EXHIBIT 2.1
AMENDING AGREEMENT
THIS AMENDING AGREEMENT made as of the 12th day of September, 2005.
BETWEEN:
XXXXXX CORPORATION, a corporation existing under the laws of the
State of Delaware
(hereinafter referred to as "Harris")
OF THE FIRST PART
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XXXXXX TECHNOLOGY CORPORATION, a corporation subsisting under the
laws of the Province of Ontario
(hereinafter referred to as "Xxxxxx")
OF THE SECOND PART
WHEREAS Harris and Xxxxxx entered into an Arrangement Agreement dated as of
August 31, 2005 (the "Arrangement Agreement").
AND WHEREAS Harris and Xxxxxx wish to amend the Arrangement Agreement as
set forth herein.
WITNESSETH THAT in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the Parties hereto covenant and
agree as follows:
1. Any capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Arrangement Agreement.
2. The parties hereto hereby agree to amend the Arrangement Agreement as
follows:
(a) by deleting Section 2.1(a) and replacing it with the following clause:
all of the Xxxxxx Options granted and outstanding immediately prior to
the Effective Time shall, without any further action on behalf of any
Xxxxxx Option holder, be transferred by the holders thereof to Xxxxxx
without any act or formality on its or their part in exchange for a cash
amount equal to the excess, if any, of (i) the product of the
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number of Common Shares underlying Xxxxxx Options held by such holder and
the Cash Consideration over (ii) the aggregate exercise price payable under
such Xxxxxx Options by the holder to acquire the Common Shares underlying
such Xxxxxx Options. All Xxxxxx Options issued and outstanding immediately
prior to the Effective Time shall thereafter immediately be cancelled;
(b) by deleting Section 4.1(d) and replacing it with the following clause:
Financing. Harris has sufficient funds or adequate arrangements
(within the meaning of applicable securities Laws) for financing in place
to fund the payment of the Aggregate Cash Consideration Payable on the
Effective Date in accordance with the terms hereof.
(c) by deleting Section 5.6(i) and replacing it with the following clause:
ensure Harris Acquireco has sufficient funds to fund the payment of
the Common Share Consideration to holders of Common Shares and that it or
one of its subsidiaries has sufficient funds to lend to Xxxxxx pursuant to
SECTION 5.9 to fund the payment of the Option Consideration to holders of
Xxxxxx Options on the Effective Date and shall on behalf of Harris
Acquireco cause the Common Share Consideration payable to holders of Common
Shares and on behalf of Xxxxxx cause the Option Consideration payable to
holders of Xxxxxx Options to be deposited with the Depositary not later
than immediately prior to the Effective Time.
(d) by adding Section 5.9 as follows:
5.9 FUNDING OF OPTION CONSIDERATION
No later than immediately prior to the Effective Time, (i) Harris
agrees to loan or cause one of its subsidiaries to loan to Xxxxxx, and
Xxxxxx agrees to borrow from Harris or such subsidiary, as the case may be,
an amount equal to the Option Consideration by way of an interest-free loan
payable on demand following the Effective Date, and (ii) Xxxxxx agrees to
execute and deliver to Harris a promissory note evidencing such loan in
favour of Harris or its subsidiary, as the case may be, and an irrevocable
direction to Harris or its subsidiary, as the case may be, to deposit the
proceeds of such loan with the Depositary for the purpose of effecting
payment of the Option Consideration on behalf of Xxxxxx to holders of
Xxxxxx Options, in each case in a form reflecting the terms hereof and to
be mutually agreed by the Parties, acting reasonably.
(e) by deleting Section 6.2(c) and replacing it with the following clause:
Harris shall have caused the Common Share Consideration payable to
holders of Common Shares to be deposited on behalf of Harris Acquireco and
the Option Consideration payable to holders of Xxxxxx Options to be
deposited on behalf of Xxxxxx with the Depositary not later than
immediately prior to the Effective Time.
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(f) by deleting Schedule C to the Arrangement Agreement and replacing it
with Schedule C attached hereto.
3. The foregoing amendments shall be effective as of September 12, 2005.
4. Except for the foregoing amendments, the parties hereto acknowledge that
the Arrangement Agreement shall remain in full force and effect, unamended.
5. In the event of any inconsistency between the terms of this Amending
Agreement and the terms of the Arrangement Agreement, the provisions of
this Amending Agreement shall prevail.
6. This Amending Agreement shall be governed and construed in accordance with
the laws of the Province of Ontario and the federal laws of Canada
applicable therein. The parties hereto submit to the exclusive jurisdiction
of the courts of the Province of Ontario.
7. This Amending Agreement may be executed in one or more counterparts (by
original or facsimile signature) with such counterparts together
constituting one original document which shall be effective as of the date
hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the parties hereto have executed this Amending
Agreement as of the date above written.
XXXXXX CORPORATION
Per: /s/ Xxxx X. XxXxxxxx
--------------------------------------
Authorized Signing Officer
Per: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Authorized Signing Officer
XXXXXX TECHNOLOGY CORPORATION
Per: /s/ Xxxxx Xxxxxxx
--------------------------------------
Authorized Signing Officer-Director
Per: /s/ Xxxx Xxxxxx
--------------------------------------
Authorized Signing Officer/Director
[SIGNATURE PAGE TO AMENDING AGREEMENT TO ARRANGEMENT AGREEMENT]
SCHEDULE C
FORM OF
PLAN OF ARRANGEMENT UNDER SECTION 182
OF THE BUSINESS CORPORATIONS ACT (ONTARIO)
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS. In this Plan of Arrangement unless there is something
in the subject matter or context inconsistent therewith, the following words and
phrases shall have the meanings hereinafter set forth:
"AFFILIATE" has the meaning ascribed thereto in the OBCA;
"ARRANGEMENT" means the arrangement contemplated herein to be made on the
terms set out in this Plan of Arrangement subject to any amendments or
variations thereto made in accordance with the Arrangement Agreement and
the terms hereof or made at the direction of the Court in the Final Order
(with the consent of Xxxxxx and Harris, each acting reasonably);
"ARRANGEMENT AGREEMENT" means the Arrangement Agreement providing for this
Plan of Arrangement by and between Harris and Xxxxxx dated as of August 31,
2005, as amended as of September 12, 2005, as the same may be further
amended, supplemented and/or restated from time to time;
"ARRANGEMENT RESOLUTION" means the special resolution in respect of the
Arrangement to be considered and approved by holders of Common Shares at
the Meeting to be substantially in the form of Schedule B annexed to the
Arrangement Agreement;
"ARTICLES OF ARRANGEMENT" means the articles of arrangement of Xxxxxx in
respect of the Arrangement that are required by the OBCA to be filed with
the Director after the Final Order is made;
"BOARD OF DIRECTORS" means the board of directors of Xxxxxx;
"BUSINESS DAY" means any day, other than a Saturday, a Sunday or statutory
holiday in Toronto, Ontario or New York City, New York;
"CASH CONSIDERATION" means $14.00 in cash, subject to increase as provided
in the Arrangement Agreement;
"CERTIFICATE OF ARRANGEMENT" means the certificate of arrangement giving
effect to the Arrangement, endorsed upon the Articles of Arrangement of
Xxxxxx by the Director pursuant to SUBSECTION 183(2) of the OBCA;
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"CIRCULAR" means the notice of the Meeting and accompanying management
information circular, including the schedules attached thereto and all
amendments from time to time made thereto, to be sent to Shareholders in
connection with the Meeting;
"COMMON SHARE CONSIDERATION" means the aggregate cash payable by Harris
Acquireco pursuant to SECTION 2.2(B);
"COMMON SHARES" means the issued and outstanding common shares in the
capital of Xxxxxx (including common shares issued upon the exercise of
Xxxxxx Options and Restricted Share Awards) and shall include any shares
into which the Common Shares may be reclassified, subdivided, consolidated
or converted and any rights or benefits arising therefrom including any
extraordinary distribution of securities which may be declared in respect
of the Common Shares (except in accordance with this Plan of Arrangement);
"COURT" means the Superior Court of Justice (Ontario);
"CRA" means the Canada Revenue Agency;
"DEPOSITARY" means Computershare Investor Services Inc. at its offices
specified in the Letter of Transmittal;
"DIRECTOR" means the Director appointed pursuant to SECTION 278 of the
OBCA;
"DISSENT RIGHTS" shall have the meaning ascribed thereto in SECTION 3.1;
"DISSENTING SHAREHOLDER" means a Shareholder who dissents in respect of the
Arrangement Resolution in strict compliance with the Dissent Rights;
"DISSENTING SHARES" means the Common Shares of any Shareholder who has
demanded and perfected Dissent Rights in respect of such Common Shares in
accordance with the Interim Order and who, as of the Effective Time, has
not effectively withdrawn or lost such Dissent Rights;
"EFFECTIVE DATE" means the date of the Certificate of Arrangement;
"EFFECTIVE TIME" means 12:01 a.m. (Eastern time) on the Effective Date;
"FINAL ORDER" means the final order of the Court approving the Arrangement,
as such order may be amended by the Court (with the consent of Xxxxxx and
Harris, each acting reasonably) at any time prior to the Effective Date or,
if appealed, then, unless such appeal is withdrawn or denied, such order as
affirmed or amended on appeal;
"GOVERNMENTAL ENTITY" means (a) any multinational, federal, provincial,
state, regional, municipal, local or other government, governmental or
public department, central bank, court, tribunal, arbitral body,
commission, board, bureau or agency, domestic or foreign; (b) any
subdivision, agent, commission, board or authority of any of the foregoing;
(c) any quasi-governmental or private body exercising any regulatory,
expropriation or
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taxing authority under or for the account of any of the foregoing; or (d)
any self-regulatory agencies or organizations;
"HARRIS" means Xxxxxx Corporation, a corporation subsisting under the laws
of the State of Delaware;
"HARRIS ACQUIRECO" means 2081259 Ontario Inc., a wholly-owned subsidiary of
Harris incorporated under the OBCA;
"INTERIM ORDER" means the interim order of the Court, as the same may be
amended by the Court (with the consent of Xxxxxx and Harris, each acting
reasonably), in respect of the Arrangement;
"LETTER OF TRANSMITTAL" means the letter of transmittal for use by
Shareholders, in the form accompanying the Circular;
"XXXXXX" means Xxxxxx Technology Corporation, a corporation incorporated
under the OBCA;
"XXXXXX OPTIONS" means options to purchase Common Shares, including without
limitation any performance or inducement options to acquire Common Shares
granted under the Xxxxxx Stock Option Plan or under specific Xxxxxx
employment agreements;
"XXXXXX STOCK OPTION PLAN" means Xxxxxx'x stock option plan, as revised,
dated September 11, 2001;
"MEETING" means the special meeting of Shareholders, and all adjournments
and postponements thereof, called and held to, among other things, consider
and approve the Arrangement Resolution;
"OBCA" means the Business Corporations Act (Ontario), including the
regulations made thereunder, as amended;
"OPTION CONSIDERATION" means the aggregate cash payable by Xxxxxx pursuant
to SECTION 2.2(A);
"PERSON" means and includes any individual, partnership, association,
limited or unlimited liability company, joint venture, body corporate,
trustee, executor, administrator, legal representative, government
(including any Governmental Entity) or any other entity, whether or not
having legal status;
"RESTRICTED SHARE AWARDS" means the awards of restricted common shares to
(a) Xxxxxxx Xxxxxxxxxxxx pursuant to the terms of the letter agreement
dated November 17, 2003 between Xxxxxxx Xxxxxxxxxxxx and Xxxxxx, and (b)
Xxxxx Xxxxx pursuant to the terms of the letter from Xxxxxx to Xxxxx Xxxxx
dated July 1, 2005;
"SHAREHOLDERS" means the holders of Common Shares;
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"TRADING DAY" means, with respect to any stock exchange or over-the-counter
market, a day on which shares may be traded through the facilities of such
stock exchange or on such over-the-counter market, and otherwise means a
day on which shares may be traded through the facilities of the Toronto
Stock Exchange;
"TRANSFER AGENT" means Computershare Investor Services Inc. at its offices
located in Toronto, Ontario; and
"THIS PLAN", "PLAN OF ARRANGEMENT", "HEREOF", "HEREIN", "HERETO" and like
references mean and refer to this plan of arrangement.
Words and phrases used herein that are defined in the OBCA or the Arrangement
Agreement and not defined herein shall have the same meaning herein as in the
OBCA or the Arrangement Agreement, as applicable, unless the context otherwise
requires.
SECTION 1.1 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this
Plan of Arrangement into Articles, Sections and other portions and the insertion
of headings are for convenience of reference only and shall not affect the
construction or interpretation hereof.
SECTION 1.2 GENDER AND NUMBER. Unless the context requires the contrary, words
importing the singular only shall include the plural and vice versa and words
importing the use of any gender shall include all genders.
SECTION 1.3 DATE FOR ANY ACTION. In the event that the date on which any action
is required to be taken hereunder by any of the parties is not a Business Day,
such action shall be required to be taken on the next succeeding day which is a
Business Day.
SECTION 1.4 GOVERNING LAW. This Plan of Arrangement shall be governed by and
construed in accordance with the laws of the Province of Ontario and the federal
laws of Canada applicable therein.
SECTION 1.5 CURRENCY. All references to currency herein are to lawful money of
Canada unless otherwise specified.
ARTICLE II
ARRANGEMENT
SECTION 2.1 BINDING EFFECT. This Plan of Arrangement will become effective at,
and be binding at and after, the Effective Time on (i) Harris, (ii) Harris
Acquireco, (iii) Xxxxxx, (iv) all holders and all beneficial owners of Common
Shares and (v) all holders and all beneficial owners of Xxxxxx Options.
SECTION 2.2 ARRANGEMENT. Commencing at the Effective Time, subject to the terms
and conditions of the Arrangement Agreement, the following events or
transactions shall occur and shall be deemed to occur in the following sequence
without any further act or formality:
(a) all of the Xxxxxx Options granted and outstanding immediately prior to
the Effective Time shall, without any further action on behalf of any
Xxxxxx Option
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holder, be transferred by the holders thereof to Xxxxxx without any
act or formality on its or their part in exchange for a cash amount
equal to the excess, if any, of (i) the product of the number of
Common Shares underlying Xxxxxx Options held by such holder and the
Cash Consideration over (ii) the aggregate exercise price payable
under such Xxxxxx Options by the holder to acquire the Common Shares
underlying such Xxxxxx Options. All Xxxxxx Options issued and
outstanding immediately prior to the Effective Time shall thereafter
immediately be cancelled; and
(b) all of the Common Shares issued and outstanding immediately prior to
the Effective Time held by each Shareholder (other than any Dissenting
Shares held by Dissenting Shareholders who are ultimately entitled to
be paid the fair value of the Dissenting Shares held by such
Dissenting Shareholder, and any Common Shares held by Harris and its
affiliates, which shall not be transferred under the Arrangement)
shall, without any further action on behalf of such Shareholder, be
transferred by the holders thereof, and acquired by, Harris Acquireco
without any act or formality on its or their part in exchange for a
cash amount equal to the product of the number of Common Shares held
by such holder and the Cash Consideration and Harris Acquireco shall
be deemed to be the legal and beneficial owner thereof, free and clear
of all Liens.
ARTICLE III
RIGHTS OF DISSENT
SECTION 3.1 RIGHTS OF DISSENT. Registered holders of Common Shares may exercise
rights of dissent with respect to such shares pursuant to and, except as
expressly indicated to the contrary in this SECTION 3.1, in the manner set forth
in SECTION 185 of the OBCA and this SECTION 3.1 (the "DISSENT RIGHTS") in
connection with the Arrangement Resolution as the same may be modified by the
Interim Order or the Final Order; provided that, notwithstanding SUBSECTION
185(6) of the OBCA, the written objection to the Arrangement Resolution referred
to in SUBSECTION 185(6) of the OBCA must be actually received by Xxxxxx not
later than 5:00 p.m. (Toronto time) on the Business Day preceding the Meeting;
and provided further that, notwithstanding the provisions of SECTION 185 of the
OBCA, holders of Common Shares who duly exercise such rights of dissent and who:
(a) are ultimately determined to be entitled to be paid fair value for
their Common Shares, which fair value, notwithstanding anything to the
contrary contained in SECTION 185 of the OBCA, shall be determined as
of the Effective Time, shall be deemed to have transferred such Common
Shares as of the Effective Time at the fair value of such shares
determined as of the Effective Time, without any further act or
formality and free and clear of all Liens, to Xxxxxx and such shares
so transferred to Xxxxxx shall be cancelled as of the Effective Date;
or
(b) are ultimately determined not to be entitled, for any reason, to be
paid fair value for their Common Shares shall be deemed to have
participated in the Arrangement on the same basis as any
non-dissenting holder of Common Shares and shall receive the Cash
Consideration per share, as provided in ARTICLE 2,
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but in no case shall Xxxxxx, Xxxxxx Acquireco, Xxxxxx, the Transfer Agent or any
other Person be required to recognize such holders as holders of Common Shares
after the Effective Time, and the names of such holders of Common Shares shall
be deleted from the register of holders of Common Shares at the Effective Time.
In addition to any other restrictions under section 185 of the OBCA, none of the
following shall be entitled to exercise Dissent Rights: (i) holders of Xxxxxx
Options and (ii) Shareholders who vote in favour of the Arrangement Resolution.
ARTICLE IV
CONSIDERATION, CERTIFICATES AND FRACTIONAL SHARES
SECTION 4.1 LETTER OF TRANSMITTAL. At the time of mailing the Circular or as
soon as practicable after the Effective Date, Xxxxxx shall forward to each
Shareholder and each holder of Xxxxxx Options at the address of such holder as
it appears on the register maintained by or on behalf of Xxxxxx in respect of
the holders of Common Shares or Xxxxxx Options, as the case may be, the Letter
of Transmittal in the case of the holders of Common Shares and instructions for
obtaining delivery of the Common Share Consideration or the Option Consideration
payable to such holders following the Effective Date pursuant to this Plan of
Arrangement.
SECTION 4.2 DELIVERY OF CASH CONSIDERATION AND OPTION CONSIDERATION.
(a) Not later than immediately before the Effective Time, Harris shall
cause to be deposited in immediately available funds (at Toronto) with
the Depositary (i) on behalf of Harris Acquireco, the Common Share
Consideration and (ii) on behalf of Xxxxxx, the Option Consideration.
(b) On or as soon as practicable after the Effective Date, upon the holder
having validly deposited with the Depositary such share certificates
representing Common Shares held by such holder accompanied by a duly
completed Letter of Transmittal and such other documents and
instruments as the Depositary may reasonably require, the Depositary
shall deliver on behalf of Harris Acquireco to such holder, or
otherwise in accordance with the Letter of Transmittal, a cheque
representing the payment of the Common Share Consideration to which
such holder is entitled in accordance with this Plan of Arrangement.
(c) On or as soon as practicable after the Effective Date, the Depositary
shall deliver on behalf of Xxxxxx to each holder of Xxxxxx Options as
reflected on the books and records of Xxxxxx a cheque or other form of
payment agreed to by the holder representing the payment of the Option
Consideration to which such holder is entitled in accordance with this
Plan of Arrangement.
(d) The Common Share Consideration and the Option Consideration deposited
with the Depositary shall be held in separate interest bearing
accounts and any interest earned on the Common Share Consideration
shall be for the account of Harris Acquireco and any interest earned
on the Option Consideration shall be for the account of Xxxxxx.
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SECTION 4.3 EXPIRATION OF RIGHTS. Any certificates formerly representing Common
Shares that, following the Effective Date, are not duly presented for payment
with the Depositary, together with a duly executed Letter of Transmittal, and
such other documents as the Depositary deems necessary, or any payment made by
way of cheque by the Depositary on behalf of Harris Acquireco of the Common
Share Consideration or on behalf of Xxxxxx of the Option Consideration that has
not been deposited or has been returned to the Depositary, or that otherwise
remains unclaimed, in each case on or before the sixth anniversary of the
Effective Date, shall cease to represent a right or claim of any kind or nature
and the right of the holder of such securities to receive the Common Share
Consideration or the Option Consideration, as the case may be, pursuant to this
Plan of Arrangement and shall be deemed to be surrendered and forfeited to
Harris Acquireco or Xxxxxx, as the case may be, for no consideration.
SECTION 4.4 LOST CERTIFICATES. In the event any certificate which immediately
prior to the Effective Time represented outstanding Common Shares that were
exchanged pursuant to ARTICLE 2 hereof shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such certificate to be lost, stolen or destroyed, the Depositary will issue in
exchange for such lost, stolen or destroyed certificate, a cheque for the Cash
Consideration to which such holder is entitled deliverable in respect thereof as
determined in accordance with ARTICLE 2 and such holder's Letter of Transmittal.
When seeking such payment in exchange for any lost, stolen or destroyed
certificate, the Person to whom the Cash Consideration is payable shall, at the
discretion of Harris Acquireco, as a condition precedent to the delivery
thereof, give a bond satisfactory to Xxxxxx, Xxxxxx Acquireco and the
Depositary, in such sum as the parties may reasonably direct or otherwise
indemnify Xxxxxx and Xxxxxx Acquireco against any claim that may be made against
Xxxxxx, Xxxxxx Acquireco or the Depositary with respect to the certificate
alleged to have been lost, stolen or destroyed.
ARTICLE V
WITHHOLDING RIGHTS
SECTION 5.1 WITHHOLDING RIGHTS. Harris Acquireco, Xxxxxx and the Depositary
shall deduct and withhold from the proceeds or amounts distributable or payable
pursuant to this Arrangement to any holder or former holder of Common Shares or
Xxxxxx Options such amount as may be required by law (as advised by outside tax
counsel for Xxxxxx and Xxxxxx Acquireco) to be deducted or withheld therefrom
under any provision of United States or Canadian federal, state, provincial,
regional, local or foreign tax law or under any other applicable legal
requirement. To the extent that amounts are so deducted or withheld, such
amounts shall be treated for all purposes hereof as having been paid to the
holder of the Common Shares or Xxxxxx Options, as the case may be, in respect of
which such deduction and withholding was made, provided that such withheld
amounts are actually remitted to the appropriate taxing authority within the
time required and in accordance with applicable law and that such holder has
been provided forthwith with a receipt evidencing such remittance.
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ARTICLE VI
AMENDMENTS
SECTION 6.1 AMENDMENT OF THE ARRANGEMENT.
(a) Xxxxxx, Xxxxxx Acquireco and Xxxxxx reserve the right to amend, modify
and/or supplement this Plan of Arrangement at any time and from time
to time prior to the Effective Date provided that any such amendment,
modification, or supplement must be contained in a written document
which is (i) subject to SECTION 6.1(B), agreed to by Xxxxxx, Xxxxxx
Acquireco and Xxxxxx, (ii) filed with the Court and, if made following
the Meeting, approved by the Court subject to such conditions as the
Court may impose and (iii) communicated to holders of Common Shares in
the manner if and as required by the Court.
(b) Subject to the Arrangement Agreement, Harris shall be entitled, at any
time prior to the Meeting, to modify this Plan of Arrangement to: (i)
increase the consideration it or Harris Acquireco is prepared to make
available to Shareholders pursuant to the Arrangement, whether or not
the Board of Directors of Xxxxxx has changed its recommendation,
provided that Harris shall use its commercially reasonable efforts to
provide not less than one Business Day's prior written notice of such
proposal to Xxxxxx; or (ii) modify the terms of the Plan of
Arrangement to achieve tax planning objectives of Xxxxxx and Xxxxxx
Acquireco, including without limitation to provide for one or more
amalgamations of subsidiaries of Harris and/or Xxxxxx, which, in the
opinion of Xxxxxx, acting reasonably, (A) would not prejudice it or
the Shareholders, or (B) would not impede or materially delay the
completion of the transactions contemplated hereby provided that
Harris or Harris Acquireco has provided notice of such modification to
Xxxxxx not less than 15 Business Days prior to the Meeting Date.
(c) Any amendment, modification or supplement to this Plan of Arrangement
referred to in SECTION 6.1(A) OR (B), if so proposed and, subject to
SECTION 6.1(B), accepted by the Persons voting at the Meeting (other
than as may be required under the Interim Order), shall become part of
this Plan of Arrangement for all purposes.
(d) Any amendment, modification or supplement to this Plan of Arrangement
which is approved by the Court following the Meeting shall be
effective only (i) if, subject to SECTION 6.1(B), it is agreed to by
Xxxxxx, Xxxxxx Acquireco and Xxxxxx, and (iii) if required by the
Court, it is consented to by holders of Common Shares voting in the
manner directed by the Court.
Any amendment, modification or supplement to this Plan of Arrangement may be
made following the Effective Date unilaterally by Harris Acquireco, provided
that it concerns a matter which, in the reasonable opinion of Harris Acquireco,
is of an administrative nature required to better give effect to the
implementation of this Plan of Arrangement and is not adverse to the financial
or economic interests of the holders of Common Shares or the Xxxxxx Options.
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Notwithstanding the foregoing, no amendment, modification or supplement to this
Plan of Arrangement made following the Effective Date shall be effective prior
to the issuance by the Director of a Certificate of Arrangement endorsing
amended Articles of Arrangement.
ARTICLE VII
GENERAL
SECTION 7.1 FURTHER ASSURANCES. Notwithstanding that the transactions and events
set out herein shall occur and be deemed to occur in the order set out in this
Plan of Arrangement without any further act or formality, each of the parties to
the Arrangement Agreement shall make, do and execute, or cause to be made, done
and executed, all such further acts, deeds, agreements, transfers, assurances,
instruments or documents as may reasonably be required by any of them in order
further to document or evidence any of the transactions or events set out
herein.
SECTION 7.2 PARAMOUNTCY. From and after the Effective Time (i) this Plan of
Arrangement shall take precedence and priority over any and all rights related
to Common Shares and Xxxxxx Options issued prior to the Effective Time, (ii) the
rights and obligations of the holders of Common Shares and Xxxxxx Options and
any trustee and transfer agent therefore, shall be solely as provided for in
this Plan of Arrangement, and (iii) all actions, causes of actions, claims or
proceedings (actual or contingent, and whether or not previously asserted) based
on or in any way relating to Common Shares or Xxxxxx Options shall be deemed to
have been settled, compromised, released and determined without liability except
as set forth herein.
