action required to effectuate the foregoing;
(e) With respect to the Orko Stock Option 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 shall or under any and all award or similar agreements relating to such Absolute DSU and the name of the holder thereof will be terminated;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) five minutes after With respect to the steps contemplated in Section 2.3(b), Absolute Shares:
(i) each Orko Absolute Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has Dissent Rights have been validly exercised his, her or its Dissent Rights shall be deemed to be directly transferred and assigned by such Dissenting Shareholder to First Majestic the Purchaser (free and clear of any liens, charges Liens) and encumbrances such Dissenting Shareholder shall cease to be the holder of such Absolute Share and to have any nature whatsoever) rights as a holder of such Absolute Share other than the right to receive the consideration determined and payable in accordance with, and for the consideration set forth in, Section 3.1with Article 4;
(gii) five minutes after concurrently with the steps contemplated step in Section 2.3(c3.1(f)(i), each Orko Absolute Share (other than any Orko Share Absolute Shares held by any Dissenting ShareholderShareholders who have validly exercised Dissent Rights) shall be deemed to be directly transferred and assigned to First Majestic the Purchaser (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) 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
(hiii) at the same time as the steps in Section 3.1(f)(i) and 3.1(f)(ii), with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):Absolute Share:
(iA) the registered holder thereof shall cease to be the registered holder of such Orko Absolute Share and the name of such registered holder shall be removed from the register of Orko Absolute Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(kB) First Majestic the Purchaser will be the holder and the legal and beneficial owner of all of the outstanding Orko Absolute Shares and the register of Orko Absolute Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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
Arrangement. Commencing at the Effective Time, in five-minute increments, each of the following events shall occur and shall be deemed to occur consecutively in the following order order, except where noted, without any further authorization, act or formality:
(a) each Greenbrook Option (whether vested or unvested) outstanding immediately prior to the Shareholder Rights Plan Effective Time shall be, and shall be cancelled deemed to be, surrendered for cancellation and shall have no further force or effect transferred to Greenbrook in consideration for the issuance by Greenbrook of that number of Greenbrook Shares (“Net Option Surrender Shares”), if any, equal to, rounded down to the nearest whole share: (i) the number of Greenbrook Shares subject to such Greenbrook Option immediately prior to the Effective Time minus (ii) the number of Greenbrook Shares that, when multiplied by the closing price of a Greenbrook Share on the OTCQB Market on the trading day immediately preceding the Effective Date, is equal to the aggregate exercise price of such Greenbrook Option (and each in the event that such number of the rights thereunder Greenbrook Shares is negative, it shall be deemed to be cancelled for no considerationzero), and the holder of the Greenbrook Option shall be and shall be deemed to be the holder of such number of Net Option Surrender Shares, but the holder of such Greenbrook Option shall not be entitled to a certificate or other document representing the Net Option Surrender Shares so issued;
(b) five minutes after the steps contemplated in Section 2.3(aeach Greenbrook PSU (whether vested or unvested), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):Greenbrook Omnibus Plan or any award agreement governing the Greenbrook PSUs, shall immediately be cancelled for no consideration and the holder thereof shall no longer have any rights thereto;
(c) each Greenbrook RSU (whether vested or unvested), notwithstanding the terms of the Greenbrook Omnibus Plan or any award agreement governing the Greenbrook RSUs, shall immediately be cancelled for no consideration and the holder thereof shall no longer have any rights thereto;
(d) each Greenbrook DSU (whether vested or unvested) outstanding Orko Options willimmediately prior to the Effective Time, notwithstanding the terms of the Greenbrook DSU Plan or any award agreement governing the Greenbrook DSUs, shall be deemed to be unconditionally fully vested, and thereafter such Greenbrook DSU shall, without any further action by or on behalf of any the holder of such Orko OptionsGreenbrook DSU, be deemed to be assigned and transferred by such holder to Greenbrook and shall immediately be cancelled without in exchange for: (i) if the closing price of a Greenbrook Share on the OTCQB Market on the trading day immediately preceding the Effective Date (the “Effective Date Market Price”) is less than or equal to $0.0846 (the “Minimum Price”), a cash payment equal to the Effective Date Market Price; and (ii) if the Effective Date Market Price is greater than the Minimum Price, at the election of Neuronetics, either (A) a cash payment equal to the Effective Date Market Price, or (B) such number of Neuronetics Shares equal to the Effective Date Market Price divided by the closing price of a Neuronetics Share on the NASDAQ on the trading day immediately preceding the Effective Date, less any compensation thereforapplicable withholdings pursuant to Section 5.3;
(de) with respect each Greenbrook Warrant (whether vested or unvested) outstanding immediately prior to each Orko Optionthe Effective Time shall be, and shall be deemed to be, surrendered for cancellation and transferred to Greenbrook in consideration for the issuance by ▇▇▇▇▇▇▇▇▇▇ of that number of Greenbrook Shares (“Net Warrant Surrender Shares”), if any, equal to, rounded down to the nearest whole share: (i) the number of Greenbrook Shares subject to such Greenbrook Warrant immediately prior to the Effective Time minus (ii) the number of Greenbrook Shares that, when multiplied by the closing price of a Greenbrook Share on the OTCQB Market on the trading day immediately preceding the Effective Date, is equal to the aggregate exercise price of such Greenbrook Warrant (and in the event that such number of Greenbrook Shares is negative, it shall be deemed to be zero), and the holder thereof will cease of the Greenbrook Warrant shall be and shall be deemed to be the holder of such Orko Optionnumber of Net Warrant Surrender Shares, will cease to have any rights as a but the holder in respect of such Orko Option, such holder will Greenbrook Warrant shall not be removed from entitled to a certificate or other document representing the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminatedNet Warrant Surrender Shares so issued;
(f) five minutes after concurrently with the steps contemplated set out in Sections 3.1(a), 3.1(b), 3.1(c), 3.1(d), 3.1(e), (i) each holder of Greenbrook Options, Greenbrook PSUs, Greenbrook RSUs, Greenbrook DSUs and Greenbrook Warrants shall cease to be a holder of such Greenbrook Options, Greenbrook PSUs, Greenbrook RSUs, Greenbrook DSUs and Greenbrook Warrants, (ii) such holder’s name shall be removed from each applicable register, (iii) the Greenbrook Equity Incentive Plans and all award agreements and certificates relating to the Greenbrook Options, Greenbrook PSUs, Greenbrook RSUs, Greenbrook DSUs and Greenbrook Warrants 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 3.1(a), Section 3.1(d) and Section 3.1(e) at the time and in the manner specified in Section 2.3(b3.1(a), Section 3.1(d) and Section 3.1(e), respectively;
(g) each Orko Dissent Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly deemed to be transferred and assigned by such Dissenting Shareholder Shareholder, without any further act of formality on its part, to First Majestic Neuronetics (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in accordance with, and for the consideration set forth contemplated in, Article 4 and:
(i) such Dissenting Shareholder shall cease to be, and shall be deemed to cease to be, the registered holder of each such Dissent Share and the name of such registered holder shall be, and shall be deemed to be, removed from the register of Greenbrook Shareholders in respect of each such Dissent Share, and at such time each Dissenting Shareholder will have only the rights set out in Section 3.14.1;
(gi) five minutes after such Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Dissent Share; and
(ii) Neuronetics shall be and shall be deemed to be the steps contemplated in holder of all of the outstanding Dissent Shares (free and clear of all Liens) and the central securities register of Greenbrook shall be, and shall be deemed to be, revised accordingly.
(h) each Greenbrook Share outstanding immediately prior to the Effective Time (including, for greater certainty, the Greenbrook Shares issued pursuant to Section 2.3(c3.1(a) and 3.1(e), each Orko Share ) (other than any Orko Share Greenbrook Shares held by Neuronetics or any Dissenting Shareholderof its affiliates and all Dissent Shares)) shall be deemed to be transferred and assigned by the holder thereof, without any further act or formality on its part, to First Majestic Neuronetics (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in exchange for the Share Consideration;
(h) with respect , subject to each Orko Share transferred Sections 3.2 and assigned in accordance with Section 2.3(c) or Section 2.3(d):5.3, and
(i) the registered holder thereof shall cease to be, and shall be deemed to cease to be, the registered holder of each such Orko Greenbrook Share and the name of such registered holder shall be, and shall be deemed to be, removed from the register of Orko Shareholders as of the Effective TimeGreenbrook Shareholders;
(jii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Orko Greenbrook Share; and
(kiii) First Majestic will Neuronetics shall be and shall be deemed to be the holder of all of the outstanding Orko Greenbrook Shares (free and clear of all Liens) and the central securities register of Orko Shareholders Greenbrook shall be, and shall be deemed to be, revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations . The events provided for in this Section 2.3 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
Arrangement. Commencing at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further authorization, act or formalityformality required on the part of any person, except as expressly provided herein:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder Option that has an Option Exercise Price that is less than $0.06 shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether transferred by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Company (free and clear of any liensEncumbrances, charges and encumbrances of notwithstanding any nature whatsoevervesting conditions) in accordance with, exchange for a cash payment from the Company equal to the amount by which $0.06 exceeds the Option Exercise Price thereof (less all applicable withholding taxes) and for the holder of such Option shall thereafter only have the right to receive the consideration set forth in, to which they are entitled pursuant to this Section 3.12.3(a) and all Options shall be deemed terminated and the Company shall have no liabilities or obligations with respect to such Options except pursuant to this Section 2.3(a);
(gb) five minutes after the steps contemplated in Section 2.3(c), each Orko Share (other Warrant that has a Warrant Exercise Price that is less than any Orko Share held by any Dissenting Shareholder) $0.06 shall be deemed transferred by the holder thereof to be transferred to First Majestic the Company (free and clear of any liensEncumbrances, charges and encumbrances of notwithstanding any nature whatsoevervesting conditions) in exchange for a cash payment from the Share ConsiderationCompany equal to the amount by which $0.06 exceeds the Warrant Exercise Price thereof (less all applicable withholding taxes) and the holder of such Warrant shall thereafter only have the right to receive the consideration to which they are entitled pursuant to this Section 2.3(b) and all Warrants shall be deemed terminated and the Company shall have no liabilities or obligations with respect to such Warrants except pursuant to this Section 2.3(b);
(hc) with the Common Shares held by Shareholders in respect of which Dissent Rights have been validly exercised (the “Dissenting Shareholders”) shall be deemed to have been transferred without any further act or formality to the Company (free and clear of any Encumbrances) and:
(i) such Common Shares shall be cancelled and cease to be outstanding;
(ii) such Dissenting Shareholders 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;
(iii) such Dissenting Shareholders’ names shall be removed as the holders of such Common Shares from the registers of Company maintained by or on behalf of the Company; and
(iv) 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;
(d) each Orko Common Share outstanding immediately prior to the Effective Time (other than Common Shares subject to step (c)) shall be transferred without any further act or formality to the Purchaser (free and assigned in accordance with Section 2.3(cclear of any Encumbrances) or Section 2.3(d):for $0.06 per Common Share, and:
(i) the registered holder thereof holders of such Common Shares immediately before the Effective Time shall cease to be the registered holder holders thereof and to have any rights as holders of such Orko Common Shares other than the right to be paid $0.06 per Common Share in accordance with this Plan of Arrangement and other than the name of right to receive any declared but unpaid dividends on such registered holder Common Shares;
(ii) such holders’ names shall be removed as the holders from the register registers of Orko Shareholders as Common Shares maintained by or on behalf of the Effective Time;Company; and
(jiii) the registered holder thereof Purchaser shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder transferee of all 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 outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateCompany.
Appears in 1 contract
Sources: Acquisition Agreement (Big Lots Inc)
Arrangement. Commencing at At the Effective Time, the following transactions shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) each Shareholder who has duly exercised the Shareholder Rights Plan right of dissent as set forth in Article 3 shall be deemed to have transferred the PTI Common Shares held by such holder to PTI for cancellation and such shares shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting such Shareholder in respect which have not been exercised prior to the time such Shareholder exercises such right of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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) dissent shall be deemed to be transferred to First Majestic (free PTI for no consideration and clear of any liens, charges shall be cancelled and encumbrances of any nature whatsoever) shall no longer be outstanding and in exchange for no case shall PTI or OSI be required to recognize such holders as Optionholders on and after the Share Consideration;
(h) with respect to each Orko Share transferred Effective Time and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder names of such Orko Share and the name of such registered holder persons shall be removed deleted from the register registers of Orko Shareholders as of Optionholders at the Effective Time;
(jb) the registered holder thereof Unanimous Shareholder Agreement shall be deemed terminated and of no further force or effect;
(c) OSI shall acquire:
(i) all of the PTI Common Shares held by the Non-Accredited U.S. PTI Shareholder in exchange for a payment, in United States dollars, equal to have executed the OSI IPO Price less underwriters' discounts and delivered all consentscommissions applicable to the OSI IPO, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Sharemultiplied by the Exchange Ratio multiplied by the number of PTI Common Shares held by the Non-Accredited U.S. PTI Shareholder; and
(kd) First Majestic will be the holder of OSI ULC shall acquire all of the outstanding Orko PTI Common Shares and acquired by OSI pursuant to Section 2.1(c) hereof in exchange for one common share in the register capital of Orko Shareholders shall be revised accordinglyOSI ULC for each whole PTI Common Share;
(le) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration PTI Holdco shall acquire all of the 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 by Subco to First Majestic of PTI Holdco one Subco Class A Common Share for each Orko of its PTI Common Shares;
(ii) New PTI shall issue to PTI Holdco one Class A Common Share so transferredfor each of its PTI Amalco Common Shares;
(iii) New PTI shall issue to 812375 one Class B Common Share for each of its PTI Common Shares;
(iv) New PTI shall issue to RJM one Class C Common Share for each of its PTI Common Shares;
(v) New PTI shall issue to each of the Shareholders other than 812375, RJM, PTI Holdco and holders of PTI Common Shares in respect of which rights of dissent have been exercised pursuant to Article 3 hereof and which have been cancelled pursuant to Section 2.1(a) hereof one Class D Common Share for each of their PTI Common Shares;
(vi) the amount added to the stated capital of account maintained for the Subco Class A Common Shares will be equal with respect to the value of the Orko Class A Common Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares shall be reduced issued pursuant 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(fSections 2.1(g)(i) and (g), Orko and Subco shall merge to form one corporate entity (“Amalco”ii) with the same effect as if they had amalgamated under Section 269 of the 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in for the purposes of the ITA, attributable of the PTI Common Shares and the PTI Amalco Common Shares held by PTI Holdco;
(vii) the amount added to the Subco stated capital account maintained for the Class B Common Shares with respect to the Class B Common Shares issued pursuant to Section 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 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 PTI Common Shares held by PTI Holdco, 812375 and RJM and (B) PTI Common Shares in respect of which 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 amount credited to New PTI's retained earnings account equal to [$6,794,359] and (ii) the Class C Common Shares shall be increased by a portion of the amount credited to New PTI's retained earnings account equal to [$3,903,303];
(i) The Articles of Incorporation of PTI Holdco shall be 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 Combination Agreement and to delete the 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 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 such a holder, shall have his name removed from the register of holders of 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 added to the register of holders of Exchangeable Shares accordingly; and
(ii) PTI Holdco shall become the legal and beneficial owner of 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, in accordance with the Voting and Exchange Trust Agreement.
(t) The then outstanding Options will, without any further action on the part of any Optionholder: (i) if applicable, vest in accordance with the terms and conditions of the Option Agreements, and (ii) be converted into or exchanged for an option to purchase the number of shares of OSI Common Stock determined by multiplying the number of PTI Common Shares subject to such Option at the Effective Time by the Exchange Ratio, at an exercise price per share of OSI Common Stock equal to the exercise price per share of such Option immediately prior to the amalgamation; andEffective 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 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.
(ddu) PTI Holdco Sub shall acquire all of the exchanges issued and cancellations provided outstanding New PTI Shares from PTI Holdco in exchange for an equal number of common shares in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datecapital of PTI Holdco Sub.
Appears in 1 contract
Sources: Combination Agreement (Oil States International Inc)
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur 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 terms of the Shareholder Rights Plan, the Shareholder Rights Plan shall be terminated and all rights issued pursuant to the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no considerationwithout any payment in respect thereof;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan Dissent Share shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Purchaser (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in accordance with, and for the consideration set forth contemplated in, Section 3.1Article 4;
(gc) five minutes after all Company Options, to the steps contemplated extent not exercised prior to the 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 then issued and outstanding Company RSUs, and the Company shall allot and issue to each Company RSU Holder such number of Company Shares as are due to such holder under the terms of such RSUs and thereafter (i) the Company Incentive Plans will terminate and none of the former holders of Company RSUs or Company Options shall have any rights, liabilities or obligations in respect of the Company Incentive Plans and (ii) the Company RSU Holders will be treated in all respects as Company Shareholders with respect to the Company Shares issued pursuant to this Section 2.3(c3.1(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), 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 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
(iii) Purchaser shall purchase all of the issued and outstanding Company Shares for the Consideration (to be issued or paid directly by Parent) and each Orko Company Share (other than any Orko Share held by any Dissenting ShareholderDissent Share) shall be deemed to be transferred to First Majestic Purchaser (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in exchange for:
(A) the Share Consideration to be issued directly by Parent to the Company Shareholder for the Share Considerationbenefit of Purchaser; or
(B) the Cash Consideration to be issued or paid directly by Parent to the Company Shareholder for the benefit of Purchaser, in each case in accordance with the election or deemed election of such Company Shareholder pursuant to Section 3.2, in each case, subject to proration in accordance with Section 3.3;
(hf) with respect to each Orko Company Share transferred and assigned in accordance with Section 2.3(c3.1(b) or Section 2.3(d3.1(e):
(i) the registered holder thereof shall cease to be the registered holder of such Orko 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 register of Orko Company Shareholders as of the Effective Timetime of transfer prescribed in Section 3.1(b) or Section 3.1(e), as applicable;
(jii) 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 Orko Company Share; and
(kiii) First Majestic Purchaser will be the holder of all of the outstanding Orko Company Shares 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 Orko Shareholders Company shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) accordingly and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares Purchaser shall be reduced entitled 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) Amalco will continue to be liable for all of the liabilities rights 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 privileges attached to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateCompany Shares.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further act or formalityformality required on the part of any person, in each case effective as at five minute intervals starting at the Effective Time:
(a) the MKS Shareholder Rights Plan shall be cancelled terminated and shall have be of no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no considerationeffect;
(b) five minutes after each Vested MKS Option that is outstanding and has not been duly exercised prior to the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willEffective Time, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled Vested MKS Option and without any compensation thereforpayment except as provided in this Plan of Arrangement, and subject to (for greater certainty) applicable withholdings in accordance with Section 5.3, shall be transferred by the holder thereof to MKS in consideration for a cash payment by MKS equal to the product obtained by multiplying the amount by which the Consideration per MKS Common Share exceeds (i) the exercise price of such Vested MKS Option, for a Vested MKS Option denominated in Canadian dollars and (ii) the exercise price of such Vested MKS Option multiplied by the Currency Exchange Rate for a Vested MKS Option denominated in U.S. dollars, by, in each case, the number of MKS Common Shares underlying each such Vested MKS Option. Each Vested MKS Option issued and outstanding immediately prior to the Effective Time shall thereafter be immediately cancelled and the holder thereof shall thereafter have only the right to receive the consideration to which such holder is entitled pursuant to this Subsection 3.1(b);
(c) notwithstanding any contingent vesting provisions to which a MKS RSU might otherwise have been subject, and without any further action on behalf of any holder of such MKS RSU and without any payment except as provided in this Plan of Arrangement, each outstanding, unvested MKS RSU shall accelerate in accordance with the terms of the MKS RSU Plan and MKS shall, subject to (for greater certainty) applicable withholdings in accordance with Section 5.3, cause the trustee of the trust under the MKS RSU Plan to deliver to each holder of such an outstanding MKS RSU one MKS Common Share from the trust under the MKS RSU Plan. Each MKS RSU issued and outstanding immediately prior to the Effective Time shall thereafter be immediately cancelled and all MKS RSU agreements related thereto shall be immediately terminated and the holder thereof shall thereafter have only the right to receive the consideration to which such holder is entitled pursuant to this Subsection 3.1(c) (and as a holder of MKS Common Shares pursuant to Subsection 3.1(d)). The MKS RSU Plan shall be terminated and none of MKS, PTC, Acquireco or any of their affiliates shall have any liabilities or obligations with respect to such plan except pursuant to this Subsection 3.1(c);
(d) with respect each MKS Common Share (including MKS Common Shares transferred to each Orko Option, the holder thereof will cease former holders of MKS RSUs pursuant to be the holder of such Orko Option, will cease to have in Subsection 3.1(c) but other than any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder MKS Common Shares in respect of which the Orko MKS Common Shareholder has validly exercised his, her or its Dissent Rights Right) shall be deemed to be transferred to Acquireco (free and clear of any Liens) in exchange for the Consideration, subject to Article 4 hereof;
(e) each MKS Common Share in respect of which the MKS Common Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Acquireco (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in accordance with, and for the consideration set forth in, Section 3.1with Article 4 hereof;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(hf) with respect to each Orko MKS Common Share transferred and assigned in accordance with Section 2.3(cSubsection 3.1(d) or Section 2.3(d):Subsection 3.1(e) hereto:
(i) the registered holder thereof shall cease to be the registered holder of such Orko MKS Common Share and the name of such registered holder shall be removed from the register of Orko MKS Common Shareholders as of the Effective Time;
(jii) 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 Orko ShareMKS Common Share in accordance with Subsection 3.1(d) or Subsection 3.1(e) hereto, as applicable; and
(kiii) First Majestic Acquireco will be the holder of all of the outstanding Orko MKS Common Shares and the register of Orko MKS Common Shareholders shall be revised accordingly;
(lg) five minutes after each Unvested MKS Option that is outstanding prior to the steps contemplated Effective Time, without any further action on behalf of any holder of such Unvested MKS Option, shall be exchanged for an option (a “Replacement Option”) to purchase from PTC the number of PTC Shares (rounded down to the nearest whole number of such shares) equal to the product obtained by multiplying (i) the Exchange Ratio by (ii) the number of MKS Shares subject to such Unvested MKS Option immediately prior to the Effective Time, and each holder of such exchanged Unvested MKS Option shall immediately become a holder of the number of Replacement Options to which such holder is entitled as a result of the exchange, and each such exchanged Unvested MKS Option shall be immediately cancelled. For each Unvested MKS Option, such Replacement Option shall provide for an exercise price per PTC Share (rounded up to the nearest whole cent) in Section 2.3(dUnited States dollars equal to (A) in respect of an Unvested MKS Option denominated in Canadian dollars: (i) the quotient obtained by dividing (x) the exercise price per MKS Common Share of such Unvested MKS Option immediately prior to the Effective Time by (y) the Exchange Ratio, divided by (ii) the Currency Exchange Rate; and (eB) in respect of an Unvested MKS Option denominated in U.S. dollars: the quotient obtained by dividing (x) the exercise price per MKS Common Share of such Unvested MKS Option immediately prior to the Effective Time by (y) the Exchange Ratio. Except as otherwise set out in this Subsection 3.1(g), each outstanding Orko Share will Replacement Option shall be transferred to Subco in consideration governed by the terms and conditions of the issue by Subco MKS Stock Option Plan and any stock option agreement pursuant to First Majestic which such MKS Option was granted (including, but not limited to, the term to expiry, conditions to and manner of one Subco Share for each Orko Share so transferredexercising and vesting schedule), and with any adjustments deemed to be made thereto as are necessary to ensure consistency with the amount added provisions of this Subsection 3.1(g). Notwithstanding the above provisions of this Subsection 3.1(g),
(i) with respect to any Unvested MKS Option, if the stated capital directors of PTC determine in good faith that the excess of the Subco Shares will be equal to the aggregate fair market value of the Orko PTC Shares so transferred;
subject to the Replacement Option immediately after the issuance of the Replacement Option over the aggregate option exercise price for such PTC Shares pursuant to the Replacement Option (msuch excess, referred to as the “Post-Exchange Option Value”) concurrent with would otherwise exceed the step in Section 2.3(fexcess of the aggregate fair market value of the MKS Shares subject to such MKS Option immediately before the issuance of the Replacement Option over the aggregate option exercise price for such MKS Shares pursuant to such MKS Option (such excess, referred to as the “Pre-Exchange Option Value”), the stated capital previous provisions in respect of the Orko Shares this Subsection 3.1(g) 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)modified, 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract or otherwise, may be enforced against Amalco but only to the same extent as if such obligations had been incurred or contracted by it;
(r) Amalco will continue to be liable for all of the liabilities necessary 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 in a manner that does 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 otherwise adversely affect the holder of the Subco Shares shall receive on Replacement Option, so that the amalgamation one common share in Post-Exchange Option Value does not exceed the authorised share structure of Amalco in exchange for each Subco Share previously held Pre-Exchange Option Value and all of provided that the issued and outstanding Orko Shares Post-Exchange Option Value will not be cancelled without repayment of capital in respect thereof;
(x) less than the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Pre-Exchange Option Value; and
(ccii) the stated capital with respect only to an Unvested MKS Option that is held by a resident of the common shares United States, the exercise price and the number of Amalco will PTC Shares subject to a Replacement Option shall be determined in a manner consistent with the requirements of Section 409A of the IRC; provided, further, that in the case of any such Unvested MKS Option which was an amount equal to the paid-up capital, incentive stock option (as that term is defined in Section 422 of the ITA, attributable to the Subco Shares IRC) immediately prior to the amalgamation; and
(ddEffective Time, the exercise price, the number of PTC Shares and the terms and conditions of the Replacement Option shall be determined in a manner consistent with the requirements of Section 424(a) of the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateIRC.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality, in each case, effective at the Effective Time:
(a) the Shareholder Rights Plan shall be cancelled terminated;
(b) each outstanding Option, SAR and shall have no further force SPAU (whether vested or effect and each unvested), notwithstanding the terms of the rights thereunder applicable Company Stock Plan, shall be deemed to be cancelled for no consideration;unconditionally vested and exercisable, and such Option, SAR or SPAU:
(bi) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willshall, without any further action by or on behalf of any the holder of such Orko Optionsthereof, be deemed 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 Purchase Price exceeds the exercise price thereof, less applicable withholdings; and
(ii) shall immediately be cancelled without any compensation thereforand all agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the consideration to which such holder is entitled pursuant to this Section 2.03(b) at the time and in the manner specified in Article IV; and
(c) each outstanding PSU and DSU 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) with respect to each Orko Option, Common Share outstanding at the holder thereof will cease Effective Time other than a Common Share held by (i) a Dissenting Holder who is ultimately entitled to be paid the holder fair value of the Common Shares held by such Orko OptionDissenting Holder, will cease to have or (ii) Parent, Acquisition Sub or any rights Affiliate thereof (which shall not be exchanged under the Arrangement and shall remain outstanding as a holder Common Share held by Parent, Acquisition Sub or any Affiliate thereof), shall be transferred to Acquisition Sub in respect of such Orko Option, such holder will be removed from exchange for the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; andPurchase Price per Common Share in cash;
(e) the Orko Stock Option Plan names of the holders of the Common Shares transferred to Acquisition Sub shall be terminatedremoved from the applicable registers of holders of Common Shares and Acquisition Sub shall be recorded as the registered holder of the Common Shares so acquired and shall be deemed the legal and beneficial owner thereof free and clear of any liens or encumbrances;
(f) five minutes after the steps contemplated Company shall pay any short-term incentive compensation payable under the 2006 Incentive Plan in Section 2.3(b), each Orko Share held by connection with a Dissenting Shareholder change in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;control; and
(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) Company Stock Plans shall be deemed to be transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateterminated.
Appears in 1 contract
Sources: Arrangement Agreement (Novelis Inc.)
Arrangement. Commencing at At the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formalityformality on the part of any person:
(a) the Shareholder Rights Longhi LTIP Shares held in the Executive Long Term Incentive Plan Trust shall revert to the Company for no consideration and be cancelled and Gerdau shall have no further force or effect deposit to the Executive Long Term Incentive Plan Trust that number of ADSs equal to the number of Longhi LTIP Shares held in the Executive Long Term Incentive Plan Trust multiplied by the Exchange Ratio in substitution therefore and shall, in the future, deposit additional ADSs to the Executive Long Term Incentive Plan Trust based on the number of Common Shares that are required to be delivered to the Executive Long Term Incentive Plan Trust multiplied by the Exchange Ratio;
(b) the Common Shares held by each of the rights thereunder Dissenting Shareholder shall be deemed to be cancelled transferred (free and clear of any Liens) to the Acquiror, and:
(i) the Acquiror shall be obligated to pay such Dissenting Shareholder the amount determined in accordance with Section 4.1 for no considerationsuch Common Shares;
(bii) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will Dissenting Shareholder shall cease to be the holder of such Orko Option, will Common Shares and shall cease to have any rights as a holder in respect of such Orko OptionCommon Shares, other than the right to be paid the amount determined in accordance with Section 4.1 for such holder will Common Shares;
(iii) such Dissenting Shareholder’s name shall be removed as the holder of such Common Shares from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledCommon Shares maintained by or on behalf of the Company; and
(eiv) the Orko Stock Option Plan Acquiror shall be terminated;
(f) five minutes after deemed to be the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect holder of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Common Shares (free and clear of any liens, charges Liens) and encumbrances shall be entered as the holder of any nature whatsoever) such Common Shares in accordance with, and for the consideration set forth in, Section 3.1register of Common Shares maintained by or on behalf of the Company;
(gc) five minutes after the steps contemplated in Section 2.3(c), each Orko Common Share (other than any Orko Share Common Shares held by (i) Dissenting Shareholders and (ii) Gerdau and its subsidiaries) shall be transferred (free and clear of all Liens) by the holder thereof to the Acquiror and:
(i) the Acquiror shall, subject to Article 5, be obligated to pay such holder an amount of cash equal to the Acquisition Price in exchange for each Common Share transferred;
(ii) such holder shall cease to be the holder of such Common Shares and shall cease to have any Dissenting Shareholderrights as a holder of such Common Shares, other than the right, subject to Article 5, to receive the amount of cash that such holder is entitled to receive in exchange for such Common Shares in accordance with Section 3.1(c)(i), in each case less any amounts required to be withheld, in accordance with Section 5.4;
(iii) such holder’s name shall be removed as the holder of such Common Shares from the register of Common Shares maintained by or on behalf of the Company; and
(iv) the Acquiror shall be deemed to be transferred to First Majestic the holder of such Common Shares (free and clear of any liensLiens) 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;
(d) new equity based compensation plans shall be adopted by Gerdau with terms in all respects the same as the Company Equity Plans;
(e) the LTIP shall be amended with respect to SARs and Phantom Shares held by Canadian Awardholders and the SAR Plan and the SIS Plan shall be amended with respect to SARs held by Canadian Awardholders to provide that such Phantom Shares and SARs will be based on ADSs;
(f) each outstanding Phantom Share granted under the LTIP and held by a Canadian Awardholder shall be amended to provide that such Phantom Shares will be in respect of ADSs with the number of Phantom Shares adjusted using the Exchange Ratio;
(g) each outstanding SAR granted under the SAR Plan, charges the SIS Plan and encumbrances the LTIP and held by a Canadian Awardholder shall be amended to provide that such SARs will be in respect of any nature whatsoever) in exchange for ADSs with both the Share Considerationnumber 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 respect to each Orko Share transferred the number of such PSUs, RSUs and assigned in accordance with Section 2.3(c) or Section 2.3(d):Phantom Shares adjusted using the Exchange Ratio;
(i) each outstanding Option and SAR (other than the registered holder thereof shall cease to be SARs held by Canadian Awardholders under the registered holder of such Orko Share SAR Plan, the SIS Plan and the name of such registered holder LTIP) shall be removed from cancelled and Gerdau shall grant, in exchange for each such award, a new option or share appreciation right, as applicable, having the register same vesting date, expiry date and other terms and conditions, mutatis mutandis, as the cancelled Options and SARs but in respect of Orko Shareholders as ADSs, with both the number of Options and SARs and the exercise price or base price of the Effective TimeOptions and SARs adjusted using the Exchange Ratio;
(j) the registered holder thereof Co-Steel Share Loan Plan, the Company Equity Plans other than the LTIP, the SAR Plan and the SIS Plan shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; andcancelled;
(k) First Majestic will the Directors Plan shall be the holder of all of the outstanding Orko Shares cancelled and the register of Orko Shareholders Company shall be revised accordinglyredeem each outstanding DSU for consideration equal to the Acquisition Price;
(l) five minutes after the steps contemplated in Section 2.3(dLonghi Employment Agreement shall be amended such that (a) Gerdau will assume the obligation under the Longhi Employment Agreement to provide ADSs, and (e), each outstanding Orko Share will be transferred b) all references to Subco in consideration Common Shares contained therein are amended to refer to ADSs with the number of Common Shares adjusted using the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferredExchange Ratio;
(m) concurrent with each participant in the step in Section 2.3(f)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) if such participant’s Co-Steel Indebtedness Amount is less than such participant’s Co-Steel Cash Amount as at the Effective Time, receive a cash amount equal to (A) the stated capital in respect Co-Steel Cash Amount for such participant less (B) the Co-Steel Indebtedness Amount for such participant; or
(ii) if such participant’s Co-Steel Indebtedness Amount is greater than the participant’s Co-Steel Cash Amount as at the Effective Time, a reduction of the Orko Shares shall be reduced to an aggregate Co-Steel Indebtedness Amount for such participant in the amount of $1.00 without any repayment of capital in respect thereof;the Co-Steel Cash Amount for such participant; and
(n) five minutes after the steps contemplated in Section 2.3(f) and (g)exchanges, 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges payments and cancellations provided for in contemplated by this Section 2.3 will 3.1 shall be deemed to occur on the Effective Date, notwithstanding that certain of the procedures related thereto may are not be completed until after the Effective Time or after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement (Gerdau S.A.)
Arrangement. Commencing and effective as at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur sequentially in the following order without any further act or formalityformality required on the part of any person, except as otherwise expressly provided herein:
(a) each Company RSU outstanding immediately prior to the Shareholder Rights Plan shall be cancelled and shall have no further force Effective Time, whether vested or effect and each of the rights thereunder unvested, shall be deemed to be cancelled for immediately vested to the fullest extent, shall settle in Company Shares (provided that no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting share certificates or exercise provisions to which an Orko Option might otherwise DRS statements shall be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) issued with respect to such Company 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 Orko Option, such Company RSU shall be immediately cancelled by the holder thereof will Company and the holders of such Company RSUs shall cease to be the holder of such Orko Option, will cease holders thereof and to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the Company RSU Holders. Each Company RSU Holder's name of such registered holder shall be removed from the register of Orko Shareholders as Company RSUs maintained by or on behalf of Company and all agreements relating to the Company RSUs shall be terminated and shall be of no further force and effect;
(b) each Company PSU outstanding immediately prior to the Effective Time, whether vested or unvested, shall be deemed to be immediately vested to the fullest extent, shall settle in Company Shares (provided that no share certificates or DRS statements shall be issued with respect to such Company 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 Company PSU Holders. Each Company PSU Holder's name shall be removed from the register of Company PSUs maintained by or on behalf of Company and all agreements relating to the Company PSUs shall be terminated and shall be of no further force and effect;
(jc) each Company SAR outstanding immediately prior to the registered 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 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 and shall be deemed to have executed been transferred by the holder thereof, without any further act or formality on its part, to Company (free and delivered all consentsclear of any Liens of any nature whatsoever) and cancelled, releasesand Company shall thereupon be obligated to pay the amount therefore determined and payable in accordance with Article 5, assignments and:
(i) such Dissenting Shareholder shall cease to be, and waiversshall be deemed to cease to be, statutory or otherwise, required the holder of such Dissent Share and to transfer and assign have any rights as a Company Shareholder other than the right to be paid the fair value by the Company for such Orko ShareDissent Share as set out in Section 5.1 out of reserves established by the Company therefore; and
(kii) First Majestic will such Dissenting Shareholder's names shall be, and shall be the holder of all of the outstanding Orko Shares and deemed to be, removed from the register of Orko Company Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration maintained by or on behalf of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferredCompany;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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
Arrangement. 3.1 Commencing at the Effective TimeTime in one minute intervals, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further act or formalityformality except as otherwise provided herein:
(a) The articles of Zodiac will be amended as set out in Appendix “B” to Schedule “A” to the Shareholder Rights Plan shall be cancelled Arrangement Agreement such that Zodiac creates and shall have no further force or effect and each is authorized to issue an unlimited number of Zodiac Class “A” Shares with the rights thereunder and restrictions set out in Appendix “B” to Schedule “A” to the Arrangement Agreement.
(b) each issued and outstanding Zodiac Subscription Receipt shall be, and shall be deemed to be, exchanged for one Zodiac Class “A” Share, and for each such Zodiac Class “A” Share there shall be cancelled added to the stated capital account for no considerationthe Zodiac Class “A” Shares an amount equal to the Financing Price;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, AcquisitionCo and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan Zodiac shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b)amalgamated and continued as one corporation, each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised hisAmalCo, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):the following:
(i) the registered holder thereof Zodiac Shares, shall cease to be cancelled without any repayment of capital;
(ii) the Zodiac Class “A” Shares, shall be cancelled without any repayment of capital;
(iii) the articles of AmalCo shall be the registered holder same as the articles of such Orko Share AcquisitionCo, and the name of such registered holder AmalCo shall be removed from the register of Orko Shareholders as of the Effective Time“Zodiac Exploration Corp.”;
(jiv) no securities shall be issued by AmalCo in connection with the amalgamation and for greater certainty, the AcquisitionCo Common Shares issued by AcquisitionCo shall survive and continue to be the AmalCo Common Shares without amendment;
(v) the registered holder thereof office of AmalCo shall be deemed to have executed and delivered all consentslocated at ▇▇▇▇, releases▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., assignments and waivers▇▇▇▇▇▇▇, statutory or otherwise▇▇▇▇▇▇▇, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly▇▇▇▇▇▇, ▇▇▇ ▇▇▇;
(lvi) five minutes after the steps contemplated in Section 2.3(d) and (e), property of each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco amalgamating corporations shall continue to First Majestic be the property of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferredAmalCo;
(mvii) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares AmalCo 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) Amalco will continue to be liable for the obligations of all of the liabilities and obligations of Orko and Subcoamalgamating corporations;
(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;
(tviii) any existing cause of action, claim or liability to prosecution will of any of the amalgamating corporations shall be unaffected;
(uix) a any civil, criminal or administrative action or proceeding pending by or against either Orko or Subco may any of the amalgamating corporations shall be able to be continued to be prosecuted by or against AmalcoAmalCo;
(vx) a conviction against, or ruling, order or judgment in favour of or against either Orko or Subco may against, any of the amalgamating corporations shall be able to be enforced by or against AmalcoAmalCo;
(wxi) First Majestic as the holder Articles of Amalgamation shall be deemed to be the Subco Shares Articles of Incorporation of AmalCo and the Certificate of Amalgamation shall receive on be deemed to be the amalgamation one common share in the authorised share structure Certificate of Amalco in exchange for each Subco Share previously held and all Incorporation of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereofAmalCo;
(xxii) the name by-laws of Amalco AmalCo shall be “Orko Silver Corp.”the by-laws of AcquisitionCo until repealed, altered or amended;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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;
(bbxiii) the first directors of Amalco following the amalgamation AmalCo shall be the persons whose names and municipality of residence appear below: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Calgary, Alberta
(xiv) the first officers of AmalCo shall be; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇- COO Calgary, Alberta ▇▇▇▇▇ ▇▇▇▇▇▇▇ – CFO Calgary, Alberta and
(xv) the first auditors of AmalCo shall be PriceWaterhouseCoppers LLP. The first auditors of AmalCo shall hold office until the first annual meeting of AmalCo following the amalgamation or until their successors are elected or appointed.
(d) on the Amalgamation:
(i) the issued and outstanding Zodiac Shares and Zodiac Class “A” Shares (issued pursuant to Section 3.1(b) of this Plan of Arrangement) and the AcquisitionCo Common Shares, other than Zodiac Shares held by a holder who has validly exercised its Dissent Rights and who is ultimately entitled to be paid fair value for the Zodiac Shareholder’s Zodiac Shares, shall be exchanged for Peninsula Shares or converted into issued and outstanding AmalCo Common Shares as follows:
(A) each Zodiac Share held by a Zodiac Shareholder shall be exchanged for the Zodiac Restricted Share Consideration, subject to Article 5 pursuant to which:
(1) such Zodiac Shareholder shall cease to be a holder of Zodiac Shares and the name of such Zodiac Shareholder shall be deemed to be removed from the central securities register of holders of Zodiac Shares;
(2) Peninsula shall issue from treasury and cause to be delivered to such holder the Peninsula Shares to which such holder is entitled as aforesaid and the name of such holder shall be added to the central securities register of holders of Peninsula Shares showing such holder as the registered holder of the Peninsula Shares so issued; and
(cc3) each Zodiac Share so exchanged shall be cancelled;
(B) each Zodiac Class “A” Share held by a former Zodiac Subscription Receiptholder shall be exchanged for the stated capital Zodiac Class “A” Share Consideration, subject to Article 5 pursuant to which:
(1) such Zodiac Class “A” Shareholder shall cease to be a holder of Zodiac Class “A” Shares and the name of such Zodiac Class “A” Shareholder shall be deemed to be removed from the central securities register of holders of Zodiac Class “A” Shares;
(2) Peninsula shall issue from treasury and cause to be delivered to such Zodiac Class “A” Shareholder the Peninsula Shares to which such Zodiac Class “A” Shareholder is entitled as aforesaid and the name of such Zodiac Class “A” Shareholder shall be added to the central securities register of holders of Peninsula Shares showing such Zodiac Class “A” Shareholder as the registered holder of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Peninsula Shares immediately prior to the amalgamationso issued; and
(dd3) the exchanges and cancellations provided for in this Section 2.3 will each Zodiac Class “A” Share so exchanged shall be cancelled;
(C) all AcquisitionCo Common Shares shall be deemed to occur be converted on a share for share basis into fully paid and non-assessable AmalCo Common Shares on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after basis of one fully paid and non-assessable AmalCo Common Share for each one AcquisitionCo Common Share.
3.2 With respect to each holder of Zodiac Shares (other than Dissenting Shareholders) at the Effective DateTime:
(a) upon the exchange of the Zodiac Shares for the Zodiac Restricted Share Consideration pursuant to Section 3.1 (d):
(i) such Zodiac Shareholder shall cease to be a holder of the Zodiac Shares so exchanged and the name of such Zodiac Shareholder shall be removed from the register of Zodiac Shareholders as it relates to the Zodiac Shares so exchanged; and
(ii) such Zodiac Shareholder shall become a holder of Peninsula Shares subject to the Restrictions On Trading and Release from the Depositary as set forth in Appendix “A” and the name of such Zodiac Shareholder shall be added to the register of holders of Peninsula Shares with respect to the Peninsula Shares issued in exchange for the Zodiac Shareholder's Zodiac Shares;
3.3 With respect to each holder of Zodiac Class “A” Shares at the Effective Time:
(a) upon the exchange of the Zodiac Class “A” Shares for the Zodiac Class “A” Share Consideration pursuant to Section 3.1 (d):
(i) such Zodiac Class “A” Shareholder shall cease to be a holder of the Zodiac Class “A” Shares so exchanged and the name of such Zodiac Class “A” Shareholder shall be removed from the applicable register of holders of Zodiac Class “A” Shares as it relates to the Zodiac Class “A” Shares so exchanged; and
(ii) such Zodiac Class “A” Shareholder shall become a holder of Peninsula Shares and the name of such Zodiac Class “A” Shareholder shall be added to the register of holders of Peninsula Shares with respect to the Peninsula Shares issued in exchange for the Zodiac Class “A” Shareholder’s Zodiac Class “A” Shares;
3.4 Any transfer of securities pursuant to this Plan of Arrangement shall be free and clear of any liens, claims, encumbrances, charges, adverse interests or security interests (but subject to the Restrictions On Trading and Release from the Depositary which will be applied to holders of Peninsula Shares issued pursuant to the Zodiac Restricted Share Consideration).
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further act or formalityformality required on the part of any Person, in each case effective as at the Effective Time:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
Liquid Share (b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding other than any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share Liquid Shares held by a Dissenting Shareholder LBIX and any Liquid Shares in respect of which the Orko any Liquid Shareholder has validly exercised his, her or its Dissent Rights Right) shall be deemed to be transferred to LBIX (free and clear of any Encumbrances) in exchange for the Consideration, subject to Article 4 hereof;
(b) each Liquid Share in respect of which any Liquid Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic LBIX (free and clear of any liens, charges and encumbrances of any nature whatsoeverEncumbrances) in accordance with, and for the consideration set forth in, Section 3.1with Article 4 hereof;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(hc) with respect to each Orko Liquid Share transferred and assigned in accordance with Section 2.3(c3.1(a) or Section 2.3(d):3.1(b) hereto:
(i) the registered holder thereof shall cease to be the registered holder of such Orko Liquid Share and the name of such registered holder shall be removed from the register of Orko Liquid Shareholders as of the Effective Time;
(jii) 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 Orko ShareLiquid Shares in accordance with Section 3.1(a) or Section 3.1(b) hereto, as applicable; and
(kiii) First Majestic LBIX will be the holder of all of the outstanding Orko Liquid Shares and the register of Orko Liquid Shareholders shall be revised accordingly;
(ld) five minutes after in accordance with the steps contemplated in Section 2.3(d) certificates governing the terms and conditions of the Liquid Warrants, each holder of a Liquid Warrant outstanding immediately prior to the Effective Time shall be entitled to receive (eand such holder shall accept), upon the exercise of such holder's Liquid Warrants, in lieu of each outstanding Orko Liquid Share will be transferred to Subco in which such holder was theretofore entitled, upon such exercise and for the same aggregate consideration payable therefor, the number of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco LBIX Shares will be equal to the value product of: (i) the number of Liquid Shares subject to such Liquid Warrant immediately prior to the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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) Effective Time; and (g), Orko and Subco ii) 0.6979. Each liquid Warrant shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) Amalco will continue to be liable for all governed by and be subject to the terms of the liabilities certificate governing the terms and obligations conditions 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Liquid Warrant; and
(cce) the stated capital of the common shares of Amalco will be an amount equal to the paid-up capitalexchanges, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges cancellations and cancellations transactions provided for in this Section 2.3 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
Arrangement. Commencing Subject to the terms hereof, commencing at the Effective Time, and as more fully set forth in the following shall occur and Arrangement By-Law:
2.1.1 the Target Shares outstanding immediately prior to the Effective Time held by each holder thereof shall be deemed to occur in transferred by the following order holder thereof to, and acquired by, Purchaser without any further act or formality:
(a) formality on the Shareholder Rights Plan shall be cancelled part of such holder or Purchaser, free and shall have no further force or effect clear of any Liens, in exchange for such number of duly authorized, fully-paid and each non-assessable Purchaser Shares equal to the product of the rights thereunder shall be deemed to be cancelled for no considerationnumber of such Target Shares held by such holder multiplied by the Exchange Ratio;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) 2.1.2 with respect to each Orko Option, Target Share transferred to Purchaser pursuant to Section 2.1.1;
2.1.2.1 the holder thereof will of each such Target Share shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Target Share and the such holder’s name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;Target Shares with respect to such Target Shares; and
(j) the registered holder thereof 2.1.2.2 Purchaser shall be deemed to have executed be the transferee of such Target Share (free and delivered all consents, releases, assignments clear of any Liens) and waivers, statutory or otherwise, required to transfer and assign such Orko Shareshall be entered in the register of Target Shares as the registered holder thereof; and
2.1.2.3 no fractional Purchaser Shares will be issued under the Arrangement, and any resulting fractional Purchaser Shares shall be rounded down or up, as appropriate, to the closest whole number, it being understood for greater certainty that 0.5 Purchaser Shares shall be rounded down to the closest whole number; with respect to each Purchaser Share issued to a former holder of Target Shares pursuant to Section 2.1.1, the name of such holder shall be entered in the register of holders of Purchaser Shares as the registered holder thereof;
2.1.3 each outstanding Target Option that is not exercised prior to the Effective Time (k“Unexercised Options”) First Majestic shall, without any further action or formality on the part of any holder of such Unexercised Option, be transferred by the holder thereof to Target in exchange for an option (a “Replacement Option”) to purchase that number of Purchaser Shares equal to the number of Target Shares subject to 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 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 schedule and all other terms and conditions of such Replacement Option will be the holder same as the terms and conditions of all of such Unexercised Option. Any document or agreement previously evidencing such Unexercised Option shall thereafter evidence and be deemed to evidence such Replacement Options;
2.1.4 the outstanding Orko Shares and the register of Orko Shareholders Target Stock Option Plan shall be revised accordinglycancelled;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) 2.1.5 effective from and after the Effective DateTime, each Target Warrant outstanding immediately prior to the Effective time shall, in accordance with the Target Warrant Indenture, entitle the holder thereof, at any time until the time of expiry and upon payment of the step contemplated in Section 2.3(h):
(q) Amalco will own exercise price thereof, to purchase such number of duly authorized fully paid and hold non-assessable Purchaser Shares equal to the property Exchange Ratio. The term to expiry, conditions to and manner of Orko and Subco andexercising, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamation, vesting schedule and all liabilities other terms and obligations conditions of Orko and 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;
(r) Amalco Target Warrant will continue to be liable for all of the liabilities governed by terms 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 conditions set forth in the authorised share structure of Amalco in exchange for each Subco Share previously held and all of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Target Warrant Indenture; and
(cc) 2.1.6 the stated capital of the common shares of Amalco will Shareholder Rights Plan shall be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datecancelled.
Appears in 1 contract
Sources: Acquisition Agreement (Iamgold Corp)
Arrangement. 3.1 Commencing at the Effective Time, each of the following events and transactions set out below shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) the Shareholder Rights Plan Renewables Shares held by Dissenting Shareholders shall be cancelled deemed to be, without any further act or formality by the holders thereof, transferred to TransAlta (free and clear of all Liens), and:
(i) such Dissenting Shareholders shall cease to be the holders of such Renewables Shares and to have no further force 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 effect and each on behalf of the rights thereunder Renewables; and
(iii) TransAlta shall be deemed to be cancelled for no considerationthe transferee of such Renewables Shares (free and clear of all Liens) and shall be entered into the register of Renewables Shares maintained by or on behalf of Renewables;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Renewables DSU Plan):, any resolutions of the Renewables directors or any agreement, certificate or other instrument granting or confirming the grant of Renewables DSUs or representing Renewables DSUs:
(ci) with respect to each Renewables DSU outstanding immediately prior to the Effective Time and held by a Non-US Renewables DSU Holder:
(A) the outstanding Orko Options will“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 a Non-US Renewables DSU Holder, assigned, transferred and surrendered by such Non-US Renewables DSU Holder to Renewables (free and clear of such Orko Optionsall Liens) in exchange for, be as elected or deemed to be cancelled without any compensation therefor;elected in writing by each Non-US Renewables DSU Holder prior to the Effective Time:
(d1) 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 register of Renewables Shares maintained by or on behalf of Renewables, but the Non-US Renewables DSU Holder shall not be entitled to a certificate or other document representing the 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 Orko OptionRenewables 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 holder thereof will 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 a US Renewables DSU Holder, represent a right to receive, as elected or deemed to be elected in writing by each US Renewables DSU Holder prior to the Effective Time, from Renewables on the Redemption Date as set forth in Section 3.1(b)(ii)(A):
(1) a number of Renewables Shares equal to that number of Renewables Shares subject to each such Renewables DSU immediately prior to the Effective Time and such US Renewables DSU Holder shall thereafter be deemed to have elected to receive on the Redemption Date as set forth in Section 3.1(b)(ii)(A), in respect of the right to receive each such Renewables Share, the Renewables Share Consideration, subject to Sections 5.9 and 6.1; or
(2) a cash payment equal to the Renewables Cash Consideration multiplied by that number of Renewables Shares subject to each such Renewables DSU immediately prior to the Effective Time, less any amounts withheld pursuant to Article 6 and the Renewables DSU Plan; and
(c) each 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 Shareholders) shall be and shall be deemed to be, without any further act or formality by or on behalf of the Renewables Shareholder transferred to TransAlta (free and clear of all Liens) in accordance with the 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 Renewables Cash Consideration or the Renewables Share Consideration, and upon such exchange:
(i) the holders of such Renewables Shares shall cease to be the holder of such Orko Option, will cease holders thereof and to have any rights as a holder holders of such Renewables Shares other than the right to receive Renewables Share Consideration or Renewables Cash Consideration, as applicable, for each such Renewables Share in accordance with this Plan of Arrangement;
(ii) such holders’ names shall, in respect of such Orko Optionthe Renewables Shares, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminatedRenewables Shares maintained by or on behalf of Renewables;
(fiii) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights TransAlta shall be directly transferred and assigned by deemed to be the transferee of such Dissenting Shareholder to First Majestic Renewables Shares (free and clear of any liensall Liens) and shall, charges in respect of such Renewables Shares, be entered into the register of the Renewables Shares 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 Renewables Share Consideration, TransAlta shall allot and encumbrances issue to such holder, in respect of any nature whatsoever) in accordance witheach Renewables Share so transferred, the Renewables Share Consideration, as fully paid and non-assessable TransAlta Shares, and for the consideration set forth inname of such holder shall be added to the register of the 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, Section 3.1in respect of each Renewables Share held, the Renewables Cash Consideration or the Renewables Share Consideration, subject to Sections 3.3, 5.9, and 6.1;
(gb) five minutes after the steps contemplated election provided for in Section 2.3(c3.2(a) shall be 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 certificates representing the holder’s Renewables Shares;
(c) any Letter of Transmittal, once deposited with the Depositary, shall be irrevocable and may not be withdrawn by a Renewables Shareholder; and
(d) any Renewables Shareholder who does not deposit with the Depositary a duly completed Letter of Transmittal prior to the Election Deadline, or otherwise fails to comply with the requirements of this Section 3.2 and the Letter of Transmittal (including Renewables Shareholders who duly exercise Dissent Rights but are ultimately not entitled, for any reason, to be paid fair value for Renewables Shares in respect of which they have exercised Dissent Rights), each Orko shall be deemed to have elected to receive the Renewables Share Consideration in respect of all of such holder’s Renewables Shares.
3.3 Notwithstanding Section 3.2 or any provision herein contrary to, (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 equal to the 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 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:
(a) the aggregate 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 3.2 (the “Total Elected Cash Consideration”) exceeds the Maximum Cash Consideration, then the aggregate amount of cash to be paid to any Renewables Shareholder (other than any Orko Share held by any a Dissenting Shareholder) shall be deemed determined by multiplying the aggregate amount of cash that would, but for this Section 3.3(a), be paid to be transferred such Renewables Shareholder by a fraction, rounded to First Majestic (free and clear six decimal places, the numerator of any liens, charges and encumbrances of any nature whatsoever) in exchange for which is the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share Maximum Cash Consideration and the name denominator of which is the Total Elected Cash Consideration; and such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) the registered holder thereof shall be deemed to have executed elected to receive the 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 delivered all consentsthe Renewables Share Consideration for the remainder of its Renewables Shares for which, releasesbut for this Section 3.3(a), assignments such holder would otherwise have received the Renewables Cash Consideration; or
(b) the aggregate number of TransAlta Shares (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 3.2 (the “Total Elected Share Consideration”) exceeds the Maximum Share Consideration, then the aggregate number of TransAlta Shares to 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 aggregate number of TransAlta Shares (excluding any TransAlta Shares to be issued in exchange for a Renewables DSU Share) that would, but for this Section 3.3(b), be issued to such Renewables Shareholder by a fraction, rounded to six decimal places, the numerator of which is the Maximum Share Consideration and waiversthe denominator of which is the Total Elected 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), statutory 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 otherwise3.1(b)(ii)(B) shall be made by each Renewables DSU Holder by notice in writing to TransAlta, required prior to transfer and assign the Effective Time, indicating such Orko ShareRenewables 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
(kc) First Majestic any Renewables DSU Holder who does not provide written notice to TransAlta prior to the Effective Time, or otherwise fails to comply with the requirements of this Section 3.4, shall be deemed to have elected to receive a cash payment equal to the Renewables Cash Consideration multiplied by that number of Renewables Shares subject to each Renewables DSU held by the Renewables DSU Holder immediately prior to the Effective Time.
3.5 Notwithstanding any provision herein to the contrary, TransAlta and Renewables agree that this Plan of Arrangement will be 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 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 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 outstanding Orko Shares relevant information through the website, and provided that the register 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 Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share Joint Tax Election containing the relevant information to the Eligible Holder. The Eligible Holder will be transferred to Subco in consideration solely responsible for executing its portion of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, Joint Tax Election and the amount added submitting it to the stated capital of Canada Revenue Agency (and, where applicable, to any provincial tax authority) within the Subco Shares required time. TransAlta will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f)have no responsibility, the stated capital or liability, in respect of any Joint Tax Election other than the 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 specific requirements contemplated in this 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 Business Corporations Act, except that the legal existence of Orko shall not cease and Orko shall survive the merger as Amalco;3.7.
(o) without limiting the generality of Section 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from 3.8 From and after the Effective DateTime, at the time this Plan of the step contemplated in Section 2.3(h):
(q) Amalco will own Arrangement shall take precedence and hold the property of Orko and Subco and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamation, priority over any and all liabilities and obligations of Orko and Subco, whether arising by contract Renewables DSUs issued or otherwise, may be enforced against Amalco to the same extent as if such obligations had been incurred or contracted by it;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) Effective Time and the exchanges applicable terms and cancellations provided for in this Section 2.3 will be deemed to occur on conditions thereof, including the Effective Dateterms and conditions of the Renewables DSU Plan and any agreement, notwithstanding certain procedures related thereto may not be completed until after the Effective Date.certificate or o
Appears in 1 contract
Arrangement. Section 3.1 The Arrangement Commencing at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order sequence, in each case without any further authorization, act or 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 be, and shall be deemed to be, transferred by the holder thereof, without any further act or formality:
formality on its part, to Aphria (afree and clear of all Liens) the and such Aphria Dissenting Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease thereof or to have any rights as a holder in respect of such Orko Option, Dissenting Share other than the right to be paid the fair value of such holder will be removed from the register of Orko Options, Dissenting Share determined and all option agreements, grants and similar instruments relating thereto will be cancelledpayable in accordance with Article 4; and
(eb) at the Orko Stock Option Plan shall be terminated;
(f) five minutes after same time as the steps contemplated step in Section 2.3(b)3.1(b)(i) occurs, each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder each Aphria Dissenting Shareholder shall be removed from the register of Orko Shareholders the Aphria Shares and such Dissenting Shares shall be automatically cancelled as of the Effective TimeDate;
(j2) at the registered holder thereof same time as the steps in Section 3.1(a) occur:
(a) each Aphria Share outstanding immediately prior to the Effective Time (other than Dissenting Shares held by Aphria Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of their Dissenting Shares as determined in accordance with Article 4), shall be, and shall be deemed to be, 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 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 stock option (a “Replacement Option”) 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 Option immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares) for an exercise price per Tilray Share (rounded up to the nearest whole cent) equal to the exercise price per share of such Aphria Option immediately prior to the 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 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;
(b) each Aphria RSU, 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 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 Aphria RSUs immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares), and the Aphria RSUs shall thereupon be cancelled. The term to expiry, conditions to and manner of receipt and other terms and conditions of each of the Replacement RSUs shall be the same as the terms and conditions of the Aphria RSU for which it is exchanged except that such Replacement RSU 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 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 the Tax Act apply to the exchange of Aphria RSUs by Aphria Securityholders resident in Canada who acquired Aphria RSUs by virtue of their employment;
(c) each Aphria DSU, 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 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 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 Canada who acquired Aphria DSUs by virtue of their employment ;
(d) 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 a Replacement Warrant being exercisable for a fraction of a Tilray Share, then the number of Tilray Shares subject to such Replacement Warrant shall be rounded down to the 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 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 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 the Aphria formerly held by Aphria Securityholders shall be extinguished; and
(4) no person shall have any rights, liabilities or other obligations in respect of the share capital of Aphria other than Tilray and each holder of Aphria Shares, Aphria Options, Aphria RSUs, Aphria DSUs or 2016 Aphria Warrants outstanding immediately prior to the Effective Time, with respect to each step set out above applicable to such holder, shall be deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e)Aphria Shares, each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferredAphria Options, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f)Aphria RSUs, the stated capital in respect of the 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 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 2.3(h), the separate legal existence of Subco shall cease without Subco being liquidated Aphria DSUs or wound up and Orko and Subco shall continue as one company and the property of Subco shall become the property of Amalco;
(p) from and after the 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 2016 Aphria Warrants held by such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract or otherwise, may be enforced against Amalco to the same extent as if holder in accordance with such obligations had been incurred or contracted by it;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datestep.
Appears in 1 contract
Sources: Arrangement Agreement (Aphria Inc.)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of a grant, applicable law Laws or the terms of the Orko Stock Option Plan):
(ci) each right to acquire a Company Common Share pursuant to an Option that is issued and outstanding at the outstanding Orko Options willEffective Time shall, without any further action by or on behalf of any holder of such Orko OptionsOption, be deemed to be fully vested and transferred and disposed of by the holder thereof to CanCo 1 (free and clear of all liens, claims and encumbrances) and cancelled without any compensation therefor;in exchange 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 in respect of that right consisting of Therapeutics Common Shares pursuant to Section 3.1(l)(iii), and (B) the payment by IrishCo on behalf of CanCo 1 of the portion of the Option Consideration in respect of that right consisting of IrishCo Shares; and
(dii) with respect to each Orko such Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko OptionOption or under the Stock Option Plan, such holder holder’s name will be removed from the register of Orko Options, and all option 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
(eii) 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 Orko Stock Option Plan and the Company Share Purchase Plan shall be terminatedterminated (and all rights issued thereunder shall expire) and shall be of no further force or effect;
(fd) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(g) five minutes after the steps contemplated in Section 2.3(c), each Orko outstanding Company Common Share (other than any Orko Share those held by any Dissenting Shareholdera Qualifying Holdco) shall be deemed to be transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned to CanCo 1 in accordance with exchange for, subject to Section 2.3(c3.4, (A) or 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 2.3(d):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 Orko Company Common Share and the name of such registered holder shall be removed from the register of Orko 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 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 so transferred and assigned,
(i) the registered holder thereof shall 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 the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others);
(f) in consideration for (A) IrishCo delivering, on behalf of CanCo 1, the Arrangement Stock Consideration and the Qualifying Holdco Stock Consideration directly to the Selling Shareholders pursuant to Section 3.1(d) and Section 3.1(e), (B) IrishCo delivering on behalf of CanCo 1 the Option Consideration consisting of IrishCo Shares directly to the Optionholders pursuant to Section 3.1(a), and (C) IrishCo paying, on behalf of CanCo 1, the Arrangement Cash Consideration and the Qualifying Holdco Cash Consideration to the Selling Shareholders pursuant to Section 3.1(d) and Section 3.1(e), [—] CanCo 1 Common Shares (the “IrishCo CanCo 1 Common Shares”) shall be issued to IrishCo, and, in respect thereof, 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 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 CanCo 2 Common Shares issued to Interco pursuant to this Section 3.1(h);
(i) the Company shall transfer one IrishCo Euro Share to Euro Purchaser, in exchange for €1, and in respect of such IrishCo Euro Share so delivered, the Company shall cease to be the registered holder thereof and the Company’s name shall be removed from the register of shareholders of 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) 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 Tax Act;
(k) CanCo 1, CanCo 2, each Qualifying Holdco and the Company shall amalgamate to form Amalco, as more fully described in Section 3.2; and
(l) concurrently:
(i) Amalco (as successor to CanCo 1’s obligations and liabilities) shall deliver and each Former Company Common Shareholder shall acquire the Arrangement Therapeutics Consideration, and in respect of 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 Former Company Common Shareholder shall be recorded as the registered holder of such Therapeutics Common Share and shall be deemed to have executed be the legal and delivered beneficial owner thereof (free and clear of all consentsliens, releasescharges, assignments encumbrances and waiversany other rights of others);
(ii) Amalco (as successor to CanCo 1’s obligations and liabilities) shall deliver and each Former Qualifying Holdco Shareholder shall acquire the Qualifying Holdco Therapeutics Consideration, statutory or otherwiseand in respect of each Therapeutics Common Share so delivered, required Amalco shall cease to transfer be the registered holder thereof and assign Amalco’s name shall be removed from the register of shareholders of Therapeutics, and the name of such Orko ShareFormer Qualifying Holdco 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);
(iii) Amalco (as successor to CanCo 1’s obligations and liabilities) shall deliver and each Former Optionholder shall acquire the portion of the Option Consideration consisting of Therapeutics Common Shares, and in respect of 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 each Former Optionholder 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); and
(kiv) First Majestic will unless Therapeutics determines otherwise, Therapeutics shall file an election with the Canada Revenue Agency to be a public corporation for the holder of all purposes of the outstanding Orko Shares and Tax Act, such election to be effective concurrently with the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration acquisition of the issue by Subco Therapeutics Common Shares pursuant to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date3.1(l).
Appears in 1 contract
Arrangement. Commencing at the Arrangement Effective Time, each of the following events 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) all applicable Company Convertible Instruments outstanding immediately prior to the Shareholder Rights Plan shall Arrangement Effective Time (excluding, for greater certainty, the Remaining Company Convertible Instruments) shall, without further action by or on behalf of a holder of Company Convertible Instruments, be cancelled converted into Company Shares pursuant to their terms and shall have no further force the terms of any Conversion Agreements;
(b) all Company Options outstanding immediately prior to the Arrangement Effective Time (whether vested or effect and each unvested), notwithstanding the terms of the rights thereunder Company Incentive Plan or any applicable award agreements in relation thereto, shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)unconditionally vested and exercisable, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willand each Company Optionholder shall, without any further action by or on behalf of any holder of such Orko OptionsCompany Optionholder, be deemed to have exercised such Company Optionholder’s Company Options in exchange for such number of Company Shares (rounded down to the nearest whole Company Share) having an aggregate fair market value equal to (A) the aggregate fair market value of the Company Shares underlying such Company Optionholder’s Company Options, minus (B) the aggregate Option Exercise Price in respect of such Company Optionholder’s Company Options, and none of the Company or SPAC shall be cancelled without obligated to pay such Company Optionholder any compensation therefor;
(d) amount in respect of such Company Option; and, with respect to each Orko OptionCompany Option that is exercised pursuant to this Section 2.3(b), as of the effective time of such exercise: (i) the holder thereof will shall cease to be the holder of such Orko Company Option, will (ii) the holder thereof shall cease to have any rights as a holder in respect of such Orko OptionCompany Option or under the Company Incentive Plan, as applicable, other than the right to receive the consideration to which such holder will is entitled pursuant to this Section 2.3(b), (iii) such holder’s name shall be removed from the register of Orko Optionsapplicable register, and (iv) all option agreements, grants and similar instruments relating thereto will shall be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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: Business Combination Agreement (Oxus Acquisition Corp.)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence, except where noted, without any further act or formality:
(a) at the Shareholder Effective Time, the Rights Plan Agreement shall be cancelled terminated (and all rights thereunder shall expire) and shall have be of no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no considerationeffect;
(b) five minutes after immediately following the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):preceding step,
(ci) each Company Common Share held by a Dissenting Shareholder shall be, and shall be deemed to be, transferred to Amalgamation Sub by the outstanding Orko Options willholder thereof, without any further action act or formality by or on behalf of any holder of such Orko Optionsthe Dissenting Shareholder, be deemed to be cancelled without any compensation therefor;
(d) with respect to and thereupon each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will Dissenting Shareholder shall cease to have any rights as a holder in respect holders of such Orko Option, 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 Common Share and the name of such registered holder will shall be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledCompany Shareholders as of the time of this step; and
(iii) 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;
(c) immediately following the preceding step, each Company DSU outstanding immediately prior to the Effective Time shall be, and shall be 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 Orko Stock Option Plan 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) five minutes after immediately following the steps contemplated in preceding step, subject to the requirement of Section 2.3(b)7.4(c) of the Arrangement Agreement, each Orko 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 held by a Dissenting Shareholder 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 which the Orko Shareholder has validly exercised hisSurrendered Company Options and all of the Surrendered Company Options shall be, her or its Dissent Rights and shall be directly transferred and assigned by such Dissenting Shareholder deemed to First Majestic (free and clear of any liensbe, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1terminated;
(g) five minutes after immediately following the steps contemplated in Section 2.3(c)preceding step, each Orko Share (other than any Orko Share held by any Dissenting ShareholderCompany 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 be transferred have elected to First Majestic receive, in respect of all Company Common Shares held by such holder (free and clear of any lienseach such share, charges and encumbrances of any nature whatsoever) in exchange for a “No Election Share”), the Share Arrangement Mixed Consideration;
(h) with respect to immediately following the preceding step, each Orko 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 2.3(c3.3 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 Section 2.3(d):(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 Orko Company Common Share and the name of such registered holder shall be removed from the register of Orko Company Shareholders as of the Effective Timetime 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 registered 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 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 thereof 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 have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder legal and beneficial owner thereof free and clear of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordinglyLiens;
(l) five minutes after following the steps contemplated in Section 2.3(dpreceding 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
(e)ii) Holdings shall issue to and deposit with the Trustee the Special Voting Share, each outstanding Orko Share will be transferred to Subco in consideration of the issue payment to Holdings of $1.00 to be thereafter held of record by Subco to First Majestic of one Subco Share the Trustee as trustee for each Orko Share so transferredand on behalf of, and for the amount added to 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 Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Company Common Shares shall be reduced to an aggregate of $1.00 without any repayment of capital in respect thereof;distribution; and
(no) five minutes after at 5:00 p.m. (Toronto time) on the steps contemplated in Section 2.3(ffirst Business Day following the Effective Date,
(i) Amalgamation Sub and (g), Orko and Subco the Company shall merge amalgamate to form one corporate entity (“Amalco”) New Amalco with the same effect as if they had were amalgamated under Section 269 s. 181 of the Business Corporations ActCBCA, except that the separate legal existence of Orko shall the Company will not cease and Orko shall the Company will survive the merger amalgamation, as Amalco;more fully described in Section 3.5; and
(oii) without limiting the generality of Section 2.3(h)foregoing, the separate legal existence of Subco shall Amalgamation Sub will cease without Subco Amalgamation Sub being liquidated or wound up up, Amalgamation Sub and Orko and Subco shall the Company will continue as one company Company, and the property of Subco shall Amalgamation Sub (other than Company Common Shares held by Amalgamation Sub and any amounts owing by the Company to Amalgamation Sub) will become the property of New Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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 and Plan of Merger (Burger King Worldwide, Inc.)
Arrangement. Commencing at Pursuant to the Effective TimeArrangement, the following transactions shall occur and shall be deemed to occur at the Effective Time (unless otherwise specified), in the following order without any further act or formalityorder:
(a) Purchaser (or one of its Affiliates) will provide (i) one or more loans (the Shareholder Rights Plan shall “Royal Third Party Debt Payoff Loans”) to Royal in the aggregate amount equal to the aggregate of all amounts owing under the Specified Third Party Debt; (ii) a loan to Royal equal to the aggregate amount payable by Royal under section 3.1(d) (the “Royal Option Loan”); and (iii) a loan to Royal equal to the aggregate amount payable by Royal under section 3.1(e) (the “RSU Payment Loan”). The Royal Third Party Debt Payoff Loans, the Royal Option Loan and the RSU Payment Loan will be cancelled and shall have no further force evidenced by demand promissory notes issued by Royal to Purchaser (or effect and each the applicable Affiliate of the rights thereunder shall be deemed to be cancelled for no considerationPurchaser);
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms immediately upon receipt of the Orko Stock Option Plan):Royal Third Party Debt Payoff Loans, Royal will repay in full all amounts owing under the Specified Third Party Debt;
(c) two minutes after the outstanding Orko Options willcompletion of the immediately preceding step, each Royal Share, other than a Royal Share held by a Dissenting Shareholder, will be acquired by Purchaser without any further action authorization, act or formality, in exchange for a cash payment by or on behalf of Purchaser equal to the Purchase Price, less any holder of such Orko Optionsrequired withholding taxes, and the Purchaser will be deemed to be cancelled without any compensation thereforthe 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) with respect two minutes after the completion of the immediately preceding step, each Royal Option issued and outstanding immediately prior to each Orko the Effective Time, whether vested or unvested, will be cancelled and will be deemed to have been disposed of to Royal in exchange for a cash payment by Royal equal to the amount, if any, of the In-the-Money Amount of such Royal Option, less any required withholding taxes;
(e) at the holder thereof will cease same time as the preceding step, each RSU issued and outstanding immediately prior to be the holder of such Orko OptionEffective Time, whether vested or unvested, will cease be cancelled in exchange for a cash payment by Royal equal to have $l per RSU, less any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledrequired withholding taxes; and
(ef) the Orko Stock Option Long-Term Incentive Plan and the Senior Management Incentive Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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
Arrangement. 4.1 Commencing at as of the Effective Time, the following shall events or transactions will occur sequentially in the order set out below unless otherwise noted and shall will be deemed to occur in the following order without any further act or formalityformality required on the part of any Person, except as expressly provided herein:
(a) the Shareholder Rights Plan The Senior Bank Facility shall be cancelled amended to no less than Cdn$225.0 million and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder less than Cdn$50.0 million will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held drawn thereunder by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇;
(b) ▇▇▇▇▇▇▇ Finance will determine, in its sole discretion, the extent to which cash, New Notes and 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 the fees and expenses due to BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., the Indenture Trustee and counsel to the Parties pursuant to Section 4.1(f) and the accrued interest payable by ▇▇▇▇▇▇▇ Finance pursuant to Section 4.1(d);
(d) ▇▇▇▇▇▇▇ Finance shall pay the 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 Senior Notes and all of its rights under the Senior Notes and the Note Indenture to ▇▇▇▇▇▇▇ Finance in exchange for: (i) cash 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 Cash Alternative; or (ii) New Notes under the New Note Indenture and, if applicable, cash and/or Mandatory Convertible Notes under the Mandatory Convertible Note Indenture, all pursuant to the New Note Alternative, allocated to each Noteholder as follows:
(i) Each Noteholder shall receive for each $1,000 of such Noteholder’s Principal Claim Amount, at the election of 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 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
(ccII) 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 stated capital 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 common shares of Amalco 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 paid-up capitalcombined effects of the 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 decreased to the nearest $1.00 increment;
(ii) Noteholders who receive: (i) cash and, if applicable, New Notes and/or Mandatory Convertible Notes, all pursuant to the Cash Alternative; or (ii) New Notes and, if applicable, cash and/or Mandatory Convertible Notes, all pursuant to the New Note Alternative, shall receive cash, New Notes and Mandatory Convertible Notes, as applicable, in a principal amount equal to $940 per $1,000 of that term is defined Noteholder’s Principal Claim Amount in respect of such Senior Notes;
(iii) Each of the ITANew Note Indenture and the Mandatory Convertible Indenture shall be executed and become effective as of the time the New Notes and the Mandatory Convertible Notes, attributable to the Subco Shares immediately prior to the amalgamationrespectively, are issued; and
(ddf) ▇▇▇▇▇▇▇ Finance shall pay all fees and expenses due to BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., the exchanges Indenture Trustee and cancellations provided for counsel to the Parties reasonably incurred by, and due to, any of the foregoing in this Section 2.3 will be deemed to occur on connection with the Effective Datedevelopment, notwithstanding certain procedures related thereto may not be completed until after negotiation and implementation of the Effective DateRecapitalization.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) the Moto Shareholder Rights Plan shall be cancelled terminated (and all rights issued thereunder shall expire) and shall have be of no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no considerationeffect;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Moto Share held by a Dissenting Shareholder in respect of which immediately prior to the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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) Effective Time shall be deemed to be transferred to First Majestic (by the holder thereof, without any further act or formality on its part, free and clear of any all liens, charges claims and encumbrances of any nature whatsoever) in exchange encumbrances, to Moto for cancellation and Moto shall thereupon be obliged to pay the Share Consideration;
(h) with respect to each Orko Share transferred amount therefor determined and assigned payable in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share Article 4 hereof, and the name of such registered holder shall be removed from the central securities register as a holder of Moto Shares;
(c) each Former Moto Shareholder (other than a Dissenting Shareholder) whose address on the share register of Orko Moto is in Canada or the United States and who does not deliver to the Depositary by the Election Deadline a duly completed and executed Letter of Transmittal and Election Form advising of his Election shall be deemed to have elected to receive the Randgold ADS Consideration (the “Randgold ADS Deemed Election”);
(d) each Former Moto Shareholder (other than a Dissenting Shareholder) whose address on the share register of Moto is not in Canada or the United States and who does not deliver to the Depositary by the Election Deadline a duly completed and executed Letter of Transmittal and Election Form advising of his Election shall be deemed to have elected to receive the Randgold Share Consideration (the “Randgold Share Deemed Election”);
(e) each Former Moto Shareholder who (i) delivers to the Depositary by the Election Deadline a duly completed and executed Letter of Transmittal and Election Form reflecting an Election to receive the Randgold ADS Consideration, or (ii) has been deemed to have made a Randgold ADS Deemed Election pursuant to Section 3.01(c) hereof, shall be entitled to receive the Randgold ADS Consideration in accordance with such Election or such Randgold ADS Deemed Election, as the case may be;
(f) each Former Moto Shareholder who (i) delivers to the Depositary by the Election Deadline a duly completed and executed Letter of Transmittal and Election Form reflecting an Election to receive the Randgold Share Consideration, or (ii) has been deemed to have made a Randgold Share Deemed Election pursuant to Section 3.01(d) hereof, shall be entitled to receive the Randgold Share Consideration in accordance with such Election or such Randgold ADS Deemed Election, as the case may be;
(g) each Former Moto Shareholder who delivers to the Depositary by the Election Deadline a duly completed and executed Letter of Transmittal and Election Form reflecting an Election to receive the Cash Consideration shall, subject to Section 3.01(h) hereof, be entitled to receive the Cash Consideration in accordance with such Election;
(h) if the aggregate Cash Consideration elected by Former Moto Shareholders who have duly made an Election to receive Cash Consideration for some or all of their Moto Shares (the aggregate cash consideration elected by such Former Moto Shareholders being referred to hereinafter as the “Requested Cash Amount”) exceeds the Cash Parameter, then each Former Moto Shareholder electing Cash Consideration shall be entitled to receive:
(i) the Pro-Rated Cash Consideration (as determined by the following formula). P = T x I where: P = the “Pro-Rated Cash Consideration” T = the Cash Parameter R = the Requested Cash Amount I = the aggregate amount of Cash Consideration elected by such Former Moto Shareholder pursuant to a duly made Election and
(ii) the Effective Timenumber of Randgold ADSs (if the Former Moto Shareholder’s address on the share register of Moto is in Canada or the United States) or the number of Randgold Shares (if the Former Moto Shareholder’s address on the share register of Moto is not in Canada or the United States) equal to the Residual Stock Consideration (as determined by the following formula). R = (I – P) x S where: R = the “Residual Stock Consideration” I = the aggregate amount of Cash Consideration elected by such Former Moto Shareholder pursuant to a duly made Election P = the Pro-Rated Cash Consideration Q = US$4.47, being the cash consideration per Moto Share S = the Share Exchange Ratio
(i) each Moto Share held by a Former Moto Shareholder (other than a Dissenting Shareholder) shall be transferred to Subco and in consideration therefor Subco shall deliver or cause to be delivered the Randgold Share Consideration and the Randgold ADS Consideration on the basis set forth in Sections 3.01(c), (d), (e), (f) and (h) hereof and the Cash Consideration on the basis set forth in Sections 3.01(g) and (h) hereof, subject to Sections 3.02, 3.03 and Article 5 hereof;
(j) each Former Moto Optionholder holding In-The-Money Moto Options who does not deliver to the registered holder thereof Depositary by the Election Deadline a duly completed and executed Option Letter of Transmittal and Election Form advising of his Option Election shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required elected to transfer and assign receive a cash payment equaling the In-The-Money Amount for such Orko Share; andIn-The-Money Moto Options in accordance with Section 3.01(l) hereof (the “Deemed Option Election”);
(k) First Majestic will be each Former Moto Optionholder holding In-The-Money Moto Options who delivers to the holder Depositary by the Election Deadline a duly completed and executed Option Letter of all Transmittal and Election Form advising of the outstanding Orko Shares and the register of Orko Shareholders his Option Election shall be revised accordinglyentitled to receive in accordance with his Option Election either (X) a cash payment equaling the In-The-Money Amount of such In-The-Money Moto Options in accordance with Section 3.01(l) hereof (an “In-The-Money Option Election”), or (Y) Converted Randgold Options for such In-The-Money Moto Options in accordance with Section 3.01(m) hereof;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will In-The-Money Moto Option held by a Former Moto Optionholder who has made an In-The-Money Option Election or is subject to a Deemed Option Election shall be transferred to Subco Moto for cancellation and, in consideration therefor, Moto shall pay the holder of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the such In-The-Money Moto Options an amount added to the stated capital of the Subco Shares will be in cash equal to the value In-The-Money Amount of the Orko Shares so transferredsuch Moto Options;
(m) concurrent with the step in Section 2.3(f)aggregate number of Moto Options, excluding In-The-Money Moto Options that are subject to an In-The-Money Option Election or a Deemed Option Election, held by each Moto Optionholder and outstanding immediately prior to the stated capital in respect of the Orko Shares Effective Time, whether or not vested, shall be reduced exchanged for options (each a “Converted Randgold Option”) to acquire (on the same terms and conditions as were applicable to such Moto Options immediately before the Effective Time under the Moto Stock Option Plan and the agreement evidencing such Moto Options) the number (rounded down to the nearest whole number) of Randgold Shares equal to: (A) the number of Moto Shares subject to such Moto Options immediately prior to the Effective Time; multiplied by (B) the Share Exchange Ratio. The exercise price per Randgold Share subject to any such Converted Randgold Option shall be: (i) an aggregate amount (rounded up to the nearest one-hundredth of $1.00 without any repayment a cent) equal to: (A) the exercise price per Moto Share subject to each such Moto Option immediately before the Effective Time divided by (B) the Share Exchange Ratio; and (ii) converted to, and payable in, U.S. dollars based on the noon exchange rate published by the Bank of capital in respect thereof;Canada for Canadian dollars to U.S. dollars on the Effective Date; and
(n) five minutes after the steps contemplated Moto Stock Option Plan, and any stock option agreements or other documents entered into by Moto in Section 2.3(f) and (g), Orko and Subco shall merge to form one corporate entity (“Amalco”) connection with the same effect as if they had amalgamated under Section 269 grant of the Business Corporations ActMoto Options, except that the legal existence shall be terminated and be of Orko shall not cease and Orko shall survive the merger as Amalco;
(o) without limiting the generality of Section 2.3(h), the separate legal existence of Subco shall cease without Subco being liquidated no further force or wound up and Orko and Subco shall continue as one company and the property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 andeffect; provided that, for greater certainty, notwithstanding such termination, 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco Converted Randgold Options shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised governed by the same terms and conditions as were formerly applicable to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 Moto Options pursuant to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateterminated Moto Stock Option Plan.
Appears in 1 contract
Arrangement. Commencing at Pursuant to the Effective TimeArrangement, each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Effective Time:
(1) 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 Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko outstanding Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willshall, without any further action by or on behalf of any the holder of such Orko Optionsthereof, be deemed to be cancelled without any compensation therefor;
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, (di) with an amount equal to the cash portion of the Consideration less the applicable exercise price in respect to each Orko of such Option, and (ii) one CVR, less any applicable withholdings, and such Option shall be immediately cancelled. For greater certainty, where the holder thereof will cease exercise price of any Option is greater than the cash portion of the Consideration, neither Corporation nor Purchaser shall be obligated to be pay the holder of such Orko Option the Consideration or any other amount in respect of such Option, will and the Option shall be immediately cancelled for no consideration;
(b) each outstanding DSU shall, without any further action by or on behalf of the holder thereof, be deemed to be transferred by such holder to Corporation in exchange for the Consideration, less any applicable withholdings, and such DSU shall be immediately cancelled;
(i) each holder of Options or DSUs shall cease to be a holder of such 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 of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminatedaccordance with Article 3;
(fb) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as holders of the Effective Time;
(j) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory Shares maintained by or otherwise, required to transfer and assign such Orko Shareon behalf of Corporation; and
(kc) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders Purchaser shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 recorded as the holder of the Subco Shares so transferred and shall receive on be deemed to be the amalgamation one common share in 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 without any further act or formality by the authorised share structure of Amalco holder thereof to Purchaser in exchange for each Subco the Consideration per Share, less any applicable withholdings, and:
(a) the holder of such Share previously held and all shall cease to have any rights as a Shareholder other than the right to be paid the Consideration per Share in accordance with this Plan of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereofArrangement;
(xb) the name of Amalco such holder shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 removed from the Effective Date;
(bb) the first directors register of Amalco following the amalgamation shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇holders of Shares maintained by or on behalf of Corporation; and
(ccc) Purchaser shall be recorded as the stated capital holder of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges so transferred and cancellations provided for in this Section 2.3 will shall be deemed to occur on be the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datelegal and beneficial owner thereof.
Appears in 1 contract
Sources: Arrangement Agreement (Clementia Pharmaceuticals Inc.)
Arrangement. Commencing at 3.1 On the Effective TimeDate, subject to the provisions of Article 5 hereof, the following shall will occur and shall will be deemed to occur in the following order and at the times set out below without any further authorization, act or formality:
(a) immediately thereafter, each issued Target Share outstanding immediately prior to the Effective Time held by a Target Shareholder in respect of which Dissent Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall been validly exercised will be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, have been transferred without any further action by act or on behalf formality to Purchaser, free and clear of any holder of such Orko Optionsliens, be deemed to be cancelled without any compensation therefor;claims and encumbrances, and:
(di) with respect to each Orko Option, the holder thereof such Target Shareholder will cease to be the registered holder of such Orko Option, Dissenting Shares and will cease to have any rights as a holder in respect registered holders of such Orko Option, Target Shares other than the right to be paid fair value for such holder 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 register registers of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledTarget Shares maintained by or on behalf of Target; and
(eiii) Purchaser will be deemed to be the Orko Stock Option Plan shall transferee of such Dissenting Shares, free and clear of any liens, claims and encumbrances, and will be terminated;entered in the registers of Target Shares maintained by or on behalf of Target; and
(fb) five minutes after the steps contemplated in Section 2.3(b)immediately thereafter, each Orko issued and outstanding Target Share held by a Dissenting Shareholder (other than any Target Share in respect of which the Orko Target Shareholder has validly exercised his, her or its Dissent Rights shall Right) will be directly transferred to, and assigned acquired by Purchaser, without any act or formality on the part of the holder of such Dissenting Shareholder to First Majestic (Target Share or Purchaser, free and clear of any all liens, charges claims and encumbrances of any nature whatsoever) in accordance withencumbrances, 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for 0.0195 of a Purchaser Share, provided that the Share Consideration;
(h) 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 respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) no consideration being paid for the registered holder thereof shall cease to be the registered holder of such Orko Share fractional share, and the name of each such registered holder shall Target Shareholder will be removed from the register of Orko Shareholders holders of Target Shares and added to the register of holders of Purchaser Shares, and Purchaser will be recorded as of the Effective Time;
(j) the registered holder thereof shall of such Target Shares so exchanged and will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares legal and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares shall be reduced to an aggregate of $1.00 without any repayment of capital in respect beneficial owner 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations The transactions provided for in this Section 2.3 3.1 will be deemed to occur on the Effective Date, Date and at the time specified notwithstanding that certain of the procedures related thereto may hereto are not be 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 order therein set out without any further act or 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 it in order to further document or evidence any of the transactions or events set out in Section 3.1 including, without limitation, any resolution of directors authorizing the issue, transfer or purchase for cancellation of shares, any share transfer powers evidencing the transfer of shares, any receipt therefor and any necessary additions to or deletions from share registers.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further act or formalityformality required on the part of any person, in each case effective as at five minute intervals starting at the Effective Time:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder ProMed Share shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions transferred to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic FCR (free and clear of any liensLiens, charges and encumbrances of any nature whatsoever) and FCR shall be deemed to have acquired all of GAA’s rights and interest in accordance withand to the ProMed Debt, and in consideration for the consideration set forth in, Section 3.1issuance of the Consideration Shares to GAA;
(gb) five minutes after the steps contemplated in Section 2.3(c), simultaneously:
(i) each Orko GAA Share (other than those already owned by Gazit Maple or any Orko Share GAA Shares held by any a Dissenting Shareholder) shall be deemed to be transferred to First Majestic Gazit Maple (free and clear of any liensLiens, charges and encumbrances of any nature whatsoever) in exchange for an Acquisition Promissory Note and the Share Cash Consideration, subject to Article 4 hereof;
(hii) each GAA Share in respect of which the GAA Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to Gazit Maple (free and clear of any Liens, charges and encumbrances of any nature whatsoever) in accordance with Article 4 hereof;
(c) with respect to each Orko GAA Share transferred and assigned in accordance with Section 2.3(cSubsection 3.1(b) or Section 2.3(d):hereof and subject, where applicable, to Article 4 hereof:
(i) the registered holder thereof shall cease to be the registered holder of such Orko GAA Share and the name of such registered holder shall be removed from the register of Orko GAA Shareholders as of the Effective Share Transfer Time;
(jii) 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 Orko ShareGAA Share in accordance with Subsection 3.1(b) hereof; and
(kiii) First Majestic Gazit Maple will be the holder of all of the outstanding Orko GAA Shares and the register of Orko GAA Shareholders shall be revised accordingly;
(ld) five minutes after each GAA Option that remains unvested immediately prior to the steps contemplated Effective Time shall be deemed to be vested and exercisable in Section 2.3(d) full immediately prior to the Effective Time, and (e), each GAA Option outstanding Orko Share will immediately prior to the Effective Time shall be deemed to be transferred to Subco GAA (free and clear of any Liens, charges and encumbrances of any nature whatsoever) and cancelled in consideration of the issue by Subco to First Majestic of one Subco Share exchange for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be a cash payment equal to the value of the Orko Shares so transferredGAA Option Consideration for each GAA Share subject to such GAA Option;
(me) concurrent with each GAA DSU outstanding immediately prior to the step in Section 2.3(f), the stated capital in respect of the Orko Shares Effective Time shall be reduced deemed to an aggregate be transferred to GAA (free and clear of $1.00 without any repayment Liens, charges and encumbrances of capital any nature whatsoever) and redeemed in respect thereofexchange for a cash payment equal to the GAA DSU Consideration;
(nf) five minutes after with respect to the steps contemplated in Section 2.3(fGAA 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 (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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 cancelled in exchange for a cash payment equal to the 2010 Warrant Consideration for each Subco GAA Share previously held and all of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised subject to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇such ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇; 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 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 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
(ccii) 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 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 common shares of Amalco will GAA Shares shall be an amount equal reduced to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and$1.00;
(ddj) GAA and Gazit Maple shall be amalgamated and continued as one corporation under the exchanges and cancellations provided for OBCA to form Gazit Amalco in this Section 2.3 will be deemed to occur on accordance with the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date.following:
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following events shall occur and shall be deemed to occur consecutively in the following order order, five minutes apart, except where noted, without any further authorization, act or formality:
(a) the The Shareholder Rights Plan shall be cancelled terminate and shall cease to have no any further force or effect and each of the rights thereunder Rights shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares shall be reduced to an aggregate of $1.00 without any repayment of capital payment in respect thereof;
(nb) 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 Each of the Business Corporations Act, except that directors on the legal existence board of Orko shall not cease and Orko shall survive the merger as Amalco;
(o) without limiting the generality of Section 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the Effective Date, at the time directors 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 Company other than Luca Giacovazzi will be unimpaired by such amalgamation, deemed to have resigned and all liabilities and obligations each of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will be appointed to the board of directors of the Company;
(c) each of the Company Shares held by Dissenting Shareholders in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formality to the Purchaser (free and clear of all Encumbrances) in consideration for a claim against the Purchaser for the amount determined under Article 4, and:
(i) such Dissenting Shareholders shall cease to be the holders of such Dissent Shares and cease to have any rights as holders of such Dissent Shares other than the right to be paid fair value for such Company Shares as set out in Section 4.1;
(ii) such Dissenting Shareholders’ names shall be removed as the holders of such Dissent Shares from the registers of Company Shares maintained by or on behalf of Company; and
(cciii) the stated capital Purchaser shall be deemed to be the transferee of such Dissent Shares free and clear of all Encumbrances, and the Purchaser shall be entered in the registers of Company Shares maintained by or on behalf of the common shares Company, as the holder of Amalco such Dissent Shares;
(d) each Company Share in respect of which a Sale Election has been made prior to the Election Deadline shall, without any further action by or on behalf of a holder of Company Shares, be deemed to be assigned and transferred by the holder thereof to the Purchaser (free and clear of all Encumbrances) in exchange for the Consideration for each such Company Share, and:
(i) the holders of such Company Shares shall cease to be the holders thereof and cease to have any rights as holders of such Company Shares other than the right to be paid the Consideration for such Company Shares by the Depositary in accordance with this Plan of Arrangement;
(ii) such holders’ names shall be removed from the register of the Company Shares maintained by or on behalf of the Company as the holder of such Company Shares; provided that, for greater certainty, if such holder continues to hold Company Shares not included in the Sale Election, such holder shall remain on the register of the Company as the holder of those Company Shares; and
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares sold under the Arrangement (free and clear of all Encumbrances) and the Purchaser shall be entered in the register of the Company Shares maintained by or on behalf of the Company;
(e) should the aggregate number of Company Shares to be acquired in accordance with the Sale Election of Company Shareholders and the number of Company Shares held by the Purchaser and its affiliates be equal to or greater than 90% of the issued and outstanding Company Shares, at the Purchaser’s election, with such election to be provided to the Depositary in writing no later than 5:00 p.m. (Toronto time) on the Business Day following the Election Deadline, Section 3.2(d) shall apply to each Company Share outstanding immediately prior to the Effective Time, irrespective of whether a Sale Election had been made prior to the Election Deadline in respect of such Company Share, other than the Company Shares held by the Purchaser, its affiliates, or by a Dissenting Shareholder who has validly exercised such holder’s Dissent Right;
(f) the Purchaser will be an advance a loan to the Company having a principal amount equal to the paid-up capital, as that term is defined in aggregate of the ITA, attributable Option Consideration (equal to the Subco Shares payments in respect thereof required by Section 3.2(g) of this Plan of Arrangement, prior to any deduction for withholding taxes), which amounts will be advanced to the Purchaser from the funds deposited by the Purchaser with the Depositary in accordance with Section 3.1 of this Plan of Arrangement;
(g) each Company Option outstanding immediately prior to the amalgamation; Effective Time (whether vested or unvested), notwithstanding the terms of the Option Plan, will be deemed to be unconditionally vested and exercisable, and each holder of a Company Option will be deemed to have elected to assign and transfer each such Company Option, without any further action by or on behalf of a holder of Company Options, to the Company, and each such Company Option will be assigned and transferred to the Company, in exchange for a cash payment from the Company equal to the Option Consideration, less applicable withholdings, and each such Company Option will concurrently with such payment be cancelled and, for greater certainty, where such amount is negative, neither the Company, nor the Purchaser will be obligated to pay the holder of such Company Option any amount in respect of such Company Option, and:
(ddi) each former Company Optionholder will cease to be a holder of Company Options;
(ii) each former Company Optionholder will be removed from each applicable register of Company Options maintained by or on behalf of the Company;
(iii) the exchanges Option Plan and cancellations all agreements relating to the Company Options will be terminated and be of no further force and effect;
(iv) each former Company Optionholder will thereafter only have the right to receive the Option Consideration, less applicable withholdings, to which they are entitled pursuant to this Section 3.2(g) at the time and in the manner specified in this Section 3.2(g); it being expressly provided that the events provided for in this Section 2.3 3.2 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. Commencing at Pursuant to the Effective TimeArrangement, each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality, in each case, unless stated otherwise, effective at two minute intervals starting at the Effective Time:
(a1) All Rights issued pursuant to the Shareholder Rights Plan shall be cancelled and without any payment in respect thereof, the Shareholder Rights Plan shall terminate with the result that it will no longer have no further any force or effect effect, and each thereafter no Person will have any further liability or obligation to the former holders of Rights under such Shareholder Rights Plan and the rights thereunder shall be deemed former holders of Rights will permanently cease to be cancelled for no consideration;have any Rights under such Shareholder Rights Plan.
(b2) five minutes after Each Stock Option, whether vested or unvested, that is outstanding immediately prior to the steps contemplated in Section 2.3(a)Effective Time shall, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by Employee Share Plan or on behalf of any holder of such Orko Optionsapplicable grant agreement in relation thereto, be deemed to be unconditionally vested and exercisable, and such Stock Option shall be surrendered by the holder thereof to the Company in exchange for, subject to any withholding made pursuant to Section 4.3, a cash payment from the Company equal to the amount (if any) by which the Consideration in respect of a Common Share underlying a Stock Option exceeds the exercise price of such Stock Option, multiplied by the number of Common Shares subject to such Stock Option, with such amounts to be paid to the applicable holders in accordance with Section 4.1(3), and each such Stock Option shall immediately be cancelled and terminated and, where such amount is zero or negative, each such Stock Option, whether vested or unvested, shall be cancelled without any compensation therefor;
(d) consideration and, with respect to each Orko OptionStock Option that is surrendered pursuant to this Section 2.3(2), as of the effective time of such surrender: (i) the holder thereof will shall cease to be the holder of such Orko Stock Option, will (ii) the holder thereof shall cease to have any rights as a holder in respect of such Orko Stock Option, or under any Employee Share Plan with respect to such Stock Options, other than the right to receive the consideration to which such holder will is entitled pursuant to this Section 2.3(2), (iii) such holder's name shall be removed from the register of Orko Optionsapplicable register, and (iv) all option agreementsagreements (but only to the extent related to such Stock Option), grants grants, certificates and similar instruments relating thereto will shall be cancelled; and.
(e3) Each Performance Share Unit that is outstanding immediately prior to the Orko Stock Option Effective Time shall, notwithstanding the terms of any Employee Share Plan shall or any applicable grant agreement in relation thereto, be terminated;
surrendered by the holder thereof to the Company in exchange for (fx) five minutes after in the steps contemplated case of each Unvested Performance Share Unit, no consideration, or (y) in the case of each Vested Performance Share Unit, subject to any withholding made pursuant to Section 2.3(b)4.3, each Orko Share held by a Dissenting Shareholder cash payment from the Company equal to the Consideration in respect of which the Orko Shareholder has validly exercised hiseach Common Share underlying such Vested Performance Share Unit, her or its Dissent Rights shall be directly transferred and assigned by with 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 amounts to be transferred paid to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned applicable holders in accordance with Section 2.3(c) or Section 2.3(d):
4.1(3), and each such Unvested Performance Share Unit and Vested Performance Share Unit shall immediately be cancelled and terminated and, as of the effective time of such surrender: (i) the registered holder thereof shall cease to be the registered holder of such Orko Performance Share Unit, (ii) the holder thereof shall cease to have any rights as a holder in respect of such Performance Share Unit, or under any Employee Share Plan with respect to such Performance Share Units, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(3), (iii) such holder's name shall be removed from the applicable register, and (iv) all agreements (but only to the extent related to such Performance Share Unit), grants, certificates and similar instruments relating thereto shall be cancelled.
(4) Each Restricted Share Unit, whether vested or unvested, that is outstanding as of immediately prior to the Effective Time shall, notwithstanding the terms of any Employee Share Plan or any applicable grant agreement in relation thereto, be surrendered by the holder thereof to the Company in exchange for, subject to any withholding made pursuant to Section 4.3, a cash payment from the Company equal to the Consideration in respect of each Common Share underlying such Restricted Share Unit, with such amounts to be paid to the applicable holders in accordance with Section 4.1(3), and each such Restricted Share Unit shall immediately be cancelled and terminated and, as of the effective time of such surrender: (i) the holder thereof shall cease to be the holder of such Restricted Share Unit, (ii) the holder thereof shall cease to have any rights as a holder in respect of such Restricted Share Unit, or under any Employee Share Plan with respect to such Restricted Share Units, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(4), (iii) such holder's name shall be removed from the applicable register, and (iv) all agreements (but only to the extent related to such Restricted Share Unit), grants, certificates and similar instruments relating thereto shall be cancelled.
(5) Each outstanding Common Share held by the Preferred Shareholders shall be transferred, without any further action by or on behalf of the holder thereof, to Purchaser in exchange for the Consideration, less any applicable withholdings pursuant to Section 4.3, and:
(a) the holder of each such Common Share shall cease to be the holder thereof and to have any rights as a Common Shareholder other than the right to be paid the Consideration in accordance with this Plan of Arrangement;
(b) a portion of the amount held by the Depositary as agent for and on behalf of Purchaser, equal to the aggregate Consideration payable in respect of such outstanding Common Shares, shall thereupon be held by the Depositary as agent for and on behalf of the former holders of such Common Shares, to be paid to such holders following the completion of the Arrangement in accordance with Section 4.1; and
(c) Purchaser shall be recorded in the register of holders of Common Shares maintained by or on behalf of the Company as the holder of the Common Shares so transferred, and shall be deemed to be the legal and beneficial owner thereof.
(6) Notwithstanding the terms of the Series B-1 Preferred Stock, each share of Series B-1 Preferred Stock outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of the holder thereof, be transferred to the Company in exchange for the number of Common Shares equal to the Series B-1 Preferred Stock Exchange Rate (for the avoidance of doubt, in no event shall the Series B-1 Preferred Stock outstanding immediately prior to the Effective Time be exchanged for less than the full number of Common Shares calculated pursuant to this Section 2.3(6)), and
(a) the holder of each such share of Series B-1 Preferred Stock shall cease to be the holder thereof and to have any rights as a Preferred Shareholder;
(b) all agreements relating to the Series B-1 Preferred Stock, including the Investor Rights Agreement, the Exchange and Support Agreement and the name Voting Trust Agreement, shall be cancelled and of no further force or effect;
(c) the Preferred Shareholders will be deemed to be the holders of such registered Common Shares and will be recorded in the register of holders of Common Shares maintained by or on behalf of the Company as the holder of such Common Shares and shall be deemed the legal and beneficial owner thereof; and
(d) the Company shall be recorded in the register of holders of the Series B-1 Preferred Stock maintained by or on behalf of SunOpta Foods Inc. as the holder of Series B-1 Preferred Stock so transferred, and shall be deemed to be the legal and beneficial owner thereof.
(7) Concurrently with the transaction in Section 2.3(6), all Special Shares shall be cancelled without any payment in respect thereof and without any further action by or on behalf of the holder thereof, and:
(a) the Special Shareholders shall cease to have any rights as a Special Shareholder, and the Voting Trust Agreement shall be cancelled and of no further force or effect; and
(b) the Special Shareholders' names shall be removed from the register of Orko Shareholders as holders of Special Shares maintained by or on behalf of the Effective Time;Company.
(j) the registered holder thereof 8) Each outstanding Common Share held by a Dissenting Holder shall be deemed to have executed been transferred without any further action by or on behalf of the holder thereof to Purchaser, and:
(a) such Dissenting Holder shall cease to be the holder of such Common Share and delivered all consentsto have any rights as a Common Shareholder, releases, assignments and waivers, statutory other than the right to be paid the fair value of its Common Shares by Purchaser in accordance with Section 3.1;
(b) such Dissenting Holder's name shall be removed from the register of holders of Common Shares maintained by or otherwise, required to transfer and assign such Orko Shareon behalf of the Company; and
(kc) First Majestic will Purchaser shall be the holder of all of the outstanding Orko Shares and recorded in the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration holders of Common Shares maintained by or on behalf of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Company as the holder of the Subco Common Shares so transferred, and shall receive on be deemed to be the amalgamation one common share in legal and beneficial owner thereof.
(9) Each outstanding Common Share (for greater certainty, including each Common Share issued to the authorised share structure of Amalco Preferred Shareholders in exchange for each Subco Share previously held Series B-1 Preferred Stock in accordance with Section 2.3(6) and all excluding (i) Common Shares transferred by Preferred Shareholders to the Purchaser in accordance with Section 2.3(5) and (ii) Common Shares transferred by Dissenting Holders who have validly exercised their respective Dissent Rights to the Purchaser in accordance with Section 2.3(8)) shall be transferred without any further action by or on behalf of the issued holder thereof, to Purchaser in exchange for the Consideration, less any applicable withholdings pursuant to Section 4.3, and:
(a) the holder of each such Common Share shall cease to be the holder thereof and outstanding Orko Shares will to have any rights as a Common Shareholder other than the right to be cancelled without repayment paid the Consideration in accordance with this Plan of capital in respect thereofArrangement;
(xb) a portion of the name amount held by the Depositary as agent for and on behalf of Amalco Purchaser, equal to the aggregate Consideration payable in respect of such outstanding Common Shares, shall thereupon be “Orko Silver Corp.”held by the Depositary as agent for and on behalf of the former holders of such Common Shares, to be paid to such holders following the completion of the Arrangement in accordance with Section 4.1;
(yc) Amalco such holder's name shall be authorised to issue an unlimited number removed from the register of common shares without par value;
(z) the articles and notice holders of articles of Amalco shall be substantially in the form Common Shares maintained by or on behalf 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Company; and
(ccd) Purchaser shall be recorded in the stated capital register of holders of Common Shares maintained by or on behalf of the common shares Company as the holder of Amalco will be an amount equal to the paid-up capitalCommon Shares so transferred, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will shall be deemed to occur on be the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datelegal and beneficial owner thereof.
Appears in 1 contract
Sources: Arrangement Agreement (SunOpta Inc.)
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) each Carta Option outstanding immediately prior to the Shareholder Rights Plan shall be cancelled and shall have no Effective Time (whether vested or unvested), notwithstanding the terms of such Carta Option or the Carta Stock Option Plan, shall, without any further force action by or effect and each on behalf of the rights thereunder shall holders of Carta Options, be deemed to be cancelled assigned and transferred by such holders to Carta in exchange for no considerationa cash payment of $0.00001 from Carta, and each such Carta Option shall immediately be cancelled;
(b) five minutes after concurrently with the steps contemplated preceding step, with respect to each Carta Option:
(i) the holder thereof shall cease to be the holder of such Carta Option;
(ii) such holder’s name shall be removed from the register of Carta Options;
(iii) all option agreements, award agreements, grants and similar instruments relating thereto shall be cancelled; and
(iv) the holder thereof shall thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 2.3(a) at the time and in the manner specified in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):;
(c) immediately following the preceding step, each Carta Share and each Carta Note outstanding Orko Options willimmediately prior to the Effective Time held by a Carta Shareholder or a holder of Carta Notes, that is an Eligible Transferor shall, without any further action by or on behalf of any holder of such Orko OptionsCarta Shareholder or Carta Noteholder, be deemed to be cancelled without any compensation thereforassigned and transferred by the holder thereof to the Carta Limited Partnership in exchange for the following consideration:
(i) for each Series A Preferred Share, the Carta Limited Partnership shall issue to the applicable Carta Shareholder, one Class A LP Unit;
(ii) for each Series B Preferred Share, the Carta Limited Partnership shall issue to the applicable Carta Shareholder, one Class B LP Unit;
(iii) for each Series C Preferred Share, the Carta Limited Partnership shall issue to the applicable Carta Shareholder, one Class C LP Unit;
(iv) for each Carta Common Share, the Carta Limited Partnership shall issue to the applicable Carta Shareholder, one Class D (MIP) LP Unit;
(v) for each $1.00 of Carta 2019 Notes, the Carta Limited Partnership shall issue to the applicable Carta Noteholder, one Class F (2019) LP Unit; and
(vi) for each $1.00 of Carta 2020 Notes, the Carta Limited Partnership shall issue to the applicable Carta Noteholder, one Class G (2020) LP Unit;
(d) concurrently with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b)preceding step, each Orko Share held by a Dissenting Former Carta Shareholder in respect of which the Orko Shareholder has validly exercised his, her and each Former Carta Noteholder that was an Eligible Transferor whose Carta Shares or its Dissent Rights shall be directly Carta Notes were assigned and 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) shall, without any further action by or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder on behalf of such Orko Share Former Carta Shareholder or Former Carta Noteholder, be deemed to have signed and be and become a party to the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) the registered holder thereof Limited Partnership Agreement, and each Former Carta Shareholder and Former Carta Noteholder that is an Eligible Transferor shall be deemed to have executed irrevocably provided authorization to the General Partner to make the tax election specified in, and delivered all consents, releases, assignments in accordance with Section 2.5(a) and waivers, statutory or otherwise, required an income tax election pursuant to transfer and assign such Orko Share; and
(ksubsection 98(3) First Majestic will be the holder of all of the outstanding Orko Shares and ITA in connection with the register dissolution of Orko Shareholders shall be revised accordinglythe Carta Limited Partnership;
(le) five three hours and fifteen minutes after the steps contemplated in Section 2.3(d) and (e)preceding step, each Carta Share and each Carta Note outstanding Orko Share will immediately prior to the Effective Time held by a Carta Shareholder or a Carta Noteholder that is not an Eligible Transferor shall, without any further action by or on behalf of any Carta Shareholder or Carta Noteholder, be deemed to be assigned and transferred by the holder thereof to Subco the Carta Limited Partnership in consideration of exchange for the issue by Subco to First Majestic of one Subco Share following consideration:
(i) for each Orko Share so transferredSeries A Preferred Share, and the amount added Carta Limited Partnership shall issue to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferredCarta Shareholder, one Class A LP Unit;
(mii) concurrent with the step in Section 2.3(f)for each Series B Preferred Share, the stated capital in respect of Carta Limited Partnership shall issue to the Orko Shares shall be reduced to an aggregate of $1.00 without any repayment of capital in respect thereofCarta Shareholder, one Class B LP Unit;
(niii) five minutes after for each Series C Preferred Share, the steps contemplated in Section 2.3(f) and (g)Carta Limited Partnership shall issue to the Carta Shareholder, 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 Business Corporations Act, except that the legal existence of Orko shall not cease and Orko shall survive the merger as AmalcoClass C LP Unit;
(oiv) without limiting the generality of Section 2.3(h)for each Carta Common Share, the separate legal existence of Subco Carta Limited Partnership shall cease without Subco being liquidated or wound up and Orko and Subco shall continue as one company and the property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract or otherwise, may be enforced against Amalco issue to the same extent as if such obligations had been incurred or contracted by it;
Carta Shareholder, one Class D (rMIP) 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 AmalcoLP Unit;
(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 $1.00 of Carta 2019 Notes, the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof;
Carta Limited Partnership shall issue to the applicable Carta Noteholder, one Class F (x2019) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇LP Unit; and
(ccvi) for each $1.00 of Carta 2020 Notes, the stated capital Carta Limited Partnership shall issue to the applicable Carta Noteholder, one Class G (2020) LP Unit;
(f) concurrently with the preceding step, each Former Carta Shareholder and each Former Carta Noteholder that was not an Eligible Transferor whose Carta Shares or Carta Notes were assigned and transferred in accordance with Section 2.3(e) shall, without any further action by or on behalf of such Former Carta Shareholder, be deemed to have signed and be and become a party to the Limited Partnership Agreement;
(g) immediately following the preceding step, (A) each Carta Share and all Carta Notes then held by the Carta Limited Partnership shall, without any further action by or on behalf of the common shares of Amalco will Carta Limited Partnership, be an amount equal deemed to be transferred and assigned by the Carta Limited Partnership to Mogo in exchange for the Mogo Share Consideration being issued by Mogo to the paid-up capitalCarta Limited Partnership, as that term is defined in the ITA, attributable and (B) each Former Carta Shareholder and Former Carta Noteholder shall be deemed to have irrevocably provided authorization to the Subco Shares immediately prior General Partner to make the amalgamationtax election specified in, and in accordance with, Section 2.5(b); and
(ddh) the exchanges and cancellations provided for in this Section 2.3 will 2.3will be deemed to occur on at the Effective Datetimes set out in this Section 2.3, notwithstanding certain procedures related thereto may not be completed until after the Effective Datesuch times.
Appears in 1 contract
Sources: Arrangement Agreement (Mogo Inc.)
Arrangement. Commencing at Subject to the Effective Timesatisfaction or waiver of the conditions set out within Article 7 of the Arrangement Agreement in accordance with the relevant provisions of the Arrangement Agreement, the following transactions shall occur and shall be deemed to occur 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) the Shareholder Rights Plan Holdco shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) amalgamate with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 Parentco to form one corporate entity (“Amalco”) corporation, with the same effect as if they Holdco and Parentco had amalgamated under Section 269 of the Business Corporations ActBCBCA, 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 2.3(h), the separate legal existence of Subco Parentco shall not cease and Parentco will survive the amalgamation (Parentco, as such surviving entity, the “Resulting Issuer”), in accordance with the following, all of which shall occur and become effective simultaneously at the time of the amalgamation:
(i) the separate legal existence of Holdco shall cease without Subco Parentco being liquidated or wound up and Orko Holdco and Subco Parentco shall continue as one company and the property of Subco shall become the property of Amalcocompany;
(pii) from the notice of articles and after the Effective Date, at the time articles of the step contemplated Resulting Issuer shall be substantially in Section 2.3(h):
(q) Amalco will own the form of the notice of articles and hold the property articles of Orko and Subco andParentco, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract or otherwise, may be enforced against Amalco subject to the same extent as if such obligations had been incurred or contracted by itother terms of this Plan of Arrangement;
(rA) Amalco will continue each 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 Effective Time;
(iv) the property, rights and interests of Holdco and Parentco shall be the property, rights and interests of the Resulting Issuer;
(v) the Resulting Issuer shall be liable for all of the liabilities and obligations of Orko Holdco and SubcoParentco;
(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;
(tvi) any existing cause of action, claim or liability to prosecution will of Holdco or Parentco shall be unaffected;
(u) a civil, criminal unaffected and any legal proceeding being prosecuted or administrative action or proceeding pending by or against either Orko Holdco or Subco Parentco may be continued prosecuted, or by its prosecution may be continued, as the case may be, by or against Amalcothe Resulting Issuer;
(vvii) a conviction against, or ruling, order or judgment in favour of or against either Orko ▇▇▇▇▇▇ or Subco Parentco may be enforced by or against Amalcothe Resulting Issuer;
(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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xviii) the name of Amalco the Resulting Issuer shall be “Orko Silver Corp.Tevva Motors, Inc.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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;
(bbix) the first directors of Amalco the Resulting Issuer following the amalgamation shall be be:
(A) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇
(B) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and
▇▇▇ (ccC) the stated capital of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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 (Electrameccanica Vehicles Corp.)
Arrangement. Commencing The Plan of Arrangement shall, with such other matters as are necessary to give effect to the Arrangement, provide for substantially the following to occur commencing at the Effective TimeTime and in chronological order, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) Buyco shall acquire all issued and outstanding Subco-RI Shares from Pubco (the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each “Purchase Shares”) for consideration of the rights thereunder shall be deemed Purchase Price comprised of the Deposit to be cancelled for no considerationpaid on execution of the Arrangement Agreement and the Balance to be paid at Closing;
(b) five minutes after Buyco and Subco-RI shall exchange securities on a 1:1 basis, as follows:
i. each Buyco Share, other than a Buyco Share for which Dissent Rights have been validly exercised by the steps contemplated in Section 2.3(a)holder thereof who is a Dissenting Buyco Shareholder and who is ultimately entitled to be paid fair value for his Buyco Shares, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise will be subject (whether exchanged by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, holder thereof without any further action by act or on behalf formality and free and clear of any holder all liens, claims and encumbrances, for one (1) fully paid and non- assessable Subco-RI Share, and the name of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the central securities register of Orko Options, Buyco and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) added to the Orko Stock Option Plan shall be terminatedcentral securities register of Subco-RI;
(f) five minutes after ii. the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Buyco Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) the registered holder thereof shall be deemed deemed, without any further action on his or her part, to have executed and delivered all consentsany necessary transfer form, releases, assignments and waivers, statutory power of attorney or otherwise, assignment required to transfer and assign such Orko Sharehis or her Buyco Shares to Subco-RI; and
(k) First Majestic will be iii. the holder of all of certificates representing the outstanding Orko Buyco Shares and held by the register of Orko former Buyco Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on have been cancelled subsequent to their transfer to Subco-RI and will be replaced by a single share certificate registered in the Effective Datename of Subco-RI and Subco-RI will be and will be deemed to be the lawful owner and transferee of all such Buyco Shares; thereafter, notwithstanding certain procedures related thereto any director of Subco-RI will be authorized to execute any such further documents and assurances as may not be completed until after required by any transfer agent or depositary to fully give effect to the Effective Date.transfer and cancellations contemplated hereby;
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. 3.1 Commencing at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further act or formalityformality except as otherwise provided herein:
(a) the Petroamerica Shareholder Rights Plan shall terminate and cease to have any further force or effect and all rights issued pursuant to the Petroamerica Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no considerationwithout any payment in respect thereof;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Petroamerica Option Plan):Plan or the Petroamerica Options, each Petroamerica Option shall be transferred and surrendered by the holders thereof to Petroamerica in exchange for the Option Consideration for each such Petroamerica Option. Each such Petroamerica Option surrendered and all option agreement(s) related thereto shall be cancelled and terminated and the holder thereof shall thereafter only have the right to receive the Option Consideration (and, for greater certainty, Petroamerica shall be entitled to withhold or deduct any amounts in accordance with Article 6). The Petroamerica Option Plan shall thereafter by terminated and be of no further force and effect;
(c) notwithstanding the outstanding Orko Options willterms of the Petroamerica SAR Plan or the Petroamerica SARs, without any further action each Petroamerica SAR shall be transferred and surrendered by or on behalf of any holder of the holders thereof to Petroamerica in exchange for the SAR Consideration for each such Orko Options, be deemed to Petroamerica SAR. Each such Petroamerica SAR surrendered and all Petroamerica SAR agreement(s) related thereto shall be cancelled without and terminated and the holder thereof shall thereafter only have the right to receive the SAR Consideration (and, for greater certainty, Petroamerica shall be entitled to withhold or deduct any compensation thereforamounts in accordance with Article 6). The Petroamerica SAR Plan shall thereafter by terminated and be of no further force and effect;
(d) with respect to each Orko Optionthe Petroamerica Shares held by Dissenting Shareholders shall, as of the holder thereof will cease to Effective Time, be the holder of such Orko Option, will cease deemed to have any rights as a holder in respect of such Orko Option, such holder will be removed from been transferred to the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Purchaser (free and clear of any liens, charges and encumbrances of any nature whatsoeverEncumbrances) in consideration for a debt claim against the Purchaser in accordance withwith Article 4, and, as of the Effective Time, such Dissenting Shareholders shall cease to be the holders thereof or have any rights as Petroamerica Shareholders and for shall only be entitled to be paid by the consideration set forth in, Section 3.1Purchaser the fair value of their Petroamerica Shares in accordance with Article 4;
(ge) five minutes after the steps contemplated in subject to Section 2.3(c3.1(g), Section 3.3 and Section 3.4, each Orko outstanding Petroamerica Share (other than any Orko Share held by any Dissenting Shareholder) shall be deemed to be transferred to First Majestic to, and acquired by, the Purchaser (free and clear of any liensEncumbrances) in accordance with the election, charges or deemed election, of the holder of such Petroamerica Share, in exchange for the following:
(i) 0.40 of a Purchaser Share (the “Share Consideration”); or
(ii) cash in the amount of $1.33 (the “Cash Consideration”);
(f) the Purchaser shall assume all rights and encumbrances obligations of any nature whatsoeverPetroamerica relating to the Petroamerica CVRs and the consideration to be received by the holders of Petroamerica CVRs upon exercise thereof shall be Purchaser Shares based upon the Exchange Ratio per Petroamerica Share that would otherwise have been issuable under such Petroamerica CVRs, subject to subsequent adjustment in accordance with the terms of the Petroamerica CVRs;
(g) the Purchaser shall not be obligated to pay more than $101,301,755 in cash in the aggregate (the “Maximum Cash Consideration”) in exchange for the Petroamerica Shares (other than the Petroamerica Shares held by Dissenting Shareholders) and, for greater clarity, if, but for this Section 3.1(g), holders of Petroamerica Shares elect to receive (or are deemed to have elected to receive) Cash Consideration that in the aggregate exceeds the Maximum Cash Consideration, then each holder of Petroamerica Shares that has elected to receive (or is deemed to have elected to receive) the Cash Consideration, in whole or in part, will receive cash in an amount equal to the result obtained when the Maximum Cash Consideration is multiplied by a fraction the numerator of which is the Cash Consideration requested by such holder (or deemed to have been requested by such holder) and the denominator of which is the aggregate Cash Consideration requested by all holders (or deemed to have been requested by all such holders) of Petroamerica Shares (the “Adjusted Maximum Case Cash Consideration”), and each such holder of Petroamerica Shares will thereby be deemed to have elected to: (i) exchange the pro rata number (rounded down to the nearest whole number) of the holder’s Petroamerica Shares for the Adjusted Maximum Case Cash Consideration; and (ii) exchange the remainder of their Petroamerica Shares for that number of Purchaser Shares so determined at the Exchange Ratio.
3.2 With respect to each Former Petroamerica Shareholder at the Effective Time, upon the exchange of Petroamerica Shares for the consideration pursuant to Section 3.1(e):
(a) such Former Petroamerica Shareholder shall, if receiving Share Consideration, be added to the register of holders of the Purchaser Shares and be entitled to the consideration payable to it pursuant to Section 3.1(e), as modified by Section 3.1(g);
(hb) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof such Former Petroamerica Shareholder shall cease to be the registered a holder of such Orko Share the Petroamerica Shares so exchanged and the name of such registered holder Former Petroamerica Shareholder shall be removed from the register of Orko Petroamerica Shareholders maintained by or on behalf of Petroamerica as it relates to the Petroamerica Shares so exchanged; and
(c) the Purchaser shall become the holder of the Effective TimePetroamerica Shares so exchanged and shall be added to the register of Petroamerica Shareholders maintained by or on behalf of Petroamerica.
3.3 With respect to the exchange of Petroamerica Shares effected pursuant to Section 3.1(e):
(a) Petroamerica Shareholders may elect to receive in respect of each Petroamerica Share exchanged the Share Consideration, the Cash Consideration or a combination of the Share Consideration and the Cash Consideration, subject to Section 3.1(g);
(jb) such elections as provided for in Section 3.3(a) shall be made by depositing with the registered holder thereof Depositary, prior to the Election Deadline, a duly completed Letter of Transmittal and Election Form indicating such Petroamerica Shareholder’s election, together with any certificates representing such Petroamerica Shareholder’s Petroamerica Shares; and
(c) any Petroamerica Shareholder who does not deposit with the Depositary a duly completed Letter of Transmittal and Election Form prior to the Election Deadline, or otherwise fails to comply with the requirements of Section 3.3(b) shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required elected to transfer and assign such Orko Share; and
(k) First Majestic will be receive the holder of Cash Consideration as to all of the outstanding Orko such holder’s Petroamerica Shares.
3.4 Each Petroamerica Shareholder who receives a combination of Purchaser Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 cash in exchange for each Subco Share previously held and all Petroamerica Shares as a result of elections made under Section 3.1(e), elections deemed to have been made under Section 3.3(c) or as a result of the issued and outstanding Orko Shares will be cancelled without repayment of capital Maximum Cash Consideration being exceeded as set forth in respect thereof;
(xSection 3.1(g) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised deemed for the purposes of the Tax Act and otherwise to issue an unlimited receive only Purchaser Shares for the pro rata number of common shares without par value;
(z) Petroamerica Shares so exchanged at the articles Exchange Ratio and notice only Cash Consideration for the remaining number of articles of Amalco shall be substantially Petroamerica Shares so exchanged at the amount per Petroamerica Share set forth 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date3.1(e)(ii).
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence without any further act or formality:
(a) the each Alio Share held by a Dissenting Shareholder Rights Plan shall be deemed to have been, surrendered to Alio for cancellation (free and clear of any liens, claims or encumbrances) without any further act or formality and shall be cancelled and such Dissenting Shareholders shall cease to be the holders of such ▇▇▇▇ ▇▇▇▇▇▇ and to have no further force or effect any rights as holders of such Alio Shares other than the right to be paid fair value for such Alio Shares as set out in Article 4, and each such Dissenting Shareholders’ names shall be removed as the holders of such ▇▇▇▇ ▇▇▇▇▇▇ from the central securities register of Alio;
(b) the resignations of the rights thereunder Existing ▇▇▇▇ Directors and Officers, and the appointment of the New Alio Directors and Officers, will be deemed to be effective;
(c) with respect to the Alio PSUs;
(i) each Alio PSU granted and outstanding immediately prior to the Effective Time will, without further action, be deemed to be unconditionally vested, assuming an adjustment factor of 1.0, and assigned and transferred by the holder thereof to Alio in exchange for a cash payment from Alio equal to the PSU Cash Consideration and the issuance to the holder by ▇▇▇▇ of a number of Incentive Compensation Shares equal to the PSU Share Consideration in respect of such Alio PSU, net of any applicable withholding tax, and the holder of such Alio PSU shall be and shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, number of Incentive Compensation Shares and the central securities register shall be and shall be deemed to be cancelled without any compensation therefor;revised accordingly, but the holder of such Alio PSUs shall not be entitled to a certificate or other document representing the Incentive Compensation Shares so issued; and
(dii) with respect to each Orko Option, the holder thereof of each such Alio PSU will cease to be the holder of such Orko Option, will cease thereof or to have any rights as a holder in respect of such Orko Option, such Alio PSU or under the Alio PRSU Plan and the name of the holder thereof will be removed from the applicable securities register of Orko OptionsAlio with respect to such Alio PSU;
(d) With respect to the Alio RSUs;
(i) each Alio RSU granted and outstanding immediately prior to the Effective Time will, without further action, be deemed to be unconditionally vested and assigned and transferred by the holder thereof to Alio in exchange for a cash payment from ▇▇▇▇ equal to the RSU Cash Consideration and the issuance to the holder by ▇▇▇▇ of a number of Incentive Compensation Shares equal to the RSU Share Consideration in respect of such Alio RSU, net of any applicable withholding tax, and all option agreementsthe holder of such Alio RSU shall be and shall be deemed to be the holder of such number of Incentive Compensation Shares and the central securities register shall be and shall be deemed to be revised accordingly, grants but the holder of such Alio RSUs shall not be entitled to a certificate or other document representing the Incentive Compensation Shares so issued;
(ii) the holder of each such Alio RSU will cease to be the holder thereof or to have any rights as a holder in respect of such Alio RSU or under the Alio PRSU Plan and similar instruments relating thereto the name of the holder thereof will be cancelledremoved from the applicable securities register of Alio with respect to such Alio RSU; and
(iii) the Alio PRSU Plan will be cancelled;
(e) With respect to the Orko Stock Option Plan Alio DSUs;
(i) each Alio DSU granted and outstanding immediately prior to the Effective Time will, without further action, be deemed to be unconditionally vested and assigned and transferred by the holder thereof to Alio in exchange for a cash payment from Alio equal to the DSU Cash Consideration and the issuance of a number of Incentive Compensation Shares to the holder by ▇▇▇▇ equal to the DSU Share Consideration in respect of such Alio DSU, net of any applicable withholding tax, and the holder of such Alio DSU shall be terminatedand shall be deemed to be the holder of such number of Incentive Compensation Shares and the central securities register shall be and shall be deemed to be revised accordingly, but the holder of such Alio DSUs shall not be entitled to a certificate or other document representing the Incentive Compensation Shares so issued;
(ii) the holder of each such Alio DSU will cease to be the holder thereof or to have any rights as a holder in respect of such Alio DSU or under the Alio DSU Plan and the name of the holder thereof will be removed from the applicable securities register of Alio with respect to such Alio DSU; and
(iii) the Alio DSU Plan will be cancelled;
(f) five minutes after each Alio Share outstanding immediately prior to the steps contemplated in Section 2.3(b), each Orko Share Effective Time held by a an Alio Shareholder (other than Argonaut or any Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights Shareholder) and each Incentive Compensation Share shall be directly transferred by the holder thereof to Argonaut in exchange for the Arrangement Consideration and assigned by such Dissenting Shareholder Argonaut shall be deemed to First Majestic (be the legal and beneficial owner thereof, free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance withclaims or encumbrances, and for the consideration set forth insubject to Section 3.3, Section 3.1;3.4 and Article 5; and
(g) five minutes after each Alio Option outstanding immediately prior to the steps contemplated in Section 2.3(c)Effective Time, each Orko Share (other than any Orko Share held by any Dissenting Shareholder) whether or not vested, shall be deemed to be transferred to First Majestic (exchanged by the holder thereof, without any further act or formality and free and clear of any liensall encumbrances, charges and encumbrances for an option (each a "Replacement Argonaut Option") to acquire from Argonaut, other than as provided herein, the number of any nature whatsoever) in exchange for Argonaut Shares equal to the Share Consideration;
product obtained when (h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(iA) the registered holder thereof shall cease number of Alio Shares subject to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of Alio Option immediately prior to the Effective Time;
, is multiplied by (jB) the registered holder thereof Exchange Ratio, provided that if the foregoing would result in the issuance of a fraction of an Argonaut Share on any particular exercise of Replacement Argonaut Options, then the number of Argonaut Shares otherwise issuable shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added rounded down to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited nearest whole number of common shares without par value;
(z) the articles and notice of articles of Amalco Argonaut Shares. The exercise price per Argonaut Share subject to a Replacement Argonaut Option shall be 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 the paidquotient obtained when (A) the exercise price per Alio Share subject to each such Alio Option immediately before the Effective Time, is divided by (B) the Exchange Ratio, provided that the aggregate exercise price payable on any particular exercise of Replacement Argonaut Options shall be rounded up to the nearest whole cent. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to the exchange of an Alio Option for a Replacement Argonaut Option. Therefore, in the event that the Replacement Argonaut Option In-up capitalThe-Money Amount in respect of a Replacement Argonaut Option exceeds the Alio Option In-The- Money Amount in respect of the Alio Option for which it is exchanged, the number of Argonaut Shares which may be acquired on exercise of the Replacement Argonaut Option at and after the Effective Time will be adjusted accordingly, with effect at and from the Effective Time, to ensure that the Replacement Argonaut Option In-The-Money Amount in respect of the Replacement Argonaut Option does not exceed the Alio Option In-The- Money Amount in respect of the Alio Option and the ratio of the amount payable to acquire such 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 (provided any Replacement Argonaut Option shall be exercisable at the offices of Argonaut) and the other terms and conditions of each of the Replacement Argonaut Options shall be the same as the terms and conditions of the Alio Option for which it is exchanged, except that the Replacement Argonaut Options, in the event of the Termination of the holder of the Replacement Argonaut Option, will expire on the later of the date that is one year from the Effective Date and the date that such Alio Option would have otherwise expired pursuant to the terms of the Alio Stock Option Plan or the contractual terms applicable to such Alio Options, and for greater certainty, each Replacement Argonaut Option shall continue to be governed by and be subject to the terms of the Alio Stock Option Plan or the contractual terms applicable to such Alio Options, as that term is defined in applicable, evidencing the ITAgrant of such Alio Option, attributable except with respect to the Subco Shares immediately prior to Termination of the amalgamation; and
(dd) holder of the exchanges Replacement Argonaut Option. Any document previously evidencing an Alio Option shall thereafter evidence and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not evidence such Replacement Argonaut Option and no certificates evidencing Replacement Argonaut Options shall be completed until after the Effective Dateissued.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at At the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) each outstanding ValGold Share held by a Dissenting Shareholder will be irrevocably assigned and transferred by the Shareholder Rights Plan holder thereof to Metalla, without any further act or formality and free and clear of all liens, claims and encumbrances, and Metalla shall thereupon be cancelled and shall have no further force or effect and each of obliged to pay to such shareholder the rights thereunder shall be deemed amount therefor determined to be cancelled for no considerationpayable in accordance with Article 3;
(b) five minutes after each ValGold Option, to the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject extent it has not been exercised as of the Effective Date (whether vested or unvested) will be deemed to have fully vested and will be exchanged by contractthe holder thereof, without any further act or formality and free and clear of all liens, claims and encumbrances, for (subject to Section 2.5) that number of Metalla Shares equal to the conditions product of grant, applicable law or (i) the terms quotient of the Orko Stock Option Plan):
In-the- Money Amount divided by the ValGold Deemed Share Price, multiplied by (cii) the outstanding Orko Options willExchange Ratio, and the ValGold Option shall thereupon, without any further action by or on behalf of any holder of such Orko Optionsthe ValGold Optionholder, be deemed to be disposed of and cancelled without any compensation therefor;
(d) and with respect to each Orko such ValGold Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko ValGold Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) . To the Orko Stock extent that the product of such calculation, with respect to any given ValGold Option, is not a positive number, such ValGold Option Plan shall be terminatedcancelled for no consideration;
(fc) five minutes after the steps contemplated in Section 2.3(b), each Orko outstanding ValGold Share (except ValGold Shares held by Metalla or a Dissenting Shareholder in respect of which Shareholder) will be irrevocably assigned and transferred by the Orko Shareholder has validly exercised hisholder thereof to Metalla, her without any further act or its Dissent Rights shall be directly transferred formality and assigned by such Dissenting Shareholder to First Majestic (free and clear of any all liens, charges claims and encumbrances encumbrances, in exchange for (subject to Section 2.5) that number of any nature whatsoever) in accordance with, fully paid and for non-assessable Metalla Shares equal to the consideration set forth in, Section 3.1Exchange Ratio;
(gd) five minutes after each ValGold Warrant, to the steps contemplated extent it has not been exercised as of the Effective Date, will, in accordance with the existing reorganization provisions of the ValGold Warrants and without any further act or formality, represent only a right to purchase on exercise in accordance with its terms a number of Metalla Shares equal (subject to Section 2.3(c)2.5) to the product of the Exchange Ratio multiplied by the number of ValGold Shares issuable on exercise of such ValGold Warrant for an exercise price per Metalla Share equal to the exercise price per share of such ValGold Warrant divided by the Exchange Ratio and rounded up to the nearest whole cent. The term to expiry, each Orko Share (conditions to and manner of exercise and other than any Orko Share held by any Dissenting Shareholder) terms and conditions of the ValGold Warrants shall remain the same with respect to the right to purchase Metalla Shares accordingly. The ValGold Warrants shall therefore evidence only a right to purchase Metalla Shares in accordance with these terms, and no amended certificates with respect to ValGold Warrants shall be deemed to be transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Considerationissued;
(he) with respect to each Orko ValGold Share transferred and assigned in accordance with Section 2.3(c2.3(a) or Section 2.3(d2.3(b):
(i) the registered holder thereof shall cease to be the registered holder of such Orko ValGold Share and the name of such registered holder shall be removed from the register of Orko ValGold Shareholders as of the Effective Time;; and
(jii) Metalla will be the registered legal and beneficial holder thereof of such ValGold Share and the register of ValGold Shareholders shall be deemed revised accordingly; and
(f) each holder of ValGold Shares, ValGold Options and ValGold Warrants with respect to each step set out above applicable to such holder, will be deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko ValGold Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the separate legal existence of Subco shall cease without Subco being liquidated ValGold Option or wound up and Orko and Subco shall continue as one company and the property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateValGold Warrant.
Appears in 1 contract
Sources: Arrangement Agreement (Metalla Royalty & Streaming Ltd.)
Arrangement. Commencing at 3.1 At the Effective Time, or as otherwise indicated, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and Subject to Section 4.4 each of the rights thereunder issued and outstanding AltaRex Common Shares shall be, and be deemed to be cancelled be, transferred to ViRexx (free of any claims) and the holder of AltaRex Common Shares shall receive from ViRexx in exchange for no consideration;each AltaRex Common Share one-half of one ViRexx Common Share.
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms 40% of the Orko Stock Option Plan):ViRexx Common Shares received by each former holder of AltaRex Common Shares issued pursuant to paragraph 3.1(a) shall be non-transferable and subject to a hold period for a period of six months following the Effective Date.
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with With respect to each Orko Option, AltaRex Common Share to which paragraph 3.1
(a) applies:
(i) the holder thereof will shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of AltaRex Common Shares and such Orko Option, such holder will holder’s name shall be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledAltaRex Common Shares as of the Effective Date; and
(eii) ViRexx shall become, and be deemed to become, the Orko Stock Option Plan holder of such AltaRex Common Shares (free of any claims) and shall be terminated;entered in the register of such shares as the holder thereof as of the Effective Date.
(fd) five minutes after Each AltaRex Option that has not been:
(i) duly exercised in full under the steps contemplated terms thereof; or
(ii) duly surrendered in Section 2.3(b)full for termination in a manner reasonably acceptable to ViRexx, each Orko Share held by a Dissenting Shareholder in respect of which immediately prior to the Orko Shareholder has validly exercised his, her or its Dissent Rights Effective Time shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance withbe, 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 transferred to First Majestic ViRexx (free and clear of any liensclaims) and in consideration for such transfer, charges and encumbrances the holder of any nature whatsoever) that AltaRex Option shall receive an option to purchase the number of ViRexx Common Shares determined by multiplying the number of AltaRex Common Shares subject to the particular AltaRex Option by one-half, at an exercise price per ViRexx Common Share equal to the exercise price per share of the particular AltaRex Option multiplied by two. If the foregoing results in an option being issued for a fraction of a ViRexx Common Share then the number of ViRexx Common Shares subject to such option will be rounded down to the nearest whole number of ViRexx Common Shares. The terms of all options issued by ViRexx in exchange for AltaRex Options shall be identical in all material respects to the Share Consideration;terms of the AltaRex Options in respect of which they are issued.
(he) with With respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease AltaRex Option to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date.which paragraph 3.1
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Mogo Share held by a Dissenting Shareholder in respect of which the Orko Mogo Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Mogo (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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(hb) with respect to each Orko Mogo Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d2.4(a):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Mogo Share and the name of such registered holder shall be removed from the register of Orko Mogo Shareholders as of the Effective Time;
(jii) 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 Orko Mogo Share; and
(kiii) First Majestic such Mogo Shares will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordinglycancelled by Mogo for no consideration;
(lc) five minutes after the steps contemplated in Section 2.3(d) Mogo and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 Difference SubCo shall merge to form one corporate entity (“"Amalco”") with the same effect as if they had amalgamated under Section 269 of the Business Corporations Act, except that and:
(i) each Mogo Share (other than Mogo Shares held by Difference) shall be cancelled and the legal existence of Orko holder thereof shall not cease and Orko shall survive be issued the merger as AmalcoShare Consideration in respect thereof;
(oii) each Mogo Share held by Difference and each Difference SubCo Share shall be cancelled and the holder thereof shall be issued one (1) common share in the capital of Amalco in respect of each such share; and
(iii) as consideration for the issuance by Difference of the Share Consideration described in Section 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);
(d) without limiting the generality of Section 2.3(h2.4(c), the separate legal existence of Subco shall cease without Subco being liquidated or wound up Mogo and Orko and Subco Difference SubCo shall continue as one company and the property of Subco shall become the property of Amalco;
(p) and, from and after the Effective Date, at the time of the step contemplated in Section 2.3(h)::
(qi) Amalco will own and hold the property of Orko Mogo and Subco 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 Orko Mogo and SubcoDifference 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;
(rii) Amalco will continue to be liable for all of the liabilities and obligations of Orko Mogo and SubcoDifference SubCo;
(siii) all rights, contracts, permits and interests of Orko Mogo and Subco Difference SubCo will continue as rights, contracts, permits and interests of Amalco as if Orko Mogo and Subco Difference SubCo continued and, for greater certainty, the amalgamation will not constitute a transfer or assignment of the rights or obligations of either of Orko Mogo or Subco Difference SubCo under any such rights, contracts, permits and interests;
(tiv) any existing cause of action, claim or liability to prosecution will be unaffected;
(uv) a civil, criminal or administrative action or proceeding pending by or against either Orko Mogo or Subco Difference SubCo may be continued by or against Amalco;
(vvi) a conviction against, or ruling, order or judgment in favour of or against either Orko Mogo or Subco Difference 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xvii) the name of Amalco shall be “Orko Silver Corp.”"Mogo Finance Technology Inc.";
(yviii) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(zix) the articles and notice of articles of Amalco shall be substantially in the form of the articles and notice of articles of OrkoMogo;
(aa) the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from the Effective Date;
(bbx) the first directors of Amalco following the amalgamation shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; andthe same as the directors of Difference at the Effective Time;
(ccxi) the stated capital of the common shares of Amalco will be an amount equal to the total of: (A) the aggregate paid-up capital, capital (as that such term is defined in the ITA) of the Mogo Shares 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 Subco Mogo Shares immediately prior to described in Section 2.4(a)), and (B) the amalgamationaggregate 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
(ddxii) there shall be added to the stated capital of the Difference Shares an amount equal to the paid-up capital (as such term is defined in the ITA) of the Mogo Shares described in Section 2.4(c)(i) (which, for greater certainty, does not include any paid-up capital attributable to the Mogo Shares described in Section 2.4(a)); and
(e) the exchanges and cancellations provided for in this Section 2.3 2.4 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 (Mogo Finance Technology Inc.)
Arrangement. Commencing at At the Effective Time, unless otherwise specifically provided in this Section 3.02, the following events or transactions shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) the Shareholder Rights Plan Purchaser shall be cancelled and shall have no further force or effect and each 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 rights thereunder 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 cancelled for no considerationdeemed 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) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko a Company 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 Orko Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(ci) each In-the-Money Option issued and outstanding immediately prior to the outstanding Orko Options willEffective Time shall, without any further action by or on behalf of any holder of such Orko OptionsIn-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 compensation payment therefor;
(diii) with respect to each Orko Company Option, :
(A) the holder thereof will shall cease to be the holder of such Orko Company Option, will and shall cease to have any rights as a holder in respect of such Orko Option, Company Option under the applicable Company Option Plan,
(B) such holder will holder’s name shall be removed from the register of Orko Company Options, and 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; and;
(ed) the Orko Stock Company Option Plan Plans shall be terminated;
(fe) five minutes after the steps contemplated in Section 2.3(b), each Orko 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 Orko Shareholder has validly exercised his, her or its Dissent Rights 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 directly transferred amended to create a new class of shares without par value, of which an unlimited number may be issued and assigned by such Dissenting Shareholder 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 First Majestic 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 liensEncumbrances, charges for one Class A Share and encumbrances of any nature whatsoever) in accordance withone Distribution Spinco Share, and for the consideration set forth in, Section 3.1;upon such exchange:
(gA) five minutes after the steps contemplated in Section 2.3(c), each Orko such exchanged Company Share (other than any Orko Share held by any Dissenting Shareholder) shall be deemed to be transferred to First Majestic (free cancelled, and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder holders of such Orko Share and the name of such registered holder exchanged Company Shares shall be removed from the Company’s register of Orko Shareholders as holders of the Effective TimeCompany Shares;
(jB) 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 registered holder thereof Company shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Shareremoved from the Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares; and
(kD) First Majestic will be the each holder of all such exchanged Company Shares shall be entered in Spinco’s register of holders of Spinco Shares in respect of the outstanding Orko Distribution Spinco Shares and exchanged with such holder by the register of Orko Shareholders shall be revised accordinglyCompany;
(liii) five minutes after concurrently with the steps contemplated exchange in Section 2.3(d) and (e3.02(h)(ii), each outstanding Orko Share will be transferred to Subco the stated capital account in consideration respect of the issue Company Shares shall be reduced by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the an amount added equal to the stated capital of the Subco Company Shares will be equal immediately prior to the value of the Orko Shares so transferred;
(m) concurrent with the step reorganization in Section 2.3(f3.02(h), and there shall be added to the stated capital account maintained by the Company in respect of the Orko 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 reduced to an aggregate of $1.00 cancelled without any repayment thereon, and the Company shall be removed from the Spinco register of capital in respect thereofholders of Spinco Shares;
(nj) 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Spinco Shares will 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 repayment payment or compensation therefor, and upon such Spinco Share Consolidation the register of capital in respect thereofholders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation;
(xk) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who:
(i) duly and validly completes and delivers the name applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive the Combination Consideration in respect of Amalco shall be “Orko Silver Corp.”all of such Participating Former Securityholder’s Company Shares;
(yii) Amalco 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 authorised deemed to issue an unlimited number have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of common shares without par value;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:
(ziv) the articles and notice of articles of Amalco each such Participating Former Securityholder shall be substantially removed from the Company’s securities register of holders of Class A Shares,
(v) Acquireco shall be entered in the form Company’s securities register of holders of Class A Shares as the articles legal and notice beneficial owner of articles such Class A Shares, free 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇all Encumbrances; and
(ccvi) each such Participating Former Securityholder shall, subject to the stated capital provisions of Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect of the common shares 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 Amalco will all of such Participating Former Securityholder’s Company Shares shall transfer, and shall be an amount equal deemed to the paid-up capitalhave transferred, as that term is defined in the ITAto Acquireco, attributable to the Subco Shares 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 amalgamationexchange 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
(ddii) 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 exchanges sum of (I) the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k) and cancellations provided (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 this such remaining portion);
(n) in the event that (A) the sum of (I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 2.3 will 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 occur on 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 Date, notwithstanding certain procedures related thereto may not Time shall be completed until after cancelled in exchange for a cash payment by the Effective Date.Company to the holder of such Company DSU equal to the Company Sh
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, the following transactions shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) Each Elected Company Common Share issued and outstanding immediately prior to the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
Arrangement (bother than Shares held by Dissenting Shareholders) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any the Shareholder, be transferred to Exchangeco in consideration for that number of fully paid and non-assessable Exchangeable Shares as is determined in accordance with the formula in section 1.1 of the Combination Agreement (the "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 such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will Elected Company Common Shares shall cease to be the holder of such Orko Optiona holder, will cease to shall have any rights as a holder in respect of such Orko Option, such holder will be his name removed from the register of Orko Options, holders of Company Common Shares and all option agreements, grants shall become a holder of the number of fully paid and similar instruments relating thereto will 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 cancelled; andadded to the register of holders of Exchangeable Shares accordingly.
(ec) Each Company Common Share issued and outstanding immediately prior to the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(g) five minutes after the steps contemplated in Section 2.3(c), each Orko Share Arrangement (other than any Orko Share Elected Company Common Shares and Company Common Shares held by Dissenting Shareholders who are ultimately entitled to be paid the fair value of their Company Common Shares) will, without any Dissenting further action on behalf of such Shareholder) shall be deemed to , be transferred to First Majestic FCE in consideration for that number of shares of FCE Common Stock as is determined in accordance with the Exchange Ratio.
(free d) Upon the transfer referred to in subsection 2.1(c), FCE shall deliver or cause to be delivered to each such holder, that number of fully paid and clear non-assessable shares of any liens, charges and encumbrances of any nature whatsoever) FCE Common Stock equal to the Exchange Ratio in exchange for the each Company Common Share Consideration;
(h) with respect to each Orko Share so transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered each such holder thereof of Company Common Shares, shall cease to be the registered holder of such Orko Share and the a holder, shall have his name of such registered holder shall be removed from the register of Orko Shareholders as holders of Company Common Shares and shall become a holder of the Effective Time;
(jnumber of shares of FCE Common Stock to which he is entitled as a result of the transfer referred to in subsection 2.1(c) the registered holder thereof and such holder's name shall be deemed added to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders holders of FCE Common Stock accordingly.
(e) The Exchange Ratio shall be revised accordingly;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 Combination Agreement and prior to the Effective Date.
(lf) five minutes after Shareholders who are residents of Canada for purposes of the steps contemplated in Section 2.3(dITA 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 (e), each outstanding Orko Share will be transferred to Subco in consideration 85(2) of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added ITA with respect to the stated capital transfer of their Company Common Shares to Exchangeco Sub by providing two signed copies of the Subco Shares will be equal necessary election forms to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after Exchangeco within 90 days following the Effective Date, at duly completed with the time details of the step contemplated in Section 2.3(h):
(q) Amalco will own number of shares transferred and hold the property applicable agreed amounts for the purposes of Orko such elections. Thereafter, subject to the election forms being correct and Subco and, without limiting complete and complying with the provisions hereofof the ITA, all rights of creditors or others the forms will be unimpaired completed by Exchangeco as to its information signed by Exchangeco and returned to such amalgamation, holders of Company Common Shares for filing with the Canada Customs and all liabilities and obligations of Orko and 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;
(r) 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 Revenue Agency. Exchangeco will not constitute be responsible for the proper completion of any election form, (other 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 transfer Shareholder to properly complete or assignment of file 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be substantially election forms in the form of and manner and within 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 the paid-up capital, as that term is defined in time prescribed by the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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
Arrangement. Commencing at the Effective Time, Time the following shall transactions will occur and shall be deemed to occur 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 registered Anacott Shareholder Rights Plan is ultimately entitled to be paid fair value (each a “Dissent Share”) shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed repurchased by Anacott for cancellation in consideration for a debt-claim against Anacott to be cancelled for no considerationpaid the fair value of such Dissent Share in accordance with Article 5 of this Plan of Arrangement and such Dissent Share shall thereupon be cancelled;
(b) five minutes after The authorized share structure of Anacott shall be reorganized and altered by
(i) changing the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms identifying name of the Orko Stock Option Plan):issued and unissued Anacott Common Shares from “Common shares” to “Class A Common shares” and amending the 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) creating a new class of shares without par value, with no maximum number and with the identifying name “Class 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 “Anacott New Common Shares”);
(c) Each Anacott Warrant shall be exchanged for one Anacott Replacement Warrant and the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, Anacott Warrants shall thereupon be deemed to be cancelled without any compensation thereforcancelled;
(d) with Anacott shall reorganize its capital within the meaning of Section 86 of the Tax Act such that each Anacott Shareholder shall dispose of all of the Anacott Shareholder's Anacott Common Shares to Anacott and in consideration therefor, Anacott shall issue (in respect of the securities referred to each Orko Optionin (i) below) or distribute (in respect of the securities referred to in (ii) through (viii) below) to the Anacott Shareholder:
(i) the same number of Anacott New Common Shares;
(ii) the number of Buckingham Common Shares equal to the product of the number of Anacott Common Shares held and the applicable Conversion Factor;
(iii) the number of Lillingstone Common Shares equal to the product of the number of Anacott Common Shares held and the 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 holder thereof will cease “Share Exchange”), and, in connection with the Share Exchange:
(A) the name of each Anacott Shareholder shall be removed from the central securities register for the Anacott Common Shares and added to be 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 such Orko Optionthe number of Anacott New Common Shares, will cease 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 have any rights as a holder the Share Exchange;
(B) the Anacott Common Shares shall be cancelled and the capital in respect of such Orko Optionshares 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, such holder will 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 removed from added to the register capital in respect of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledthe Anacott New Common Shares; and
(e) All securities of the Orko Stock Option Plan Anacott Subsidiaries held by Anacott shall be terminated;cancelled for no consideration; and
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect The authorized share structure of which the Orko Shareholder has validly exercised his, her or its Dissent Rights Anacott shall be directly transferred reorganized 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):altered by
(i) eliminating the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed Anacott Common Shares from the register authorized share structure of Orko Shareholders as of the Effective Time;
(j) 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 Orko ShareAnacott; and
(kii) First Majestic will be changing the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 identifying name of the issued and outstanding Orko unissued Anacott New Common Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be from “Orko Silver Corp.Class B Common shares” to “Common shares”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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
Arrangement. Commencing at the Effective Time, the following shall steps or transactions shall, unless specifically provided otherwise in this Section 2.3, occur and shall be deemed to occur 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) each Argonaut Share held by a Dissenting Shareholder shall be, and shall be deemed to be, transferred (free and clear of all Liens) by the holder thereof, without any further act or formalityformality on its part, to Argonaut for cancellation, and in consideration therefor such Dissenting Shareholder shall have a debt-claim to be paid the aggregate fair value of such Argonaut Shares as determined pursuant to Section 3.1, and, in respect of the Argonaut Shares so transferred:
(ai) the each such Dissenting Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease Argonaut Shares and to have any rights as a holder Argonaut Shareholders other than the right to be paid the fair value for such Argonaut Shares as set out in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(gii) five minutes after the steps contemplated in Section 2.3(c), name of each Orko Share (other than any Orko Share held by any such Dissenting Shareholder) Shareholder shall be deemed to be transferred to First Majestic (free and clear removed as an Argonaut Shareholder from the registers of any liens, charges and encumbrances Argonaut Shareholders maintained by or on behalf of any nature whatsoever) in exchange for the Share ConsiderationArgonaut;
(hiii) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof such Dissenting Shareholder shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) the registered holder thereof shall be have been deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko ShareArgonaut Shares to Argonaut;
(iv) such Argonaut Shares so transferred to Argonaut shall thereupon be cancelled by Argonaut and the registers of Argonaut Shareholders maintained by or on behalf of Argonaut shall be revised accordingly; and
(kv) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital account maintained by Argonaut in respect of the Orko Argonaut Shares shall be reduced by an amount equal to an aggregate the product obtained when (i) the amount of $1.00 without any repayment of the stated capital account in respect thereofof the Argonaut Shares immediate prior to the Effective Time, is multiplied by (ii) a fraction, the numerator of which is the number of Argonaut Shares transferred and cancelled pursuant to this Section 2.3(a) and the denominator of which is the number of Argonaut Shares outstanding immediately prior to the Effective Time;
(nb) five minutes after the steps transactions contemplated in Section 2.3(f) by the New Argonaut Contribution Agreement shall become effective, and (g)pursuant thereto Argonaut shall transfer, Orko assign and Subco convey to New Argonaut the Argonaut Contributed Assets and New Argonaut shall merge accept and assume the New Argonaut Liabilities and issue to form one corporate entity (“Amalco”) with Argonaut the same effect 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 if they had amalgamated under Section 269 the registered owner of the Business Corporations Act, except that the legal existence of Orko shall not cease and Orko shall survive the merger as Amalcosuch New Argonaut Consideration Shares;
(oc) without limiting each outstanding Argonaut RSU that has vested prior to the generality Effective Time shall be redeemed and cancelled, and in consideration Argonaut shall allot and issue from treasury to the holders of Section 2.3(hsuch redeemed Argonaut RSUs such number of fully-paid Argonaut Shares as are due to such holders under the terms of the Argonaut Incentive Plan (less any amounts withheld in accordance with this Plan of Arrangement), the 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 property of Subco shall become the property of Amalco;
(pd) from and after the Effective Date, at the time each holder 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 such amalgamationan Argonaut DSU shall resign from, and all liabilities shall be deemed to have immediately resigned from, the Argonaut Board and obligations the board of Orko and 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 itdirectors of any affiliate of Argonaut;
(re) Amalco will continue to be liable for all following the resignation of the liabilities and obligations holders of Orko and Subco;
(s) all rightsArgonaut DSUs in accordance with Section 2.3(d), 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 Orko 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 will be cancelled without repayment as are due to such holder under the terms of capital the Argonaut Incentive Plan (less any amounts withheld in respect thereofaccordance with this Plan of Arrangement);
(xf) the name authorized share capital of Amalco Argonaut shall be amended, as more particularly described in Schedule “Orko Silver Corp.”;
(y) Amalco shall be authorised A” to issue this Plan of Arrangement, by the creation of Argonaut Class A Shares, of which an unlimited number of common shares without par valuemay be issued, and the articles of Argonaut shall be deemed to be amended accordingly;
(zg) the articles and notice of articles of Amalco New Argonaut Incentive Plan shall be substantially in the form of the articles and notice of articles of Orkocome into force;
(aah) each holder of an issued and outstanding Argonaut Option shall simultaneously:
(i) dispose of, and be deemed to have disposed of, the first annual general meeting Argonaut Portion of Amalco or resolutions in lieu thereof 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 held within 18 months from rounded up to the Effective Date;
nearest whole cent), and (bbB) otherwise shall have the first directors same terms and conditions, including with respect to expiry and manner of Amalco following exercising, as such Argonaut Option (except that the amalgamation 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
(ccii) 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) such holders’ names shall be removed from the register of the Argonaut Shares maintained by or on behalf of Argonaut;
(iii) each Argonaut Shareholder shall be deemed to be the holder of the Argonaut Class A Shares and New Argonaut Shares (in each case, free and clear of any Liens) received in exchange for their Argonaut Shares and shall be entered in the register of 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 common shares Argonaut Shares shall be reduced to nil, and there shall be added to the stated capital account maintained by Argonaut in respect of Amalco will be an the Argonaut Class A Shares, the amount equal to by which (A) the paid-up capital, as that term is defined capital in respect of the ITA, attributable to the Subco Argonaut Shares immediately prior to the amalgamationexchange in this Section 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 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 legal and beneficial holder of such 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
(ddiv) each former holder of such exchanged Argonaut Class A Shares shall be entered in the register of the Alamos Shares maintained by or on behalf of Alamos as the registered holder of the Alamos Shares which such holder is entitled to receive pursuant to this Section 2.3(k);
(l) each holder of an Argonaut Class A Option shall dispose of, and be deemed to have disposed of, such Argonaut Class A Option to Alamos (free and clear of all Liens), 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 exchanges exercise price that would otherwise be payable to acquire an Argonaut Class A Share pursuant to the Argonaut Class A Option it replaces, is divided by (ii) 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 cancellations provided 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 may be), and any document evidencing an Argonaut Class A Option shall thereafter evidence and be deemed to evidence such Alamos Replacement Option. It is intended that subsection 7(1.4) of the Tax Act apply to such exchange of options. Accordingly, and notwithstanding the foregoing, the exercise price of an Alamos Replacement Option shall be adjusted as necessary to ensure that the In-the-Money Amount of the Alamos Replacement Option immediately after the exchange does not exceed the In-the-Money Amount of the Argonaut Class A Option immediately before the exchange;
(m) each outstanding Argonaut RSU that has not vested prior to the Effective Time shall (i) 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 – in lieu of 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 Fractional Alamos Share, (ii) remain outstanding on the same terms as it had immediately prior to the Effective Time, apart from the adjustment referred to in (i) of this Section 2.3(m), and (iii) continue to be subject to and governed by the 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) the former holders of Argonaut RSUs that have vested prior to the Effective Time, (iii) the Parties or (iv) any of the respective successors or assigns of any of the foregoing (including, for the avoidance of doubt, New Argonaut with respect to the New Argonaut Portion of an Argonaut Option disposed of pursuant to Section 2.3(h)(ii)) shall have any rights, liabilities or obligations in respect of the Argonaut Incentive Plan. Each of the events listed in this Section 2.3 will be deemed to be, without affecting the timing set out herein, mutually conditional, such that no event may occur on without all steps occurring, and those events will affect the Effective Date, notwithstanding certain procedures related thereto may not be completed until after integrated transaction which constitutes the Effective DateArrangement.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, the following transactions shall occur and shall be deemed to occur in the following order sequence without any further act or formalityformality by the Company, the Parent, USCo, the Purchaser, US New Opco or any other person:
(a) At the Shareholder Effective Time:
(i) the Purchaser shall subscribe for such number of Shares as is equal to the aggregate Option Consideration payable for all Options for which Dissent Rights Plan are not exercised divided by US$16.00, for US$16.00 per Share, and the securities register of the Company shall be cancelled updated accordingly;
(ii) each Option granted and shall have no further force or effect and each outstanding immediately prior to the Effective Time (excluding the Options held by Dissenting Optionholders who are ultimately determined to be enabled to be paid the fair value of the rights thereunder Option in respect of which they have exercised their Dissent Rights) shall be deemed to be cancelled cancelled, without the need for no considerationany further act or formality, in exchange for a cash payment from the Company equal to the Option Consideration (if any) in respect of such Option;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(diii) with respect to each Orko such Option, the holder thereof will cease to be the holder of such Orko Option, will cease thereof or to have any rights as a holder in respect of such Orko Option, such Option or under the applicable Company Stock Option Plan and the name of the holder thereof will be removed from the applicable securities register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledthe Company with respect to such Option; and
(eiv) each of the Orko Company Stock Option Plan shall Plans and each of the Options contemplated in this Section 3.1(a) will be terminatedcancelled;
(fb) five minutes after Each of (i) the steps contemplated in Section 2.3(b), each Orko Share outstanding Shares held by a Dissenting Shareholder Shareholders who are ultimately determined to be entitled to be paid by the Purchaser the fair value of the Shares in respect of which the Orko Shareholder has validly they have exercised his, her or its their Dissent Rights shall be directly deemed to be irrevocably transferred and assigned by such Dissenting Shareholder to First Majestic the Purchaser (free and clear of any liens, charges Liens) and encumbrances such Dissenting Shareholders shall cease to have any rights as shareholders of any nature whatsoever) the Company other than the right to be paid the fair value of their Shares in accordance with, with Article 4; and for (ii) 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 outstanding Options held by any Dissenting Shareholder) 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 First Majestic the Purchaser, and to the extent necessary to effect the transfer of such Options by a Dissenting Optionholder to the Purchaser, the Company Stock Option 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 Option:
(i) the Dissenting Shareholder or Dissenting Optionholder who was the registered holder of such Share or Option immediately prior to the Effective Time will cease to be the holder of such Share or Option and the name of such Dissenting Shareholder or Dissenting Optionholder will be removed from the securities register of 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 liensLiens) of such Share and will be entered in the securities register of the Company 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, charges directly or indirectly, by the Purchaser immediately prior to the Effective Time) will be, and encumbrances of any nature whatsoever) 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;
(he) At the same time as the step contemplated by Section 3.1(d), with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):to the Purchaser:
(i) the registered holder thereof shall cease to be Shareholder who was the registered holder of such Orko Share immediately prior to the Effective Time will cease to be the holder of such Share and the name of such registered holder shall Shareholder will be removed from the securities register of Orko Shareholders as of the Effective Time;
(j) the registered holder thereof shall be deemed Company with respect to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(kii) First Majestic 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 all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordinglysuch Share;
(lf) five minutes after each Option held by the steps contemplated in Purchaser pursuant to the operation of Section 2.3(d3.1(b) and above (e), each outstanding Orko Share will if any) shall be transferred to Subco the Company and cancelled in consideration exchange for such number of Shares having a fair market value equal to the issue by Subco to First Majestic Option Consideration in respect of one Subco Share for each Orko Share so transferred, and the amount added to such Options;
(g) the stated capital of maintained by the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital Company in respect of the Orko issued and outstanding Shares shall be reduced to an aggregate of $1.00 CAD$1.00 without any repayment of capital in respect thereof;
(nh) five minutes after The Purchaser and the steps contemplated in Section 2.3(f) and (g), Orko and Subco Company shall merge amalgamate to form one corporate entity (“Amalco”) Amalco and shall continue as an unlimited liability company under the BCBCA and unless and until otherwise determined in the manner permitted or required by the BCBCA or otherwise by law, by Amalco or by its directors or shareholders with the same effect as if they had amalgamated under Section 269 following effects:
(i) the issued and outstanding Shares of the Business Corporations Act, except that the legal existence Company shall be cancelled without any repayment of Orko shall not cease and Orko shall survive the merger as Amalcocapital in respect thereof;
(oii) without limiting the generality articles of Section 2.3(h)amalgamation of Amalco shall be the same as the articles of incorporation of the Purchaser;
(iii) the issued and outstanding share capital and the stated capital of Amalco shall be the same as the issued and outstanding share capital and stated capital of the Purchaser;
(iv) the name of Amalco shall be “▇▇▇▇▇▇▇▇ Financial, the separate legal existence of Subco shall cease without Subco being liquidated or wound up and Orko and Subco shall continue as one company and ULC”;
(v) the property of Subco shall become the Company and the Purchaser will continue to be the property of Amalco;
(pvi) from and after the Effective Date, at first directors of Amalco shall be same as the time directors of the step contemplated Purchaser as shown in Section 2.3(h):the Amalgamation Application; and
(qvii) the registered and records offices of Amalco will own and hold the property of Orko and Subco and, without limiting the provisions hereof, all rights of creditors or others will shall be unimpaired by such amalgamation, and all liabilities and obligations of Orko and 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 itthe registered and records offices of the Purchaser as shown in the Amalgamation Application;
(rviii) Amalco will continue to be liable for all the obligations of the liabilities Company and obligations the Purchaser including, but not limited to:
a. any change of Orko control obligations;
b. all costs and Subcoexpenses associated with the cessation of business by the Company;
c. any brokerage fees payable by the Company; and
d. any expenses associated with the transactions contemplated herein;
(six) 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 An existing cause of action, claim or liability to prosecution relating to the Company and the Purchaser will be unaffected;unaffected by the Amalgamation; and
(ux) a A civil, criminal or administrative action or proceeding pending by or against either Orko the Company or Subco the Purchaser may be continued or prosecuted 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 ; provided that none of the Subco Shares shall receive on the amalgamation one common share foregoing in the authorised share structure of Amalco in exchange for each Subco Share previously held and all of the issued and outstanding Orko Shares Sections 3.1(a) to (h) above will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be substantially in the form of the articles and notice of articles of Orko;
(aa) the first annual general meeting of Amalco occur 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on unless all of the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateforegoing occurs.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
, in each case, effective at the Effective Time: (a) the Shareholder Rights Plan shall be cancelled terminated; (b) each outstanding Option, SAR and shall have no further force SPAU (whether vested or effect and each unvested), notwithstanding the terms of the rights thereunder applicable Company Stock Plan, shall be deemed to be cancelled for no consideration;
unconditionally vested and exercisable, and such Option, SAR or SPAU: (bi) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willshall, without any further action by or on behalf of any the holder of such Orko Optionsthereof, be deemed 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 Purchase Price exceeds the exercise price thereof, less applicable withholdings; and (ii) shall immediately be cancelled without any compensation therefor;
and all agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the consideration to which such holder is entitled pursuant to this Section 2.03(b) at the time and in the manner specified in Article IV; and (c) each outstanding PSU and DSU 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) with respect to each Orko Option, Common Share outstanding at the holder thereof will cease Effective Time other than a Common Share held by (i) a Dissenting Holder who is ultimately entitled to be paid the holder fair value of the Common Shares held by such Orko OptionDissenting Holder, will cease to have or (ii) Parent, Acquisition Sub or any rights Affiliate thereof (which shall not be exchanged under the Arrangement and shall remain outstanding as a holder Common Share held by Parent, Acquisition Sub or any Affiliate thereof), shall be transferred to Acquisition Sub in respect exchange for the Purchase Price per Common Share in cash; (e) the names of such Orko Option, such holder will the holders of the Common Shares transferred to Acquisition Sub shall be removed from the register applicable registers of Orko Options, holders of Common Shares and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan Acquisition Sub shall be terminated;
(f) five minutes after recorded as the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect registered holder of which the Orko Shareholder has validly exercised his, her or its Dissent Rights Common Shares so acquired and shall be directly transferred deemed the legal and assigned by such Dissenting Shareholder to First Majestic (beneficial owner thereof free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1liens or encumbrances;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 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
Arrangement. Commencing at the Effective Time, each of the following events 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 in have been transferred by the following order holder thereof, without any further act or formalityformality 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) the such Dissenting Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease thereof or to have any rights as a holder in respect of such Orko Option, Dissenting Share other than the right to be paid the fair value of such holder will be removed from the register of Orko Options, Dissenting Share determined and all option agreements, grants and similar instruments relating thereto will be cancelledpayable in accordance with Article 4; and
(eb) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder each Dissenting Shareholder shall be removed from the register of Orko GameSquare Shareholders as of the Effective Timeand such Dissenting Shares shall be automatically cancelled and cease to be outstanding;
(j2) second, each GameSquare Share outstanding immediately prior to the registered holder thereof Effective Time (other than Dissenting Shares), shall be, and shall be deemed to be, transferred by the holder thereof to Engine Gaming (free and clear of all Liens) and, in consideration therefor, Engine Gaming shall issue and deliver or cause to be delivered to such holders the Share Consideration, and:
(a) holders of such GameSquare Shares shall cease to be the holder thereof, and shall cease to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required any rights as a holder thereof other than the right to transfer and assign receive the Share Consideration pursuant to this Plan of Arrangement;
(b) the names of holders of such Orko ShareGameSquare Shares shall be removed from the register of GameSquare Shareholders; and
(kc) First Majestic will Engine Gaming shall be deemed to be the holder transferee of such GameSquare Shares (free and clear of all of the outstanding Orko Shares Liens) and shall be entered in the register of Orko GameSquare Shareholders shall be revised accordinglymaintained by or on behalf of GameSquare;
(l3) five minutes after the steps contemplated in Section 2.3(d) and (e)third, each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferredGameSquare Option, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 extent it has not been exercised as if they had amalgamated under Section 269 of the 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after at the Effective Date, at notwithstanding the time terms of the step contemplated GameSquare Stock Option Plan, shall be transferred by the holder thereof to Engine Gaming, without any further act or formality and free and clear of all 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 Section 2.3(h):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 such Replacement Option shall have an exercise price per Engine Gaming Share equal to the exercise price per share of such GameSquare Option for which it was exchanged immediately prior to the Effective Time divided by the Exchange Ratio and rounded up to the nearest whole cent, and:
(qa) Amalco will own and hold the property of Orko and Subco and, without limiting the provisions hereof, all rights of creditors or others will such GameSquare Option shall thereupon be unimpaired by such amalgamation, and all liabilities and obligations of Orko and 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 itcancelled;
(rb) Amalco will continue the term to be liable for all expiry, conditions to and manner of exercise (including vesting schedules) and other terms and conditions of each of the liabilities Replacement Options shall be the same as the terms and obligations conditions of Orko and Subcothe GameSquare Option for which they were exchanged;
(sc) 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 issued; and
(d) notwithstanding the foregoing, if required in order for subsection 7(1.4) of the Tax Act apply to such 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;
(4) fourth, each GameSquare RSU, to the extent it has not been exchanged for a GameSquare Share as at the Effective Date, notwithstanding the terms of the GameSquare RSU Plan, shall be transferred by the holder thereof to Engine Gaming, without any further act or formality and free and clear of all rightsLiens, contractsfor such number of Replacement RSUs issued by Engine Gaming under the Engine Gaming Omnibus Incentive Plan equal to the Exchange Ratio (provided that, permits 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 of such GameSquare RSU, and:
(a) such GameSquare RSU shall thereupon be cancelled;
(b) the term to expiry and interests conditions to vesting and other terms and conditions of Orko each of the Replacement RSUs shall be the same as the terms and Subco conditions of the GameSquare RSU for which they were exchanged; and
(c) any document previously evidencing such GameSquare RSU shall thereafter evidence and be deemed to evidence such Replacement RSUs and no certificates evidencing the Replacement RSUs shall be issued;
(5) fifth, each GameSquare Warrant, to the extent it has not been exercised as at the Effective Date, will continue 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 Engine Gaming 4869-1584-5952\3 66314327.5 87171082.3 Shares equal to the Exchange Ratio multiplied by the number of GameSquare Shares issuable on exercise of such GameSquare Warrant immediately prior to the Effective Time for an exercise price per Engine Gaming Share equal to the 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 rightsthe 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, contracts, permits each of the GameSquare Stock Option Plan and interests of Amalco as if Orko and Subco continued the GameSquare RSU Plan shall be terminated and, for greater certainty, the amalgamation will not constitute a transfer all rights thereunder to receive any securities of GameSquare 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 other benefits formerly held 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco GameSquare Securityholders shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateextinguished.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, in five minute increments each of the following events shall occur and shall be deemed to occur consecutively in the following order order, except where noted, without any further authorization, act or formality:
(a) Each TransGlobe Option outstanding at the Shareholder Rights Plan shall be cancelled and shall have no further force Effective Time (whether vested or effect and each unvested), notwithstanding the terms of the rights thereunder TransGlobe Option Plan, shall be, and shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willbe, without any further action by or on behalf of any a holder of such Orko TransGlobe Options, fully and unconditionally vested and exercisable, and shall be deemed surrendered and transferred to TransGlobe (free and clear of any Liens) for cancellation in exchange for a cash payment from TransGlobe equal to, for each TransGlobe Share for which the TransGlobe Option may be cancelled without any compensation therefor;
(d) with respect to each Orko Optionexercised, the holder amount (if any) by which (x) the product of the Closing VWAP multiplied by the Exchange Ratio exceeds (y) the Exercise Price thereof will cease and for greater certainty, where such amount is zero or negative, none of TransGlobe, VAALCO, AcquireCo or the Depositary shall be obligated to be pay the holder of such Orko TransGlobe Option any amount in respect of such TransGlobe Option, will and
(i) the TransGlobe Options so surrendered and transferred and any agreements related thereto shall be, and shall be deemed to be, cancelled and extinguished without any further action on the part of the holder thereof or TransGlobe;
(ii) the holders of all such TransGlobe Options shall cease to be holders of TransGlobe Options and to have any rights as a holder in respect holders of TransGlobe Options other than the right to receive the consideration to which they are entitled pursuant to this Section 3.1(a) and such Orko Option, such holder will holders’ names shall be removed as the holders from the register of Orko OptionsTransGlobe Options maintained by or on behalf of TransGlobe;
(iii) any agreement, certificate or other document evidencing the TransGlobe Options or the right of a holder thereof to any such TransGlobe Options shall be void and all option agreementsof no further force or effect as of such time and none of TransGlobe, grants and similar instruments relating VAALCO nor AcquireCo shall have any further liabilities or obligations to the former holders thereof with respect thereto will be cancelledother than the obligation of TransGlobe to pay the consideration to which the holders of the TransGlobe Options are entitled to receive pursuant to this Section 3.1(a); and
(eiv) the Orko Stock TransGlobe Option Plan shall be terminatedterminated and of no further force and effect.
(b) Notwithstanding the terms of the TransGlobe DSU Plan, the “Final Payment Date” (as defined in the TransGlobe DSU Plan) of each TransGlobe Surrendered DSU shall be, and shall be deemed to be, the effective time of this Section 3.1(b) and each TransGlobe Surrendered DSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, without further action by or on behalf of a holder of TransGlobe Surrendered DSUs, fully and unconditionally vested, and settled and paid by surrender and transfer from the holder thereof to TransGlobe (free and clear of any Liens) for cancellation in exchange for a cash payment from TransGlobe equal to the product of the Closing VWAP multiplied by the Exchange Ratio for each TransGlobe Surrendered DSU, and
(i) the TransGlobe Surrendered DSUs so surrendered and transferred and any agreements related thereto shall be, and shall be deemed to be, cancelled and extinguished without any further action on the part of the holder thereof or TransGlobe;
(fii) five minutes after the steps contemplated in holders of all such TransGlobe Surrendered DSUs shall cease to be holders of TransGlobe Surrendered DSUs, to have any rights as holders of TransGlobe Surrendered DSUs other than the right to receive the consideration to which they are entitled pursuant to this Section 2.3(b3.1(b) and such holders’ names shall be removed as the holders from the register of TransGlobe DSUs maintained by or on behalf of TransGlobe; and
(iii) any agreement, certificate or other document evidencing the TransGlobe Surrendered DSUs or the right of a holder thereof to any such TransGlobe Surrendered DSUs shall be terminated and of no further force or effect as of such time and none of TransGlobe, VAALCO nor AcquireCo shall have any further liabilities or obligations to the former holders thereof with respect thereto other than the obligation of TransGlobe to pay the consideration to which the holders of the TransGlobe Surrendered DSUs are entitled to receive pursuant to this Section 3.1(b).
(c) Notwithstanding the terms of the TransGlobe PSU Plan, each Orko Share held TransGlobe Surrendered PSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, without further action by or on behalf of a Dissenting Shareholder holder of TransGlobe Surrendered PSUs, fully and unconditionally vested at the TransGlobe PSU Vesting Percentage, and surrendered and transferred by the holder thereof to TransGlobe (free and clear of any Liens) for cancellation in exchange for a cash payment from TransGlobe equal to the product of the Closing VWAP multiplied by the Exchange Ratio for each TransGlobe Surrendered PSU, and
(i) the TransGlobe Surrendered PSUs so surrendered and transferred and any agreements related thereto shall be, and shall be deemed to be, cancelled and extinguished without any further action on the part of the holder thereof or TransGlobe;
(ii) the holders of all such TransGlobe Surrendered PSUs shall cease to be holders of TransGlobe Surrendered PSUs, to have any rights as holders of TransGlobe Surrendered PSUs other than the right to receive the consideration to which they are entitled pursuant to this Section 3.1(c) and such holders’ names shall be removed as the holders from the register of TransGlobe PSUs maintained by or on behalf of TransGlobe; and
(iii) any agreement, certificate or other document evidencing the TransGlobe Surrendered PSUs or the right of a holder thereof to any such TransGlobe Surrendered PSUs shall be terminated and of no further force or effect as of such time and none of TransGlobe, VAALCO nor AcquireCo shall have any further liabilities or obligations to the former holders thereof with respect thereto other than the obligation of TransGlobe to pay the consideration to which the Orko Shareholder has validly exercised hisholders of the TransGlobe Surrendered PSUs are entitled to receive pursuant to this Section 3.1(c).
(d) Notwithstanding the terms of the TransGlobe RSU Plan, her or its Dissent Rights the “Distribution Date” (as defined in the TransGlobe RSU Plan) of each TransGlobe Surrendered RSU shall be, and shall be directly deemed to be, the effective time of this Section 3.1(d) and each TransGlobe Surrendered RSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, without further action by or on behalf of a holder of TransGlobe Surrendered RSUs, fully and unconditionally vested, and surrendered and transferred by the holder thereof to TransGlobe (free and clear of any Liens) for cancellation in exchange for a cash payment from TransGlobe equal to the product of the Closing VWAP multiplied by the Exchange Ratio for each TransGlobe Surrendered RSU, and
(i) the TransGlobe Surrendered RSUs so surrendered and transferred and any agreements related thereto shall be, and shall be deemed to be, cancelled and extinguished without any further action on the part of the holder thereof or TransGlobe;
(ii) the holders of all such TransGlobe Surrendered RSUs shall cease to be holders of TransGlobe Surrendered RSUs, to have any rights as holders of TransGlobe Surrendered RSUs other than the right to receive the consideration to which they are entitled pursuant to this Section 3.1(d) and such holders’ names shall be removed as the holders from the register of TransGlobe RSUs maintained by or on behalf of TransGlobe;
(iii) any agreement, certificate or other document evidencing the TransGlobe Surrendered RSUs or the right of a holder thereof to any such TransGlobe Surrendered RSUs shall be terminated and of no further force or effect as of such time and none of TransGlobe, VAALCO nor AcquireCo shall have any further liabilities or obligations to the former holders thereof with respect thereto other than the obligation of TransGlobe to pay the consideration to which the holders of the TransGlobe Surrendered RSUs are entitled to receive pursuant to this Section 3.1(d);
(e) Each Dissent Share shall be deemed to be transferred and assigned by such Dissenting Shareholder Shareholder, without any further act of formality on its part, to First Majestic AcquireCo (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in accordance with, and in exchange for the consideration set forth contemplated in, Article 4 and:
(i) such Dissenting Shareholder shall cease to be, and shall be deemed to cease to be, the registered holder of each such Dissent Share and the name of such registered holder shall be, and shall be deemed to be, removed from the register of TransGlobe Shareholders in respect of each such Dissent Share, and at such time each Dissenting Shareholder will have only the rights set out in Section 3.14.1;
(gii) five minutes after such Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Dissent Share; and
(iii) AcquireCo shall be and shall be deemed to be the steps contemplated in Section 2.3(c)holder of all of the outstanding Dissent Shares (free and clear of all Liens) and the central securities register of TransGlobe shall be, each Orko and shall be deemed to be, revised accordingly.
(f) Each TransGlobe Share outstanding immediately prior to the Effective Time (other than any Orko TransGlobe Share held by VAALCO, AcquireCo or any Dissenting Shareholderof their respective affiliates or any Dissent Shares) shall be deemed to be transferred and assigned by the holder thereof, without any further act or formality on its part, to First Majestic AcquireCo (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in exchange for the Share Consideration;
(h) with respect , subject to each Orko Share transferred Sections 3.2 and assigned in accordance with Section 2.3(c) or Section 2.3(d):5.3, and
(i) the registered holder thereof shall cease to be, and shall be deemed to cease to be, the registered holder of each such Orko TransGlobe Share and the name of such registered holder shall be, and shall be deemed to be, removed from the register of Orko Shareholders as of the Effective TimeTransGlobe Shareholders;
(jii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Orko TransGlobe Share; and
(kiii) First Majestic will AcquireCo shall be and shall be deemed to be the holder of all of the outstanding Orko TransGlobe Shares (free and clear of all Liens) and the central securities register of Orko Shareholders TransGlobe shall be, and shall be deemed to be, revised accordingly;.
(lg) five minutes after Pursuant to the steps contemplated in Section 2.3(d) terms of the Tennessee DSU Plan (including but not limited to sections 3.1 and (e4.8), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares TransGlobe Continuing DSU 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 continued on the same effect terms and conditions as if they had amalgamated under Section 269 of the 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares were applicable immediately prior to the amalgamation; andEffective Time except that, pursuant to the terms of the Amended and Restated TransGlobe DSU Plan, the terms of such TransGlobe Continuing DSU shall be amended so as to substitute for the TransGlobe Shares underlying such TransGlobe Continuing DSU such number of VAALCO Shares (rounded down to the nearest whole number) equal to (A) the number of TransGlobe Shares underlying such TransGlobe Continuing DSU, multiplied by (B) the Exchange Ratio, and all such TransGlobe Continuing DSUs shall continue to be governed by and subject to the terms and conditions of the Amended and Restated TransGlobe DSU Plan.
(ddh) Simultaneously with the amendment in Section 3.1(g), pursuant to the terms of the Tennessee PSU Plan (including but not limited to sections 3.1, 4.6, 4.12 and 4.13), each one TransGlobe Continuing PSU shall 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 Amended and Restated TransGlobe PSU Plan, the terms of such TransGlobe Continuing PSU shall be amended so as to substitute for the TransGlobe Shares underlying such TransGlobe Continuing PSU such number of VAALCO Shares (rounded down to the nearest whole number) equal to (A) the exchanges number of TransGlobe Shares underlying such TransGlobe Continuing PSU, multiplied by (B) the Exchange Ratio, and cancellations all such TransGlobe Continuing PSUs shall continue to be governed by and subject to the terms and conditions of the Amended and Restated TransGlobe PSU Plan.
(i) Simultaneously with the amendment in Section 3.1(g), pursuant to the terms of the Tennessee RSU Plan (including but not limited to sections 3.1, 4.11 and 4.12), each one TransGlobe Continuing RSU shall 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 Amended and Restated TransGlobe RSU Plan, the terms of such TransGlobe Continuing RSU shall be amended so as to substitute for the TransGlobe Shares underlying such TransGlobe Continuing RSU such number of VAALCO Shares (rounded down to the nearest whole number) equal to (A) the number of TransGlobe Shares underlying such TransGlobe Continuing RSU, multiplied by (B) the Exchange Ratio, and all such TransGlobe Continuing RSUs shall continue to be governed by and subject to the terms and conditions of the Amended and Restated TransGlobe RSU Plan. The events provided for in this Section 2.3 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
Arrangement. Commencing at At the Effective Time, each of the following events 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 Shareholder Rights 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 shall have no further force or effect and each the holder of the rights thereunder such SAR shall be deemed to 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 cancelled canceled upon the Effective Time for no consideration;
(bd) five minutes after the steps contemplated 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 2.3(a)4.3, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject on behalf of the Company and each applicable Affiliate by the Depositary as promptly as practicable following, but in no event later than ten (whether by contract10) Business Days after, the conditions Effective Time (or such later time as may be required to comply with the provisions of grant, applicable law or the terms Section 409A of the Orko Stock Option Plan):U.S. Tax Code);
(cf) each Common Share outstanding immediately prior to the outstanding Orko Options willEffective Time held by a Dissenting Shareholder shall be deemed to have been assigned and transferred (free and clear of all Liens), without any further action act or formality by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liensthe Purchaser, charges and encumbrances of any nature whatsoever) in exchange consideration for a debt claim against the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):Purchaser for an amount determined under Article 3, and:
(i) the registered holder thereof such Dissenting Shareholder shall cease to be the registered holder of such Orko Share 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 of such registered holder shall be removed as the registered holder of such Common Share(s) from the applicable register of Orko Company Shareholders as maintained by or on behalf of the Effective TimeCompany;
(jiii) the registered holder thereof shall 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 Orko ShareCommon Shares transferred pursuant to Section 2.3(f); and
(kiv) First Majestic will the Purchaser shall be deemed to be the holder transferee of such Common Shares free and clear of all of the outstanding Orko Shares Liens and shall be entered in the register of Orko the Company Shareholders shall be revised accordinglymaintained by or on behalf of the Company;
(lg) five minutes after the steps contemplated in Section 2.3(d) each Common Share that is issued and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added immediately prior to the stated capital Effective Time (other than a Common Share held by a Dissenting Shareholder in respect of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in which Dissent Rights have been duly and validly exercised under Section 2.3(f), the stated capital Company or any of its Subsidiaries, the Purchaser, the Parent or any Subsidiary of the Parent) shall be deemed to be assigned and transferred by the holder thereof to the Purchaser in exchange for the Consideration, and:
(i) each registered holder of such Common Shares shall cease to be the registered holder thereof and to have any rights as a Company Shareholder other than the right to be paid the Consideration pursuant to this Section 2.3(g) and in accordance with this Plan of Arrangement; and
(ii) the name of each such registered holder shall be removed from the register of the Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Common Shares free and clear of all Liens and shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company; and
(h) each Rollover RSU shall, by virtue of the Arrangement in accordance with the terms of the applicable Equity Plan and the Arrangement Agreement and without any required action on the part of the 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 Orko Shares shall be reduced to an aggregate of $1.00 without any repayment of capital nearest whole share in respect thereof;
(n) five minutes after the steps contemplated in accordance with 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 2.7 of the Business Corporations ActCompany Disclosure Letter) equal to the product of (i) the total number of Common Shares subject to such Rollover RSU immediately prior to the Effective Time, except that multiplied by (ii) the legal existence of Orko shall not cease and Orko shall survive the merger Equity Award Exchange Ratio. Except as Amalco;
(o) without limiting the generality of expressly provided in this Section 2.3(h), the separate legal existence of Subco Arrangement Agreement or the Company Disclosure Letter, each Parent RSU shall cease without Subco being liquidated or wound up be subject to substantially the same terms and Orko and Subco shall continue conditions as one company and the property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract or otherwise, may be enforced against Amalco applied to the same extent as if such obligations had been incurred or contracted by it;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares corresponding Rollover RSU immediately prior to the amalgamation; andEffective Time, including any “double-trigger” vesting provisions applicable to the Rollover RSUs pursuant to their terms as in effect on the date of this Plan of Arrangement;
(ddi) each Rollover PRSU shall, by virtue of the Arrangement in accordance with the terms of the applicable Equity Plan and the Arrangement Agreement and without any required action on the part of the Company 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 the nearest whole share in accordance with Section 2.7 of the Company Disclosure Letter) equal to the product of (i) the exchanges total number of Common Shares subject to such 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 subject to substantially the same terms and conditions as applied to the corresponding Rollover PRSU immediately prior to the 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 may are not be completed until after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement (Masonite International Corp)
Arrangement. Commencing at the Effective Time, each of the following events shall occur and shall be deemed to occur in the following order sequentially 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 Shareholder Rights Plan Company shall be cancelled and shall have no further force or effect and each reduce its issued share capital maintained in respect of the rights thereunder shall be deemed Common Shares by an aggregate amount equal to be cancelled for no considerationthe 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 Incentive Securities Cash Balance divided by (B) the number of issued and outstanding Common Shares as at immediately prior to the Effective Time;
(b) five minutes after concurrently with step (a) above, each Option outstanding immediately prior to the steps contemplated in Section 2.3(a)Effective Time (whether vested or unvested) shall, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Equity Incentive Plan or the Option Plan):
(c) the outstanding Orko Plan governing such Option or any award or similar agreement pursuant to which any Options willwere granted or awarded, as applicable, be deemed to be unconditionally vested and exercisable and, without any further action by or on behalf of 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 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 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 obligated to pay the holder of such Orko OptionsOption the Incentive Securities Consideration or any other amount in respect of such Option, and the Option shall be immediately cancelled without any payment therefor;
(c) concurrently with step (a) above, each 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 cancelled unconditionally vested and, without any compensation thereforfurther action by or on behalf of the holder thereof, shall be deemed to be assigned and surrendered by such 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 and all of the Company’s obligations with respect to each such RSU shall be deemed to be fully satisfied;
(d) concurrently with respect to step (a) above, (i) each Orko Option, the holder thereof will of Incentive Securities shall cease to be the a holder of such Orko OptionIncentive Securities, will (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 Orko OptionIncentive Securities and thereafter have only the 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;
(e) 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 will 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 Orko OptionsWarrants, (iii) the Warrant agreement and any and all option agreements, grants and subscription or similar instruments agreements relating thereto will be cancelled; and
(e) to the Orko Stock Option Plan Warrant shall be terminatedterminated 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 Warrant;
(f) five minutes after each Common Share outstanding immediately prior to the steps contemplated Effective Time held by a Dissenting Shareholder shall be deemed to have been transferred (free and clear of all Encumbrances), without any further act or formality by or on behalf of any Dissenting Shareholder, to the Purchaser, in consideration for a debt claim against the Purchaser for an amount determined under Article 3, and:
(i) such Dissenting Shareholder shall cease to be the registered holder of such Common Share and to have any rights as a Shareholder other than the right to be paid the Fair Value by the Purchaser for such Common Share set out in Section 2.3(b), 3.1;
(ii) such Dissenting Shareholder’s name shall be removed as the registered holder of Common Shares from the applicable register of 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;
(g) each Orko Common Share outstanding immediately prior to the Effective Time (other than a Common Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has Dissent Rights have been validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, under Section 3.1;
(g) five minutes after the steps contemplated in Section 2.3(c2.3(f), each Orko Share (other than the Purchaser or any Orko Share held by any Dissenting Shareholderaffiliate of the Purchaser) shall be deemed to be assigned and transferred by the holder thereof to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) the Purchaser in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):issuance by the Purchaser of one CVR per Common Share, and:
(i) the each registered holder thereof of such Common Shares shall cease to be the registered holder of such Orko Share 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 Orko the Shareholders as maintained by or on behalf of the Effective Time;Company; and
(jiii) the registered holder thereof Purchaser shall be deemed to have executed be the transferee of such Common Shares free and delivered clear of all consents, releases, assignments Encumbrances and waivers, statutory shall be entered in the register of the Shareholders maintained by or otherwise, required to transfer and assign such Orko Shareon behalf of the Company; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(ddh) 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 may are not be completed until after the Effective Date.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following events shall occur and shall be deemed to occur consecutively in the following order order, except where noted, without any further authorization, act or formality:
(a) the Shareholder Rights Plan Ample Shareholders Agreement and the Ample Voting Agreement shall each be cancelled deemed to be terminated and shall have of no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no considerationeffect;
(b) five minutes after each Ample Shareholder (other than Dissenting Shareholders) shall be deemed to have irrevocably appointed the steps contemplated Shareholder Representative to act on its behalf in accordance with Section 2.3(a)2.1, notwithstanding any vesting or exercise provisions and to which an Orko Option might otherwise be subject (whether by contracthave authorized the Shareholder Representative to enter into the Escrow Agreement and the Rights Indenture on behalf of such Ample Shareholder and, upon the execution and delivery of the Escrow Agreement and the Rights Indenture, the conditions of grant, applicable law or Escrow Agreement and the terms of the Orko Stock Option Plan):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 outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko OptionsEffective Time, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder Shareholder, without any further act of formality on its part, to First Majestic Purchaser (free and clear of any liens, charges and encumbrances of any nature whatsoeverall Liens) in accordance with, and for the consideration set forth contemplated 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):ARTICLE 5 and:
(i) the registered holder thereof shall cease to be, and shall be deemed to cease to be, the registered holder of each such Orko Dissent Share and the name of such registered holder shall be, and shall be deemed to be, removed from the central securities register maintained by or on behalf of Orko Shareholders as Ample in respect of each such Dissent Share, and at such time each Dissenting Shareholder will have the Effective Timerights set out in Section 5.1;
(jii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Orko Dissent Share; and
(kiii) First Majestic will Purchaser shall be and shall be deemed to be the holder of all of the outstanding Orko Dissent Shares and the central securities register of Orko Shareholders Purchaser shall be, and shall be deemed to be, revised accordingly;
(ld) five minutes after the steps contemplated in Section 2.3(deach Ample Share (other than any Ample Share held by Akerna, Purchaser or any of their respective Affiliates and any Dissent Share) and (e), each outstanding Orko Share will shall be transferred and assigned, without any further act or formality on its part, to Subco Purchaser (free and clear of all Liens) in consideration of exchange for the issue by Subco Up-front Consideration, which shall, subject Section 4.4, be delivered pursuant to First Majestic of one Subco Share for each Orko Share so transferredSection 6.1, and:
(i) the registered holder thereof shall cease to be, and shall be deemed to cease to be, the amount added registered holder of each such Ample Share and the name of such registered holder shall be, and shall be deemed to be, removed from the stated capital central securities register maintained by or on behalf of the Subco Shares will be equal to the value of the Orko Shares so transferredAmple;
(mii) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares registered holder thereof shall be reduced deemed 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) have executed and (g)delivered all consents, Orko releases, assignments and Subco shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Actwaivers, 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract statutory or otherwise, may be enforced against Amalco required to the same extent as if transfer and assign each such obligations had been incurred or contracted by it;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Ample Share; and
(cciii) Purchaser shall be and shall be deemed to be the stated capital holder of all of the common shares outstanding Ample Shares and the central securities register maintained by or on behalf of Amalco will Ample shall be, and shall be an amount equal deemed to the paid-up capitalbe, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamationrevised accordingly; and
(dde) concurrently with the exchanges preceding step: (i) Akerna, Callco, Purchaser and cancellations 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 2.3 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. Commencing at the Effective Time, Time the following shall transactions will occur and shall be deemed to occur in the following order sequence without any further act or formality:
(a) the BMG Shareholder Rights Plan shall be cancelled terminated and shall have no further force or effect and each of the all rights issued thereunder shall be deemed to be cancelled for no considerationextinguished;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions each Dissenter shall dispose of grant, applicable law or the terms all of the Orko Stock Option Plan):
(c) Dissent Shares held by the outstanding Orko Options willDissenter to GSV and in consideration therefor, without any further action by or on behalf of any holder of such Orko Options, be deemed GSV shall issue to the Dissenter a debt-claim to be cancelled without any compensation therefor;
(d) with respect to each Orko Optionpaid by GSV the aggregate fair market value of those Dissent Shares, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder and in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):thereof:
(i) the registered holder thereof Dissenter shall cease to be hold the registered holder of such Orko Share Dissent Shares and the name of such registered holder the Dissenter shall be removed from the central securities register of Orko Shareholders as of the Effective Time;
(j) 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 Orko ShareBMG; and
(kii) First Majestic will be GSV shall become the registered holder of all of the outstanding Orko Dissent Shares and the name of GSV shall be entered in the central securities register of Orko Shareholders shall be revised accordinglyBMG;
(lc) five minutes after the steps contemplated in Section 2.3(d) and (e)all June Options which have not been cancelled, each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added exercised or otherwise terminated prior to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares Effective Time shall be reduced to an aggregate of $1.00 terminated and cancelled without any repayment of capital payment or consideration in respect thereof;
(nd) five minutes after each BMG Employee Optionholder shall dispose of each outstanding BMG Employee Option (other than a June Option) held by the steps contemplated BMG Employee Optionholder to GSV, and in Section 2.3(f) and (g)sole consideration therefor, Orko and Subco GSV shall merge issue to form one corporate entity (“Amalco”) with the BMG Employee Optionholder a number of Replacement Options having the same effect terms as if they had amalgamated under Section 269 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 Business Corporations ActBMG Employee Option immediately prior to the Effective Time by
(ii) the Exchange Ratio, and having an exercise price, 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 Employee Option immediately prior to the Effective Time by
(iv) the Exchange Ratio, except that the legal existence aggregate number of Orko Replacement Options having a common exercise date and price which are issuable hereunder to a BMG Employee Optionholder shall not cease and Orko shall survive be rounded down to the merger as Amalconearest whole number;
(oe) without limiting 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 generality number of Section 2.3(hGSV Shares equal to the product obtained by multiplying:
(i) the 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 rounded down to the nearest whole number;
(f) each outstanding BMG Warrant held by a BMG Warrantholder shall remain outstanding in accordance with its terms and shall, in 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 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 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 separate legal existence BMG Shareholder to GSV, and in sole consideration for such fraction of Subco each BMG Share, GSV shall pay to the BMG Shareholder $0.08, and
(ii) 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 issue to the BMG Shareholder, for an aggregate issue price equal to the fair market value thereof, that number of fully-paid GSV Shares equal to the Share Exchange Ratio, except that the aggregate number of GSV Shares issuable to a BMG Shareholder on the exchange of BMG Shares shall be rounded down to the nearest whole number, and in respect thereof:
(iii) the BMG Shareholder shall cease without Subco being liquidated or wound up and Orko and Subco shall continue as one company to hold the BMG Shares and the property name of Subco the BMG Shareholder shall be removed from the securities register of BMG;
(iv) the BMG Shareholder shall become the property of Amalco;
(p) from legal and after the Effective Date, at the time beneficial owner of the step contemplated in Section 2.3(h):
(q) Amalco will own GSV Shares and hold the property of Orko and 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 Orko and 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;
(r) Amalco will continue to be liable for all name of the liabilities and obligations BMG Shareholder shall be entered in the securities register 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 GSV; 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in issue price of the ITA, attributable GSV Shares so issued shall be added to the Subco Shares immediately prior to capital of the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateGSV Shares.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, Time the following shall transactions will occur and shall be deemed to occur in the following order sequence without any further act or formality:
(a) each Company Share held by a Dissenting Company Shareholder who has validly exercised such Company Shareholder’s Dissent Rights pursuant to Article 5 of this Plan of Arrangement and which Dissent Rights remain valid immediately prior to the Shareholder Rights Plan Effective Time shall be transferred to, and acquired by the Company without any further act or formality on its part, free and clear of all Liens, and cancelled and the Dissenting Company Shareholder shall cease to: (i) be a registered Company Shareholder; and (ii) have no further force or effect and each of any rights as a Company Shareholder other than the rights thereunder shall be deemed right to be cancelled for no considerationpaid the fair value of such Company Share in accordance with Article 5 of this Plan of Arrangement;
(b) five minutes after each Company Class C Preferred Share issued and outstanding immediately prior to the steps contemplated in Section 2.3(a)Effective Time shall be converted into and exchanged for one (1) validly issued, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):fully paid and non-assessable Company Common Share;
(c) each Company Class D Preferred Share issued and outstanding immediately prior to the outstanding Orko Options willEffective Time shall be converted into and exchanged for a number of validly issued, without any further action by or on behalf of any holder of such Orko Options, be deemed fully paid and non-assessable Company Common Shares equal to be cancelled without any compensation thereforthe Class D Preferred Conversion Ratio;
(d) with respect the issued and outstanding Company Common Shares that are designated as Purchased Shares in the Payment Spreadsheet and held by a Selling Shareholder entitled to Cash Arrangement Consideration as set forth the Payment Spreadsheet will be transferred to Holdco in exchange for the portion of the Cash Arrangement Consideration set forth in the Payment Spreadsheet, and the Purchased Shares will be deemed to have been transferred to Holdco without any further act or formality, free and clear of all Liens, and each Orko OptionSelling Shareholder entitled to receive a portion of the Cash Arrangement Consideration will cease to be the registered holder of the Purchased Shares and will cease to have any rights as registered holder of such Purchased Shares other than the right to be paid by Holdco the portion of the Cash Arrangement Consideration set out on the Payment Spreadsheet, and such Company Shareholder’s name will be removed as the registered holder of such Purchased Shares from the central securities register of the Company;
(e) each of the issued and outstanding Company Common Shares held by the Designated Holder shall be transferred to, and acquired by Holdco, free and clear of all Liens, and the Designated Holder will be issued the number of Holdco Common Shares and, in lieu of any Holdco Common Shares deemed to be Excess Shares, the holder thereof number of Holdco Non-Voting Common Shares set forth in the Payment Spreadsheet, provided that:
(i) no fractional Holdco Common Shares or fractional Holdco Non-Voting Common Shares shall be issued pursuant to this Section 3.1 and the Designated Holder shall receive, in respect of any such fractional Holdco Common Share and fractional Holdco Non-Voting Common Share that would otherwise be issued, the treatment per Section 3.2; and
(ii) the Designated Holder will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder Company Shares and its name will be removed from the central securities register of Orko OptionsCompany Shares and added to the register of Holdco Common Shares and Holdco Non-Voting Common Shares, and all option agreements, grants and similar instruments relating thereto Holdco will be cancelled; and
(e) recorded as the Orko Stock Option Plan shall registered holder of the Company Shares so exchanged and will be terminateddeemed to be the legal and beneficial owner thereof;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko remaining issued and outstanding Company Common Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred to, and assigned acquired by such Dissenting Shareholder to First Majestic (Holdco, free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance withall Liens, and for each Company Shareholder will be issued the consideration number of Holdco Common Shares set forth inin the Payment Spreadsheet, provided that:
(i) no fractional Holdco Common Shares shall be issued pursuant to this Section 3.13.1 and the person otherwise entitled to receive such fractional Holdco Common Share shall receive treatment per Section 3.2; and
(ii) each Company Shareholder will cease to be the holder of Company Shares and the name of each Company Shareholder will be removed from the central securities register of Company Shares and added to the register of Holdco Common Shares, and Holdco will be recorded as the registered holder of all of the Company Shares so exchanged and will be deemed to be the legal and beneficial owner thereof;
(g) five minutes after the steps contemplated in Section 2.3(c), each Orko Share (other than any Orko Holdco Common Share held by any Dissenting Shareholder) shall the Company will be deemed cancelled for no consideration and the Company will cease to be transferred to First Majestic (free the registered shareholder of such Holdco Common Share, and clear the Company’s name will be removed as the registered holder of any liens, charges and encumbrances such Holdco Common Share from the central securities register of any nature whatsoever) in exchange for the Share ConsiderationHoldco;
(h) with respect the Holdco Common Shares and Holdco Non-Voting Common Shares issued and outstanding at the time of this Section 3.1(h) are the Locked Shares. The Locked Shares are subject to each Orko Share transferred and assigned the transfer restrictions set out in Article 6 of this Plan of Arrangement. Holdco will only register a transfer of the Locked Shares that is made in accordance with Section 2.3(c) or Section 2.3(d):the transfer restrictions. The Locked Shares are uncertificated and will have a notation in the central securities register of Holdco regarding the transfer restrictions, and the written notice sent to Holdco Shareholders will state that the transfer restrictions exist;
(i) the registered holder thereof shall cease to be number of directors comprising the registered holder Holdco board of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic directors will be the holder set at five individuals consisting of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
(j) the number of directors comprising the Company board of directors will be set at one individual consisting of ▇▇▇▇ ▇▇▇▇▇▇▇▇; and
(cck) the stated capital Company will adopt the form of articles attached as Appendix A to this Plan of Arrangement. The Company Unanimous Shareholders’ Agreement and the common shares of Amalco Company Investor Rights Agreement will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges terminated and cancellations provided for in this Section 2.3 no person will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datehave any rights or obligations under these agreements.
Appears in 1 contract
Sources: Business Combination Agreement (Schultze Special Purpose Acquisition Corp.)
Arrangement. Commencing at the Effective Time, the following 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 Shareholder Rights Plan shall be cancelled and shall have no further force Company or effect any of its subsidiaries and each of the rights thereunder Terminated Persons, as applicable, shall be deemed terminate (and for greater certainty, without limiting the generality of the foregoing, the positions of each employee or individual that provided the services of such Terminated Person under an independent contractor agreements, as applicable, shall also terminate), and Highlander shall deliver or arrange to be cancelled for no considerationdelivered in accordance with the terms of the Arrangement Agreement to each Terminated Person the portion of the Termination Obligations to which they are entitled;
(b) five minutes after the steps contemplated Highlander shall deliver or arrange to be delivered in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or accordance with the terms of the Orko Stock Option Plan):Arrangement Agreement to each Bear Creek Financial Advisor and to each Service Provider the portion of the Service Obligations to which they are entitled;
(c) each Bear Creek Out-of-the-Money Option outstanding immediately prior to the outstanding Orko Options willEffective Time shall, without any further action by or on behalf of any holder of such Orko OptionsBear Creek Optionholder, be deemed to be cancelled without any compensation therefor;payment in respect thereof, and thereafter:
(di) with respect to each Orko Option, the holder thereof will of a Bear Creek Out-of-the-Money Option shall cease to be the a holder of such Orko Option, will cease Bear Creek Out-of-the-Money Option and to have any rights as a holder in respect Bear Creek Optionholder,
(ii) all agreements relating to the Bear Creek Out-of-the-Money Options shall be terminated and shall be of such Orko Optionno force and effect, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(eiii) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered each holder of a Bear Creek Out-of-the-Money Option shall be removed from the register of Orko Shareholders 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 a Bear Creek In-the-Money Option shall cease to be a holder of such Bear Creek In-the-Money Options and to have any rights as a Bear Creek Optionholder and such Bear Creek -In-the-Money Options shall be immediately cancelled,
(ii) 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 Bear Creek Options maintained by or on behalf of Bear Creek, and
(iv) each such former holder of the Bear Creek In-the-Money Options shall be 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;
(e) each 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 the Bear Creek DSU Holder thereof, be deemed to be assigned and transferred by such Bear Creek DSU 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 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), the Bear Creek Shares comprising the DSU Consideration will be issued to such Bear Creek DSU Holder as fully paid and non-assessable shares in the capital of Bear Creek and thereafter:
(i) each Bear Creek DSU Holder shall cease to be a holder of any Bear Creek DSUs and to have any rights as a Bear Creek DSU Holder and such Bear Creek DSUs shall be immediately cancelled,
(ii) all agreements relating to such 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 Bear Creek DSUs maintained by or on behalf of Bear Creek, and
(iv) each such former holder of such Bear Creek DSUs shall be deemed to be the holder of the Bear Creek Shares comprising the DSU 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 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 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 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;
(jg) 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 on its part, in exchange for a debt claim against Highlander to be paid the aggregate fair value in respect of the Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so transferred:
(i) the registered holder thereof Dissenting Shareholders shall cease to be holders of the Dissent Shares and to have any rights as holders of such Dissent Shares other than the right to be paid the fair value for such Dissent Shares pursuant to Section 5.1,
(ii) the names of the Dissenting Shareholders shall be removed from the register maintained by or on behalf of Bear Creek in respect of the 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 and assign such Orko Share; thereof, and
(kiv) First Majestic will Highlander shall be and shall be deemed to be the holder of all of the outstanding Orko Dissent Shares (free and clear of all Liens), and Highlander shall be added to the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration Bear Creek Shares maintained by or on behalf of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital Bear Creek in respect of the Orko Bear Creek 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇such Dissent Shares; and
(cch) 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 stated capital of Effective Time or acquired by Highlander from a Dissenting Shareholder under Section 3.1(g)), including the common shares of Amalco will be an amount equal Bear Creek Shares issued pursuant to Section 3.1(e) or Section 3.1(f) in exchange for the paid-up capitalShare Consideration for each Bear Creek Share held, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(ddi) 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 exchanges names of such Bear Creek Shareholders shall be removed from the register maintained by or on behalf of Bear Creek in respect of the Bear Creek Shares,
(iii) such Bear Creek Shareholders shall be deemed to have executed and cancellations 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 Bear Creek Shares 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, it being expressly provided that the events provided for in this Section 2.3 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
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur occur, except to the extent otherwise indicated, in the following order without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding Notwithstanding any vesting or exercise provisions to which an Orko ICC Plan 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 Orko ICC Stock Option PlanPlan or applicable law):
(ci) each In-the-Money Option issued and outstanding immediately prior to the outstanding Orko Options willEffective Time shall, without any further action by or on behalf of any holder of such Orko OptionsIn-the-Money Option, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to 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 ICC Shares comprising such Option Consideration and the central securities register of 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 compensation payment therefor;
(diii) with respect to each Orko ICC Plan Option, :
(A) the holder thereof will shall cease to be the holder of such Orko ICC Plan Option, will and shall cease to have any rights as a holder in respect of such Orko Option, ICC Plan Option under the ICC Stock Option Plan;
(B) such holder will holder’s name shall be removed from the register of Orko ICC Plan Options, and and
(C) all option agreements, Award Agreements, grants and similar instruments relating thereto will shall be cancelled;
(b) Each ICC Share held by a Dissenting ICC Shareholder shall, without any further action or formality by or on behalf of such 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 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 removed as the holder of such ICC Shares from the central securities register of holders of ICC Shares maintained by or on behalf of ICC; and
(eiii) Aurora shall become the Orko Stock Option Plan sole legal and beneficial holder of such ICC Shares so transferred (free and clear of all Encumbrances) and shall be terminated;entered in the central securities register of holders of ICC Shares maintained by or on behalf of ICC; and
(fc) five minutes after Concurrently with the steps contemplated step described in Section 2.3(b), each Orko ICC Share (other than those ICC Shares held by a Dissenting Shareholder in respect ICC Shareholders but including ICC Shares issued to former holders of which In-the-Money Options pursuant to Section 2.3(a)) shall, without any further action by or on behalf of the Orko Shareholder has validly exercised hisholder, her or its Dissent Rights shall be directly deemed to be assigned and irrevocably transferred and assigned by such Dissenting Shareholder the holder thereof to First Majestic Aurora (free and clear of any liens, charges all Encumbrances) and encumbrances the holder thereof shall be entitled to receive from Aurora the Share Consideration for such ICC Share and upon the transfer 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 each such ICC Share from such holder to Aurora pursuant to this Section 2.3(c), each Orko Share (other than any Orko Share held by any Dissenting Shareholder) shall be deemed to be transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered each holder thereof of such ICC Shares shall cease to be the registered 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 Orko Share and ICC Shares in accordance with this Plan of Arrangement;
(ii) the name of each such registered holder of ICC Shares shall be removed from the register of Orko Shareholders as the ICC Shares maintained by or on behalf of the Effective Time;ICC; and
(jiii) the registered holder thereof Aurora shall be deemed the sole legal and beneficial holder of such ICC Shares so transferred (free and clear of all Encumbrances) and shall be entered in the register of the ICC Shares maintained by or on behalf of ICC. Each holder of each ICC Share, with respect to each step set out above applicable to such holder, shall be deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated ICC Share in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent accordance with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datestep.
Appears in 1 contract
Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further act or formalityformality required on the part of any Person, in each case effective as at the Effective Time:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
Liquid Share (b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding other than any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share Liquid Shares held by a Dissenting Shareholder LBIX and any Liquid Shares in respect of which the Orko any Liquid Shareholder has validly exercised his, her or its Dissent Rights Right) shall be deemed to be transferred to LBIX (free and clear of any Encumbrances) in exchange for the Consideration, subject to Article 4 hereof;
(b) each Liquid Share in respect of which any Liquid Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic LBIX (free and clear of any liens, charges and encumbrances of any nature whatsoeverEncumbrances) in accordance with, and for the consideration set forth in, Section 3.1with Article 4 hereof;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(hc) with respect to each Orko Liquid Share transferred and assigned in accordance with Section 2.3(c3.1(a) or Section 2.3(d):3.1(b) hereto:
(i) the registered holder thereof shall cease to be the registered holder of such Orko Liquid Share and the name of such registered holder shall be removed from the register of Orko Liquid Shareholders as of the Effective Time;
(jii) 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 Orko ShareLiquid Shares in accordance with Section 3.1(a) or Section 3.1(b) hereto, as applicable; and
(kiii) First Majestic LBIX will be the holder of all of the outstanding Orko Liquid Shares and the register of Orko Liquid Shareholders shall be revised accordingly;
(ld) five minutes after in accordance with the steps contemplated in Section 2.3(d) certificates governing the terms and conditions of the Liquid Warrants, each holder of a Liquid Warrant outstanding immediately prior to the Effective Time shall be entitled to receive (eand such holder shall accept), upon the exercise of such holder’s Liquid Warrants, in lieu of each outstanding Orko Liquid Share will be transferred to Subco in which such holder was theretofore entitled, upon such exercise and for the same aggregate consideration payable therefor, the number of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco LBIX Shares will be equal to the value product of: (i) the number of Liquid Shares subject to such Liquid Warrant immediately prior to the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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) Effective Time; and (g), Orko and Subco ii) 0.5741. Each liquid Warrant shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) Amalco will continue to be liable for all governed by and be subject to the terms of the liabilities certificate governing the terms and obligations conditions 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Liquid Warrant; and
(cce) the stated capital of the common shares of Amalco will be an amount equal to the paid-up capitalexchanges, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges cancellations and cancellations transactions provided for in this Section 2.3 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
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur 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 or Class A Compressed 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 formalityformality by or on behalf of any Dissenting Holder, to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3, and:
(ai) such Dissenting Holder shall cease to be the holder of such Common Shares or Class A Compressed Shares, as the case may be, and to have any rights as a Company Shareholder other than the right to be paid fair value for such Common Shares or Class A Compressed Shares, as the case may be, as set out in Section 3.1;
(ii) such Dissenting Holder's name shall be removed as the holder of Common Shares or Class A Compressed Shares, as the case may be, from the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(iii) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder Purchaser shall be deemed to be cancelled the transferee of such Common Shares or Class A Compressed Shares, as the case may be, free and clear of all Liens (other than the right to be paid fair value for no consideration;such Common Shares or Class A Compressed Shares, as the case may be, as set out in Section 3.1), and shall be entered in the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(b) five minutes after each Class A Compressed Share outstanding immediately prior to the steps contemplated Effective Time (other than Class A Compressed Share held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised under Section 2.3(a)) and any Class A Compressed Share held by the Purchaser or any affiliates thereof) shall, without any further act or formality by or on behalf of any Company Compressed Shareholder, be deemed to be converted into 100 Common Shares, and
(i) each holder of such Class A Compressed Shares shall cease to be the holder thereof and to have any rights as a Company Compressed Shareholder;
(ii) the name of each such holder shall be removed from the register of the Company Compressed Shareholders maintained by or on behalf of the Company; and
(iii) each such former Company Compressed Shareholder shall be deemed to be the holder of such Common Shares and shall be entered in the register of the Company Common Shareholders maintained by or on behalf of the Company.
(c) notwithstanding any vesting or exercise provisions to which an Orko Option a Company RSU 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 Orko Stock Option Plan):
(c) Share Unit Plan or applicable Law), each Company RSU issued and outstanding immediately prior to the outstanding Orko Options willEffective Time shall, without any further action act or formality by or on behalf of any holder of such Orko OptionsCompany RSU Holder, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, fully vested and shall be transferred and disposed by the holder thereof will to the Company (free and clear of all Liens) and cancelled in exchange for the applicable RSU Consideration, and
(i) each holder of such Company RSU shall cease to be the holder of such Orko Option, will cease thereof and to have any rights as a holder in respect Company RSU Holder;
(ii) the name of such Orko Option, each such holder will shall be removed from the register of Orko Options, the Company RSU Holders maintained by or on behalf of the Company;
(iii) each such former holder of such Company RSU shall be deemed to be the holder of the Common Shares comprising such RSU Consideration and shall be entered in the register of the Company Common Shareholders maintained by or on behalf of the Company;
(iv) all option agreementsAward Agreements, grants and similar instruments relating thereto will be cancelled; and
(ev) the Orko Stock Option Share Unit Plan shall be terminatedcancelled;
(fd) five minutes after each Common Share outstanding immediately prior to the steps contemplated in Section 2.3(b), each Orko Share Effective Time (other than Common Shares held by a Dissenting Shareholder Holder in respect of which the Orko Shareholder has Dissent Rights have been validly exercised hisunder Section 2.3(a) and any Common Shares held by the Purchaser or any affiliates thereof) and each Common Share issued to former Company Compressed Shareholders and former Company RSU Holders under Sections 2.3(b) and 2.3(c) shall, her without any further action by or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear on behalf of any liensCompany Common Shareholder, 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 assigned and transferred by the holder thereof to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) the Purchaser in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):, and
(i) the registered each holder thereof of such Common Shares shall cease to be the registered holder thereof and to have any rights as a Company Common Shareholder other than the right to be paid the Consideration per Common Share in accordance with this Plan of such Orko Share and Arrangement;
(ii) the name of each such registered holder shall be removed from the register of Orko the Company Common Shareholders as maintained by or on behalf of the Effective Time;Company; and
(jiii) the registered holder thereof Purchaser shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder transferee of such Common Shares free and clear of all of the outstanding Orko Shares Liens and shall be entered in the register of Orko the Company Common Shareholders shall be revised accordingly;maintained by or on behalf of the Company.
(le) five minutes after each Company Option outstanding at the steps contemplated in Section 2.3(dEffective Time (whether vested or unvested) and (e), each outstanding Orko Share will be transferred exchanged for a Replacement Option to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 acquire such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
Purchaser Shares as is equal to: (zA) the articles and notice that number of articles Common Shares that were issuable upon exercise of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares such Company Option immediately prior to the amalgamation; and
Effective Time, multiplied by (ddB) 0.8428, rounded down to the nearest whole number of Purchaser Shares, at an exercise price per Purchaser Share equal to the greater of (i) the exchanges quotient determined by dividing: (X) the exercise price per Common Share at which such Company Option was exercisable immediately prior to the Effective Time, by (Y) 0.8428, rounded up to the nearest whole cent, and cancellations provided (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 in this Section 2.3 will which it was exchanged, and any certificate or option agreement previously evidencing the Company Option shall thereafter evidence and be deemed to occur evidence such Replacement Option.
(f) Without any further act or formality by or on behalf of 180 Smoke, the Effective Date180 Smoke Share Entitlement shall be deemed to be an entitlement to receive 0.8428 of a Purchaser Share for each Common Share that would be issued under the 180 Smoke Share Entitlement and the 180 Smoke Purchase Agreement shall be deemed to be amended accordingly.
(g) Without any further act or formality by or on behalf of Pacific Remedy, notwithstanding certain procedures related thereto may not the Pacific Remedy Share Entitlement shall be completed until after deemed to be an entitlement to receive 0.8428 of a Purchaser Share for each Common Share that would be issued under the Effective DatePacific Remedy Share Entitlement and the Pacific Binding LOI shall be deemed to be amended accordingly.
(h) Without any further act or formality by or on behalf of shareholder of the RPE Exchangeable Shares, the RPE Share Entitlement shall be deemed to be an entitlement to receive 84.28 Purchaser Shares for each Class A Compressed share that would be issued under the RPE Share Entitlement and the RPE Support Agreement, RPE Exchange Agreement and the terms of the RPE Exchangeable Shares shall be deemed to be amended accordingly.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, Each of the following events shall occur and shall be deemed to occur without any further authorization, act or formality, on the Effective Date, in the following order without any further act or formalityat the times indicated:
(a1) at the Effective Time, notwithstanding the terms of the Shareholder Rights Plan, the Shareholder Rights Plan shall be terminated and all SRP Rights issued pursuant to the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each without any payment in respect thereof;
(2) five minutes after the Effective Time, notwithstanding the terms of the rights thereunder Stock Option Plan, the following transactions shall occur simultaneously:
(a) each outstanding Company Option with an Exercise Price lower than the Consideration Value and which has vested as of the Effective Date shall be deemed to be cancelled assigned and transferred by such holder to the Company in exchange for no considerationa cash payment from the Company in United States dollars (or the equivalent in local currency) equal to the amount by which the Consideration Value exceeds the Exercise Price of such Company Option, subject to applicable withholdings, and each such Company Option shall immediately be cancelled;
(b) five each outstanding Company Option with an Exercise Price lower than the Consideration Value and which has not vested as of the Effective Date shall be assumed by the Purchaser and shall be converted into an Assumed Option to purchase a number of Purchaser Shares (rounded down to the nearest whole share) equal to the product of the number of Company Shares subject to such Company Option immediately prior to the Effective Time multiplied by the Equity Award Exchange Ratio. The per share exercise price for the Purchaser Shares issuable upon exercise of such Assumed Option shall be equal (rounded up to the nearest whole cent) to the Exercise Price per Company Share applicable to such Company Option immediately prior to the Effective Time divided by the Equity Award Exchange Ratio. Except as provided above, the Assumed Option shall be subject to the same terms and conditions (including expiration date, vesting and exercise provisions) as were applicable to the corresponding Company Option immediately prior to the Effective Time, except that all references to the “Company” in the Stock Option Plan and option agreements will be references to the Purchaser. From and after the Effective Time, each Company Option shall no longer represent the right to acquire Company Shares; and
(c) each outstanding Company Option that is not otherwise included in Section 2.3(b) (i) or (ii) above shall be cancelled by the Company without the payment of any consideration, and (i) each holder of Company Options shall cease to be a holder of such Company Options, (ii) such holder’s name shall be removed from the applicable register, (iii) except to the extent applicable to the Assumed Options, the Stock Option Plan and all agreements relating to the Company Options shall be terminated and shall be of no further force and effect and none of the Company or any of its Affiliates shall have any liabilities or obligations with respect to the same, and (iv) such holder shall thereafter have only the right to receive the consideration, if any, to which such holder is entitled pursuant to Section 2.3(b) at the time and in the manner specified therein;
(3) ten minutes after the steps contemplated in Section 2.3(a)Effective Time:
(a) each outstanding Company RSU which has vested as of the Effective Date, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option RSU Plan):, shall be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company in United States dollars (or the equivalent in local currency) equal to the Consideration Value, less any applicable withholdings and each such Company RSU shall immediately be cancelled; and
(b) each outstanding Company RSU which has not vested as of the Effective Date, notwithstanding the terms of the RSU Plan, shall be assumed by the Purchaser and shall be converted into an Assumed RSU with respect to a number of Purchaser Shares (rounded down to the nearest whole share) equal to the product of the number of Company Shares subject to such Company RSU immediately prior to the Effective Time multiplied by the Equity Award Exchange Ratio; provided, that such Assumed RSU shall be subject to the same terms and conditions (including vesting and payment provisions) as were applicable to the corresponding Company RSU immediately prior to the Effective Time (except that all references to the “Company” in the RSU Plan and restricted stock unit agreements will be references to the Purchaser), and provided further that any payment with respect to such Assumed RSU at any time after the Effective Time shall be subject to applicable tax withholding and shall be made without interest. From and after the Effective Time, each such Company RSU shall no longer represent the right to acquire any Company Shares, and each such Company RSU shall immediately be cancelled and (i) each holder of Company RSUs shall cease to be a holder of such Company RSUs, (ii) such holder’s name shall be removed from the applicable register, (iii) except to the extent applicable to the Assumed RSUs, the RSU Plan and all agreements relating to the Company RSUs shall be terminated and shall be of no further force and effect and none of the Company or any of its Affiliates shall have any liabilities or obligations with respect to the same, and (iv) such holder shall thereafter have only the right to receive the consideration, if any, to which such holder is entitled pursuant to Section 2.3(c) at the time and in the manner specified therein;
(4) fifteen minutes after the Effective Time, each of the Company Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formality to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3, and:
(a) such Dissenting Holder shall cease to be the holder of such Company Shares and to have any rights as a Company Shareholder other than the right to be paid fair value for such Company Shares, as set out in Section 3.1;
(b) such Dissenting Holder’s name shall be removed as the holder of such Company Shares from the register of Company Shares maintained by or on behalf of the Company; and
(c) the Purchaser shall be deemed to be the transferee of such Company Shares free and clear of all Liens (other than the right to be paid fair value for such Company Shares as set out in Section 3.1), and shall be entered in the register of Company Shares maintained by or on behalf of the Company;
(5) concurrent with the transaction described in Section 2.3(d), each Company Share outstanding Orko Options willimmediately prior to the Effective Time, other than Company Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall, without any further action by or on behalf of any holder of such Orko OptionsCompany Shareholder, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, assigned and transferred by the holder thereof will to the Purchaser or the wholly-owned subsidiary nominated by it in exchange for the Consideration, and:
(a) each holder of such Company Shares shall cease to be the holder of such Orko Option, will cease thereof and to have any rights as a holder Company Shareholder other than the right to be paid the Cash Consideration and to be allocated and issued the Share Consideration per Company Share in respect accordance with this Plan of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminatedArrangement;
(fb) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of each such registered holder shall be removed from the register of Orko Shareholders as the Company Shares maintained by or on behalf of the Effective Time;Company; and
(jc) the registered holder thereof Purchaser shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder transferee of such Company Shares (free and clear of all of the outstanding Orko Shares Liens) and shall be entered in the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration Company Shares maintained by or on behalf of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateCompany.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following shall steps or transactions shall, unless specifically provided otherwise in this Section 2.3, occur and shall be deemed to occur 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) each Argonaut Share held by a Dissenting Shareholder shall be, and shall be deemed to be, transferred (free and clear of all Liens) by the holder thereof, without any further act or formalityformality on its part, to Argonaut for cancellation, and in consideration therefor such Dissenting Shareholder shall have a debt-claim to be paid the aggregate fair value of such Argonaut Shares as determined pursuant to Section 3.1, and, in respect of the Argonaut Shares so transferred:
(ai) the each such Dissenting Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease Argonaut Shares and to have any rights as a holder Argonaut Shareholders other than the right to be paid the fair value for such Argonaut Shares as set out in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(gii) five minutes after the steps contemplated in Section 2.3(c), name of each Orko Share (other than any Orko Share held by any such Dissenting Shareholder) Shareholder shall be deemed to be transferred to First Majestic (free and clear removed as an Argonaut Shareholder from the registers of any liens, charges and encumbrances Argonaut Shareholders maintained by or on behalf of any nature whatsoever) in exchange for the Share ConsiderationArgonaut;
(hiii) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof such Dissenting Shareholder shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) the registered holder thereof shall be have been deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko ShareArgonaut Shares to Argonaut;
(iv) such Argonaut Shares so transferred to Argonaut shall thereupon be cancelled by Argonaut and the registers of Argonaut Shareholders maintained by or on behalf of Argonaut shall be revised accordingly; and
(kv) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital account maintained by Argonaut in respect of the Orko Argonaut 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined product obtained when (i) the amount of the stated capital account in respect of the ITA, attributable Argonaut Shares immediate prior to the Subco Effective Time, is multiplied by (ii) a fraction, the numerator of which is the number of Argonaut Shares transferred and cancelled pursuant to this Section 2.3(a) and the denominator of which is the number of Argonaut Shares outstanding immediately prior to the amalgamation; andEffective Time;
(ddb) the exchanges transactions contemplated by the New Argonaut Contribution Agreement shall become effective, and cancellations provided for in this Section 2.3 will 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 deemed to occur entered into the register of New Argonaut Shares maintained by or on behalf of New Argonaut as the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date.registered owner of such New Argonaut Consideration Shares;
Appears in 1 contract
Arrangement. Commencing at At the Arrangement Effective Time, prior to the Merger becoming effective in accordance with the relevant provisions of the DGCL and the Business Combination Agreement, and following the completion of the PIPE Financing in accordance with Section 3.1(a), the following shall occur and shall be deemed to occur in the following order sequence without any further authorization, act or formality, in each case, unless stated otherwise:
(a) the Shareholder Rights Plan PIPE Financing shall have been completed and the PIPE Shares shall have been issued and shall be cancelled outstanding as fully paid and shall have no further force or effect and each non-assessable GH Power Class A Common Shares. For all purposes of this Plan of Arrangement (including the calculation of the rights thereunder GH Power Exchange Ratio and the determination of the aggregate number of Pubco Common Shares issuable upon the Amalgamation), the PIPE Shares shall be deemed treated as GH Power Class A Common Shares issued and outstanding immediately prior to be cancelled for no considerationthe Arrangement Effective Time;
(b) five minutes after the steps contemplated in Section 2.3(a)Unanimous Shareholders’ Agreement dated November 5, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract2021, among the conditions holders of grant, applicable law or the terms of the Orko Stock Option Plan):GH Power Shares shall terminate;
(c) the each outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko GH Power Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has Dissent Rights have been validly exercised hisand not withdrawn shall be, her or its Dissent Rights and shall be directly deemed to be, transferred and assigned by such Dissenting Shareholder the holder thereof to First Majestic Pubco (free and clear of all Liens) without any liens, charges further act or formality by or on behalf of the Dissenting Shareholder in consideration for the right to receive an amount determined and encumbrances of any nature whatsoever) payable in accordance withwith Article 4, and:
(i) such Dissenting Shareholder shall cease to be the holder of such GH Power Shares and to have any rights as a GH Power Shareholder other than the right to be paid fair value by Pubco for the consideration set forth in, Section 3.1such GH Power Shares as determined and payable in accordance with Article 4 hereof;
(gii) five minutes after the steps contemplated name of such Dissenting Shareholder shall be removed from the register of GH Power Shareholders maintained by or on behalf of GH Power; and
(iii) Pubco shall be recorded in the register of GH Power Shareholders maintained by or on behalf of GH Power as the registered holder of such GH Power Share formerly held by Dissenting Shareholders and shall be, and be deemed to be, the legal and beneficial owner thereof free and clear of all Liens;
(d) Merger Sub A shall amalgamate with and into GH Power to form one corporate entity with the same effect as if they were amalgamated under Section 2.3(c)174 of the OBCA (the “Amalgamation”) to form “Canada Surviving Corporation”. For United States income tax purposes GH Power’s legal existence shall be deemed to continue as Canada Surviving Corporation. Without limiting the foregoing, GH Power and Merger Sub A will continue as one company and the property of GH Power and Merger Sub A will become the property of Canada Surviving Corporation.
(i) On and because of, the Amalgamation,
(A) each Orko GH Power Common Share (other than any Orko GH Power Common Share held by any a Dissenting ShareholderShareholder who has validly exercised Dissent Rights) issued and outstanding immediately prior to the Arrangement Effective Time shall be deemed to be transferred to First Majestic (free cancelled, and clear each former holder thereof shall receive, without any further act or formality by or on behalf of any liensthe holders of such GH Power Common Shares, charges and encumbrances of any nature whatsoever) in exchange for each such GH Power Common Share, and as a result of the Share Considerationamalgamation, a number of fully paid and non-assessable Pubco Common Shares equal to the GH Power Exchange Ratio;
(hB) with respect each GH Power Preferred Share (other than any GH Power Preferred Share held by a Dissenting Shareholder who has validly exercised Dissent Rights) issued and outstanding immediately prior to the Arrangement Effective Time shall be cancelled, and each Orko former holder thereof shall receive, without any further act or formality by or on behalf of the holders of such GH Power Preferred Shares, in exchange for each such GH Power Preferred Share, and as a result of the amalgamation, a number of fully paid and non-assessable Pubco Common Shares equal to the GH Power Exchange Ratio, on an as-converted to GH Power Common Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):basis;
(iC) the registered holder thereof each GH Power Shareholder shall cease to be the registered holder of such Orko GH Power Share and to have any rights as a GH Power Shareholder, other than the right to receive the Pubco Common Shares to be issued pursuant to this Section 3.1(d);
(D) the name of such registered holder shall be removed from the register of Orko Shareholders as Canadian Surviving Corporation maintained by or on behalf of the Effective TimeCanadian Surviving Corporation;
(jE) each common share of Merger Sub A formerly held by Pubco shall be exchanged (free and clear of all Liens) for one fully paid and non-assessable Canada Surviving Corporation Share, and all issued shares of Merger Sub A shall automatically be cancelled;
(F) Canada Surviving Corporation will be a direct wholly-owned subsidiary of Pubco;
(G) For the registered holder thereof purposes of subsection 87(9) of the Tax Act, the Pubco Common Shares received by holders of the GH Power Shares pursuant to Section 3.1(d)(i)(A) shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Sharebe shares of Canada Surviving Corporation; and
(kH) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders there shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of account maintained by Pubco for the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f)Pubco Common Shares, the stated capital in respect of the Orko Pubco Common Shares shall be reduced to an aggregate of $1.00 without any repayment of capital in respect thereof;
(n) five minutes after issued on 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract or otherwise, may be enforced against Amalco Amalgamation to the same extent as if such obligations had been incurred or contracted by it;
(r) Amalco will continue to be liable for all of the liabilities and obligations of Orko and Subco;
(s) all rightsformer holders GH Power Shares, 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the aggregate “paid-up capital, ” (as that term is defined in the ITA, attributable to Tax Act) of the Subco GH Power Shares (other than GH Power Shares held by Dissenting Shareholders) outstanding immediately prior to the amalgamation; andAmalgamation.
(dde) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur Without any further action on the Effective Datepart of any holder thereof, notwithstanding certain procedures related thereto may not any of the Parties, each then-outstanding GH Power Convertible Security shall be completed until after treated as follows, as a consequence of the Effective Date.amalgamation carried out in paragraph 3.1(d) above:
Appears in 1 contract
Sources: Business Combination Agreement (Matinas BioPharma Holdings, Inc.)
Arrangement. 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 3.1.2, each of the following transactions and events 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 formalityformality to TPCO by the holder thereof for cancellation, free and clear of all Liens, and:
(ai) the such TPCO Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, TPCO Dissenting Shares and will cease to have any rights as a holder in respect of such Orko OptionTPCO Dissenting Shares other than the right to be paid fair value for such TPCO Dissenting Shares as set out in Section 4.1.2, and
(ii) such holder TPCO Shareholder's name will be removed as the registered holder of such TPCO Dissenting Shares from the central securities register of Orko OptionsTPCO Shares maintained by or on behalf of TPCO, and all option agreements, grants and similar instruments relating thereto will the TPCO Dissenting Shares shall be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(fb) five minutes after each Stately Share outstanding immediately prior to the steps contemplated in Section 2.3(b), each Orko Share Arrangement Effective Time held by a Dissenting Stately Shareholder in respect of which the Orko Shareholder has Stately Dissent Rights have been validly exercised hisshall be, her or its Dissent Rights and shall be directly deemed to be, transferred and assigned without any further act or formality to Stately by such Dissenting Shareholder to First Majestic (the holder thereof for cancellation, free and clear of any liensall 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):and:
(i) the registered holder thereof shall such Stately Shareholder will cease to be the holder of such Stately Dissenting Shares and will cease to have 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 Orko Share Stately Dissenting Shares from the central securities register of Stately Shares maintained by or on behalf of Stately, and the name of such registered holder Stately Dissenting Shares shall be removed from the register of Orko Shareholders as of the Effective Timecancelled;
(jc) TPCO, Stately and Newco shall amalgamate (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 Orko Share; and
(k"Amalgamation") First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 company (“"Amalco”") with the same effect as if they had amalgamated under Section 269 of the Business Corporations 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), except that the legal existence of Orko shall not cease and Orko shall survive the merger as Amalco;including:
(oi) without limiting the generality all property, rights and interests of Section 2.3(h)TPCO, the separate legal existence of Subco shall cease without Subco being liquidated or wound up Stately and Orko and Subco shall continue as one company and the property of Subco Newco shall become the property property, rights and interests of Amalco;
(pii) from the articles and after notice of articles of Amalco shall be in the Effective Date, at the time form of the step contemplated in Section 2.3(h):articles and notice of articles of Newco;
(qiii) Amalco will own the Amalgamation shall not constitute an assignment by operation of law, a transfer or any other disposition of the property, rights and hold the property interests of Orko and Subco andany of Newco, without limiting the provisions hereof, Stately or TPCO to Amalco;
(iv) all rights of creditors or others of Newco, Stately and TPCO will be unimpaired by such amalgamationthe Amalgamation, and all liabilities and obligations of Orko Newco, Stately and SubcoTPCO, 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 itAmalco;
(rv) Amalco will continue to be liable for all of the liabilities and obligations of Orko Newco, Stately and SubcoTPCO;
(svi) all rights, contracts, permits and interests of Orko Newco, Stately and Subco TPCO will continue as rights, contracts, permits and interests of Amalco as if Orko and Subco continued and, for greater certainty, the amalgamation Amalgamation will not constitute a transfer or assignment of the rights or obligations of either any of Orko Newco, Stately or Subco TPCO under any such rights, contracts, permits and interests;
(tvii) any existing cause of action, claim or liability to prosecution will be unaffected;
(uviii) a civil, criminal legal proceeding being prosecuted or administrative action or proceeding pending by or against either Orko any of Newco, Stately or Subco TPCO may be continued prosecuted or its prosecution may be continued, as the case may be, by or against Amalco;
(vix) a conviction against, or ruling, order or judgment in favour of or against either Orko any of Newco, Stately or Subco TPCO 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”"Gold Flora Corporation";
(yxi) Amalco shall be authorised authorized to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be substantially in the form of the articles and notice of articles of Orko;
(aaxii) the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from the Arrangement Effective Date;
(bbxiii) the first directors of Amalco following the amalgamation 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 Amalco Share, and upon such exchange each such former holder of such exchanged Newco Share shall be entered in Amalco's central securities register for the Amalco Shares as the owner of such Amalco Share;
(xv) each TPCO Share outstanding immediately prior to the 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 TPCO Shareholder, be, and shall be deemed to be, cancelled in exchange for the TPCO Consideration, and:
(A) the name of the holder of such TPCO Share shall be removed from TPCO's central securities register in respect of such TPCO Share;
(B) each holder of such TPCO Share shall cease to be the holder thereof and to have any rights as a TPCO Shareholder other than the right to receive the 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;
(xvi) each Stately Share outstanding immediately prior to the 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 Stately Shareholder, be, and shall be deemed to be, cancelled in exchange for the Stately Consideration, and:
(A) the name of the holder 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 thereof and to have any rights as a Stately Shareholder other than the right to receive the Stately Consideration; and
(C) each such former holder of such exchanged Stately Share shall be entered in Amalco's central securities register for the Amalco Shares as the owner of the Amalco Shares constituting such Stately Consideration;
(xvii) concurrently with the exchange of the Newco Shares, the TPCO Shares and 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 capital of the 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 that is outstanding immediately prior to the Amalgamation, whether vested or unvested (each such TPCO Stock Option, a "TPCO Replaced Option"), shall be, and shall be deemed to be, exchanged for an option (each, a "TPCO Replacement Option") entitling the holder to purchase that number of Amalco Shares equal to the product obtained when the number of TPCO Shares subject to such TPCO Replaced Option immediately prior to the 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) 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 aggregate number of Amalco Shares to 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 aggregate exercise price payable on any particular exercise of 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 same terms and conditions (including vesting, exercisability terms and expiry date) as were applicable to such TPCO Replaced Option immediately prior to the 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 3.1.2(c)(xviii)(1) above will comply with Treasury Regulation Section 1.424(1)(a);
(3) for any TPCO Replaced Option that is a nonqualified option held by a U.S. taxpayer, it is intended that such adjustment described in Section 3.1.2(c)(xviii)(1) above will be implemented in a manner intended to comply with Section 409A of the Code;
(xix) each TPCO Warrant (each such TPCO Warrant, a "TPCO Replaced Warrant") shall be, and shall be deemed to be, exchanged for a warrant (each, a "TPCO Replacement Warrant") entitling the holder to purchase that number of Amalco Shares equal to the product obtained when the number of TPCO Shares subject to such TPCO Replaced Warrant immediately prior to the Arrangement is multiplied by the TPCO Exchange Ratio, which TPCO Replacement Warrant shall (i) have an exercise price for each Amalco Share that may be purchased under such TPCO Replacement Warrant equal to the 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 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 the aggregate exercise price payable on any particular exercise of TPCO 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 TPCO Replaced Warrant immediately prior to the Arrangement, and (iii) continue to be evidenced by the certificate or other instrument evidencing such TPCO Replaced Warrant immediately prior to the Arrangement;
(xx) each TPCO PSU that is outstanding immediately prior to the Amalgamation shall be, and shall be deemed to be, exchanged for a TPCO Replacement PSU 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 PSU immediately prior to the Amalgamation, multiplied by (B) the TPCO Exchange Ratio, rounded down to the nearest whole number of Amalco Shares. All terms and conditions of a TPCO Replacement PSU, 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 PSU shall thereafter evidence and be deemed to evidence such TPCO Replacement PSU;
(xxi) each TPCO Non-Vesting RSU that is outstanding immediately prior to the 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇; and. 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;
(ccxxii) 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 stated capital of the common shares holder to purchase that number of Amalco will be an amount Shares equal to the paid-up capital, as that term is defined in product obtained when the ITA, attributable number of Stately Shares subject to the Subco Shares such Stately Replaced Warrant immediately prior to the amalgamation; andArrangement 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;
(ddd) The number of Amalco Shares held by any Person shall be rounded down to the exchanges nearest whole Amalco Share, and cancellations provided for in this Section 2.3 will any fractional Amalco Share issued under Section3.1.2(c) shall be, and shall be deemed to occur on be, cancelled without any additional compensation;
(e) the Effective Date, notwithstanding certain procedures related thereto may not be completed until after Amalco Share received by the Effective Date.Initial Newco Shareholder upon the Amalgamation under Section 3.1.2(c) in exchange for the
Appears in 1 contract
Sources: Business Combination Agreement (TPCO Holding Corp.)
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) each HighGold In-The-Money Option outstanding immediately prior to the Shareholder Rights Plan Effective Time (whether vested or unvested) shall be cancelled immediately and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)unconditionally vest, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willHighGold Equity Incentive Plan and shall, without any further action by or on behalf of any holder of such Orko OptionsHighGold Optionholder, be deemed to be cancelled assigned and transferred by such HighGold Optionholder (free and clear of all Liens) to HighGold for cancellation in exchange for the Option Consideration. The HighGold Shares comprising the Option Consideration will be issued to such HighGold Optionholder as fully paid and non-assessable shares in the capital of HighGold;
(b) each HighGold Out-of-the-Money Option outstanding immediately prior to the Effective Time shall, without any compensation thereforfurther action by or on behalf of any HighGold Optionholder, be cancelled in exchange for the OOTM Consideration;
(i) each HighGold Optionholder shall cease to be a holder of such HighGold Options, (ii) each such holder’s name shall be removed from each HighGold Option register maintained by HighGold, and (iii) all agreements relating to the HighGold Options shall be terminated and shall be of no further force and effect;
(d) with respect each Dissenting Shareholder shall transfer to each Orko Optionthe Purchaser all of the Dissent Shares held (free and clear of all Liens), without any further act or formality on its part, and in consideration therefor, the holder thereof will 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 transferred
(a) the Dissenting Shareholder shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; andthereof,
(eb) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders as HighGold in respect of the Effective Time;HighGold Shares,
(jc) the registered holder thereof Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer and assign such Orko Sharethereof, and
(d) the name of the Purchaser shall be added to the register maintained by or on behalf of HighGold in respect of the HighGold Shares as the holder thereof; and
(ke) First Majestic will each HighGold Shareholder shall transfer to the Purchaser (free and clear of all Liens) each whole HighGold Share held (other than any 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 the Consideration for each HighGold Share held, and
(a) the HighGold Shareholder shall cease to be the holder of all thereof,
(b) the name of the outstanding Orko Shares and HighGold Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital HighGold in respect of the Orko Shares HighGold Shares,
(c) the HighGold Shareholder shall be reduced deemed 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) have executed and (g)delivered all consents, Orko releases, assignments and Subco shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Actwaivers, 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract statutory or otherwise, may be enforced against Amalco required to effect the same extent as if such obligations had been incurred or contracted by it;transfer thereof, and
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xd) the name of Amalco the Purchaser shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised added to issue an unlimited number the register maintained by or on behalf of common shares without par value;
(z) the articles and notice of articles of Amalco shall be substantially HighGold in the form respect of the articles and notice of articles of Orko;
(aa) HighGold Shares as the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from holder thereof; it being expressly provided that 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations events provided for in this Section 2.3 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
Arrangement. Commencing at At the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko a GEO Option might otherwise be subject (whether by contract, the conditions of a grant, applicable law or the terms of the Orko Stock GEO Option Plan):
(ci) each GEO Option issued and outstanding at the outstanding Orko Options time referred to in this subsection 3.01(a) will, without any further action by or on behalf of any holder of such Orko OptionsGEO Option, be deemed to be fully vested and 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 Option Consideration, less any compensation thereforamounts withheld pursuant to Section 5.03;
(dii) with respect to each Orko GEO Option, the holder thereof will cease to be the holder of such Orko GEO Option, will cease to have any rights as a holder in respect of such Orko OptionGEO Option or under the GEO Option Plan, such holder holder’s name will be removed from the register of Orko GEO Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(eiii) the Orko Stock GEO Option Plan shall will be terminated;
(fb) five minutes after contemporaneously with the steps contemplated in Section 2.3(bsubsection 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 Orko Share GEO Warrant issued and outstanding at the time referred to in this subsection 3.01(b) (other than any GEO Warrants held by a Dissenting Shareholder in respect Warrantholder) will, without any further action by or on behalf of which any holder of such GEO Warrant, be transferred by the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder holder thereof to First Majestic GEO (free and clear of any all liens, charges claims and encumbrances of any nature whatsoeverwhatsoever nature) 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) cancelled in exchange for the Share Warrant Consideration;, less any amounts withheld pursuant to Section 5.03; and
(hii) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) GEO Warrant, the registered holder thereof shall will cease to be the registered holder of such Orko Share and the name GEO Warrant, will cease to have any rights as a holder in respect of such registered holder shall GEO Warrant, such holder’s name will be removed from the register of Orko Shareholders as GEO Warrants, and all agreements, grants and similar instruments relating thereto will be cancelled.
(c) all of Spin-out Assets and Liabilities shall be 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 (together with the Spinco Shares held immediately prior to the foregoing issuance) that number of Spinco Shares that is equal to one fifteenth (1/15th) of the number of GEO Common Shares that are issued and outstanding immediately prior to the Effective TimeTime (adjusted as provided in Section 3.03 below) less the number of GEO Shares held by Dissenting Shareholders;
(jd) NEW GOLD shall loan to GEO an amount equal to the registered holder thereof shall U.S. Tax Code Withholding, to be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordinglyevidenced by a promissory note repayable on demand;
(le) five minutes after the steps contemplated GEO shall make a capital contribution to Spinco in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the an amount added to the stated capital of the Subco Shares will be equal to the value of U.S. Tax Code Withholding, which Spinco shall use to satisfy the Orko Shares so transferredU.S. Tax Code Withholding;
(mf) concurrent with the step NEW GOLD shall subscribe for that number of Spinco Shares that will result in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 NEW GOLD holding 13% of the issued and outstanding Orko Spinco Shares will be cancelled without repayment for a total of capital $250,000 in respect thereofcash;
(xg) GEO shall undertake a reorganization of capital within the name meaning of Amalco section 86 of the Tax Act as follows, and in the following order:
i. The authorized capital of GEO shall be “Orko Silver Corp.”;amended by:
(y) Amalco shall be authorised to issue 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 Class B Share; and
B. the creation of an unlimited number of common shares without par valueClass A Shares; and the articles of GEO shall be deemed to be amended accordingly;
(z) the articles and notice of articles of Amalco ii. Each issued Class B Share, other than those held by Dissenting GEO Shareholders, shall be substantially in the form exchanged with GEO for one Class A Share and one fifteenth (1/15th) of the articles and notice of articles of Orkoa Spinco Share;
(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 iii. The capital of GEO for the common shares of Amalco will outstanding Class A Shares shall be an amount equal to the paid-paid up capitalcapital (within the meaning of the Tax Act) of the GEO Class B Shares, as less the paid up capital (within the meaning of the Tax Act) of the GEO Class B Shares that term is defined in the ITA, attributable to each issued Class B Share held by Dissenting GEO Shareholders and described in paragraph 3(h) hereof, and less the Subco fair market value of the Spinco Shares immediately prior distributed to the amalgamation; andGEO Shareholders.
(ddh) the exchanges and cancellations provided for in this Section 2.3 will following steps shall be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date.effected contemporaneously:
Appears in 1 contract
Sources: Business Combination Agreement
Arrangement. Commencing at At the Effective Time, unless otherwise specifically provided in this Section 3.02, the following events or transactions shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) the Shareholder Rights Plan Purchaser shall be cancelled and shall have no further force or effect and each 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 rights thereunder 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 cancelled for no considerationdeemed 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) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko a Company 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 Orko Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(ci) each In-the-Money Option issued and outstanding immediately prior to the outstanding Orko Options willEffective Time shall, without any further action by or on behalf of any holder of such Orko OptionsIn-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 compensation payment therefor;
(diii) with respect to each Orko Company Option, :
(A) the holder thereof will shall cease to be the holder of such Orko Company Option, will and shall cease to have any rights as a holder in respect of such Orko Option, Company Option under the applicable Company Option Plan,
(B) such holder will holder’s name shall be removed from the register of Orko Company Options, and 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; and;
(ed) the Orko Stock Company Option Plan Plans shall be terminated;
(fe) five minutes after the steps contemplated in Section 2.3(b), each Orko 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 Orko Shareholder has validly exercised his, her or its Dissent Rights 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 directly transferred amended to create a new class of shares without par value, of which an unlimited number may be issued and assigned by such Dissenting Shareholder 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 First Majestic 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 liensEncumbrances, charges for one Class A Share and encumbrances of any nature whatsoever) in accordance withone Distribution Spinco Share, and for the consideration set forth in, Section 3.1;upon such exchange:
(gA) five minutes after the steps contemplated in Section 2.3(c), each Orko such exchanged Company Share (other than any Orko Share held by any Dissenting Shareholder) shall be deemed to be transferred to First Majestic (free cancelled, and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder holders of such Orko Share and the name of such registered holder exchanged Company Shares shall be removed from the Company’s register of Orko Shareholders as holders of the Effective TimeCompany Shares;
(jB) 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 registered holder thereof Company shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Shareremoved from the Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares; and
(kD) First Majestic will be the each holder of all such exchanged Company Shares shall be entered in Spinco’s register of holders of Spinco Shares in respect of the outstanding Orko Distribution Spinco Shares and exchanged with such holder by the register of Orko Shareholders shall be revised accordinglyCompany;
(liii) five minutes after concurrently with the steps contemplated exchange in Section 2.3(d) and (e3.02(h)(ii), each outstanding Orko Share will be transferred to Subco the stated capital account in consideration respect of the issue Company Shares shall be reduced by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the an amount added equal to the stated capital of the Subco Company Shares will be equal immediately prior to the value of the Orko Shares so transferred;
(m) concurrent with the step reorganization in Section 2.3(f3.02(h), and there shall be added to the stated capital account maintained by the Company in respect of the Orko 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 reduced to an aggregate of $1.00 cancelled without any repayment thereon, and the Company shall be removed from the Spinco register of capital in respect thereofholders of Spinco Shares;
(nj) 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Spinco Shares will 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 repayment payment or compensation therefor, and upon such Spinco Share Consolidation the register of capital in respect thereofholders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation;
(xk) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who:
(i) duly and validly completes and delivers the name applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive the Combination Consideration in respect of Amalco shall be “Orko Silver Corp.”all of such Participating Former Securityholder’s Company Shares;
(yii) Amalco 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 authorised deemed to issue an unlimited number have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of common shares without par value;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:
(ziv) the articles and notice of articles of Amalco each such Participating Former Securityholder shall be substantially removed from the Company’s securities register of holders of Class A Shares,
(v) Acquireco shall be entered in the form Company’s securities register of holders of Class A Shares as the articles legal and notice beneficial owner of articles such Class A Shares, free 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇all Encumbrances; and
(ccvi) each such Participating Former Securityholder shall, subject to the stated capital provisions of Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect of the common shares 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 Amalco will all of such Participating Former Securityholder’s Company Shares shall transfer, and shall be an amount equal deemed to the paid-up capitalhave transferred, as that term is defined in the ITAto Acquireco, attributable to the Subco Shares 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 amalgamationexchange 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
(ddii) 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 exchanges sum of (I) the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k) and cancellations provided (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 this such remaining portion);
(n) in the event that (A) the sum of (I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 2.3 will 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 occur on 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 Date, notwithstanding certain procedures related thereto may not Time shall be completed until after cancelled in exchange for a cash payment by the Effective Date.Company to the holder of such Company DSU equal to the Company Shar
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(ci) each Orko Option outstanding at the outstanding Orko Options Effective Time will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(dii) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(eiii) the Orko Stock Option Plan shall be terminated;
(fc) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Subco (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;
(gd) 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 transferred to First Majestic Subco (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for for:
(i) the Share Cash Consideration;
(hii) the Share Consideration; or
(iii) the Cash and Share Consideration; in each case in accordance with the election or deemed election of such Orko Shareholder pursuant to Section 2.4 or Article 3, in each case, subject to proration in accordance with Section 2.5;
(e) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(jii) 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 Orko Share; and
(kiii) First Majestic Subco will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(lf) five minutes after the steps step contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares shall be reduced to an aggregate of $1.00 without any repayment of capital in respect thereof;
(ng) five minutes after the steps step 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 Business Corporations Act, except that the legal existence of Orko shall not cease and Orko shall survive the merger as Amalco;
(oh) without limiting the generality of Section 2.3(h2.3(g), the 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 property of Subco shall become the property of Amalco;
(pi) from and after the Effective Date, at the time of the step contemplated in Section 2.3(h2.3(g):
(qi) 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(rii) Amalco will continue to be liable for all of the liabilities and obligations of Orko and Subco;
(siii) 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;
(tiv) any existing cause of action, claim or liability to prosecution will be unaffected;
(uv) a civil, criminal or administrative action or proceeding pending by or against either Orko or Subco may be continued by or against Amalco;
(vvi) a conviction against, or ruling, order or judgment in favour of or against either Orko or Subco may be enforced by or against Amalco;
(wvii) First Majestic Coeur 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xviii) the name of Amalco shall be “Orko Silver Corp.”;
(yix) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(zx) the articles and notice of articles of Amalco shall be substantially in the form of the articles and notice of articles of OrkoSubco;
(aaxi) the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from the Effective Date;
(bbxii) the first directors of Amalco following the amalgamation shall be ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and
(ccxiii) the stated capital of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(ddj) the exchanges and cancellations provided for in this Section 2.3 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
Arrangement. Commencing at (a) As soon as reasonably practicable, Avenor shall apply to the Effective TimeCourt pursuant to section 192 of the CBCA for an order approving the Arrangement and, the following shall occur and shall be deemed to occur in the following order without any further act or formalityconnection with such application, Avenor shall:
(ai) file, proceed with and diligently prosecute an application for an Interim Order providing for, among other things, the Shareholder Rights Plan calling and holding of the Avenor Meeting for the purpose of considering and, if deemed advisable, approving the Arrangement, which meeting shall be cancelled held on the same date and shall have no further force at the same time, if practicable, or effect as near as may be, as the Bowater Meeting; and
(ii) subject to obtaining the approvals as contemplated in the Interim Order and each 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 rights thereunder conditions set forth in Article 6, Avenor shall deliver Articles of Arrangement to the Director and such other documents as may be deemed required to be cancelled for no consideration;give effect to the Arrangement as soon as reasonably practicable.
(b) five minutes after The Articles of Arrangement shall, with such other matters as are necessary to effect the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko OptionsArrangement, and all option agreementsas subject to the provisions of the Plan of Arrangement, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):provide as follows:
(i) the registered holder thereof shall cease to be authorized share capital of Avenor or the registered holder Subsidiary of such Orko Share and Bowater, as the name of such registered holder case may be, shall be removed from increased or modified by the register creation of Orko Shareholders as an unlimited number of Avenor Exchangeable Shares having the Effective Timerights, privileges, restrictions and conditions described in the Plan of Arrangement;
(jii) each shareholder of Avenor (other than shareholders who validly exercise Dissent Rights and who are ultimately entitled to be paid the registered holder thereof fair value of the Avenor Common Shares held by them) shall be deemed entitled to have executed receive $35 for each Avenor Common Share held, which shall be payable in cash, Avenor Exchangeable Shares or Bowater Common Shares, or a combination thereof, on the terms and delivered all consents, releases, assignments subject to the limitations and waivers, statutory or otherwise, required to transfer and assign such Orko Shareconditions set out in the Plan of Arrangement; and
(kiii) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco Bowater shall become the property holder, directly or indirectly, of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Avenor Common Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 other than those Avenor Common Shares 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateby Avenor Common Shareholders who have exercised Dissent Rights).
Appears in 1 contract
Sources: Arrangement Agreement (Bowater Inc)
Arrangement. Commencing Subject to the terms hereof, commencing at the Effective Time, and as more fully set forth in the following shall occur and Arrangement By-Law:
2.1.1 the Target Shares outstanding immediately prior to the Effective Time held by each holder thereof shall be deemed to occur in transferred by the following order holder thereof to, and acquired by, Purchaser without any further act or formality:
(a) formality on the Shareholder Rights Plan shall be cancelled part of such holder or Purchaser, free and shall have no further force or effect clear of any Liens, in exchange for such number of duly authorized, fully-paid and each non-assessable Purchaser Shares equal to the product of the rights thereunder shall be deemed to be cancelled for no considerationnumber of such Target Shares held by such holder multiplied by the Exchange Ratio;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) 2.1.2 with respect to each Orko Option, Target Share transferred to Purchaser pursuant to Section 2.1.1;
2.1.2.1 the holder thereof will of each such Target Share shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Target Share and the such holder's name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;Target Shares with respect to such Target Shares; and
(j) the registered holder thereof 2.1.2.2 Purchaser shall be deemed to have executed be the transferee of such Target Share (free and delivered all consents, releases, assignments clear of any Liens) and waivers, statutory or otherwise, required to transfer and assign such Orko Shareshall be entered in the register of Target Shares as the registered holder thereof; and
2.1.2.3 no fractional Purchaser Shares will be issued under the Arrangement, and any resulting fractional Purchaser Shares shall be rounded down or up, as appropriate, to the closest whole number, it being understood for greater certainty that 0.5 Purchaser Shares shall be rounded down to the closest whole number; with respect to each Purchaser Share issued to a former holder of Target Shares pursuant to Section 2.1.1, the name of such holder shall be entered in the register of holders of Purchaser Shares as the registered holder thereof;
2.1.3 each outstanding Target Option that is not exercised prior to the Effective Time (k"Unexercised Options") First Majestic shall, without any further action or formality on the part of any holder of such Unexercised Option, be transferred by the holder thereof to Target in exchange for an option (a "Replacement Option") to purchase that number of Purchaser Shares equal to the number of Target Shares subject to 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 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 schedule and all other terms and conditions of such Replacement Option will be the holder same as the terms and conditions of all of such Unexercised Option. Any document or agreement previously evidencing such Unexercised Option shall thereafter evidence and be deemed to evidence such Replacement Options;
2.1.4 the outstanding Orko Shares and the register of Orko Shareholders Target Stock Option Plan shall be revised accordinglycancelled;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) 2.1.5 effective from and after the Effective DateTime, each Target Warrant outstanding immediately prior to the Effective time shall, in accordance with the Target Warrant Indenture, entitle the holder thereof, at any time until the time of expiry and upon payment of the step contemplated in Section 2.3(h):
(q) Amalco will own exercise price thereof, to purchase such number of duly authorized fully paid and hold non-assessable Purchaser Shares equal to the property Exchange Ratio. The term to expiry, conditions to and manner of Orko and Subco andexercising, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamation, vesting schedule and all liabilities other terms and obligations conditions of Orko and 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;
(r) Amalco Target Warrant will continue to be liable for all of the liabilities governed by terms 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 conditions set forth in the authorised share structure of Amalco in exchange for each Subco Share previously held and all of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Target Warrant Indenture; and
(cc) 2.1.6 the stated capital of the common shares of Amalco will Shareholder Rights Plan shall be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Datecancelled.
Appears in 1 contract
Sources: Acquisition Agreement (Cambior Inc)
Arrangement. Commencing at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order sequence, in each case without any further authorization, act or formalityformality of or by Novamind, Numinus or any other person:
(a) each Novamind RSU outstanding immediately prior to the Shareholder Rights Plan Effective Time shall be cancelled immediately and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)unconditionally vest, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willNovamind RSU Plan and shall, without any further action by or on behalf of any holder of such Orko Optionsthe Novamind RSU Holder thereof, be deemed to be cancelled surrendered, assigned and transferred by such Novamind RSU Holder to Novamind (free and clear of all Encumbrances) in exchange for the number of Novamind Shares equal to: (i) the number of Novamind Shares a holder is entitled to under each Novamind RSU; minus (ii) the number of Novamind Shares that has a value equal to the aggregate of the amount required under applicable law to be withheld in respect of such surrender, and, for certainty, where such amount is negative, no Novamind Shares shall be issued. The Novamind Shares will be issued to such Novamind RSU Holder as fully paid and non-assessable shares in the capital of Novamind; provided that no share certificates shall be issued with respect to such shares;
(b) (i) each Novamind RSU Holder shall cease to be a holder of such Novamind RSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Novamind, (iii) the RSU Plan and all agreements relating to the Novamind RSUs shall be terminated and shall be of no further force and effect and (iv) each Novamind RSU Holder will thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 3.1(a) at the time and in the manner specified in Section 3.1(a);
(c) each Novamind Share held by a Dissenting Novamind Shareholder shall be deemed to be acquired by Novamind from the Dissenting Novamind Shareholder, without any compensation thereforfurther act or formality on its part, free and clear of all Encumbrances, in consideration for a debt claim against Novamind for an amount determined and payable in accordance with Article 4 hereof, and:
(i) such Dissenting Novamind Shareholders shall cease to be the holders of such Novamind Shares and to have any rights as holders of such Novamind Shares, other than the right to be paid fair value for such Novamind Shares (with Novamind funds not directly or indirectly provided by Numinus or any affiliate of Numinus), as set out in Article 4 hereof;
(ii) such Dissenting Novamind Shareholders’ names shall be removed as the holders of such Novamind Shares from the register of Novamind Shares maintained by or on behalf of Novamind; and
(iii) such Novamind Shares shall be cancelled and returned to treasury;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
Novamind Share outstanding (e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share other than Novamind Shares held by a Dissenting Shareholder in respect Novamind Shareholder, Numinus or any Subsidiary of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(g) five minutes after the steps contemplated in Section 2.3(c), each Orko Share (other than any Orko Share held by any Dissenting ShareholderNuminus) shall be deemed to be transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) Numinus in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):, and:
(i) the registered holder thereof holders of such Novamind Shares shall cease to be the registered holder holders thereof and to have any rights as holders of such Orko Novamind Shares, other than the right to receive the Share and the name Consideration in respect of such registered holder Novamind Shares in accordance with the Plan of Arrangement;
(ii) such holders’ names shall be removed as the holders of such Novamind Shares from the register of Orko Shareholders as Novamind Shares maintained by or on behalf of the Effective Time;Novamind; and
(jiii) the registered holder thereof Numinus shall be deemed to have executed be the transferee of such Novamind Shares, free and delivered clear of all consentsEncumbrances, releasesand shall be entered in the register of Novamind Shares maintained by or on behalf of Novamind as the holder of such Novamind Shares;
(e) each Novamind Option outstanding immediately prior to the Effective Time (whether vested or unvested) will cease to represent an option or other right to acquire Novamind Shares and will be exchanged for a fully vested option (a “Replacement Option”) to purchase from Numinus such number of Numinus Shares equal to (A) that number of Novamind Shares that were issuable upon exercise of such Novamind Option immediately prior to the Effective Time, assignments multiplied by (B) the Exchange Ratio, rounded to the nearest whole number of Numinus Shares, at an exercise price per Numinus Share equal to the quotient determined by dividing: (X) the exercise price per Novamind Share at which such Novamind Option was exercisable immediately prior to the Effective Time, by (Y) the Exchange Ratio, rounded to the nearest whole cent. All other terms and waiversconditions of such Replacement Option, statutory including the term to expiry, conditions to and manner of exercising, shall be the same as the Novamind Option for which it was exchanged, and any certificate or otherwiseoption agreement previously evidencing the Novamind Option shall thereafter evidence and be deemed to evidence such Replacement Option. The term of any such Replacement Option, required when issued, shall be the earlier of (i) the expiry date of the original Novamind Option granted and (ii) four months following the time the holder ceased to transfer be a valid participant under the terms of the Replacement Option. Notwithstanding any of the foregoing, it is intended that the provisions of subsection 7(1.4) of the Tax Act apply to the exchange of a Novamind Option for a Replacement Option, and assign accordingly, in the event that the Replacement Option In-The- Money Amount (for greater certainty, otherwise determined without regard to this last sentence of Section (e)) in respect of a Replacement Option exceeds the Novamind Option In-The-Money Amount in respect of the Novamind Option for which it is exchanged, then the exercise price per Numinus Share under such Orko ShareReplacement Option will be increased accordingly with effect at and from the Effective Time by the minimum amount necessary to ensure that the Replacement Option In-The-Money Amount (for greater certainty, after taking into account this last sentence of Section (e)) in respect of the Replacement Option does not exceed the Novamind Option In-The-Money Amount in respect of such Novamind Option. It is further intended that each Novamind Option that is held by a holder who is subject to taxation in the United States will be exchanged for a Replacement Option in a manner compliant with Section 409A of the U.S. Internal Revenue Code of 1986, as amended, and this Section (e) will be construed consistently with such intent;
(f) the Stock Option Plan and the Novamind RSU Plan shall be terminated; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain of the procedures related thereto may are not be completed until after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, each of the following shall occur events 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 formalityformality to the Purchaser (free and clear of all Liens) in consideration for a debt claim against the Purchaser for an amount determined under Article 4, and:
(ai) such Dissenting Shareholders will cease to be the holder of such Company Shares and to have any rights as holders of such Company Shares other than the right to be paid fair value for such Company Shares as set out in Section 3.2(d);
(ii) such Dissenting Shareholders' name(s) will be removed as the holders of such Company Shares from the registers of Company Shares maintained by or on behalf of the Company; and
(iii) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall Purchaser will be deemed to be cancelled for no considerationthe transferee of such Company Shares free and clear of all Liens, and will be entered in the register of Company Shares maintained by or on behalf of the Company;
(bd) five minutes after each Company Share outstanding immediately prior to the steps contemplated Effective Time, other than Company Shares held by a Dissenting Shareholder who validly exercised such holder's Dissent Right in Section 2.3(a)respect of such Company Shares, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any a holder of such Orko OptionsCompany Shares, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, assigned and transferred by the holder thereof to the Purchaser (free and clear of all Liens) in exchange for the Consideration for each Company Share held, and:
(i) each Former Company Shareholder will cease to be the a holder of such Orko Option, Company Shares and will cease to have any rights as a holder in respect holders of such Orko OptionCompany Shares, such holder other than the right to be paid the Consideration in accordance with this Plan of Arrangement;
(ii) each Former Company Shareholder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelledCompany Shares maintained by or on behalf of the Company; and
(eiii) the Orko Stock Option Plan shall Purchaser will be terminated;
(f) five minutes after deemed to be the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect transferee of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic Company Shares (free and clear of any liens, charges all Liens) and encumbrances of any nature whatsoever) will be entered 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as Company Shares maintained by or on behalf of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateCompany.
Appears in 1 contract
Arrangement. Commencing at (i) The Arrangement and the Effective Time, entry into of the following shall occur and shall be deemed Arrangement Agreement by the Corporation has been authorized by all necessary corporate action on the part of the Corporation.
(ii) To the knowledge of the Corporation there are no facts or circumstances that would cause it to occur believe that the transactions contemplated under the heading “Recent Developments” in the following order without any further act Prospectus Supplement will not close on or formality:
(a) before the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated Escrow Release Deadline substantially in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or accordance with the terms of the Orko Stock Option Plan):Arrangement Agreement and the disclosure set forth in the Prospectus Supplement.
(ciii) The representations and warranties of the outstanding Orko Options willCorporation in the Arrangement Agreement are true and correct in all material respects, without any further action or in all respects if already qualified by or on behalf of any holder of such Orko Optionsmateriality, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;date hereof, unless such a representation or warranty was provided as of a particular date, in which case it shall have been true and correct in all material respects, or in all respects if already qualified by materiality, as of such date.
(jiv) To 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 Orko Share; and
(k) First Majestic will be the holder of all knowledge of the outstanding Orko Shares Corporation, the representations and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration warranties of the issue Acquired Corporation provided in the Arrangement Agreement are true and correct in all material respects, or in all respects if already qualified by Subco to First Majestic of one Subco Share for each Orko Share so transferredmateriality, and the amount added to the stated capital as of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 date hereof, unless such a representation or warranty was provided as of a particular date, in which case it shall have been true and correct in all rights material respects, or in all respects if already qualified by materiality, as of creditors or others will be unimpaired by such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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;date.
(v) The Arrangement Agreement has not been terminated or amended nor have any terms and conditions thereof been waived, in each case in a conviction againstmanner that would be materially adverse to the terms and conditions upon which the Corporation or the Acquired Corporation is effecting the Arrangement.
(vi) The Arrangement Agreement is a valid and subsisting agreement in full force and effect, enforceable in accordance with its terms except where enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity where equitable remedies are sought.
(vii) There are no Legal Proceedings in existence to which the 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 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 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 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 obligated to waive any conditions to closing for its benefit under the Arrangement Agreement, or rulingotherwise perform or cause to 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, order 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 judgment in favour of or against either Orko or Subco such other officers as 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 acceptable to R▇▇▇ acting reasonably), in the authorised share structure of Amalco in exchange for each Subco Share previously held form and all of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised content satisfactory to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 R▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and
(cc) , acting reasonably, with respect to the stated capital satisfaction or waiver of all conditions precedent to closing of the common shares of Amalco will be an amount equal Arrangement pursuant to the paid-up capital, as that term is defined in Arrangement Agreement other than the ITA, attributable to final condition precedent of payment of the Subco Shares immediately prior to purchase price for the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateArrangement thereunder.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, each of the following transactions or events set out below shall occur and shall be deemed to occur in the following order sequence, in each case, without any further authorizations, act or formalityformality on the part of any Person, effective as at two-minute intervals starting at the Effective Time:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder Company Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willhave transferred, without any further action act or formality by or on behalf of any Dissenting Holder, to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3, and:
(i) such Dissenting Holder shall cease to be the holder of such Orko OptionsCompany Shares and to have any rights as a Company Shareholder other than the right to be paid fair value for such Company Shares, as set out in Section 3.1;
(ii) such Dissenting Holder’s name shall be removed as the holder of Company Shares from the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be cancelled without the transferee of such Company Shares, free and clear of all Liens (other than the right to be paid fair value for such Company Shares as set out in Section 3.1), and shall be entered into the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(b) each Company Out-Of-The Money Option outstanding immediately prior to the Effective Time (whether vested or unvested) held by a Company Optionholder shall be exchanged for a Replacement Option (the “Option Exchange”) to acquire from the Purchaser, such number of Purchaser Shares as is equal to the product of: (A) the number of Company Shares subject to such Company Out-Of-The Money Option immediately prior to the Effective Time; multiplied by (B) the Exchange Ratio, provided that, if the foregoing would result in the issuance of a fraction of a Purchaser Share on any compensation thereforparticular exercise of Replacement Options by a Company Optionholder, then the number of Purchaser Shares otherwise issued shall be rounded down to the nearest whole number of Purchaser Shares, and:
(i) the exercise price per Purchaser Share subject to a Replacement Option shall be an amount equal to the product of: (A) the exercise price per Company Share subject to each such Company Out-Of-The-Money Option immediately before the Effective Time; divided by (B) the Exchange Ratio, rounded up to the nearest whole cent, provided that the exercise price per Purchaser Share subject to a Replacement Option held by a Company Optionholder shall be and be deemed to be automatically adjusted in any case where the Company Optionholder’s Replacement Options have an aggregate Replacement Option In-The-Money Amount to reduce such Replacement Option In-The-Money Amount to nil, with the intention that that subsection 7(1.4) of the Tax Act will apply to each Option Exchange;
(dii) each such Replacement Option shall have the same terms and conditions with respect to each Orko expiry date and otherwise as were applicable in respect of such Company Out-Of-The-Money Option, except that each Replacement Option shall be fully vested and no services shall be required from any holder of Replacement Options to continue to hold or exercise any Replacement Option; and
(iii) the holder thereof Company Optionholder will cease to be the holder of such Orko Company Out-Of- The-Money Option, will cease to have any rights as a holder in respect of such Orko Company Out-Of-The-Money Option, such holder will be removed from the applicable register of Orko the Company Options, and all option agreements, grants and similar instruments Award Agreements relating thereto will be cancelled, and none of the Company, Trichome or the Purchaser shall have any further liabilities or obligations with respect thereto;
(c) each Company In-The-Money Option (whether vested or unvested) held by a Company Optionholder will be surrendered to the Company and cancelled in exchange for:
(i) a number of Company Shares (including for greater certainty, fractional Company Shares) having a Fair Market Value equal to the aggregate In-The-Money Amount of the Company Optionholder’s Company In-The-Money Options and the Company Shares will be deemed to be issued to such Company Optionholder at an issue price equal to the Fair Market Value thereof as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares; and
(eii) the Orko Stock Company Optionholder will cease to be the holder of such Company In-The- Money Option, will cease to have any rights as a holder in respect of such Company In-The-Money Option, will be removed from the applicable register of the Company Options, and all Award Agreements relating thereto will be cancelled, and none of the Company, Trichome or the Purchaser shall have any further liabilities or obligations with respect thereto;
(d) the Company Option Plan shall be terminated, and none of the Company, Trichome or the Purchaser shall have any further liabilities or obligations thereunder;
(e) each Company Out-Of-The Money Warrant outstanding immediately prior to the Effective Time held by a Company Warrantholder shall be exchanged for a Replacement Warrant to acquire from the Purchaser, the number of Purchaser Shares equal to the product of: (A) the number of Company Shares subject to such Company Out-Of-The Money Warrant immediately prior to the Effective Time; multiplied by (B) the Exchange Ratio, provided that, if the foregoing would result in the issuance of a fraction of a Purchaser Share on any particular exercise of Replacement Warrant by a Company Warrantholder, then the number of Purchaser Shares otherwise issued shall be rounded down to the nearest whole number of Purchaser Shares, and:
(i) the exercise price per Purchaser Share subject to a Replacement Warrant shall be an amount equal to the product of: (A) the exercise price per Company Share subject to each such Company Out-Of-The Money Warrant immediately before the Effective Time; divided by (B) the Exchange Ratio, rounded up to the nearest whole cent;
(ii) each such Replacement Warrant shall be on the same terms as the Company Warrant it is replacing; and
(iii) the Company Warrantholder will cease to be the holder of such Company Out-Of- The-Money Warrant, will cease to have any rights as a holder in respect of such Company Out-Of-The-Money Warrant, will be removed from the applicable register of the Company Warrants, and all agreements relating thereto will be cancelled, and none of the Company, Trichome or the Purchaser shall have any further liabilities or obligations with respect thereto;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share Company In-The-Money Warrant held by a Dissenting Shareholder Company Warrantholder will be surrendered to the Company and cancelled in exchange for:
(i) a number of Company Shares (including for greater certainty, fractional Company Shares), having a Fair Market Value equal to the aggregate In-The-Money Amount of the Company Warrantholder’s Company In-The-Money Warrants, and the Company Shares will be deemed to be issued to such Company Warrantholder at an issue price equal to the Fair Market Value thereof as fully paid and non- assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares; and
(ii) the Company Warrantholder will cease to be the holder of such Company In-The- Money Warrant, will cease to have any rights as a holder in respect of which such Company In-The-Money Warrant, will be removed from the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear applicable register of any liens, charges and encumbrances of any nature whatsoever) in accordance withthe Company Warrants, and for all agreements relating thereto will be cancelled, and none of the consideration set forth inCompany, Section 3.1Trichome or the Purchaser shall have any further liabilities or obligations with respect thereto;
(g) five minutes after each Company Exchangeable Share outstanding immediately prior to the steps contemplated in Section 2.3(c), each Orko Share (other than any Orko Share Effective Time held by any Dissenting Shareholder) a Company Exchangeable Shareholder shall be deemed to be transferred to First Majestic (free and clear of any liensexchanged, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):the terms of the Company Exchangeable Shares, for a Company Share; and
(i) the registered holder thereof each Company Exchangeable Shareholder shall cease to be the registered holder of such Orko Share and Company Exchangeable Shares, will cease to have any rights as a holder in respect of such Company Exchangeable Shares;
(ii) the name of each such registered holder Company Exchangeable Shareholder shall be removed from the register of Orko the Company Exchangeable Shareholders as maintained by or on behalf of the Effective Time;MYM International Brands Inc.; and
(jiii) the registered holder thereof Company shall be deemed to be the transferee of such Company Exchangeable Shares, free and clear of all Liens, and shall be entered in the register of Company Exchangeable Shareholders maintained by or on behalf of MYM International Brands Inc.;
(h) each Company Share (other than Company Shares held by a Dissenting Holder in respect of which Dissent Rights have executed been validly exercised under Section (a)) held by a Company Shareholder shall be assigned and delivered all consentstransferred by the Company Shareholder to the Purchaser and in consideration therefor, releasesthe Purchaser will issue, assignments and waiversfor an issue price equal to the Fair Market Value thereof, statutory or otherwise, required that number of fully paid Purchaser Shares equal to transfer and assign such Orko Sharethe Exchange Ratio; and
(ki) First Majestic will each Company Shareholder shall cease to be the holder of all such Company Shares, will cease to have any rights as a holder in respect of such Company Shares, other than the outstanding Orko Shares and right to be paid the register Consideration per Company Share in accordance with this Plan of Orko Shareholders shall be revised accordinglyArrangement;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xii) the name of Amalco each such Company Shareholder shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) removed from the articles and notice of articles of Amalco shall be substantially in the form register of the articles and notice Company Shareholders maintained by or on behalf 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Company; and
(cciii) the stated capital Purchaser shall be deemed to be the transferee of such Company Shares, free and clear of all Liens, and shall be entered in the register of Company Shareholders maintained by or on behalf of the common shares Company;
(i) the Purchaser shall sell all of Amalco the Company Shares to Trichome in exchange for ◼ Trichome Shares, and
(i) the Purchaser shall cease to be the holder of such Company Shares and will cease to have any rights as a holder in respect of such Company Shares;
(ii) the name of the Purchaser shall be an amount equal to removed from the paid-up capital, as that term is defined in register of the ITA, attributable to Company Shareholders maintained by or on behalf of the Subco Shares immediately prior to the amalgamationCompany; and
(ddiii) the exchanges and cancellations provided for in this Section 2.3 will Trichome shall be deemed to occur be the transferee of such Company Shares, free and clear of all Liens, and shall be entered in the register of Company Shareholders maintained by or on behalf of the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective DateCompany.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) each Tahoe PSA outstanding immediately prior to the Shareholder Rights Effective Time 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 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 Tahoe: provided that no share certificates shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed issued with respect to be cancelled for no considerationsuch shares;
(b) five minutes after each Tahoe RSA outstanding immediately prior to the steps contemplated Effective Time that is held by a Tahoe RSA Holder shall immediately vest in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or accordance with the terms of the Orko Stock Option Tahoe Long Term Incentive Plan):;
(c) each Tahoe DSA outstanding immediately prior to the outstanding Orko Options will, without Effective Time 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 Tahoe: provided that no share certificates shall be issued with respect to such Orko Options, be deemed to be cancelled without any compensation thereforshares;
(d) with each Tahoe SAR outstanding immediately prior to the Effective Time that is held by a Tahoe SAR Holder and all rights in respect thereof shall be cancelled and terminated without any payment in respect thereof;
(e) each Dissenting Shareholder shall transfer to each Orko OptionPan American all of the Dissent Shares held, without any further act or formality on its part, and in consideration therefor, Pan American shall issue to the holder thereof will 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 transferred
(i) the Dissenting Shareholder shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; andthereof,
(eii) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders as Tahoe in respect of the Effective Time;Tahoe Shares,
(jiii) the registered holder thereof Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer and assign such Orko Sharethereof, 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
(kf) First Majestic will 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 Shareholder under Section 3.1(e), but including, for greater certainty, any Tahoe Shares held or issued pursuant to Section 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 Cash Consideration, or
(ii) in the 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 Tahoe Shares so transferred
(iii) the Tahoe Shareholder shall cease to be the holder of all thereof,
(iv) the name of the outstanding Orko Shares and Tahoe Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders Tahoe in respect of the Tahoe Shares,
(v) the Tahoe Shareholder shall be revised accordinglydeemed to have executed and delivered all consents, 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 register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof;
(lg) five minutes 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 number of Tahoe Shares that were issuable upon exercise of such Tahoe Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number of Pan American Shares, at an exercise price per Pan American Share equal to the quotient determined by dividing: (X) the exercise price per Tahoe Share at which such Tahoe Option was exercisable immediately prior to the 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 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 steps contemplated 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;
(h) each Tahoe Share held by Pan American, including the Tahoe Shares acquired pursuant to Section 2.3(d3.1(f) and (e)hereof, each outstanding Orko Share will shall be transferred to Subco and in consideration therefor Subco shall issue to Pan American one fully paid and non- assessable common share of the issue by Subco to First Majestic of one Subco Share for each Orko Tahoe Share so transferred, and
(i) the name of Pan American shall be removed from the central securities register as a holder of Tahoe Shares;
(ii) Subco shall be recorded as the registered holder of the Tahoe Shares so transferred and shall be deemed to be the legal and beneficial owner of such Tahoe Shares; and
(iii) the amount added to the stated capital of the Subco Shares common shares will be equal to the lesser of (A) the paid up capital (as such term is defined in the Tax Act) of the Tahoe Shares so transferred and (B) the fair market value of the Orko Tahoe Shares so transferred;
(mi) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Tahoe Shares shall be reduced to an aggregate of $US$1.00 without any repayment of capital in respect thereof;
(nj) five minutes after the steps contemplated in Section 2.3(f) and (g), Orko Tahoe and Subco shall merge (the “Merger”) to form one corporate entity (the “AmalcoMerged Company”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Act, BCBCA except that the separate legal existence of Orko Subco shall not cease and Orko Subco shall survive the merger as Amalcomerger, 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 Tahoe Shares will be cancelled without any repayment of capital in respect thereof;
(ok) without limiting the generality of Section 2.3(h3.1(j), the separate legal existence of Subco Tahoe shall cease without Subco Tahoe being liquidated or wound up and Orko up; Tahoe and Subco shall will continue as one company company; and the property properties and liabilities of Subco shall Tahoe will become the property properties and liabilities of Amalco;Subco; and
(pl) from and after the Effective Date, at the time of the step contemplated in Section 2.3(h3.1(j):
(qi) Amalco Subco as the Merged Company will own and hold the all property of Orko Subco and Subco will own and hold all property of Tahoe and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamationmerger, and all liabilities and obligations of Orko Tahoe and Subco, whether arising by contract or otherwise, may be enforced against Amalco Subco to the same extent as if such obligations had been incurred or contracted by it;
(rii) Amalco Subco as the Merged Company will continue to be liable for all of the liabilities and obligations of Orko Tahoe and Subco;
(siii) all rights, contracts, permits and interests of Orko Tahoe and Subco will continue as rights, contracts, permits and interests of Amalco Subco as the Merged Company as if Orko Tahoe and Subco continued and, for greater certainty, the amalgamation merger will not constitute a transfer or assignment of the rights or obligations of either of Orko Tahoe or Subco under any such rights, contracts, permits and interests;
(tiv) any existing cause of action, claim or liability to prosecution will be unaffected;
(uv) a civil, criminal or administrative action or proceeding pending by or against either Orko Subco or Subco Tahoe may be continued by or against Amalcothe Merged Company;
(vvi) a conviction against, or ruling, order or judgment in favour of or against either Orko Subco or Subco Tahoe may be enforced by or against Amalcothe Merged Company;
(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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xvii) the name of Amalco the Merged Company shall be “Orko Silver Corp.”in the name of Subco;
(yviii) Amalco the Merged Company shall be authorised authorized to issue an unlimited number of common shares without par value;
(zix) the articles Notice of Articles and notice Articles of articles of Amalco the Merged Company shall be substantially in the form of the articles Subco Notice of Articles and notice of articles of OrkoArticles;
(aax) the first annual general meeting of Amalco or resolutions in lieu thereof shall the Merged Company will be held within 18 months from the Effective Date;
(bbxi) the registered office of the Merged Company shall be the registered office of Subco;
(xii) the first directors of Amalco the Merged Company following the amalgamation Merger shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; andthe individuals who were directors of Subco immediately prior to the Effective Time;
(ccxiii) the stated first officers of the Merged Company following the Merger shall be the individuals, if any, who were officers of Subco immediately prior to the Effective Time;
(xiv) the aggregate capital of the common shares of Amalco the Merged Company will be an amount equal to the paid-paid up capital, as that term is defined in the ITATax Act, attributable to the shares of Subco Shares immediately prior to the amalgamationMerger; and
(ddxv) the exchanges and cancellations 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 2.3 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
Arrangement. Commencing at the Effective Time, the The following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality:
(a) at the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)Effective Time, notwithstanding any vesting or exercise provisions to which an Orko a DRAXIS Option might otherwise be subject (whether by contract, the conditions of a grant, applicable law Applicable Law or the terms of the Orko DRAXIS Stock Option PlanPlans):
(ci) each DRAXIS Option issued and outstanding at the outstanding Orko Options willtime referred to in this Section 2.3(a) shall, without any further action by or on behalf of any holder of such Orko OptionsDRAXIS Option, be deemed to be fully vested and transferred by the holder thereof to DRAXIS (free and clear of any Liens) and cancelled without any compensation thereforin exchange for a cash amount equal to the Option Consideration;
(dii) with respect to each Orko DRAXIS Option, the holder thereof will cease to be the holder of such Orko DRAXIS Option, will cease to have any rights as a holder in respect of such Orko OptionDRAXIS Option or under the DRAXIS Stock Option Plans, such holder will holder’s name shall be removed from the register of Orko DRAXIS Options, and all option agreements, grants and similar instruments relating thereto will shall be cancelled; and
(eiii) the Orko 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 at the time referred to in this Section 2.3(b) shall, without any further action by or on behalf of any holder of such DSU, be deemed to be fully vested and transferred by the holder thereof to DRAXIS (free and clear of all Liens) and cancelled in exchange for a cash amount equal to the Consideration;
(ii) with respect to each DSU, the holder thereof will cease to be the holder of such DSU, will cease to have any rights as a holder in respect of such DSU or under the Deferred Share Unit Plan, such holder’s name shall be removed from the register of DSUs, and all agreements, grants and similar instruments relating thereto shall be cancelled;
(iii) the Deferred Share Unit Plan shall be terminated;
(fc) five at 10 minutes after following the steps contemplated in Effective Time, DSPI will make a payment to DRAXIS to reimburse DRAXIS for the payments made by DRAXIS pursuant to Section 2.3(b)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 Orko Share held by a Dissenting Shareholder of DSPI and 427 Canco will reduce the stated capital accounts maintained in respect of which the Orko Shareholder has validly exercised hiseach class of shares of each of DSPI and 427 Canco to $1, her respectively, without any distribution of assets or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1property therefor;
(gf) five at 25 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of following the Effective Time;
(j) the registered holder thereof shall be deemed to have executed , DRAXIS, DSPI and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic 427 Canco will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 Amalgamate to form one corporate entity (“Amalco”) DHI Amalco with the same effect as if they had amalgamated under Section 269 186 of the Business Corporations ActCBCA were applicable to the amalgamation, and in connection with the amalgamation:
(i) each 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 that the legal existence those owing between such amalgamating entities) of Orko shall not cease each of DRAXIS, DSPI and Orko shall survive the merger as 427 Canco and all contracts of each of DRAXIS, DSPI and 427 Canco will become those of DHI Amalco;
(o) without limiting the generality of Section 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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;
(viv) a conviction against, or ruling, order or judgment in favour of or against either Orko DRAXIS, DSPI or Subco 427 Canco may be enforced by or against DHI Amalco;
(wv) First Majestic as the holder Articles of Arrangement will be deemed to be the Subco Shares 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 receive 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 amalgamation one 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 share shares and an unlimited number of preferred shares, issuable in the authorised share structure of Amalco in exchange for each Subco Share previously held and all of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereofseries;
(x) the name rights, privileges, restrictions and conditions attaching to each class of shares of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) as set forth in the articles and notice of articles amalgamation of Amalco shall be substantially DRAXIS 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 effect immediately prior to the Effective Date;
(bbxi) the first number of directors of DHI Amalco shall be such number, 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 amalgamation Effective Time:
(i) all DRAXIS Shares held by the Dissenting Shareholders in respect of which such Dissenting Shareholders have exercised Dissent Rights and have not withdrawn their notice of 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 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 by the holder thereof to the Purchaser (free and clear of any Liens) in exchange for a cash amount equal to the 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 DRAXIS Share and will be deemed to be the legal and beneficial owner of such DRAXIS Share free of any Liens, and the former holder and beneficial holder of such DRAXIS Shares will cease to have any rights as a shareholder in respect of such DRAXIS Shares and any other securities of DRAXIS, DHI Amalco or its subsidiaries; and
(iii) all of the directors of DHI Amalco shall resign, the number of the directors of DHI Amalco shall be fixed at four and Shyam ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be the directors of DHI Amalco to hold office until the next annual meeting of DHI Amalco or until their successors are elected or appointed; and
(cc) the stated capital provided that none of the common shares of Amalco foregoing will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 occur or will be deemed to occur on unless all of the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateforegoing occurs.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) each Alexco In-the-Money Option outstanding immediately prior to the Shareholder Rights Plan Effective Time (whether vested or unvested) shall be cancelled immediately and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)unconditionally vest, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Alexco Option Plan):
(c) the outstanding Orko Options willPlan and shall, without any further action by or on behalf of any holder of such Orko OptionsAlexco Optionholder, be deemed to be assigned and transferred by such Alexco Optionholder (free and clear of all Liens) to Alexco for cancellation in exchange for the Option Consideration. The Alexco Shares comprising the Option Consideration will be issued to such Alexco Optionholder as fully paid and non-assessable shares in the capital of Alexco;
(b) each Alexco Out-of-the-Money Option outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any Alexco Optionholder, be cancelled without any compensation thereforpayment in respect thereof;
(i) each Alexco Optionholder shall cease to be a holder of such Alexco Options, (ii) each 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 the Alexco DSU Holder thereof, be 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 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;
(e) each Orko OptionAlexco DSU Holder shall cease to be a holder of such Alexco DSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco DSUs shall be terminated and shall be of no further force and effect;
(f) each Alexco RSU 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 the Alexco RSU Holder thereof, be deemed to be assigned and transferred by such Alexco RSU Holder to Alexco (free and clear of all Liens) in exchange for the number of Alexco Shares equal to the number of Alexco Shares a holder thereof is entitled to under each Alexco RSU 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 capital of Alexco; provided that no share certificates shall be issued with respect to such shares;
(i) each Alexco RSU Holder shall cease to be a holder of such Alexco RSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco RSUs shall be terminated and shall be of no further force and effect;
(h) each Dissenting Shareholder shall transfer to Hecla all of the Dissent Shares held (free and clear of all Liens), without any further act or formality on its part, and 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 transferred
(i) the Dissenting Shareholder shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; andthereof,
(eii) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders as Alexco in respect of the Effective Time;Alexco Shares,
(jiii) the registered holder thereof Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer and assign such Orko Sharethereof, and
(iv) the name of Hecla shall be added to the register maintained by or on behalf of Alexco in respect of the Alexco Shares as the holder thereof; and
(ki) First Majestic will 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 3.1(d) or Section 3.1(f) in exchange for the Consideration for each Alexco Share held, and
(i) the Alexco Shareholder shall cease to be the holder of all thereof,
(ii) the name of the outstanding Orko Shares and Alexco Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital Alexco in respect of the Orko Shares Alexco Shares,
(iii) the Alexco Shareholder shall be reduced deemed 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) have executed and (g)delivered all consents, Orko releases, assignments and Subco shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Actwaivers, 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract statutory or otherwise, may be enforced against Amalco required to effect the same extent as if such obligations had been incurred or contracted by it;transfer thereof, and
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xiv) the name of Amalco Hecla shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised added to issue an unlimited number the register maintained by or on behalf of common shares without par value;
(z) the articles and notice of articles of Amalco shall be substantially Alexco in the form respect of the articles and notice of articles of Orko;
(aa) Alexco Shares as the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from holder thereof; it being expressly provided that 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations events provided for in this Section 2.3 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
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) each Tahoe PSA outstanding immediately prior to the Shareholder Rights Effective Time 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 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 Tahoe: provided that no share certificates shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed issued with respect to be cancelled for no considerationsuch shares;
(b) five minutes after each Tahoe RSA outstanding immediately prior to the steps contemplated Effective Time that is held by a Tahoe RSA Holder shall immediately vest in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or accordance with the terms of the Orko Stock Option Tahoe Long Term Incentive Plan):;
(c) each Tahoe DSA outstanding immediately prior to the outstanding Orko Options will, without Effective Time 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 Tahoe: provided that no share certificates shall be issued with respect to such Orko Options, be deemed to be cancelled without any compensation thereforshares;
(d) with each Tahoe SAR outstanding immediately prior to the Effective Time that is held by a Tahoe SAR Holder and all rights in respect thereof shall be cancelled and terminated without any payment in respect thereof;
(e) each Dissenting Shareholder shall transfer to each Orko OptionPan American all of the Dissent Shares held, without any further act or formality on its part, and in consideration therefor, Pan American shall issue to the holder thereof will 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 transferred
(i) the Dissenting Shareholder shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; andthereof,
(eii) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders as Tahoe in respect of the Effective Time;Tahoe Shares,
(jiii) the registered holder thereof Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer and assign such Orko Sharethereof, 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
(kf) First Majestic will 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 Shareholder under Section 3.1(e), but including, for greater certainty, any Tahoe Shares held or issued pursuant to Section 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 Cash Consideration, or
(ii) in the 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 Tahoe Shares so transferred
(iii) the Tahoe Shareholder shall cease to be the holder of all thereof,
(iv) the name of the outstanding Orko Shares and Tahoe Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders Tahoe in respect of the Tahoe Shares,
(v) the Tahoe Shareholder shall be revised accordinglydeemed to have executed and delivered all consents, 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 register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof;
(lg) five minutes 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 number of Tahoe Shares that were issuable upon exercise of such Tahoe Option immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number of Pan American Shares, at an exercise price per Pan American Share equal to the quotient determined by dividing: (X) the exercise price per Tahoe Share at which such Tahoe Option was exercisable immediately prior to the 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 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 steps contemplated 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;
(h) each Tahoe Share held by Pan American, including the Tahoe Shares acquired pursuant to Section 2.3(d3.1(f) and (e)hereof, each outstanding Orko Share will shall be transferred to Subco and in consideration therefor Subco shall issue to Pan American one fully paid and non-assessable common share of the issue by Subco to First Majestic of one Subco Share for each Orko Tahoe Share so transferred, and
(i) the name of Pan American shall be removed from the central securities register as a holder of Tahoe Shares;
(ii) Subco shall be recorded as the registered holder of the Tahoe Shares so transferred and shall be deemed to be the legal and beneficial owner of such Tahoe Shares; and
(iii) the amount added to the stated capital of the Subco Shares common shares will be equal to the lesser of (A) the paid up capital (as such term is defined in the Tax Act) of the Tahoe Shares so transferred and (B) the fair market value of the Orko Tahoe Shares so transferred;
(mi) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Tahoe Shares shall be reduced to an aggregate of $US$1.00 without any repayment of capital in respect thereof;
(nj) five minutes after the steps contemplated in Section 2.3(f) and (g), Orko Tahoe and Subco shall merge (the “Merger”) to form one corporate entity (the “AmalcoMerged Company”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Act, BCBCA except that the separate legal existence of Orko Subco shall not cease and Orko Subco shall survive the merger as Amalcomerger, 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 Tahoe Shares will be cancelled without any repayment of capital in respect thereof;
(ok) without limiting the generality of Section 2.3(h3.1(j), the separate legal existence of Subco Tahoe shall cease without Subco Tahoe being liquidated or wound up and Orko up; Tahoe and Subco shall will continue as one company company; and the property properties and liabilities of Subco shall Tahoe will become the property properties and liabilities of Amalco;Subco; and
(pl) from and after the Effective Date, at the time of the step contemplated in Section 2.3(h3.1(j):
(qi) Amalco Subco as the Merged Company will own and hold the all property of Orko Subco and Subco will own and hold all property of Tahoe and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamationmerger, and all liabilities and obligations of Orko Tahoe and Subco, whether arising by contract or otherwise, may be enforced against Amalco Subco to the same extent as if such obligations had been incurred or contracted by it;
(rii) Amalco Subco as the Merged Company will continue to be liable for all of the liabilities and obligations of Orko Tahoe and Subco;
(siii) all rights, contracts, permits and interests of Orko Tahoe and Subco will continue as rights, contracts, permits and interests of Amalco Subco as the Merged Company as if Orko Tahoe and Subco continued and, for greater certainty, the amalgamation merger will not constitute a transfer or assignment of the rights or obligations of either of Orko Tahoe or Subco under any such rights, contracts, permits and interests;
(tiv) any existing cause of action, claim or liability to prosecution will be unaffected;
(uv) a civil, criminal or administrative action or proceeding pending by or against either Orko Subco or Subco Tahoe may be continued by or against Amalcothe Merged Company;
(vvi) a conviction against, or ruling, order or judgment in favour of or against either Orko Subco or Subco Tahoe may be enforced by or against Amalcothe Merged Company;
(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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xvii) the name of Amalco the Merged Company shall be “Orko Silver Corp.”in the name of Subco;
(yviii) Amalco the Merged Company shall be authorised authorized to issue an unlimited number of common shares without par value;
(zix) the articles Notice of Articles and notice Articles of articles of Amalco the Merged Company shall be substantially in the form of the articles Subco Notice of Articles and notice of articles of OrkoArticles;
(aax) the first annual general meeting of Amalco or resolutions in lieu thereof shall the Merged Company will be held within 18 months from the Effective Date;
(bbxi) the registered office of the Merged Company shall be the registered office of Subco;
(xii) the first directors of Amalco the Merged Company following the amalgamation Merger shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; andthe individuals who were directors of Subco immediately prior to the Effective Time;
(ccxiii) the stated first officers of the Merged Company following the Merger shall be the individuals, if any, who were officers of Subco immediately prior to the Effective Time;
(xiv) the aggregate capital of the common shares of Amalco the Merged Company will be an amount equal to the paid-paid up capital, as that term is defined in the ITATax Act, attributable to the shares of Subco Shares immediately prior to the amalgamationMerger; and
(ddxv) the exchanges and cancellations 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 2.3 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
Arrangement. Commencing at the Effective Time, each of the following events shall occur and shall be deemed to occur consecutively in the following order order, except where noted, without any further authorization, act or formality, with each such step occurring one minute after the completion of the immediately preceding step:
(a) The Declaration of Trust and the Shareholder articles, partnership agreements or other constating document of each REIT Subsidiary shall be amended, and deemed to be amended, to the extent necessary to facilitate the Arrangement and the implementation of the steps and transactions described herein;
(b) All URP Rights issued pursuant to the Rights Plan shall be cancelled and without any payment in respect thereof, the Rights Plan shall terminate with the result that it will no longer have no further any force or effect effect, and each thereafter no person will have any further liability or obligation to the former holders of URP Rights under such Rights Plan and the former holders of URP Rights will permanently cease to have any rights thereunder whatsoever under such Rights Plan;
(c) Each Unit Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated unconditionally and fully vested and exercisable in Section 2.3(a)accordance with its terms, notwithstanding any vesting or exercise provisions to which an Orko and each such Unit Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willshall, without any further action by or on behalf of any a holder of such Orko Unit Options, be deemed to be cancelled without any compensation therefor;
surrendered and transferred by such holder to the REIT in exchange for a cash payment from the REIT equal to the amount (dif any) with respect to each Orko Option, by which the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder Consideration in respect of each REIT Unit underlying each Unit Option exceeds the exercise price of such Orko Unit Option, such holder will be removed from in each case (the register of Orko Options“Unit Option Payment”), less applicable withholdings, and all option agreements, grants and similar instruments relating thereto will each Unit Option shall immediately be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 cancelled and, for greater certainty, where such amount is zero or negative, no Unit Option Payment will be payable to the amalgamation will not constitute a transfer or assignment holder of the rights or obligations of either of Orko or Subco under any such rights, contracts, permits and interestsUnit Option;
(td) If any existing cause Unpaid Permitted Distribution exists as of actionthe Effective Time:
(i) the additional Deferred Units that would, claim or liability under the terms of the Deferred Unit Plan (as if the Effective Date were the payment date for such Unpaid Permitted Distribution), be credited to prosecution will a Deferred Unit holder’s account on the payment date of such Unpaid Permitted Distribution, shall be unaffecteddeemed to be credited to such holder’s account;
(uii) a civilthe additional Restricted Units that would, 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 under the holder terms of the Subco Shares shall receive Restricted Unit Plan (as if the Effective Date were the payment date for such Unpaid Permitted Distribution), be credited to a Restricted Unit holder’s account on the amalgamation one common share in the authorised share structure payment date of Amalco in exchange for each Subco Share previously held and all of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco such Unpaid Permitted Distribution, shall be “Orko Silver Corp.”;
(y) Amalco shall deemed to be authorised credited to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇such holder’s account; and
(cciii) the stated capital additional Performance Units that would, under the terms of the common shares Restricted Unit Plan (as if the Effective Date were the payment date for such Unpaid Permitted Distribution), be credited to a Performance Unit holder’s account on the scheduled payment date of Amalco will such Unpaid Permitted Distribution, shall be deemed to be credited to such holder’s account.
(e) Each Deferred Unit outstanding immediately following the preceding step (including Deferred Units deemed to be issued pursuant to Section 3.1(d)(i) above) shall, without any further action by or on behalf of a holder of Deferred Units, be cancelled in exchange for a cash payment from the REIT of an amount equal to the paid-up capitalConsideration (the “Deferred Unit Payment”), less applicable withholdings, all in full satisfaction of the obligations of the REIT in respect of the Deferred Units;
(f) Each Restricted Unit outstanding immediately following the preceding step (including Restricted Units deemed to be issued pursuant to Section 3.1(d)(ii) above), whether vested or unvested, shall be deemed to be unconditionally and fully vested, and each such Restricted Unit shall, without any further action by or on behalf of a holder of Restricted Units, be cancelled in exchange for a cash payment from the REIT of an amount equal to the Consideration (the “Restricted
(g) All Performance Units outstanding immediately following the preceding step (including Performance Units deemed to be issued pursuant to Section 3.1(d)(iii) above), whether vested or unvested, shall be deemed to be unconditionally and fully vested based on the applicable Performance Factor (calculated in accordance with the terms of the Performance Unit Plan as if the Effective Date were the vesting date of such Performance Units), and each such Performance Unit (including additional Performance Units that vest as a result of the application of the applicable Performance Factor) shall, without any further action by or on behalf of a holder of Performance Units, be cancelled in exchange for a cash payment from the REIT of an amount equal to the Consideration (the “Performance Unit Payment”), less applicable withholdings, all in full satisfaction of the obligations of the REIT in respect of the Performance Units;
(i) Each holder of a Unit Option, each holder of a Deferred Unit, each holder of a Restricted Unit and each holder of a Performance Unit shall cease to be a holder of such Unit Option, such Deferred Unit, such Restricted Unit or such Performance Unit, as that term is defined the case may be, (ii) each such holder’s name shall be removed from each applicable register, (iii) the Unit Option Plan, the Deferred Unit Plan, the Restricted Unit Plan and any and all agreements, arrangements and understandings relating to any and all of the Unit Options, the Deferred Units, the Restricted Units and the Performance Unit shall be terminated and shall be of no further force and effect, and (iv) each such holder shall thereafter have only the right to receive the Unit Option Payment, Deferred Unit Payment, Restricted Unit Payment or Performance Unit Payment to which they are entitled pursuant to Sections 3.1(c), 3.1(e), 3.1(f) and 3.1(g), as applicable, at the time and in the ITAmanner specified therein and contemplated hereby;
(i) The REIT shall pay out, attributable to as a special distribution on the Subco Shares immediately REIT Units, the amount, if any, that is determined by it prior to the amalgamation; and
(dd) Effective Time to be equal to its bona fide best estimate of the exchanges and cancellations provided amount, if any, of its taxable income for in this Section 2.3 will be deemed to occur the taxation year of the REIT that ends on the Effective Date, notwithstanding certain procedures related thereto may not Date (such amount to be completed until after reduced to take into account any deductions under subsection 104(6) of the Effective Date.Tax Act in respect of prior distributions during that period);
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) each Alexco In-the-Money Option outstanding immediately prior to the Shareholder Rights Plan Effective Time (whether vested or unvested) shall be cancelled immediately and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)unconditionally vest, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Alexco Option Plan):
(c) the outstanding Orko Options willPlan and shall, without any further action by or on behalf of any holder of such Orko OptionsAlexco Optionholder, be deemed to be assigned and transferred by such Alexco Optionholder (free and clear of all Liens) to Alexco for cancellation in exchange for the Option Consideration. The Alexco Shares comprising the Option Consideration will be issued to such Alexco Optionholder as fully paid and non-assessable shares in the capital of Alexco;
(b) each Alexco Out-of-the-Money Option outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any Alexco Optionholder, be cancelled without any compensation thereforpayment in respect thereof;
(i) each Alexco Optionholder shall cease to be a holder of such Alexco Options, (ii) each 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 the Alexco DSU Holder thereof, be 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 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;
(e) each Orko OptionAlexco DSU Holder shall cease to be a holder of such Alexco DSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco DSUs shall be terminated and shall be of no further force and effect;
(f) each Alexco RSU 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 the Alexco RSU Holder thereof, be deemed to be assigned and transferred by such Alexco RSU Holder to Alexco (free and clear of all Liens) in exchange for the number of Alexco Shares equal to the number of Alexco Shares a holder thereof is entitled to under each Alexco RSU 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 capital of Alexco; provided that no share certificates shall be issued with respect to such shares;
(i) each Alexco RSU Holder shall cease to be a holder of such Alexco RSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco RSUs shall be terminated and shall be of no further force and effect;
(h) each Dissenting Shareholder shall transfer to 108 all of the Dissent Shares held (free and clear of all Liens), without any further act or formality on its part, and 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 transferred
(i) the Dissenting Shareholder shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; andthereof,
(eii) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders as Alexco in respect of the Effective Time;Alexco Shares,
(jiii) the registered holder thereof Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer and assign such Orko Sharethereof, and
(iv) the name of 108 shall be added to the register maintained by or on behalf of Alexco in respect of the Alexco Shares as the holder thereof; and
(ki) First Majestic will 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 3.1(d) or Section 3.1(f) in exchange for the Consideration for each Alexco Share held, and
(i) the Alexco Shareholder shall cease to be the holder of all thereof,
(ii) the name of the outstanding Orko Shares and Alexco Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital Alexco in respect of the Orko Shares Alexco Shares,
(iii) the Alexco Shareholder shall be reduced deemed 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) have executed and (g)delivered all consents, Orko releases, assignments and Subco shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Actwaivers, 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract statutory or otherwise, may be enforced against Amalco required to effect the same extent as if such obligations had been incurred or contracted by it;transfer thereof, and
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xiv) the name of Amalco 108 shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised added to issue an unlimited number the register maintained by or on behalf of common shares without par value;
(z) the articles and notice of articles of Amalco shall be substantially Alexco in the form respect of the articles and notice of articles of Orko;
(aa) Alexco Shares as the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from holder thereof; it being expressly provided that 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations events provided for in this Section 2.3 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: Assignment and Amendment Agreement (Hecla Mining Co/De/)
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further act or formality:
(a) each Alexco In-the-Money Option outstanding immediately prior to the Shareholder Rights Plan Effective Time (whether vested or unvested) shall be cancelled immediately and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a)unconditionally vest, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Alexco Option Plan):
(c) the outstanding Orko Options willPlan and shall, without any further action by or on behalf of any holder of such Orko OptionsAlexco Optionholder, be deemed to be assigned and transferred by such Alexco Optionholder (free and clear of all Liens) to Alexco for cancellation in exchange for the Option Consideration. The Alexco Shares comprising the Option Consideration will be issued to such Alexco Optionholder as fully paid and non-assessable shares in the capital of Alexco;
(b) each Alexco Out-of-the-Money Option outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any Alexco Optionholder, be cancelled without any compensation thereforpayment in respect thereof;
(c) (i) each Alexco Optionholder shall cease to be a holder of such Alexco Options, (ii) each 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 the Alexco DSU Holder thereof, be 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 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;
(e) each Orko OptionAlexco DSU Holder shall cease to be a holder of such Alexco DSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco DSUs shall be terminated and shall be of no further force and effect;
(f) each Alexco RSU 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 the Alexco RSU Holder thereof, be deemed to be assigned and transferred by such Alexco RSU Holder to Alexco (free and clear of all Liens) in exchange for the number of Alexco Shares equal to the number of Alexco Shares a holder thereof is entitled to under each Alexco RSU 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 capital of Alexco; provided that no share certificates shall be issued with respect to such shares;
(g) (i) each Alexco RSU Holder shall cease to be a holder of such Alexco RSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco RSUs shall be terminated and shall be of no further force and effect;
(h) each Dissenting Shareholder shall transfer to 108 all of the Dissent Shares held (free and clear of all Liens), without any further act or formality on its part, and 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 transferred
(i) the Dissenting Shareholder shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; andthereof,
(eii) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders as Alexco in respect of the Effective Time;Alexco Shares,
(jiii) the registered holder thereof Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer and assign such Orko Sharethereof, and
(iv) the name of 108 shall be added to the register maintained by or on behalf of Alexco in respect of the Alexco Shares as the holder thereof; and
(ki) First Majestic will 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 3.1(d) or Section 3.1(f) in exchange for the Consideration for each Alexco Share held, and
(i) the Alexco Shareholder shall cease to be the holder of all thereof,
(ii) the name of the outstanding Orko Shares and Alexco Shareholder shall be removed from the register maintained by or on behalf of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital Alexco in respect of the Orko Shares Alexco Shares,
(iii) the Alexco Shareholder shall be reduced deemed 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) have executed and (g)delivered all consents, Orko releases, assignments and Subco shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the Business Corporations Actwaivers, 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract statutory or otherwise, may be enforced against Amalco required to effect the same extent as if such obligations had been incurred or contracted by it;transfer thereof, and
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(xiv) the name of Amalco 108 shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised added to issue an unlimited number the register maintained by or on behalf of common shares without par value;
(z) the articles and notice of articles of Amalco shall be substantially Alexco in the form respect of the articles and notice of articles of Orko;
(aa) Alexco Shares as the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from holder thereof; it being expressly provided that 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations events provided for in this Section 2.3 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: Assignment and Amendment Agreement (Alexco Resource Corp)
Arrangement. Commencing at the Effective Time, each of the following events shall occur and shall be deemed to occur consecutively in the following order order, effective as at five minute intervals starting at the Effective Time, except where noted, without any further authorization, act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder Dissent Share shall be deemed to be cancelled transferred and assigned by such Dissenting Holder, without any further act of formality on its part, to the Purchaser in consideration for no considerationa debt claim against the Purchaser for the amount determined under Article 3 and:
(i) each such Dissenting Holder shall cease to be a holder of each such Dissent Share and to have any rights as a holder of such Dissent Share other than the right to be paid fair value for such Dissent Share as set out in Section 3.1;
(ii) each such Dissenting Shareholder’s name shall be removed as a holder of such Dissent Shares 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 holder of all of the outstanding Dissent Shares free and clear of all Liens, and the Purchaser shall be entered in the central securities register of Common Shares maintained by or on behalf of the Company as the holder of such Dissent Shares;
(b) five minutes after the steps contemplated Purchaser shall make the Funding Loan to the Company to the extent required by the Company to make the payments in Section 2.3(a2.3(c) (including any applicable withholdings);
(c) each Option outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, shall be deemed to be unconditionally vested and exercisable, and such Option shall, without any further action by or on behalf of any holder of such Orko Options, be deemed to be surrendered and transferred by such holder to the Company (free and clear of all Liens) in exchange for a cash payment from the Company or any successor thereto equal to the amount by which the Consideration exceeds the exercise price of each such Option, less applicable withholdings, and each such Option shall immediately be cancelled without and, for greater certainty, where such amount is a negative, none of the Guarantor, the Purchaser or the Company shall be obligated to pay the holder of such Option any compensation thereforamount in respect of such Option and (i) each holder of Options shall cease to be a holder of such Options; (ii) such holder’s name shall be removed from each applicable register; (iii) the Stock Option Plan and all agreements relating to the Options 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 under this Section 2.3(c) at the time and in the manner specified in this Section 2.3(c);
(d) with respect each Common Share outstanding immediately prior to each Orko Optionthe Effective Time (other than any Common Share held by the Purchaser, the Guarantor or any of their respective affiliates, and any Dissent Shares transferred to the Purchaser pursuant to Section 2.3(a)) shall be transferred and assigned, without any further act or formality by or on behalf of a holder of Common Shares, to the Purchaser in exchange for the Consideration, subject to Section 4.3, and
(i) each holder thereof will shall cease to be the holder of each such Orko Option, will cease Common Share and to have any rights as a holder in respect of such Orko Option, such holder will Common Shares other than the right to be removed from paid the register Consideration by the Depositary in accordance with this Plan of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminatedArrangement;
(fii) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the holder’s name of such registered holder shall be removed from the register of Orko Shareholders as Common Shares maintained by or on behalf of the Effective Time;Company; and
(jiii) the registered holder thereof Purchaser shall be and shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Common Shares free and clear of all Liens, and the Purchaser shall be entered in the central securities register of Orko Shareholders shall be revised accordinglyCommon Shares maintained by or on behalf of the Company as the holder of such Common Shares;
(le) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will Funding Loan shall be transferred by the Purchaser to Subco the Company in consideration exchange for the Company issuing to the Purchaser such number of Common Shares equal to the quotient obtained by dividing the principal amount of the issue Funding Loan by Subco the Consideration, rounded down to First Majestic the nearest whole number of one Subco Share for each Orko Share so transferredCommon Shares, and the amount added to promissory note evidencing the stated Funding Loan shall be cancelled as a result;
(f) the capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Common Shares shall be reduced to an aggregate of $1.00 without any repayment of capital in respect thereofsuch capital;
(ng) five minutes after the steps contemplated in Section 2.3(f) Purchaser and (g), Orko and Subco the Company shall merge amalgamate to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 Division 3 of Part 9 of the Business Corporations ActBCBCA, except that the legal existence of Orko the Purchaser shall not cease and Orko the Purchaser shall survive the merger amalgamation as AmalcoAmalco and, for the avoidance of doubt, this transaction is intended to qualify as an amalgamation as defined in subsection 87(1) of the Tax Act;
(oh) without limiting the generality of Section 2.3(h2.3(g), upon the amalgamation described in Section 2.3(g), the separate legal existence of Subco the Company shall cease without Subco the Company being liquidated or wound up and Orko the Company and Subco Purchaser shall continue as one company company;
(i) at the time of and upon the amalgamation described in Section 2.3(g),
(i) the property, rights and interests of the Purchaser (other than Common Shares held, immediately prior to the amalgamation, by the Purchaser, which shall be cancelled upon the amalgamation as contemplated by Section 2.3(i)(vi)) and the property Company continue to be the property, rights and interests of Subco shall become Amalco; and, for greater certainty, the property amalgamation will not constitute an assignment by operation of law, a transfer or any other disposition of the property, rights and interests of either the Purchaser or the Company to Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(rii) Amalco will continue to be liable for all of the liabilities and obligations of Orko the Purchaser and Subcothe Company;
(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;
(tiii) any existing cause of action, claim or liability to prosecution will be unaffected;
(uiv) a civil, criminal criminal, quasi-criminal, or administrative or regulatory action or proceeding being prosecuted or pending by or against either Orko the Purchaser or Subco the Company may be continued continued, as the case may be, by or against Amalco;
(v) a conviction against, or ruling, order or judgment in favour of or against either Orko the Purchaser or Subco the Company may be enforced by or against Amalco;
(wvi) First Majestic as the each holder of the Subco Shares issued and outstanding common shares of the Purchaser (“Purchaser Shares”) shall receive on the amalgamation one common share in the authorised authorized share structure of Amalco in exchange for each Subco Purchaser Share previously held by such holder, and all of the issued and outstanding Orko Common Shares of the Company, all of which will then be held by the Purchaser, will be cancelled without repayment of capital in respect thereof;
(xvii) the name of Amalco shall be “Orko Silver Corp.Corvus Gold ULC”;
(yviii) Amalco shall be authorised authorized to issue an unlimited number of common shares without par value;
(zix) the articles and notice of articles of Amalco shall be substantially in the form of the articles and notice of articles of Orkothe Purchaser;
(aax) the first annual general meeting registered and records offices of Amalco or resolutions in lieu thereof shall initially be held within 18 months from the Effective Date;
(bb) the first directors of Amalco following the amalgamation shall be located at Suite 1700, 6▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
(xi) the first directors of Amalco following such amalgamation shall be [l]; and
(ccxii) the stated aggregate capital of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, aggregate capital attributable to the Subco Purchaser Shares immediately prior to such amalgamation, it being expressly provided that the amalgamation; and
(dd) the exchanges and cancellations events provided for in this Section 2.3 2.3 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
Arrangement. Commencing at the Effective Time, each of the following events shall occur and shall be deemed to occur consecutively in the following order order, except where noted, without any further act authorization, act, or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder Dissent Share shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder Shareholder, without any further act of formality on its part, to First Majestic MZKR (free and clear of any liens, charges and encumbrances of any nature whatsoeverLiens) in accordance with, and for the consideration set forth contemplated 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):Article 4 and:
(i) the registered holder thereof shall cease to be, and shall be deemed to cease to be, the registered holder of each such Orko Dissent Share and the name of such registered holder shall be, and shall be deemed to be, removed from the register of Orko Instadose Shareholders as in respect of each such Dissent Share, and at such time each Dissenting Shareholder will have the Effective Timerights set out in Section 4.1;
(jii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments assignments, and waivers, statutory or otherwise, required to transfer and assign each such Orko Dissent Share; and
(kiii) First Majestic will MZKR shall be and shall be deemed to be the holder of all of the outstanding Orko Dissent Shares and the central securities register of Orko Shareholders Instadose shall be, and shall be deemed to be, revised accordingly;
(lb) five minutes after immediately following the steps contemplated in Section 2.3(d) and (e)preceding step, each outstanding Orko Instadose Share will (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 on its part, to Subco in consideration MZKR (free and clear of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferredany liens, charges, and encumbrances of any nature whatsoever) in exchange for the amount added Consideration, and
(i) the registered holder thereof shall cease to be, and shall be deemed to cease to be, the stated capital registered holder of each such Instadose Share and the Subco Shares will name of such registered holder shall be, and shall be equal deemed to be, removed from the value register of the Orko Shares so transferredInstadose Shareholders;
(mii) concurrent with the step in Section 2.3(f), the stated capital in respect of the Orko Shares registered holder thereof shall be reduced deemed 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) have executed and (g)delivered all consents, 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 Business Corporations Actreleases, 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamationassignments, and all liabilities and obligations of Orko and Subcowaivers, whether arising by contract statutory or otherwise, may be enforced against Amalco required to the same extent as if transfer and assign each such obligations had been incurred or contracted by it;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Instadose Share; and
(cciii) MZKR shall be and shall be deemed to be the stated capital holder of all of the common shares outstanding Instadose Shares and the central securities register of Amalco will Instadose shall be, and shall be an amount equal deemed to the paid-up capitalbe, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamationrevised accordingly; and
(ddc) it being expressly provided that the exchanges and cancellations events provided for in this Section 2.3 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
Arrangement. Commencing at the Effective Time, pursuant to and in accordance with the Implementation Documents where applicable, each of the following events shall occur and shall be deemed to occur sequentially in the following order set out below, except where expressly stated otherwise below, without any further authorization, act or formality, in each case, except where expressly stated otherwise below, effective as at two minute intervals starting at the Effective Time, provided that all documentation to implement the following events will be in form and substance approved by the Purchaser:
(a) Each of the directors on the board of the directors of the Company shall cease (and shall be deemed to have ceased) to be a director of the Company and the individuals specified by the Purchaser in the Pre-Closing Notice shall be appointed as directors of the Company effective as of the Effective Time.
(b) All Rights issued pursuant to the Shareholder Rights Plan shall be cancelled and without any payment in respect thereof, the Shareholder Rights Plan shall terminate with the result that it will no longer have no further any force or effect effect, and each thereafter no Person will have any further liability or obligation to the former holders of Rights under such Shareholder Rights Plan and the rights thereunder shall be deemed former holders of Rights will permanently cease to be cancelled for no consideration;have any Rights under such Shareholder Rights Plan.
(bc) five minutes after Each Performance Share Unit credited to a holder’s PSU Account and reflected in such holder’s Adjusted PSU Number (as such terms are defined in the steps contemplated in Section 2.3(aPSU Plan), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall, notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willPSU Plan or any applicable grant agreement in relation thereto, automatically and without any further action by or on behalf of the holder thereof, be cancelled and terminated in exchange for a cash payment from the Company equal to the Consideration, less any holder amounts withheld and remitted in accordance with Section 4.5. As of the effective time of such Orko Options, be deemed to be cancelled without any compensation therefor;
cancellation and termination: (dA) with respect to each Orko Option, the holder thereof will shall cease to be the holder of such Orko OptionPerformance Share Unit, will (B) the holder thereof shall cease to have any rights as a holder in respect of such Orko OptionPerformance Share Unit, or under the PSU Plan, other than the right to receive the consideration to which such holder will is entitled pursuant to this Section 2.3(c), (C) such holder’s name shall be removed from the register of Orko Optionsapplicable register, and (D) all option agreements, grants and similar instruments relating thereto will shall be cancelled. For the avoidance of doubt: (x) no additional Performance Share Units shall be credited to a holder’s PSU Account in connection with the Return of Capital Distribution; andand (y) each Performance Share Unit that is not credited to a holder’s PSU Account and reflected in such holder’s Adjusted PSU Number shall terminate without consideration immediately prior to the Effective Time.
(ed) Each Deferred Share Unit, whether vested or unvested, that is outstanding immediately prior to the Orko Stock Option Effective Time, notwithstanding the terms of the DSU Plan shall or any applicable grant agreement in relation thereto, shall, automatically and without any further action by or on behalf of the holder thereof, be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred cancelled 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) terminated in exchange for a cash payment by the Share Company equal to the Consideration;
(h) with respect to each Orko Share transferred , less any amounts withheld and assigned remitted in accordance with Section 2.3(c) or Section 2.3(d):
4.5. As of the effective time of such cancellation and termination: (iA) the registered holder thereof shall cease to be the registered holder of such Orko Deferred Share and Unit, (B) the name holder thereof shall cease to have any rights as a holder in respect of such registered Deferred Share Unit or under the DSU Plan, as applicable, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(d), (C) such holder’s name shall be removed from the applicable register, and (D) all agreements, grants and similar instruments relating thereto shall be cancelled. For the avoidance of doubt, no additional Deferred Share Units shall be credited to a holder’s account in connection with the Return of Capital Distribution.
(e) Each Restricted Share, whether vested or unvested, that is outstanding immediately prior to the Effective Time, notwithstanding the terms of the Restricted Share Plan or any applicable grant agreement in relation thereto, shall, automatically and without any further action by or on behalf of the holder thereof, become immediately vested, and:
(i) the Custodian shall be deemed to cease to be the holder of the Restricted Share,
(ii) the holder shall be deemed to be the holder of a Common Share and shall be entered in the register of Orko the Common Shares maintained by or on behalf of the Company.
(f) If the Purchaser elects to proceed with the Return of Capital Transactions as specified in the Pre-Closing Notice:
(i) the articles of Tricon Canco shall be amended, and deemed to be amended, to the extent necessary to facilitate the Arrangement and the implementation of the steps and transactions described herein, including the creation of an unlimited number of Tricon Canco Special Preferred Shares and Tricon Canco Multiple Voting Shares;
(ii) immediately after the transactions in Section 2.3(f)(i), each then-issued and outstanding Tricon Canco Common Share held by the Company will be deemed to be exchanged (without any action on the part of the holder of such Tricon Canco Common Share) for one Tricon Canco Multiple Voting Share and one Tricon Canco Special Preferred Share and the Tricon Canco Common Shares so exchanged shall thereupon be cancelled, and:
(A) an amount will be added to the stated capital account of the Tricon Canco Special Preferred Shares equal to the Preferred Share Redemption Amount;
(B) an amount will be added to the stated capital account of the Tricon Canco Multiple Voting Shares equal to the amount by which the stated capital of the Tricon Canco Common Shares exchanged in accordance with Section 2.3(f)(ii) exceeds the Preferred Share Redemption Amount;
(iii) immediately following the exchange contemplated by Section 2.3(f)(ii), the Tricon Canco Special Preferred Shares held by the Company shall be redeemed by Tricon Canco in consideration of the payment in cash by Tricon Canco to the Company of the Preferred Share Redemption Amount, which amount shall be deemed to have been paid to the Company if received by the Depositary in accordance with Section 4.2(a);
(iv) immediately following the redemption of the Tricon Canco Special Preferred Shares pursuant to Section 2.3(f)(iii), the stated capital maintained for the Common Shares shall be reduced by an amount equal to the Preferred Share Redemption Amount received by the Company in accordance with Section 2.3(f)(iii), and the Company shall make the Return of Capital Distribution to the Company Shareholders (including Dissenting Shareholders) by way of a distribution equal to the amount of such reduction of stated capital and not as a dividend, and to be paid in cash using the proceeds of the Preferred Share Redemption Amount received by the Company in accordance with Section 2.3(f)(iii), such that each Company Shareholder (including a Dissenting Shareholder) will receive a pro rata portion of the Return of Capital Amount, less any amounts withheld and remitted in accordance with Section 4.5.
(g) Each Stock Option, whether vested or unvested, that is outstanding immediately prior to the Effective Time, notwithstanding the terms of the Stock Option Plan or any applicable grant agreement in relation thereto, shall, automatically and without any further action by or on behalf of the holder thereof, be deemed to be surrendered by the holder thereof in exchange for a cash payment from the Company equal to the amount (if any) by which the Consideration exceeds the exercise price per Common Share of such Stock Option (provided that, in the case of a Stock Option with an exercise price denominated in Canadian dollars, such exercise price shall be converted into United States dollars using the Bank of Canada daily exchange rate in effect on the Business Day immediately preceding the Effective Date), multiplied by the number of Common Shares subject to such Stock Option, less any amounts withheld and remitted in accordance with Section 4.5, and each such Stock Option shall immediately be cancelled and terminated and, where such amount is zero or negative, for each such Stock Option, whether vested or unvested, such Stock Option shall be cancelled and terminated without any consideration and, with respect to each Stock Option that is cancelled and terminated pursuant to this Section 2.3(g) as of the Effective Timeeffective time of such cancellation and termination: (A) the holder thereof shall cease to be the holder of such Stock Option, (B) the holder thereof shall cease to have any rights as a holder in respect of such Stock Option, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(g), (C) such holder’s name shall be removed from the applicable register, and (D) all agreements, grants and similar instruments relating thereto shall be cancelled and terminated.
(h) Each of the Common Shares (including, to the extent applicable, each Common Share described in Section 2.3(e)(ii) above) held by Dissenting Shareholders in respect of which Dissent Rights have been validly exercised shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of any Liens, to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined in accordance with Section 3.1, and:
(i) such Dissenting Shareholders shall cease to be the holders of such Common Shares and to have any rights as holders of such Common Shares other than (A) their respective entitlements to the Return of Capital Distribution, if any, in accordance with Section 2.3(f)(iv), and (B) the right to be paid fair value for such Common Shares (less the amount of their entitlement to the Return of Capital Distribution) as set out in Section 3.1;
(jii) the registered holder thereof such Dissenting Shareholders shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko ShareCommon Shares;
(iii) such Dissenting Shareholders’ 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
(kiv) First Majestic will the Purchaser shall be deemed to be the holder transferee of such Common Shares free and clear of all Liens, and shall be entered into the registers of Common Shares maintained by or on behalf of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;Company.
(li) five minutes after Concurrently with the steps contemplated transactions in Section 2.3(d) and (e2.3(h), each outstanding Orko Common Share will other than (A) the Common Shares that are held by Dissenting Shareholders who are ultimately entitled to be transferred to Subco in consideration of paid the issue by Subco to First Majestic of one Subco Share fair value for each Orko Share so transferredsuch Common Shares, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(mB) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Common Shares held 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇▇▇▇▇ ▇▇▇Shareholder, shall, without any further action by or on behalf of a holder of Common Shares, be deemed to be transferred and assigned by the holder thereof to the Purchaser (free and clear of any Liens) in exchange for a cash payment equal to the Common Share Acquisition Price, less any amounts withheld and remitted in accordance with Section 4.5, and:
(i) the holders of such Common Shares shall cease to be the holders thereof and to have any rights as holders of such Common Shares other than the right to receive from the Depositary the Consideration per Common Share in accordance with this Plan of Arrangement;
(ii) such holders’ names 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 Liens) and shall be entered in the register of the Common Shares maintained by or on behalf of the Company.
(j) Concurrently with the transactions in Section 2.3(i), each Common Share held by ▇▇▇▇▇ and ▇▇Shareholder shall be transferred by ▇▇▇▇▇ Shareholder to Intermediate in exchange for the number of common shares of Intermediate specified in the Pre-Closing Notice and the issuance of the Intermediate Note by Intermediate having a principal amount set out in the Pre-Closing Notice (the “Intermediate Rollover Consideration”), on such terms and conditions as are set out in the ▇▇▇▇▇▇; and
(cc) ▇ Transfer Agreement and an amount equal to the aggregate of the Common Share Acquisition Price per Common Share so transferred to Intermediate minus the principal amount of the Intermediate Note shall be added to the stated capital of the common shares of Amalco will Intermediate so issued, and:
(i) ▇▇▇▇▇ Shareholder shall cease to be the holder of such Common Shares and to have any rights as holders of such Common Shares other than (A) the right to receive from the Depositary the aggregate amount distributed in respect of such Common Shares in connection with the Return of Capital Distribution and (B) the right to receive from Intermediate the Intermediate Rollover Consideration, all in accordance with this Plan of Arrangement;
(ii) ▇▇▇▇▇ Shareholder’s name shall be removed from the register of the Common Shares maintained by or on behalf of the Company; and
(iii) Intermediate 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 the Company.
(k) Immediately following the transactions in Section 2.3(j), each Common Share held by Intermediate shall be transferred by Intermediate to the Purchaser in exchange for the Purchaser Note and the number of common shares of the Purchaser specified in the Pre-Closing Notice (the “Purchaser Rollover Consideration”), on such terms and conditions as are set out in the Purchaser Contribution Agreement and an amount equal to the paid-up capital, as that term is defined in fair market value of the ITA, attributable Common Shares transferred to the Subco Shares immediately prior Purchaser minus the principal amount of the Purchaser Note shall be added to the amalgamationstated capital of the common shares of the Purchaser issued pursuant to this Section 2.3(j), and:
(i) Intermediate shall cease to be the holder of such Common Shares and to have any rights as holders of such Common Shares other than the right to receive the Purchaser Rollover Consideration in accordance with this Plan of Arrangement;
(ii) Intermediate’s name shall be removed from the register of the Common Shares maintained by or on behalf of the Company; and
(ddiii) the exchanges and cancellations provided for in this Section 2.3 will Purchaser shall be deemed to occur 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 the Effective Date, notwithstanding certain procedures related thereto may not Company.
(l) The Employee Incentive Plans and all grant agreements thereunder shall be completed until after the Effective Dateterminated and be of no further force and effect.
Appears in 1 contract
Arrangement. Commencing at 3.1 At the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order sequence set out therein without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(g) five minutes after the steps contemplated in Section 2.3(c), each Orko Share Pendaries Common Shares (other than any Orko Share the Pendaries Dissenting Shares and Pendaries Common Shares held by any Dissenting ShareholderUPC and its affiliates) shall be and shall be deemed to be transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) UPC in exchange for Ultra Common Shares on the Share Consideration;basis of one and fifty-eight one hundredths of one (1.58) fully paid and non-assessable Ultra Common Shares for each one (1.00) Pendaries Common Share; and
(hb) with respect to each Orko Pendaries Common Share transferred and assigned in accordance with Section 2.3(cto which subsection 3.1 (a) or Section 2.3(dapplies (other than those Pendaries Common Shares to which section 3.3 applies):
(i) the registered holder thereof shall (A) cease to be the registered a holder of such Orko Share and the share, (B) such holder's name of such registered holder shall be removed from the register of Orko Shareholders Pendaries Common Shares with respect to such shares, (C) be allotted and issued, as fully paid and non-assessable shares, the number of Ultra Common Shares calculated in the Effective Time;
basis set forth in subsection 3.1(a) (jsubject to section 3.2), and (D) the registered holder thereof such holder's name shall be deemed added to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required the register of Ultra Common Shares with respect to transfer and assign such Orko ShareUltra Common Shares; and
(kii) First Majestic will UPC shall be and be deemed to be the holder of all of the outstanding Orko Shares transferee and shall be entered in the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Pendaries Common Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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
(ccc) the stated capital of the common shares of Amalco all Pendaries Options shall be cancelled.
3.2 No certificates representing fractional Ultra Common Shares will be issued. In the event that the exchange ratios referred to herein would in any case otherwise result in a holder of a Pendaries Common Share being entitled to a fractional Ultra Common Share, an amount equal adjustment shall be made to the paid-up capital, as that term is defined in next highest whole number of Ultra Common Shares and a certificate for the ITA, attributable to the Subco resulting whole number of Ultra Common Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Dateissued. In calculating such fractional interests, notwithstanding certain procedures related thereto may not all Pendaries Common Shares held by a beneficial holder of Pendaries Common Shares shall be completed until after the Effective Dateaggregated.
Appears in 1 contract
Arrangement. Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) the Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder 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 $1.12 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 the number of shares of Company Common Stock outstanding at the Effective Time exceed 15,235,903 shares of Company Common Stock, and in no event shall the aggregate Cash Consideration exceed US $17,065,000;
(b) each share of Company Common Stock in respect of which Dissent Rights have been exercised shall be and shall be deemed to be cancelled for no considerationtransferred to the Purchaser with 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;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, share of Company Common Stock acquired or transferred in accordance with Section 2.2(a) or Section 2.2(b):
(i) the holder thereof will shall cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect share of such Orko Option, such holder will be removed from the register of Orko Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Company Common Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the consideration set forth in, Section 3.1;
(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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders holders of Company Common Stock;
(ii) the certificate representing such share of Company Common Stock shall be deemed to have been canceled as of the Effective Time;
(jiii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to acquire or transfer and assign such Orko Shareshares in accordance with Section 2.2(a) or Section 2.2(b); and
(kiv) First Majestic will the Purchaser shall be and shall be deemed to be the holder transferee of all such share of the outstanding Orko Shares 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 Orko Shareholders shall 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 revised accordinglytransferred by the holder thereof to the Company in exchange for the Warrant Consideration;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the separate legal existence of Subco shall cease without Subco being liquidated respect to each Company 2007 Warrant acquired or wound up and Orko and Subco shall continue as one company and the property of Subco shall become the property of Amalco;
(p) from and after the Effective Date, at the time of the step contemplated transferred 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇accordance ▇▇▇▇ ▇▇▇▇▇▇▇▇ 2.2(d):
(i) the holder thereof shall cease to be the holder of such Company 2007 Warrant and the name of such holder s▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇; andved from the register of holders of Company 2007 Warrants;
(ccii) the stated capital of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will certificate representing such Company 2007 Warrant shall be deemed to occur on have been cancelled as of the Effective DateTime;
(iii) the holder thereof shall be deemed to have executed and delivered all consents, notwithstanding certain procedures related thereto may not releases, assignments and waivers, statutory or otherwise, required to acquire or transfer such Company 2007 Warrant in accordance with Section 2.▇(▇); ▇▇▇
(iv) the Company shall be completed until after and shall be deemed to be the Effective Datetransferee of the Company 2007 Warrants transferred in accordance with Section 2.2(d) and shall be entered in the register of holders of the Company 2007 Warrants as the legal holder of such Company 2007 Warrants.
Appears in 1 contract
Sources: Arrangement Agreement (L-1 Identity Solutions, Inc.)
Arrangement. Commencing at the Effective Time, each of the following shall occur and shall be deemed to occur sequentially on the Effective Date, in the following order order, without any further act or formalityformality required on the part of any person:
(a) the each outstanding Company Share held by a Dissenting Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether have been transferred by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options will, without any further action by or on behalf of any holder of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will to Purchaser free and clear of any Liens of any kind whatsoever, and:
(i) each such Dissenting Shareholder shall cease to be the holder of such Orko Option, will cease Company Shares and to have any rights as a holder in respect Company Shareholder other than the right to be paid the fair value of such Orko Option, Company Shares in accordance with Article 4 hereof;
(ii) each such holder will Dissenting Shareholder’s name shall be removed as the holder of such Company Shares from the register of Orko OptionsCompany 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 all option agreements, grants and similar instruments relating thereto will shall be cancelledentered in the register of Company Shares maintained by or on behalf of Company; and
(eiv) Purchaser will be the Orko Stock Option Plan shall be terminated;registered holder of all of the outstanding Company Shares.
(fb) five minutes after the steps contemplated in Section 2.3(b), each Orko outstanding Company Share (other than any Company Shares held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights Shareholder) shall be directly and be deemed to be assigned and transferred and assigned by such Dissenting Shareholder the holder thereof to First Majestic Purchaser (free and clear of any liens, charges and encumbrances Liens 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 transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature kind whatsoever) in exchange for the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):, and:
(i) the registered each holder thereof of such Company Shares shall cease to be the registered holder thereof and to have any rights as a Company Shareholder other than the right to be paid the Consideration per Company Share in accordance with this Plan of such Orko Share and Arrangement;
(ii) the name of each such registered holder shall be removed from the register of Orko Shareholders as the Company Shares maintained by or on behalf of the Effective Time;Company; and
(jiii) the registered holder thereof Purchaser shall be deemed to have executed be the transferee of such Company Shares free and delivered clear of all consents, releases, assignments Liens of any kind whatsoever and waivers, statutory shall be entered in the register of Company Shares maintained by or otherwise, required to transfer and assign such Orko Shareon behalf of Company; and
(kc) First Majestic each Company Option outstanding at the Effective Time (whether vested or unvested) will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred exchanged for a Replacement Option to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 acquire such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
Purchaser Shares as is equal to: (zA) the articles and notice that number of articles Company Shares that were issuable upon exercise of Amalco shall be 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 the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares such Company Option immediately prior to the amalgamation; and
Effective Time, multiplied by (ddB) the exchanges 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 Company Share at which such Company Option was exercisable immediately prior to the Effective Time, by (Y) the Exchange Ratio, rounded up to the nearest whole cent, and cancellations provided (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 in this Section 2.3 will which it was exchanged, and any certificate or option agreement previously evidencing the Company Option shall thereafter evidence and be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Dateevidence such Replacement Option.
Appears in 1 contract
Sources: Arrangement Agreement (HEXO Corp.)
Arrangement. Commencing at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence without any further act or formality:
(a) the each Lexam VG Gold Share held by a Lexam VG Gold Dissenting Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be cancelled for no consideration;
(b) five minutes after transferred by the steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of grant, applicable law or the terms of the Orko Stock Option Plan):
(c) the outstanding Orko Options willholder thereof, without any further action by act or formality on behalf its part, free and clear of any holder all liens, claims and encumbrances, to ▇▇▇▇▇▇ Mining, in consideration for a claim against ▇▇▇▇▇▇ Mining in an amount determined and payable in accordance with Article 4, and the name of such Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Orko Option, will cease to have any rights as a holder in respect of such Orko Option, such holder will be removed from the central securities register as a holder of Orko Options, Lexam VG Gold Shares and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(e) the Orko Stock Option Plan ▇▇▇▇▇▇ Mining shall be terminatedrecorded as the registered holder of the Lexam VG Gold Shares so transferred and shall be deemed to be the legal owner of such Lexam VG Gold Shares;
(fb) five minutes after each Lexam VG Gold Share outstanding immediately prior to the steps contemplated in Section 2.3(b), each Orko Share Effective Time held by a Lexam VG Gold Shareholder (other than any Excess Controlled VG Gold Shares and other than any Lexam VG Gold Shares held by ▇▇▇▇▇▇ Mining or any Lexam VG Gold Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights Shareholder) shall be directly transferred by the holder thereof to ▇▇▇▇▇▇ Mining in exchange for the Arrangement Consideration, and assigned by such Dissenting Shareholder ▇▇▇▇▇▇ Mining shall be deemed to First Majestic (be the legal and beneficial owner thereof, free and clear of any liens, charges and encumbrances of any nature whatsoever) in accordance withclaims or encumbrances, and for the consideration set forth in, Section 3.1subject to Article 5;
(gc) five minutes after each Excess Controlled VG Gold Share outstanding immediately prior to the steps contemplated in Section 2.3(c), each Orko Share (other than any Orko Share held by any Dissenting Shareholder) Effective Time shall be deemed to be transferred to First Majestic (free and clear of any liens, charges and encumbrances of any nature whatsoever) in exchange for by the Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) 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 Orko Share; and
(k) First Majestic will be the holder of all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares will be equal to the value of the Orko Shares so transferred;
(m) concurrent with the step in Section 2.3(f), the stated capital in respect of the 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 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 2.3(h), the 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 property of Subco shall become the property of Amalco;
(p) from and after the 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 such amalgamation, and all liabilities and obligations of Orko and 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;
(r) 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 Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(z) the articles and notice of articles of Amalco shall be 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 ▇Mining:
(i) if the ▇▇▇▇▇▇ Mining Meeting occurs prior to the Effective Time and the ▇▇▇▇▇▇; and▇ Mining Shareholder Approval is obtained, in exchange for the Arrangement Consideration;
(ccii) if the stated capital of ▇▇▇▇▇▇ Mining Meeting occurs prior to the common shares of Amalco will be Effective Time and the ▇▇▇▇▇▇ Mining Shareholder Approval is not obtained, in exchange for an amount in cash equal to the paid-up capital, as that term is defined in Arrangement Consideration Factor multiplied by the ITA, attributable to closing price of ▇▇▇▇▇▇ Mining Shares on the Subco Shares immediately NYSE on the last trading day prior to the amalgamationEffective Time; andor
(ddiii) if the exchanges and cancellations provided for in this Section 2.3 will be deemed ▇▇▇▇▇▇ Mining Meeting has not occurred prior to occur on the Effective DateTime, notwithstanding certain procedures related thereto may not be completed until after in exchange for the Effective Date.fraction of one (1) Subscription Receipt equal to one (1) multiplied by the Arrangement Consideration Factor;
Appears in 1 contract
Sources: Arrangement Agreement