Exhibit 10.13
SHAREHOLDER AGREEMENT
This Agreement dated for reference the 28th day of March, 2001.
AMONG:
The undersigned HOLDERS OF LUXCO EXCHANGEABLE PREFERRED
SHARES, more particularly described on the signature pages
hereto
(collectively, the "LUXCO SHAREHOLDERS")
AND:
ICHOR CORPORATION, a corporation organized under the laws of
the State of Delaware in the United States, with an address at
00 Xxxx Xxxxxx, Xxxxxx 0, Xxxxxxx
("PARENTCO")
AND:
0000 XXXXXXXXXX S.A., a corporation organized under the laws
of Luxembourg, with an address at X-0000, Xxxxxxxxxx, 0, xxx
xx xx Xxxxxxxx
("LUXCO")
WHEREAS:
A. Each LuxCo Shareholder owns the LuxCo Exchangeable Preferred Shares as
set forth beside his name on the signature pages hereto;
B. ParentCo owns all but not less than all of the issued and outstanding
LuxCo Common Shares; and
C. The parties hereto wish to establish their respective rights and
obligations with respect to the LuxCo Common Shares, the LuxCo
Exchangeable Preferred Shares and LuxCo, as set forth in this
Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, including the recitals, and any amendments
hereto, unless the context otherwise requires, the following words and phrases
shall have the following meanings, respectively:
1.1 "AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common control of, that Person. For the
purposes of this definition "control" (including, with correlative meanings, the
terms "controlled by" and "under common control of), as applied to any Person,
means the possession by another Person, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that first
mentioned Person, whether through the ownership of voting securities, by
contract or otherwise;
1.2 "BUSINESS DAY" means any day on which commercial banks are generally
open for business in Luxembourg and in the State of Delaware in the United
States, other than a Saturday, a Sunday or a day observed as a holiday in
Luxembourg or in the State of Delaware in the United States under the laws of
Luxembourg and the State of Delaware in the United States, respectively,
1.3 "CURRENT MARKET PRICE" means, in respect of a ParentCo Common Share on
any date, the Luxembourg Franc Equivalent of the average of the closing bid and
asked prices of ParentCo Common Shares during a period of 20 consecutive
quotation days ending not mom than three quotation days before such date on the
OTC B.B., or, if the ParentCo Common Shares are not then quoted on the OTC B.B.,
on such other stock exchange or automated quotation system on which the ParentCo
Common Shares are listed or quoted, as the case may be, as may be selected by
the board of directors of LuxCo for such purpose; provided, however, that if in
the opinion of the board of directors of LuxCo the public distribution or
trading activity of ParentCo Common Shares during such period does not create a
market which reflects the fair market value of ParentCo Common Share, then the
Current Market Price of a ParentCo Common Share shall be determined by the board
of directors of LuxCo, in good faith and in its sole discretion, and provided
further that any such selection, opinion or determination by the board of
directors of LuxCo shall be conclusive and binding;
1.4 "DIVIDEND AMOUNT" has the meaning ascribed thereto in section 7.3
hereof;
1.5 "EXEMPT LUXCO EXCHANGEABLE PREFERRED SHARE VOTING EVENT" means any
matter in respect of which holders of LuxCo Exchangeable Preferred Shares are
entitled to vote as shareholders of LuxCo in order to approve or disapprove, as
applicable, any change to, or in the rights of the holders of the LuxCo
Exchangeable Preferred Shares, where the approval or disapproval, as applicable,
of such change would be required to maintain the equivalence of the LuxCo
Exchangeable Preferred Shares and the ParentCo Common Shares;
1.6 "GOVERNMENTAL ENTITY" means any: (i) 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; (ii) any subdivision, agent,
commission, board, or authority of any of the foregoing; or (iii) any
quasi-governmental or private body exercising any regulatory, expropriation or
taxing authority under or for the account of any of the foregoing;
1.7 "LIQUIDATION AMOUNT" has the meaning ascribed thereto in section 6.1
hereof;
1.8 "LIQUIDATION CALL PURCHASE PRICE" has the meaning ascribed thereto in
section 9.1 hereof;
1.9 "LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in section
9.1 hereof;
1.10 "LIQUIDATION DATE" has the meaning ascribed thereto in section 6.1
hereof;
1.11 "LUXCO COMMON SHARES" means the ordinary shares of class A in the
capital of LuxCo;
1.12 "LUXCO EXCHANGEABLE PREFERRED SHARE VOTING EVENT" means any matter in
respect of which holders of LuxCo Exchangeable Preferred Shares are entitled to
vote as shareholders of LuxCo, other than an Exempt LuxCo Exchangeable Preferred
Share Voting Event, and, for greater certainty, excluding any matter in respect
of which holders of LuxCo Exchangeable Preferred Shares are entitled to vote (or
instruct the Trustee to vote) in their capacity as Beneficiaries under (and as
that term is defined in) the Voting and Exchange Trust Agreement;
1.13 "LUXCO EXCHANGEABLE PREFERRED SHARES" means the exchangeable
preferential non voting shares in the capital of LuxCo, having the rights,
privileges, restrictions and conditions set forth herein;
1.14 "LUXEMBOURG FRANC EQUIVALENT" means in respect of an amount expressed
in a currency other than Luxembourg Francs (the "FOREIGN CURRENCY AMOUNT") at
any date the product obtained by multiplying
(a) the Foreign Currency Amount by,
(b) the noon spot exchange rate on such date for such foreign
currency expressed in Luxembourg Francs as reported by the
U.S. Federal Reserve Bank or, in the event such spot exchange
rate is not available, such spot exchange rate on such date
for such foreign currency expressed in Luxembourg Francs as
may be deemed by the board of directors of LuxCo to be
appropriate for such purpose;
1.15 "OTC B.B." means the over-the-counter Bulletin Board, a quotation
system operated by The National Association of Securities Dealers, Inc.;
1.16 "PARENTCO CALL NOTICE" has the meaning ascribed thereto in section 7.3
hereof;
1.17 "PARENTCO COMMON SHARES" mean the shares of common stock in the capital
of ParentCo;
1.18 "PARENTCO CONTROL TRANSACTION" means any merger, amalgamation, tender
offer, material sale of shares or rights or interests therein or thereto or
similar transactions involving ParentCo, or any proposal to do so; and
1.19 "PARENTCO DIVIDEND DECLARATION DATE" means the date on which the board
of directors of ParentCo declares any dividend on the ParentCo Common Shares;
1.20 "PERSON" includes any individual, firm, partnership, joint venture,
venture capital fund, limited liability company, unlimited liability company,
association, trust, trustee, executor, administrator, legal personal
representative, estate, group, body corporate, corporation, unincorporated
association or organization, government Entity, syndicate or other entity,
whether or not having legal status;
1.21 "PURCHASE PRICE" has the meaning ascribed thereto in section 7.3
hereof;
1.22 "REDEMPTION CALL PURCHASE PRICE" has the meaning ascribed thereto in
section 10.1(a) hereof;
1.23 "REDEMPTION CALL RIGHT" has the meaning ascribed thereto in section
10.1(a) hereof;
1.24 "REDEMPTION DATE" means the date, if any, established by the board of
directors of LuxCo for the redemption by LuxCo of all but not less than all of
the outstanding LuxCo Exchangeable Preferred Shares pursuant to Article 8
hereof, which date shall be no earlier than December 31, 2011, unless:
(a) there are fewer than 769 LuxCo Exchangeable Preferred Shares
outstanding (other than LuxCo Exchangeable Preferred Shares
held by ParentCo and its Affiliates, and as such number of
shares may be adjusted to give effect to any subdivision or
consolidation of, or stock dividend on, the LuxCo Exchangeable
Preferred Shares, any issue or distribution of rights to
acquire LuxCo Exchangeable Preferred Shares or securities
exchangeable for or convertible into LuxCo Exchangeable
Preferred Shares, any issue or distribution of other
securities or rights or evidences of indebtedness or assets,
or any other capital reorganization or other transaction
affecting the LuxCo Exchangeable Preferred Shares), in which
case the board of directors of LuxCo may accelerate such
redemption date to such date prior to December 31, 2011 as
they may determine, upon at least 60 days' prior written
notice to the registered holders of the LuxCo Exchangeable
Preferred Shares and the Trustee;
(b) a ParentCo Control Transaction occurs, in which case, provided
that the board of directors of LuxCo determines, in good faith
and in its sole discretion, that it is not reasonably
practicable to substantially replicate the terms and
conditions of the LuxCo Exchangeable Preferred Shares in
connection with such ParentCo Control Transaction and that the
redemption of all but not less than all of the outstanding
LuxCo Exchangeable Preferred Shares is necessary to enable the
completion of such ParentCo Control Transaction in accordance
with its terms, the board of directors of LuxCo may accelerate
such redemption date to such date prior to December 31, 2011
as they may determine, upon such number of days' prior written
notice to the registered holders of the LuxCo Exchangeable
Preferred Shares and the Trustee as the board of directors of
LuxCo may determine to be reasonably practicable in such
circumstances;
(c) a LuxCo Exchangeable Preferred Share Voting Event is proposed,
in which case, provided that the board of directors of LuxCo
has determined, in good faith and in its sole discretion, that
it is not reasonably practicable to accomplish the business
purpose intended by the LuxCo Exchangeable Preferred Share
Voting Event, which business purpose must be bonafide and not
for the primary purpose of causing the occurrence of a
Redemption Date, in any other commercially reasonable
manner that does not result in a LuxCo Exchangeable Preferred
Share Voting Event, the redemption date shall be the Business
Day prior to the record date for any meeting or vote of the
holders of the LuxCo Exchangeable Preferred Shares to consider
the LuxCo Exchangeable Preferred Share Voting Event and the
board of directors of LuxCo shall give such number of days'
prior written notice of such redemption to the registered
holders of the LuxCo Exchangeable Preferred Shares and the
Trustee as the board of directors of LuxCo may determine to be
reasonably practicable in such circumstances; or
(d) an Exempt LuxCo Exchangeable Preferred Share Voting Event is
proposed and the holders of the LuxCo Exchangeable Preferred
Shares fail to take the necessary action at a meeting or other
vote of holders of LuxCo Exchangeable Preferred Shares, to
approve or disapprove, as applicable, the Exempt LuxCo
Exchangeable Preferred Share Voting Event, in which case the
redemption date shall be the Business Day following the day on
which the holders of the LuxCo Exchangeable Preferred Shares
failed to take such action and the board of directors of LuxCo
shall give such number of days prior written notice of such
redemption to the registered holders of the LuxCo Exchangeable
Preferred Shares as the board of directors of LuxCo may
determine to be reasonably practicable in such circumstances,
provided, however, that the accidental failure or omission to
give any notice of redemption under clauses (a), (b), (c) or
(d) above to less than 10% of such holders of LuxCo
Exchangeable Preferred Shares shall not affect the validity of
any such redemption;
1.25 "REDEMPTION PRICE" has the meaning ascribed thereto in section 8.1
hereof;
1.26 "RETRACTED SHARES" has the meaning ascribed thereto in section 7.1 (a)
hereof;
1.27 "RETRACTION CALL RIGHT" has the meaning ascribed thereto in section
7.1(c) hereof;
1.28 "RETRACTION DATE" has the meaning ascribed thereto in section 7.l(b)
hereof,
1.29 "RETRACTION PRICE" has the meaning ascribed thereto in section 7.1
hereof,
1.30 "RETRACTION REQUEST" has the meaning ascribed thereto in section 7.1
hereof,
1.31 "SUPPORT AGREEMENT" means the support agreement dated for reference
March 28, 2001 between ParentCo and LuxCo, as amended, supplemented or restated
from time to time;
1.32 "TRANSFER AGENT" means MFC Merchant Bank S.A. or such other Person as
may from time to time be appointed by LuxCo as the registrar and transfer agent
for the LuxCo Exchangeable Preferred Shares;
1.33 "TRUSTEE" means the trustee under the Voting and Exchange Trust
Agreement, and any successor trustee appointed thereunder, and
1.34 "VOTING AND EXCHANGE TRUST AGREEMENT" means the voting and exchange
trust agreement dated for reference March 28, 2001 among ParentCo, LuxCo and the
Trustee, as amended, supplemented or restated from time to time.
2. REPRESENTATIONS AND WARRANTIES
2.1 The LuxCo Shareholders severally represent and warrant to the other
parties hereto that the statements contained in this section 2.1 are correct and
complete as of the date of this Agreement and hereby acknowledge and confirm
that the other parties hereto are relying upon such representations and
warranties in connection with the transactions contemplated herein:
(a) Each LuxCo Shareholder has all necessary power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder;
(b) This Agreement has been duly executed and delivered by and on
behalf of each LuxCo Shareholder and constitutes legal, valid
and binding obligations of each LuxCo Shareholder enforceable
against such LuxCo Shareholder in accordance with its terms;
(c) Each LuxCo Shareholder owns the LuxCo Exchangeable Preferred
Shares as set forth beside his name on the signature pages
hereto as the sole legal and beneficial owner of record with
good, full and marketable title thereto, free and clear of any
mortgages, liens, charges, restrictions, security interests,
adverse claims, pledges, encumbrances or demands whatsoever,
and such LuxCo Exchangeable Preferred Shares are issued and
outstanding as fully paid and non-assessable; and
(d) No person, firm or corporation has any agreement or option, or
any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option for
the purchase, acquisition, transfer or contribution from any
LuxCo Shareholder of any of its LuxCo Exchangeable Preferred
Shares or any interest therein or right thereto owned by such
LuxCo Shareholder, other than pursuant hereto.
2.2 ParentCo represents and warrants to the other parties hereto that the
statements contained in this section 2.2 are correct and complete as of the date
of this Agreement and hereby acknowledges and confirms that the other parties
hereto are relying upon such representations and warranties in connection with
the transactions contemplated herein:
(a) ParentCo has been duly organized and is validly existing and
in good standing under the laws of its jurisdiction of
organization. ParentCo is duly authorized to conduct business
and is in good standing under the laws of each jurisdiction
where such qualification is required. ParentCo has full
corporate power and authority to carry on the businesses in
which it is engaged and to own and use the properties owned
and used by it;
(b) ParentCo has all necessary power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly executed and delivered
by and on behalf of ParentCo and constitutes legal, valid and
binding obligations of ParentCo enforceable against ParentCo
in accordance with its terms;
(c) ParentCo owns all but not less than all of the issued and
outstanding LuxCo Common Shares are owned by ParentCo as the
sole legal and beneficial owner of record with good and
marketable title thereto, free and clear of any mortgages,
liens, charges, restrictions, security interests, adverse
claims, pledges, encumbrances or demands whatsoever; and
(d) No person, firm or corporation has any agreement or option, or
any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option for
the purchase, acquisition, transfer or contribution from
ParentCo of any LuxCo Common Shares or any interest therein or
right thereto owned by ParentCo, other than pursuant hereto.
2.3 LuxCo represents and warrants to the other parties hereto that the
statements contained in this section 2.3 are correct and complete as of the date
of this Agreement and hereby acknowledges and confirms that the other parties
hereto are relying upon such representations and warranties in connection with
the transactions contemplated herein:
(a) LuxCo has been duly organized and is validly existing and in
good standing under the laws of its jurisdiction of
organization. LuxCo is duly authorized to conduct business and
is in good standing under the laws of each jurisdiction where
such qualification is required. LuxCo has full corporate power
and authority to carry on the businesses in which it is
engaged and to own and use the properties owned and used by
it; and
(b) LuxCo has all necessary power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly executed and delivered
by and
on behalf of LuxCo and constitutes legal, valid and binding
obligations of LuxCo enforceable against LuxCo in accordance
with its terms.
3. RANKING OF LUXCO EXCHANGEABLE PREFERRED SHARES
3.1 The LuxCo Exchangeable preferred Shares shall be entitled to a
preference over the LuxCo Common Shares and any other shares ranking junior to
the LuxCo Exchangeable Preferred Shares with respect to the payment of dividends
and the distribution of assets in the event of the liquidation, dissolution or
winding-up of LuxCo, whether voluntary or involuntary, or any other distribution
of the assets of LuxCo, among its shareholders for the purpose of winding up its
affairs.
4. DIVIDENDS
4.1 A holder of a LuxCo Exchangeable Preferred Share shall be entitled to
receive and the shareholders of LuxCo shall by resolution, subject to applicable
law, on each ParentCo Dividend Declaration Date, declare a dividend on each
LuxCo Exchangeable Preferred Share:
(a) in the case of a cash dividend declared on the ParentCo Common
Shares, in an amount in cash for each LuxCo Exchangeable
Preferred Share in U.S. dollars, or the Luxembourg Franc
Equivalent thereof on the ParentCo Dividend Declaration Date,
in each case, corresponding to the cash dividend declared on
each ParentCo Common Share multiplied by 1,066.44, subject to
adjustment in accordance with Article 14 hereof;
(b) in the case of a stock dividend declared on the ParentCo
Common Shares to be paid in ParentCo Common Shares, in such
number of LuxCo Exchangeable Preferred Shares for each LuxCo
Exchangeable Preferred Share as is equal to the number of
ParentCo Common Shares to be paid on each ParentCo Common
Share; or
(c) in the case of a dividend declared on the ParentCo Common
Shares in property other than cash or ParentCo Common Shares,
in such type and amount of property for each LuxCo
Exchangeable Preferred Share as is the same as or economically
equivalent to (to be determined by the board of directors of
LuxCo as contemplated by section 4.5 hereof) the type and
amount of property declared as a dividend on each ParentCo
Common Share multiplied by 1,066.44, subject to adjustment in
accordance with Article 14 hereof,
which amounts in (a), (b) and (c) above shall expressly include any dividend to
be paid by LuxCo to the holders of LuxCo Exchangeable Preferred Shares pursuant
to the constating documents of LuxCo.
Such dividends shall be paid out of money, assets or property of LuxCo properly
applicable to the payment of dividends, or out of authorized but unissued shares
of LuxCo, as applicable.
4.2 Cheques of LuxCo payable at par at any branch of the bankers of LuxCo
shall be issued in respect of any cash dividends contemplated by section 4.1(a)
hereof and the sending of such a cheque to each holder of a LuxCo Exchangeable
Preferred Share shall satisfy the cash dividend represented thereby unless the
cheque is not paid on presentation. Certificates registered in the name of the
registered holder of LuxCo Exchangeable Preferred Shares shall be issued or
transferred in respect of any stock dividends contemplated by section 4.1(b)
hereof and the sending of such a certificate to each holder of a LuxCo
Exchangeable Preferred Share shall satisfy the stock dividend represented
thereby. Such other type and amount of property in respect of any dividends
contemplated by section 4.1(c) hereof shall be issued, distributed or
transferred by LuxCo in such manner as it shall determine and the issuance,
distribution or transfer thereof by LuxCo to each holder of a LuxCo Exchangeable
Preferred Share shall satisfy the dividend represented thereby. No holder of a
LuxCo Exchangeable Preferred Share shall be entitled to recover by action or
other legal process against LuxCo any dividend that is represented by a cheque
that has not been duly presented to LuxCo's bankers for payment or that
otherwise remains unclaimed for a period of six years from the date on which
such dividend was payable.
4.3 The record date for the determination of the holders of LuxCo
Exchangeable Preferred Shares entitled to receive payment of, and the payment
date for, any dividend declared on the LuxCo Exchangeable Preferred Shares under
section 4.1 hereof shall be the same dates as the record date and payment date,
respectively, for the corresponding dividend declared on the ParentCo Common
Shares.
4.4 If on any payment date for any dividends declared on the LuxCo
Exchangeable Preferred Shares under section 4.1 hereof the dividends are not
paid in full on all of the LuxCo Exchangeable Preferred Shares then outstanding,
any such dividends that remain unpaid shall be paid on a subsequent date or
dates on which LuxCo shall have sufficient moneys, assets or property properly
applicable to the payment of such dividends as determined by the holders of
LuxCo Common Shares by resolution.
4.5 The board of directors of LuxCo shall determine, in good faith and in
its sole discretion, economic equivalence for the purposes of section 4.1 hereof
and each such determination shall be conclusive and binding on LuxCo and its
shareholders. In making each such determination, the following factors shall,
without excluding other factors determined by the board of directors of LuxCo to
be relevant, be considered by the board of directors of LuxCo:
(a) in the case of any stock dividend or other distribution
payable in ParentCo Common Shares, the number of such shares
issued in proportion to the number of ParentCo Common Shares
previously outstanding;
(b) in the case of the issuance or distribution of any rights,
options or warrants to subscribe for or purchase ParentCo
Common Shares (or securities exchangeable for or convertible
into or carrying rights to acquire ParentCo Common Shares),
the relationship between the exercise price of each such
right, option or warrant and the Current Market Price of a
ParentCo Common Share;
(c) in the case of the issuance or distribution of any other form
of property (including without limitation any shares or
securities of ParentCo of any class other than ParentCo Common
Shares, any rights, options or warrants other than those
referred to in section 4.5(b) above, any evidences of
indebtedness of ParentCo or any assets of ParentCo), the
relationship between the fair market value (as determined by
the board of directors of LuxCo in the manner above
contemplated) of such property to be issued or distributed
with respect to each outstanding ParentCo Common Share and the
Current Market Price of a ParentCo Common Share; and
(d) in all such cases, the general taxation consequences of the
relevant event to holders of LuxCo Exchangeable Preferred
Shares to the extent that such consequences may differ from
the taxation consequences to holders of ParentCo, Common
Shares as a result of differences between taxation laws of
Luxembourg (except for any differing consequences arising as a
result of differing marginal taxation rates and without regard
to the individual circumstances of holders of LuxCo
Exchangeable Preferred Shares).
5. CERTAIN RESTRICTIONS
5.1 So long as any of the LuxCo Exchangeable Preferred Shares are
outstanding, LuxCo shall not at any time without, but may at any time with, the
approval of the holders of the LuxCo Exchangeable Preferred Shares given as
specified in section 13.2 hereof:
(a) pay any dividends on the LuxCo Common Shares or any other
shares ranking junior to the LuxCo Exchangeable Preferred
Shares, other than stock dividends payable in LuxCo Common
Shares or any such other shares ranking junior to the LuxCo
Exchangeable Preferred Shares, as the case may be;
(b) redeem or purchase or make any capital distribution in respect
of LuxCo Common Shares or any other shares ranking junior to
the LuxCo Exchangeable Preferred Shares;
(c) redeem or purchase any other shares of LuxCo ranking equally
with the LuxCo Exchangeable Preferred Shares with respect to
the payment of dividends or on any liquidation distribution;
or
(d) issue any LuxCo Exchangeable Preferred Shares or any other
shares of LuxCo ranking equally with, or superior to, the
LuxCo Exchangeable Preferred Shares other than by way of stock
dividends to the holders of such LuxCo Exchangeable Preferred
Shares.
The restrictions in sections 5.1(a), (b), (c) and (d) above shall not apply if
all dividends on the outstanding LuxCo Exchangeable Preferred Shares
corresponding to dividends declared and paid to date on the ParentCo Common
Shares shall have been declared and paid on the LuxCo Exchangeable Preferred
Shares.
6. DISTRIBUTION ON LIQUIDATION
6.1 In the event of the liquidation, dissolution or winding-up of LuxCo or
any other distribution of the assets of LuxCo among its shareholders for the
purpose of winding up its affairs, a holder of LuxCo Exchangeable Preferred
Shares shall be entitled, subject to applicable law, to receive from the assets
of LuxCo in respect of each LuxCo Exchangeable Preferred Share held by such
holder on the effective date (the "LIQUIDATION DATE") of such liquidation,
dissolution or winding-up, before any distribution of any part of the assets of
LuxCo among the holders of the LuxCo Common Shares or any other shares ranking
junior to the LuxCo Exchangeable Preferred Shares, an amount per share (the
"LIQUIDATION AMOUNT") equal to the Current Market Price of 1,066.44 ParentCo
Common Shares, subject to adjustment in accordance with Article 14 hereof, on
the last Business Day prior to the Liquidation Date, which shall be satisfied in
full by LuxCo causing to be delivered to such holder 1,066.44 ParentCo Common
Shares, subject to adjustment in accordance with Article 14 hereof, plus an
amount equal to all declared and unpaid dividends on each such LuxCo
Exchangeable Preferred Share held by such holder on any dividend record date
which occurred prior to the Liquidation Date.
6.2 On or promptly after the Liquidation Date, and subject to the exercise
by ParentCo of the Liquidation Call Right, LuxCo shall cause to be delivered to
the holders of the LuxCo Exchangeable Preferred Shares the Liquidation Amount
for each such LuxCo Exchangeable Preferred Share upon presentation and surrender
of the certificates representing such LuxCo Exchangeable Preferred Shares,
together with such other documents and instruments as may be required to effect
a transfer of LuxCo Exchangeable Preferred Shares under the applicable corporate
legislation in Luxembourg and the Articles of LuxCo and such additional
documents and instruments as the Transfer Agent and LuxCo may reasonably
require, at the registered office of LuxCo or at any office of the Transfer
Agent as may be specified by LuxCo by notice to the holders of the LuxCo
Exchangeable Preferred Shares. Payment of the total Liquidation Amount for such
LuxCo Exchangeable Preferred Shares shall be made by delivery to each holder, at
the address of the holder recorded in the securities register of LuxCo for the
LuxCo Exchangeable Preferred Shares or by holding for pick-up by the holder at
the registered office of LuxCo or at any office of the Transfer Agent as may be
specified by LuxCo by notice to the holders of LuxCo, Exchangeable Preferred
Shares, on behalf of LuxCo, of certificates representing ParentCo Common Shares
(which shares shall be duly issued as fully paid and non-assessable and shall be
free and clear of any lien, claim or encumbrance) and a cheque of LuxCo payable
at par at any branch of the bankers of LuxCo in respect of the remaining
portion, if any, of the total Liquidation Amount (in each case less any amounts
withheld on account of tax required to be deducted and withheld therefrom). On
and after the Liquidation Date, the holders of the LuxCo Exchangeable Preferred
Shares shall cease to be holders of such LuxCo Exchangeable Preferred Shares and
shall not be entitled to exercise any of the rights of holders in respect
thereof, other than the right to receive their proportionate part of the total
Liquidation Amount, unless payment of the total Liquidation Amount for such
LuxCo Exchangeable Preferred Shares shall not be made upon presentation and
surrender of share certificates in accordance with the foregoing provisions, in
which case the rights of the holders shall remain unaffected until the total
Liquidation Amount has been paid in the manner hereinbefore provided. LuxCo
shall have the right at any time after the Liquidation Date to deposit or cause
to be deposited the total Liquidation Amount in respect of the LuxCo
Exchangeable Preferred Shares represented by certificates that have not at the
Liquidation Date been surrendered by the holders thereof in a custodial account
with any commercial bank in Luxembourg. Upon such deposit being made, the rights
of the holders of LuxCo Exchangeable Preferred Shares after such deposit shall
be limited to receiving their proportionate part of the total Liquidation Amount
(in each case less any amounts withheld on account of tax required to be
deducted and withheld therefrom) for such LuxCo Exchangeable Preferred Shares so
deposited, against presentation and surrender of the said certificates held by
them, respectively, in accordance with the foregoing provisions. Upon such
payment or deposit of the total
liquidation Amount, the holders of the LuxCo Exchangeable Preferred Shares shall
thereafter be considered and deemed for all purposes to be holders of the
ParentCo Common Shares delivered to them or the custodian on their behalf.
6.3 After LuxCo has satisfied its obligations to pay the holders of the
LuxCo Exchangeable Preferred Shares the Liquidation Amount per LuxCo
Exchangeable Preferred Share pursuant to section 6.1 hereof such holders shall
not be entitled to share in any further distribution of the assets of LuxCo.
7. RETRACTION OF LUXCO EXCHANGEABLE PREFERRED SHARES BY HOLDER
7.1 A holder of LuxCo Exchangeable Preferred Shares shall be entitled at
any time, subject to the exercise by ParentCo of the Retraction Call Right and
otherwise upon compliance with the provisions of this Article 7, to require
LuxCo to redeem any or all of the LuxCo Exchangeable Preferred Shares registered
in the name of such holder for an amount per share equal to the Current Market
Price of 1,066.44 ParentCo Common Shares, subject to adjustment in accordance
with Article 14 hereof, on the last Business Day prior to the Retraction Date
(the "RETRACTION PRICE"), which shall be satisfied in full by LuxCo causing to
be delivered to such holder 1,066.44 ParentCo Common Shares, subject to
adjustment in accordance with Article 14 hereof, for each LuxCo Exchangeable
Preferred Share presented and surrendered by the holder, together with, on the
payment date therefor, the full amount of all declared and unpaid dividends on
any such LuxCo Exchangeable Preferred Share held by such holder on any dividend
record date which occurred prior to the Retraction Date, subject to the
restriction that prior to the filing by ParentCo of a Certificate of Amendment
to Certificate of Incorporation to increase the authorized number of ParentCo
Common Shares from 30,000,000 to 80,000,000, LuxCo shall only be required to
redeem a maximum of in aggregate 1,400 LuxCo Exchangeable Preferred Shares
pursuant to this section 7.1 (and that it prior to such filing, the holders of
LuxCo Exchangeable Preferred Shares require LuxCo to redeem more than in
aggregate 1,400 LuxCo Exchangeable Preferred Shares, such LuxCo Exchangeable
Preferred Shares will be redeemed on a pro rata basis). To effect such
redemption, the holder shall present and surrender at the registered office of
LuxCo or at any office of the Transfer Agent as may be specified by LuxCo by
notice to the holders of LuxCo Exchangeable Preferred Shares the certificate or
certificates representing the LuxCo Exchangeable Preferred Shares which the
holder desires to have LuxCo redeem, together with such other documents and
instruments as may be required to effect a transfer of LuxCo Exchangeable
Preferred Shares under applicable corporate legislation in Luxembourg and the
Articles of LuxCo and such additional documents and instruments as the Transfer
Agent and LuxCo may reasonably require, and together with a duly executed
statement (the "RETRACTION REQUEST") in the form of Schedule "A" hereto or in
such other form as may be acceptable to LuxCo:
(a) specifying that the holder desires to have all or any number
specified therein of the LuxCo Exchangeable Preferred Shares
represented by such certificate or certificates (the
"RETRACTED SHARES") redeemed by LuxCo;
(b) stating the Business Day on which the holder desires to have
LuxCo redeem the Retracted Shares (the "RETRACTION DATE"),
provided that the Retraction Date shall be not less than 10
Business Days nor more than 15 Business Days after the date on
which the Retraction Request is received by LuxCo and further
provided that in the event that no such Business Day is
specified by the holder in the Retraction Request, the
Retraction Date shall be deemed to be the 15th Business Day
after the date on which the Retraction Request is received by
LuxCo; and
(c) acknowledging the overriding right (the "RETRACTION CALL
RIGHT") of ParentCo to purchase but not less than all the
Retracted Shares directly from the holder and that the
Retraction Request shall be deemed to be a revocable offer by
the holder to sell the Retracted Shares to ParentCo in
accordance with the Retraction Call Right on the terms and
conditions set out in section 7.3 below.
7.2 Subject to the exercise by ParentCo of the Retraction Call Right, upon
receipt by LuxCo or the Transfer Agent in the manner specified in section 7.1
above of a certificate or certificates representing the number of LuxCo
Exchangeable Preferred Shares which the holder desires to have LuxCo redeem,
together with a Retraction Request, and provided that the Retraction Request is
not revoked by the holder in the manner specified in section 7.7 below, LuxCo
shall redeem the Retracted Shares effective at the dose of business on the
Retraction Date and shall cause to be delivered to such holder the total
Retraction Price with respect to such shares, provided that all declared and
unpaid dividends for which the record date has occurred prior to the Retraction
Date shall be paid on the payment date for such dividends. If only a part of the
LuxCo Exchangeable Preferred Shares represented by any certificate is redeemed
(or purchased by ParentCo pursuant to the Retraction Call Right), a new
certificate for the balance of such LuxCo Exchangeable Preferred Shares shall be
issued to the holder at the expense of LuxCo.
7.3 Upon receipt by LuxCo of a Retraction Request, LuxCo shall immediately
notify ParentCo thereof. In order to exercise the Retraction Call Right,
ParentCo must notify LuxCo of its determination to do so (the "PARENTCO CALL
NOTICE") within five business days of notification to ParentCo by LuxCo of the
receipt by LuxCo of the Retraction Request. If ParentCo does not so notify LuxCo
within such five business day period, LuxCo will notify the holder as soon as
possible thereafter that ParentCo will not exercise the Retraction Call Right If
ParentCo delivers the ParentCo Call Notice within such five business day period,
and provided that the Retraction Request is not revoked by the holder in the
manner specified in section 7.7 below, the Retraction Request shall thereupon be
considered only to be an offer by the holder to sell the Retracted Shares to
ParentCo in accordance with the Retraction Call Right. In such event, LuxCo
shall not redeem the Retracted Shares and ParentCo shall purchase from such
holder and such holder shall sell to ParentCo on the Retraction Date the
Retracted Shares for a purchase price (the "PURCHASE PRICE") per share equal to
the Retraction Price per share, plus, on the designated payment date therefor,
to the extent not paid by LuxCo on the designated payment date therefor, an
additional amount equivalent to the fall amount of all declared and unpaid
dividends on those Retracted Shares held by such holder on any dividend record
date which occurred prior to the Retraction Date (the "DIVIDEND AMOUNT"). For
the purposes of completing a purchase pursuant to the Retraction Call Right,
ParentCo shall deposit with the Transfer Agent, on or before the Retraction
Date, certificates representing ParentCo Common Shares and a cheque or cheques
of ParentCo payable at par at any branch of the bankers of ParentCo representing
the aggregate Dividend Amount, less any amounts withheld on account of tax
required to be deducted and withheld therefrom. Provided that ParentCo has
complied with the immediately preceding sentence, the closing of the purchase
and sale of the Retracted Shares pursuant to the Retraction Call Right shall be
deemed to have occurred as at the close of business on the Retraction Date and,
for greater certainty, no redemption by LuxCo of such Retracted Shares shall
take place on the Retraction Date. In the event that ParentCo does not deliver a
ParentCo, Call Notice within such five business day period, and provided that
the Retraction Request is not revoked by the holder in the manner specified in
section 7.7 below, LuxCo shall redeem the Retracted Shares on the Retraction
Date and in the manner otherwise contemplated in this Article 7.
7.4 LuxCo or ParentCo, as the case may be, shall deliver or cause the
Transfer Agent to deliver to the relevant holder, at the address of the holder
recorded in the securities register of LuxCo for the LuxCo Exchangeable
Preferred Shares or at the address specified in the holder's Retraction Request
or by holding for pick-up by the holder at the registered office of LuxCo or at
any office of the Transfer Agent as may be specified by LuxCo by notice to the
holders of LuxCo Exchangeable Preferred Shares, certificates representing the
ParentCo Common Shares (which shares shall be duly issued as fully paid and
non-assessable and shall be free and clear of any lien, claim or encumbrance)
registered in the name of the holder or in such other name as the holder may
request, and, if applicable and on or before the payment date therefor, a cheque
payable at par at any branch of the bankers of LuxCo or ParentCo, as applicable,
representing the aggregate Dividend Amount, in payment of the total Retraction
Price or the total Purchase Price, as the case may be, in each case, less any
amounts withheld on account of tax required to be deducted and withheld
therefrom and such delivery of such certificates and cheques on behalf of LuxCo
or by ParentCo, as the case may be, or by the Transfer Agent shall be deemed to
be payment of and shall satisfy and discharge all liability for the total
Retraction Price or total Purchase Price, as the case may be, to the extent that
the same is represented by such share certificates and cheques (plus any tax
deducted and withheld therefrom and remitted to the proper tax authority).
7.5 On and after the close of business on the Retraction Date, the holder
of the Retracted Shares shall cease to be a holder of such Retracted Shares and
shall not be entitled to exercise any of the rights of a holder in respect
thereof other than the right to receive his proportionate part of the total
Retraction Price or total Purchase Price, as the case may be, unless upon
presentation and surrender of certificates in accordance with the foregoing
provisions, payment of the total Retraction Price or the total Purchase Price,
as the case may be, shall not be made as provided in section 7.4 above, in which
case the rights of such holder shall remain unaffected until the total
Retraction Price or the total Purchase Price, as the case may be, has been paid
in the manner hereinbefore provided. On and after the close of business on the
Retraction Date, provided that presentation and surrender of certificates and
payment of the total Retraction Price or the total Purchase Price, as the case
may be, has been made in accordance with
the foregoing provisions, the holder of the Retracted Shares so redeemed by
LuxCo or purchased by ParentCo shall thereafter be considered and deemed for all
purposes to be a holder of the ParentCo Common Shares delivered to it.
7.6 Notwithstanding any other provision of this Article 7, LuxCo shall not
be obligated to redeem Retracted Shares specified by a holder in a Retraction
Request to the extent that such redemption of Retracted Shares would be contrary
to solvency requirements or other provisions of applicable law. If LuxCo
believes that on any Retraction Date it would not be permitted by any of such
provisions to redeem the Retracted Shares tendered for redemption on such date,
and provided that ParentCo shall not have exercised the Retraction Call Right
with respect to the Retracted Shares, LuxCo shall only be obligated to redeem
Retracted Shares specified by a holder in a Retraction Request to the extent of
the maximum number that may be so redeemed (rounded down to a whole number of
shares) as would not be contrary to such provisions and shall notify the holder
and the Trustee at least two Business Days prior to the Retraction Date as to
the number of Retracted Shares which will not be redeemed by LuxCo. In any case
in which the redemption by LuxCo of Retracted Shares would be contrary to
solvency requirements or other provisions of applicable law, LuxCo shall redeem
Retracted Shares in accordance with section 7.2 above on a pro rata basis and
shall issue to each holder of Retracted Shares a new certificate, at the expense
of LuxCo, representing the Retracted Shares not redeemed by LuxCo pursuant to
section 7.2 above. Provided that the Retraction Request is not revoked by the
holder in the manner specified in section 7.7 below, the bolder of any such
Retracted Shares not redeemed by LuxCo pursuant to section 7.2 above as a result
of solvency requirements or other provisions of applicable law shall be deemed
by giving the Retraction Request to require ParentCo, to purchase such Retracted
Shares from such holder on the Retraction Date or as soon as practicable
thereafter on payment by ParentCo to such holder of the Purchase Price for each
such Retracted Share, all as more specifically provided in the Voting and
Exchange Trust Agreement.
7.7 A holder of Retracted Shares may, by notice in writing given by the
holder to LuxCo before the close of business on the Business Day immediately
preceding the Retraction Date, withdraw its Retraction Request, in which event
such Retraction Request shall be null mid void, and, for greater certainty, the
revocable offer constituted by the Retraction Request to sell the Retracted
Shares to ParentCo shall be deemed to have been revoked.
8. REDEMPTION OF LUXCO EXCHANGEABLE PREFERRED SHARES BY LUXCO
8.1 Subject to applicable law, and provided ParentCo has not exercised the
Redemption Call Right, LuxCo shall on the Redemption Date redeem all but not
less than all of the then outstanding LuxCo Exchangeable Preferred Shares for an
amount per share equal to the Current Market Price of 1,066.44 ParentCo Common
Shares, subject to adjustment in accordance with Article 14 hereof, on the last
Business Day prior to the Redemption Date (the "REDEMPTION PRICE"), which shall
be satisfied in full by LuxCo causing to be delivered to each holder of LuxCo
Exchangeable Preferred Shares 1,066.44 ParentCo Common Shares, subject to
adjustment in accordance with Article 14 hereof for each LuxCo Exchangeable
Preferred Share held by such holder, together with the full amount of all
declared and unpaid dividends on each such LuxCo Exchangeable Preferred Share
held by such holder on any dividend record date which occurred prior to the
Redemption Date.
8.2 In any case of a redemption of LuxCo Exchangeable Preferred Shares
under this Article 8, LuxCo shall, at least 60 days before the Redemption Date
(other than a Redemption Date established in connection with a ParentCo Control
Transaction, a LuxCo Exchangeable Preferred Share Voting Event or an Exempt
LuxCo Exchangeable Preferred Share Voting Event), send or cause to be sent to
each holder of LuxCo Exchangeable Preferred Shares a notice in writing of the
redemption by LuxCo or the purchase by ParentCo under the Redemption Call Right,
as the case may be, of the LuxCo Exchangeable Preferred Shares held by such
holder. In the case of a Redemption Date established in connection with a
ParentCo Control Transaction, a LuxCo Exchangeable Preferred Share Voting Event
and an Exempt LuxCo Exchangeable Preferred Share Voting Event, the written
notice of redemption by LuxCo or the purchase by ParentCo under the Redemption
Call Right will be sent on or before the Redemption Date, on as many days prior
written notice as may be determined by the board of directors of LuxCo to be
reasonably practicable in the circumstances. In any such case, such notice shall
set out the formula for determining the Redemption Price or the Redemption Call
Purchase Price, as the case may be, the Redemption Date and, if applicable,
particulars of the Redemption Call Right.
8.3 On or after the Redemption Date, and subject to the exercise by
ParentCo of the Redemption Call Right, LuxCo shall cause to be delivered to the
holders of the LuxCo Exchangeable Preferred Shares to be redeemed the
Redemption Price for each such LuxCo Exchangeable Preferred Share, together with
the full amount of all declared and unpaid dividends on each such LuxCo
Exchangeable Preferred Share held by such holder on any dividend record date
which occurred prior to the Redemption Date, upon presentation and surrender at
the registered office of LuxCo or at any office of the Transfer Agent as may be
specified by LuxCo in such notice of the certificates representing such LuxCo
Exchangeable Preferred Shares, together with such other documents and
instruments as may be required to effect a transfer of LuxCo Exchangeable
Preferred Shares under applicable corporate legislation in Luxembourg and the
Articles of LuxCo and such additional documents and instruments as the Transfer
Agent and LuxCo may reasonably require. Payment of the total Redemption Price
for such LuxCo Exchangeable Preferred Shares, together with payment of such
dividends, shall be made by delivery to each holder, at the address of the
holder recorded in the securities register of LuxCo or by holding for pick-up by
the holder at the registered office of LuxCo or at any office of the Transfer
Agent as may be specified by LuxCo in such notice, on behalf of LuxCo of
certificates representing ParentCo Common Shares (which shares shall be duly
issued as fully paid and non-assessable and shall be free and clear of any lien,
claim or encumbrance) and, if applicable, a cheque of LuxCo payable at par at
any branch of the bankers of LuxCo in payment of any such dividends, in each
case, less any amounts withheld on account of tax required to be deducted and
withheld therefrom. On and after the Redemption Date, the holders of the LuxCo
Exchangeable Preferred Shares called for redemption shall cease to be holders of
such LuxCo Exchangeable Preferred Shares and shall not be entitled to exercise
any of the rights of holders in respect thereof other than the right to receive
their proportionate part of the total Redemption Price and any such dividends,
unless payment of the total Redemption Price and any such dividends for such
LuxCo Exchangeable Preferred Shares shall not be made upon presentation and
surrender of certificates in accordance with the foregoing provisions, in which
case the rights of the holders shall remain unaffected until the total
Redemption Price and any such dividends have been paid in the mariner
hereinbefore provided. LuxCo shall have the right at any time after the sending
of notice of its intention to redeem the LuxCo Exchangeable Preferred Shares as
aforesaid to deposit or cause to be deposited the total Redemption Price for and
the full amount of such dividends on (except as otherwise provided in this
section 8.3) the LuxCo Exchangeable Preferred Shares so called for redemption,
or of such of the said LuxCo Exchangeable Preferred Shares represented by
certificates that have not at the date of such deposit been surrendered by the
holders thereof in connection with such redemption, in a custodial account with
any commercial bank in Luxembourg named in such notice, less any amounts
withheld on account of tax required to be deducted and withheld therefrom. Upon
the later of such deposit being made and the Redemption Date, the LuxCo
Exchangeable Preferred Shares in respect whereof such deposit shall have been
made shall be redeemed and the rights of the holders thereof after such deposit
or Redemption Date, as the case may be, shall be limited to receiving their
proportionate part of the total Redemption Price and such dividends for such
LuxCo Exchangeable Preferred Shares so deposited, against presentation and
surrender of the said certificates held by them, respectively, in accordance
with the foregoing provisions. Upon such payment or deposit of the total
Redemption Price and the full amount of such dividends, the holders of the LuxCo
Exchangeable Preferred Shares shall thereafter be considered and deemed for all
purposes to be holders of the ParentCo Common Shares delivered to them or the
custodian on their behalf
9. PARENTCO LIQUIDATION CALL RIGHT
9.1 ParentCo shall have the overriding right (the "LIQUIDATION CALL
RIGHT"), in the event of and notwithstanding the proposed liquidation,
dissolution or winding-up of LuxCo pursuant to Article 6 hereof to purchase from
all but not less than all of the holders of LuxCo Exchangeable Preferred Shares
(other than LuxCo Exchangeable Preferred Shares held by ParentCo and its
Affiliates) on the Liquidation Date all but not less than all of the
Exchangeable Shares held by each such holder on payment by ParentCo of an amount
per share (the "LIQUIDATION CALL PURCHASE PRICE") equal to the Current Market
Price of 1,066.44 ParentCo Common Shares, subject to adjustment in accordance
with Article 14 hereof, on the last Business Day prior to the Liquidation Date,
which shall be satisfied in full by ParentCo, causing to be delivered to such
holder 1,066.44 ParentCo Common Shares, subject to adjustment in accordance with
Article 14 hereof, plus any Dividend Amount. In the event of the exercise of the
Liquidation Call Right by ParentCo, each holder shall be obligated to sell all
the LuxCo Exchangeable Preferred Shares held by the holder to ParentCo on the
Liquidation Date on payment by ParentCo to the holder of the Liquidation Call
Purchase Price for each such share, and LuxCo shall have no obligation to pay
any Liquidation Amount to the holders of such shares so purchased by ParentCo.
9.2 To exercise the Liquidation Call Right, ParentCo must notify LuxCo's
transfer agent (the "TRANSFER AGENT"), as agent for the holders of LuxCo
Exchangeable Preferred Shares, and LuxCo of ParentCo's intention to exercise
such right at least 45 days before the Liquidation Date in the case of a
voluntary liquidation, dissolution or
winding-up of LuxCo and at least five Business Days before the Liquidation Date
in the case of an involuntary liquidation, dissolution or winding-up of LuxCo.
The Transfer Agent will notify the holders of LuxCo Exchangeable Preferred
Shares as to whether or not ParentCo has exercised the Liquidation Call Right
forthwith after the expiry of the period during which the same may be exercised
by ParentCo. If ParentCo exercises the Liquidation Call Right, then on the
Liquidation Date ParentCo will purchase and the holders will sell all of the
LuxCo Exchangeable Preferred Shares then outstanding for a price per share equal
to the Liquidation Call Purchase Price.
9.3 For the purposes of completing the purchase of the LuxCo Exchangeable
Preferred Shares pursuant to the Liquidation Call Right, ParentCo shall deposit
with the Transfer Agent, on or before the Liquidation Date, certificates
representing the aggregate number of ParentCo Common Shares deliverable by
ParentCo and a cheque or cheques of ParentCo payable at par at any branch of the
bankers of ParentCo representing the aggregate Dividend Amount if any, in
payment of the total Liquidation Call Purchase Price, less any amounts withheld
on account of tax required to be deducted and withheld therefrom. Provided that
ParentCo has complied with the immediately preceding sentence, on and after the
Liquidation Date the rights of each holder of LuxCo Exchangeable Preferred
Shares will be limited to receiving such holder's proportionate part of the
total Liquidation Call Purchase Price payable by ParentCo upon presentation and
surrender by the holder of certificates representing the LuxCo Exchangeable
Preferred Shares held by such holder and the holder shall on and after the
Liquidation Date be considered and deemed for all purposes to be the holder of
the ParentCo Common Shares to which it is entitled. Upon surrender to the
Transfer Agent of a certificate or certificates representing LuxCo Exchangeable
Preferred Shares, together with such other documents and instruments as may be
required to effect a transfer of LuxCo Exchangeable Preferred Shares under the
governing corporate statute and the by-laws of LuxCo and such additional
documents and instruments as the Transfer Agent may reasonably require, the
holder of such surrendered certificate or certificates shall be entitled to
receive in exchange therefor, and the Transfer Agent on behalf of ParentCo shall
deliver to such holder, certificates representing the ParentCo, Common Shares to
which the holder is entitled and a cheque or cheques of ParentCo payable at par
at any branch of the bankers of ParentCo in payment of the remaining portion, if
any, of the total Liquidation Call Purchase Price, less any amounts withheld on
account of tax required to be deducted and withheld therefrom. If ParentCo does
not exercise the Liquidation Call Right in the manner described above, on the
Liquidation Date the holders of the LuxCo Exchangeable Preferred Shares will be
entitled to receive in exchange therefor the Liquidation Amount otherwise
payable by LuxCo in connection with the liquidation, dissolution or winding-up
of LuxCo pursuant to Article 6 hereof.
10. PARENTCO REDEMPTION CALL RIGHT
10.1 In addition to ParentCo's rights contained herein, including, without
limitation, the Retraction Call Right, ParentCo shall have the following rights
in respect of the LuxCo Exchangeable Preferred Shares:
(a) ParentCo shall have the overriding right (the "REDEMPTION CALL
RIGHT"), notwithstanding the proposed redemption of the LuxCo
Exchangeable Preferred Shares by LuxCo pursuant to Article 8
hereof, to purchase from all but not less than all of the
holders of LuxCo Exchangeable Preferred Shares (other than any
LuxCo Exchangeable Preferred Shares held by ParentCo and its
Affiliates) on the Redemption Date all but not less than all
of the LuxCo Exchangeable Preferred Shares held by each such
holder on payment by ParentCo to each holder of an amount per
LuxCo Exchangeable Preferred Share (the "REDEMPTION CALL
PURCHASE PRICE") equal to the Current Market Price of 1,066.44
ParentCo Common Shares, subject to adjustment in accordance
with Article 14 hereof, on the last Business Day prior to the
Redemption Date, which shall be satisfied in full by ParentCo
causing to be delivered to such holder 1,066.44 ParentCo
Common Shares, subject to adjustment in accordance with
Article 14 hereof, plus any Dividend Amount. In the event of
the exercise of the Redemption Call Right by ParentCo, each
holder shall be obligated to sell all the LuxCo Exchangeable
Preferred Shares held by the holder to ParentCo on the
Redemption Date on payment by ParentCo to the holder of the
Redemption Call Purchase Price for each such share, and LuxCo
shall have no obligation to redeem, or to pay any Dividend
Amount in respect of, such shares so purchased by ParentCo.
(b) To exercise the Redemption Call Right, ParentCo must notify
the Transfer Agent, as agent for the holders of LuxCo
Exchangeable Preferred Shares, and LuxCo of ParentCo's
intention to exercise
such right at least 60 days before the Redemption Date, except
in the case of a redemption occurring as a result of a
ParentCo Control Transaction, a LuxCo Exchangeable Preferred
Share Voting Event or an Exempt LuxCo Exchangeable Preferred
Share Voting Event, in which case ParentCo shall so notify the
Transfer Agent and LuxCo on or before the Redemption Date. The
Transfer Agent will notify the holders of the LuxCo
Exchangeable Preferred Shares as to whether or not ParentCo
has exercised the Redemption Call Right forthwith after the
expiry of the period during which the same may be exercised by
ParentCo. If ParentCo exercises the Redemption Call Right, on
the Redemption Date ParentCo will purchase and the holders
will sell all of the LuxCo Exchangeable Preferred Shares then
outstanding for a price per share equal to the Redemption Call
Purchase Price.
(c) For the purposes of completing the purchase of the LuxCo
Exchangeable Preferred Shares pursuant to the Redemption Call
Right, ParentCo shall deposit with the Transfer Agent, on or
before the Redemption Date, certificates representing the
aggregate number of ParentCo Common Shares deliverable by
ParentCo and a cheque or cheques of ParentCo payable at par at
any branch of the bankers of ParentCo representing the
aggregate Dividend Amount, if any, in payment of the total
redemption Call Purchase Price, less any amounts withheld on
account of tax required to be deducted and withheld therefrom.
Provided that ParentCo has complied with the immediately
preceding sentence, on and after the Redemption Date, the
rights of each holder of LuxCo Exchangeable Preferred Shares
will be limited to receiving such holder's proportionate part
of the total Redemption Call Purchase Price payable by
ParentCo upon presentation and surrender by the holder of
certificates representing the LuxCo Exchangeable Preferred
Shares held by such holder and the holder shall on and after
the Redemption Date be considered and deemed for all purposes
to be the holder of the ParentCo Common Shares to which it is
entitled. Upon surrender to the Transfer Agent of a
certificate or certificates representing LuxCo Exchangeable
Preferred Shares, together with such other documents and
instruments as may be required to effect a transfer of LuxCo
Exchangeable Preferred Shares under the governing corporate
statute and the by-laws of LuxCo and such additional documents
and instruments as the Transfer Agent may reasonably require,
the holder of such surrendered certificate or certificates
shall be entitled to receive in exchange therefor, and the
Transfer Agent on behalf of ParentCo shall deliver to such
holder, certificates representing the ParentCo Common Shares
to which the holder is entitled and a cheque or cheques of
ParentCo payable at par at any branch of the bankers of
ParentCo in payment of the remaining portion, if any, of the
total Redemption Call Purchase Price, less any amounts
withheld on account of tax required to be deducted and
withheld therefrom. If ParentCo does not exercise the
Redemption Call Right in the manner described above, on the
Redemption Date the holders of the LuxCo Exchangeable
Preferred Shares will be entitled to receive in exchange
therefor the redemption price otherwise payable by LuxCo in
connection with the redemption of the LuxCo Exchangeable
Preferred Shares pursuant to Article 8 hereof.
11. PURCHASE FOR CANCELLATION
11.1 Subject to applicable law and notwithstanding section 11.2 below, LuxCo
may at any time and from time to time purchase for cancellation all or any part
of the LuxCo Exchangeable Preferred Shares by private agreement with any holder
of LuxCo Exchangeable Preferred Shares for consideration consisting of LuxCo
Common Shares.
11.2 Subject to applicable law and the Articles of LuxCo, LuxCo may at any
time and from time to time purchase for cancellation all or any part of the
outstanding LuxCo Exchangeable Preferred Shares at any price by tender to all
the holders of record of LuxCo Exchangeable Preferred Shares then outstanding or
through the facilities of any stock exchange or quotation system on which the
LuxCo Exchangeable Preferred Shares are listed or quoted at any price per share
together with an amount equal to all declared and unpaid dividends thereon for
which the record date has occurred prior to the date of purchase. If in response
to an invitation for tenders under the provisions of this section 11.2, more
LuxCo Exchangeable Preferred Shares are tendered at a price or prices acceptable
to LuxCo than LuxCo is prepared to purchase, the LuxCo Exchangeable Preferred
Shares to be purchased by LuxCo shall be purchased as nearly as may be pro rata
according to the number of shares tendered by each holder who submits a tender
to LuxCo, provided that when shares are tendered at different prices, the pro
rating shall be effected (disregarding fractions) only with respect to the
shares tendered at the price at which more shares were tendered than
LuxCo is prepared to purchase after LuxCo has purchased all the shares tendered
at lower prices. If part only of the LuxCo Exchangeable Preferred Shares
represented by any certificate shall be purchased, a new certificate for the
balance of such shares shall be issued at the expense of LuxCo.
12. VOTING RIGHTS
12.1 Except as required by applicable law and by Article 13 hereof the
holders of the LuxCo Exchangeable Preferred Shares shall not be entitled as such
to vote at any meeting of the shareholders of LuxCo.
13. AMENDMENT AND APPROVAL
13.1 The rights, privileges, restrictions and conditions attaching to the
LuxCo Exchangeable Preferred Shares may be added to, changed or removed in
accordance with applicable law subject to a minimum requirement that the
approval of the holders of the LuxCo Exchangeable Preferred Shares be given as
hereinafter specified.
13.2 Any approval given by the holders of the LuxCo Exchangeable Preferred
Shares to add to, change or remove any right, privilege, restriction or
condition attaching to the LuxCo Exchangeable Preferred Shares or any other
matter requiring the approval or consent of the holders of the LuxCo
Exchangeable Preferred Shares shall be deemed to have been sufficiently given if
it shall have been given in accordance with applicable law subject to a minimum
requirement that such approval be evidenced by resolution passed by not less
than 75% of the votes cast on such resolution at a meeting of holders of LuxCo
Exchangeable Preferred Shares (other than any LuxCo Exchangeable Preferred
Shares held by ParentCo and its Affiliates) duly called and held; provided that
if at any such meeting the requisite quorum is not present or represented by
proxy within one-half hour after the time appointed for such meeting, then the
meeting shall be adjourned to such date not less than five days thereafter and
to such time and place as may be designated by the Chairman of such meeting. At
such adjourned meeting the holders of LuxCo Exchangeable Preferred Shares (other
than any LuxCo Exchangeable Preferred Shares held by ParentCo and its
Affiliates) present or represented by proxy thereat may transact the business
for which the meeting was originally called and a resolution passed thereat by
the affirmative vote of not less than 75% of the votes cast on such resolution
at such meeting shall constitute the approval or consent of the holders of the
LuxCo Exchangeable Preferred Shares.
14. RECIPROCAL CHANGES, ETC. IN RESPECT OF PARENTCO COMMON SHARES
14.1 Each holder of a LuxCo Exchangeable Preferred Share acknowledges that
the Support Agreement provides, in part, that ParentCo will not without the
prior approval of LuxCo and the prior approval of the holders of the LuxCo
Exchangeable Preferred Shares given in accordance with section 13.2 hereof:
(a) issue or distribute ParentCo Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire ParentCo Common Shares) to the holders of all or
substantially all of the then outstanding ParentCo Common
Shares by way of stock dividend or other distribution, other
than an issue of ParentCo, Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire ParentCo Common Shares) to holders of ParentCo Common
Shares who exercise an option to receive dividends in ParentCo
Common Shares (or securities exchangeable for or convertible
into or carrying rights to acquire ParentCo Common Shares) in
lieu of receiving cash dividends;
(b) issue or distribute rights, options or warrants to the holders
of all or substantially all of the then outstanding ParentCo
Common Shares entitling them to subscribe for or to purchase
ParentCo Common Shares (or securities exchangeable for or
convertible into or carrying rights to acquire ParentCo Common
Shares); or
(c) issue or distribute to the holders of all or substantially all
of the then outstanding ParentCo Common Shares;
(d) shares or securities of ParentCo of any class other than
ParentCo Common Shares (other than shares convertible into or
exchangeable for or carrying rights to acquire ParentCo Common
Shares);
(i) rights, options or warrants other than those referred
to in section 14.1 (b) above;
(ii) evidences of indebtedness of ParentCo; or
(iii) assets of ParentCo,
unless the economic equivalent on a per share basis of such rights, options,
securities, shares, evidences of indebtedness or other assets is issued or
distributed simultaneously to holders of the LuxCo Exchangeable Preferred
Shares.
14.2 Each holder of a LuxCo Exchangeable Preferred Share acknowledges that
the Support Agreement further provides, in part, that ParentCo will not without
the prior approval of LuxCo and the prior approval of the holders of the LuxCo
Exchangeable Preferred Shares given in accordance with section 13.2 hereof:
(a) subdivide, redivide or change the then outstanding ParentCo
Common Shares into a greater number of ParentCo Common Shares;
(b) reduce, combine, consolidate or change the then outstanding
ParentCo Common Shares into a lesser number of ParentCo Common
Shares; or
(c) reclassify or otherwise change the ParentCo Common Shares or
effect an amalgamation, merger, reorganization or other
transaction affecting the ParentCo Common Shares,
unless the same or an economically equivalent change shall simultaneously be
made to, or in, the rights of the holders of the LuxCo Exchangeable Preferred
Shares. The Support Agreement further provides, in part, that the aforesaid
provisions of the Support Agreement shall not be changed without the approval of
the holders of the LuxCo Exchangeable Preferred Shares Oven in accordance with
section 13.2 hereof
15. ACTIONS BY LUXCO UNDER SUPPORT AGREEMENT
15.1 LuxCo will take all such actions and do all such things as shall be
necessary or advisable to perform and comply with and to ensure performance and
compliance by ParentCo and LuxCo with all provisions of the Support Agreement
applicable to ParentCo and LuxCo, respectively, in accordance with the terms
thereof including without limitation, taking all such actions and doing all such
things as shall be necessary or advisable to enforce to the fullest extent
possible for the direct benefit of LuxCo all rights and benefits in favor of
LuxCo under or pursuant to such agreement.
15.2 LuxCo shall not propose, agree to or otherwise give effect to any
amendment to, or waiver or forgiveness of its rights or obligations under, the
Support Agreement without the approval of the holders of the LuxCo Exchangeable
Preferred Shams given in accordance with section 13.2 hereof other than such
amendments, waivers and/or forgiveness as may be necessary or advisable for the
purposes of
(a) adding to the covenants of the other parties to such agreement
for the protection of LuxCo or the holders of the LuxCo
Exchangeable Preferred Shares thereunder,
(b) making such provisions or modifications not inconsistent with
such agreement as may be necessary or desirable with respect
to matters or questions arising thereunder which, in the good
faith opinion of the board of directors of LuxCo, it may be
expedient to make, provided that the board of directors of
LuxCo shall be of the good faith opinion, after consultation
with counsel, that such provisions and modifications will not
be prejudicial to the interests of the holders of the LuxCo
Exchangeable Preferred Shares; or
(c) making such changes in or corrections to such agreement which,
on the advice of counsel to LuxCo, are required for the
purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or
manifest error contained therein, provided that the board of
directors of LuxCo shall be of the good faith opinion, after
consultation with counsel, that such changes or corrections
will not be prejudicial to the interests of the holders of the
LuxCo Exchangeable Preferred Shares.
16. LEGEND; CALL RIGHTS
16.1 The certificates evidencing the LuxCo Exchangeable Preferred Shares
shall contain or have affixed thereto a legend in form and on terms approved by
the board of directors of LuxCo, with respect to the Support Agreement, the
provisions relating to the Liquidation Call Right and the Redemption Call Right,
and the Voting and Exchange Trust Agreement (including the provisions with
respect to the voting rights, exchange right and automatic exchange thereunder).
16.2 Each holder of a LuxCo Exchangeable Preferred Share, whether of record
or beneficial, by virtue of becoming and being such a holder shall be deemed to
acknowledge each of the Liquidation Call Right, the Retraction Call Right and
the Redemption Call Right, in each case, in favor of ParentCo, and the
overriding nature thereof in connection with the liquidation, dissolution or
winding-up of LuxCo or the retraction or redemption of LuxCo Exchangeable
Preferred Shares, as the case may be, and to be bound thereby in favor of
ParentCo as herein provided.
17. NOTICES
17.1 Any notice, request or other communication to be given to LuxCo by a
holder of LuxCo Exchangeable Preferred Shares shall be in writing and shall be
valid and effective if given by mail (postage prepaid) or by telecopy or by
delivery to the registered office of LuxCo and addressed to the attention of the
President of LuxCo. Any such notice, request or other communication, if given by
mail, telecopy or delivery, shall only be deemed to have been given and received
upon actual receipt thereof by LuxCo.
17.2 Any presentation and surrender by a holder of LuxCo Exchangeable
Preferred Shares to LuxCo, or the Transfer Agent of certificates representing
LuxCo Exchangeable Preferred Shares in connection with the liquidation,
dissolution or winding-up of LuxCo or the retraction or redemption of LuxCo
Exchangeable Preferred Shares shall be made by registered mail (postage
prepaid) or by delivery to the registered office of LuxCo or to such office of
the Transfer Agent as may be specified by LuxCo, in each case, addressed to the
attention of the President of LuxCo. Any such presentation and surrender of
certificates shall only be deemed to have been made and to be effective upon
actual receipt thereof by LuxCo or the Transfer Agent, as the case may be. Any
such presentation and surrender of certificates made by registered mail shall
be at the sole risk of the holder mailing the same.
17.3 Any notice, request or other communication to be given to a holder of
LuxCo Exchangeable Preferred Shares by or on behalf of LuxCo shall be in writing
and shall be valid and effective if given by mail (postage prepaid) or by
delivery to the address of the holder recorded in the securities register of
LuxCo or, in the event of the address of any such holder not being so recorded,
then at the last known address of such holder. Any such notice, request or other
communication, if given by mail, shall be deemed to have been given and received
on the third Business Day following the date of mailing and, if given by
delivery, shall be deemed to have been given and received on the date of
delivery. Accidental failure or omission to give any notice, request or other
communication to one or more holders of LuxCo Exchangeable Preferred Shares
shall not invalidate or otherwise alter or affect any action or proceeding to be
taken by LuxCo pursuant thereto.
18. DISCLAIMER OF PARTNERSHIP
18.1 No partnership is created by this Agreement. Nothing contained in this
Agreement shall or shall be deemed to constitute the parties hereto as partners
nor as agent of the other nor any other relationship whereby any party hereto
could be held liable for any act or omission of the other, save as specifically
provided by this Agreement. None of the parties hereto shall have any authority
to act for the other or to incur any obligation on behalf of the other with
respect to the subject matter of this Agreement, save as specifically provided
by this Agreement. Each
party hereto covenants to indemnify the other parties and hold them harmless
from all claims, losses, costs, charges, fees, expenses, damages, obligations
and responsibilities incurred by such parties by reason of any action or
omission of The other party outside the scope of the authority specifically
provided by this Agreement.
19. SECTIONS AND HEADINGS
19.1 The division of this Agreement into sections and the insertion of
headings are for convenience of reference only and shall not affect the
interpretation of this Agreement. Unless otherwise indicated, any reference in
this Agreement to an Article, a section or a Schedule refers to the specified
Article or section of or Schedule to this Agreement.
20. NUMBER, GENDER AND PERSONS
20.1 In this Agreement, words importing the singular number only shall
include the plural and vice versa, words importing gender shall include all
genders and words importing persons shall include individuals, corporations,
partnerships, associations, trusts, unincorporated organizations, governmental
bodies and other legal or business entities.
21. SUCCESSORS AND ASSIGNS
21.1 All the terms and provisions of this agreement shall be binding upon
and entire to the benefit of and be enforceable by the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors
and permitted assigns.
22. SURVIVAL
22.1 It is understood and agreed that all warranties, representations,
covenants, indemnities and agreements of the parties herein contained or
contained in any certificates or documents submitted pursuant to or in
connection with the transactions contemplated herein shall survive the
completion of the transactions contemplated herein and the termination of this
Agreement.
23. FURTHER ASSURANCES
23.1 The parties hereto shall sign such further and other documents, cause
such meetings to be held, resolutions passed and bylaws enacted, exercise their
vote and influence, do and perform and cause to be done and performed such
further and other acts and things as may be necessary or desirable in order to
give full effect to this Agreement and every part thereof.
24. AMENDMENTS
24.1 This Agreement may be amended or modified by an agreement in writing
executed by the parties hereto. Except as aforesaid, no amendment, waiver or
modification of this Agreement shall be effective.
25. SEVERABILITY
25.1 Should a provision of this Agreement be or become invalid, the validity
of the remaining provisions of this Agreement shall not be affected. The parties
hereto undertake to replace any such invalid provision without delay with a
valid provision which as nearly as possible duplicates the economic intent of
the invalid provision.
26. INDEPENDENT LEGAL ADVICE
26.1 Each of the parties hereby represents and warrants to the other parties
and acknowledges and agrees that it had the opportunity to seek, was not
prevented nor discouraged by another party from seeking and did obtain
independent legal advice prior to the execution and delivery of this Agreement.
27. ENGLISH VERSION
27.1 The parties hereby represent, warrant, acknowledge and agree that: (i) they
have agreed that this Agreement be drawn up in the English language; and (ii)
the English version of this Agreement shall govern for all purposes.
28. GOVERNING LAW
28.1 This Agreement shall be construed and enforced in accordance with, and
the rights and obligations of the parties shall be governed by, the laws of the
State of Delaware in the United States.
29. JURISDICTION
29.1 Each of the parties irrevocably attorns to the exclusive jurisdiction
of the courts in the State of Delaware in the United States.
30. COUNTERPARTS
30.1 This Agreement may be executed in any number of counterparts, each of
which when delivered, either in original or facsimile form, shall be deemed to
be an original and all of which together shall constitute one and the same
document.
IN WITNESS WHEREOF the parties have executed this Agreement as follows:
ICHOR CORPORATION
Per: /s/ M. Xxxx Xxxxxxxx
-----------------------------------------------------
Authorized Signatory
0000 XXXXXXXXXX S.A.
Per: /s/ (Illegible)
-----------------------------------------------------
Authorized Signatory
THE FOLLOWING LUXCO SHAREHOLDERS:
SIGNED, SEALED and DELIVERED by PIERRE- )
XXXXXXXX XXXXXX in the presence of: )
)
/s/ Xxxxxxxx Xxxxxxxx ) /s/ Pierre-Xxxxxxxx Xxxxxx
----------------------------------------------------- ) -----------------------------------------------
Signature ) PIERRE-XXXXXXXX XXXXXX
XXXXXXX XXXXXXXX ) 69230 Saint Genis Laval France
----------------------------------------------------- ) -----------------------------------------------
Name ) Address
0000 Xxxxx Xxx, 00000 Xxxxxxx ) 10,436
----------------------------------------------------- ) -----------------------------------------------
Address ) Number of LuxCo Exchangeable Preferred Shares
Secretary ) Held
----------------------------------------------------- )
Occupation )
SIGNED, SEALED and DELIVERED by )
XXXXXXXX XXXXXXX )
in the presence of: )
)
/s/ Pierre-Xxxxxxxx Xxxxxx ) /s/ Xxxxxxxx Xxxxxxx
----------------------------------------------------- ) -----------------------------------------------
Signature ) XXXXXXXX XXXXXXX
PIERRE-XXXXXXXX XXXXXX ) 00 Xxx Xxxxx Xxxxxxxx
----------------------------------------------------- ) -----------------------------------------------
Name ) Address
00000 Xxxxx Xxxxx Xxxxx, Xxxxxx ) 2,004
----------------------------------------------------- ) -----------------------------------------------
Address ) Number of LuxCo Exchangeable Preferred Shares
Manager ) Held
----------------------------------------------------- )
Occupation
SIGNED, SEALED and DELIVERED by XXXXXXX )
PACTOL )
in the presence of: )
)
/s/ Pierre-Xxxxxxxx Xxxxxx ) /s/ Xxxxxxx Xxxxxx
----------------------------------------------------- ) -----------------------------------------------
Signature ) XXXXXXX XXXXXX
PIERRE-XXXXXXXX XXXXXX ) 000 Xxxxx xx xxxxxxx, Xxxxxxx Xxxxxx
----------------------------------------------------- ) -----------------------------------------------
Name ) Xxxxxx
00000 Xxxxx Xxxxx Xxxxx, Xxxxxx ) 2,004
----------------------------------------------------- ) -----------------------------------------------
Address ) Number of LuxCo Exchangeable Preferred Shares
Manager ) Held
----------------------------------------------------- )
Occupation
SIGNED, SEALED and DELIVERED by XXXXX )
XXXXXXX )
in the presence of: )
)
/s/ Xxxx Xxxxx Xxxxx ) /s/ Xxxxx Xxxxxxx
----------------------------------------------------- ) -----------------------------------------------
Signature ) XXXXX XXXXXXX
XXXX XXXXX XXXXX ) Chateau de la Creuzette, Saove France
----------------------------------------------------- ) -----------------------------------------------
Name ) Address
00 Xxxxxx xx xx Xxxxxxxx ) 408
----------------------------------------------------- ) -----------------------------------------------
Address ) Number of LuxCo Exchangeable Preferred Shares
Secretary ) Held
----------------------------------------------------- )
Occupation
SIGNED, SEALED and DELIVERED by XXXX XXXXX )
in the presence of: )
)
/s/ Xxxxxxxx Xxxxx ) /s/ Xxxx Xxxxx
----------------------------------------------------- ) -----------------------------------------------
Signature ) XXXX XXXXX
XXXXXXXX XXXXX ) 00 Xxx xx Xxxxxxxxx, Xxxxxx Xxxxxx
----------------------------------------------------- ) -----------------------------------------------
Name ) Address
00 Xxx xx Xxxxxxxxx, Xxxxxx Xxxxxx ) 400
----------------------------------------------------- ) -----------------------------------------------
Address ) Number of LuxCo Exchangeable Preferred Shares
(N/A) ) Held
----------------------------------------------------- )
Occupation )
SIGNED, SEALED and DELIVERED by XXXXXXXXXX XXXXX )
in the presence of: )
)
/s/ Phillippe Jaussely ) /s/ Xxxxxxxxxx Xxxxx
----------------------------------------------------- ) -----------------------------------------------
Signature ) XXXXXXXXXX XXXXX
PHILLIPPE JAUSSELY ) 2 Rue de Boro Voisom, Plowewheim
----------------------------------------------------- ) -----------------------------------------------
Name ) Address
00 Xxx xx Xxxxxxx, Xxxxxxxxxx ) 120
----------------------------------------------------- ) -----------------------------------------------
Address ) Number of LuxCo Exchangeable Preferred Shares
Hotel Manager ) Held
----------------------------------------------------- )
Occupation )
SCHEDULE "A"
[TO BE PRINTED ON LUXCO EXCHANGEABLE PREFERRED SHARE CERTIFICATES]
To 0000 Xxxxxxxxxx S.A. ("LUXCO") and ICHOR Corporation ("PARENTCO")
This notice is given pursuant to Article 7 of the shareholder agreement (the
"SHAREHOLDER AGREEMENT") dated March 28, 2001 among ParentCo, LuxCo and certain
holders of exchangeable preferred shares of LuxCo and all capitalized words and
expressions used in this notice that are defined in the Shareholder Agreement
have the meanings ascribed to such words and expressions in the Shareholder
Agreement.
The undersigned hereby notifies LuxCo that, subject to the Retraction Call Right
referred to below, the undersigned desires to have LuxCo redeem in accordance
with Article 7 of the Shareholder Agreement:
[ ] all share(s) represented by this certificate; or
[ ] _____ share(s) only.
The undersigned hereby notifies LuxCo that the Retraction Date shall be ______.
NOTE: The Retraction Date must be a Business Day and must not be less
than ten Business Days nor more than 15 Business Days after the
date upon which this notice is received by LuxCo. If no such
Business Day is specified above, the Retraction Date shall be
deemed to be the 15th Business Day after the date on which this
notice is received by LuxCo.
The undersigned acknowledges the overriding Retraction Call Right of ParentCo to
purchase a but not less than all the Retracted Shares from the undersigned and
that this notice is and shall be deemed to be a revocable offer by the
undersigned to sell the Retractable Shares to ParentCo in accordance with the
Retraction Call Right on the Retraction Date for the Purchase Price and on the
other terms and conditions set out in section 7.3 of the Shareholder Agreement.
This Retraction Request, and this offer to sell the Retracted Shares to
ParentCo, may be revoked and withdrawn by the undersigned only by notice in
writing given to LuxCo at any time before the close of business on the Business
Day immediately preceding the Retraction Date.
The undersigned acknowledges that if, as a result of solvency provisions of
applicable law, LuxCo is unable to redeem all Retracted Shares, the undersigned
will be deemed to have exercised the Exchange Right (as defined in the Voting
and Exchange Trust Agreement) so as to require ParentCo to purchase the
unredeemed Retracted Shares.
The undersigned hereby represents and warrants to LuxCo that the undersigned:
[ ] is
(select one)
[ ] is not
a non-resident of Luxembourg for purposes of the Luxembourg tax laws. THE
UNDERSIGNED ACKNOWLEDGES THAT IN THE ABSENCE OF AN INDICATION THAT THE
UNDERSIGNED IS NOT A NON-RESIDENT OF LUXEMBOURG, WITHHOLDING ON ACCOUNT OF
LUXEMBOURG TAX MAY BE MADE FROM AMOUNTS PAYABLE TO THE UNDERSIGNED ON THE
REDEMPTION OR PURCHASE OF THE RETRACTED SHARES.
The undersigned hereby represents and warrants to LuxCo and ParentCo that the
undersigned has good title to, and owns, the share(s) represented by this
certificate to be acquired by LuxCo or ParentCo free and clear of all liens,
claims and encumbrances.
----------- ----------------------------------- --------------------------
(Date) (Signature of LuxCo Shareholder) (Guarantee of Signature)
[ ] Please check box if the securities and any cheque(s) resulting
from the retraction or phase of the Retracted Shares are to be
held for pick-up by the shareholder from the Transfer Agent,
failing which the securities and any cheque(s) will be mailed to
the last address of the shareholder as it appears on the register.
NOTE: This panel must be completed and this certificate, together with
such additional documents as the Transfer Agent may require, must
be deposited with the Transfer Agent. The securities and any
cheque(s) resulting from the retraction or purchase of the
Retracted Shares will be issued and registered in, and made
payable to, respectively, the name of the shareholder as it
appears on the register of LuxCo and the securities and any
cheque(s) resulting from such retraction or purchase will be
delivered to such shareholder as indicated above, unless the form
appearing immediately below is duly completed.
______________________________
(Date)
Name of Person in Whose Name Securities or Cheque(s) are to be
Registered, Issued or Delivered (please print):
_______________________________
Address:
______________________________________________________________________
______________________________________________________________________________
Signature of LuxCo Shareholder:
_______________________________________________
Signature Guaranteed by:
______________________________________________________
NOTE: If this Retraction Request is for less than all of the shares
represented by this certificate, a certificate representing the
remaining share(s) of LuxCo represented by this certificate will
be issued and registered in the name of the shareholder as it
appears on the register of LuxCo, unless the share transfer power
on the share certificate is duly completed in respect of such
share(s).
